20300 Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

20 CFR Part 655 

RIN 1205–AB70 

Temporary Agricultural Employment of 

H–2A Foreign Workers in the Herding 

or Production of Livestock on the 

Open Range in the United States 

AGENCY: Employment and Training 

Administration, Labor. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: The Department of Labor 

(Department) is proposing to amend its 

regulations governing certification of the 

employment of nonimmigrant workers 

in temporary or seasonal agricultural 

employment under the H–2A program 

to codify certain procedures for 

employers seeking to hire foreign 

temporary agricultural workers for job 

opportunities in sheepherding, goat 

herding and production of livestock on 

the open range. Such procedures must 

be consistent with the Secretary’s 

statutory responsibility to ensure that 

there are no able, willing, qualified and 

available U.S. workers to perform these 

jobs, and that the employment of foreign 

workers will not adversely affect the 

wages and working conditions of 

workers in the United States similarly 

employed. Before the current 

rulemaking, variances from the general 

H–2A regulatory requirements were 

established and revised for these 

occupations through sub-regulatory 

guidance, i.e. ‘‘special procedures,’’ that 

were issued in the form of separate 

Field Memoranda or Training and 

Employment Guidance Letters. The U.S. 

Court of Appeals for the District of 

Columbia Circuit recently ruled that the 

existing special procedures for 

sheepherding, goat herding and open 

range production of livestock are not 

interpretive rules but rather include 

substantive departures from established 

regulatory requirements necessitating 

notice and comment rulemaking under 

the Administrative Procedure Act. This 

proposed rule provides the public with 

the notice and opportunity to comment 

on proposed procedures to be followed 

in the filing and processing of 

applications involving herding and 

production of livestock on the open 

range. Among the issues addressed are 

the qualifying criteria for employing 

foreign workers in the applicable job 

opportunities, preparing job orders, 

program obligations of employers, filing 

of H–2A applications requesting 

temporary labor certification, recruiting 

U.S. workers, determining the minimum 

offered wage rate, and the minimum 

standards for mobile housing on the 

open range. The Department’s goal is to 

establish a single set of regulations 

enabling employers seeking to hire 

foreign temporary agricultural workers 

for both herding and production of 

livestock on the open range to comply 

with their obligations under the H–2A 

program given the unique 

characteristics of these job opportunities 

in their industry. 

DATES: Interested persons are invited to 

submit written comments on the 

proposed rule on or before May 15, 

2015. 

ADDRESSES: You may submit comments, 

identified by Regulatory Information 

Number (RIN) 1205–AB70, by any one 

of the following methods: 

• Federal e-Rulemaking Portal 

www.regulations.gov. Follow the Web 

site instructions for submitting 

comments. 

• Mail or Hand Delivery/Courier: 

Please submit all written comments 

(including disk and CD–ROM 

submissions) to Adele Gagliardi, 

Administrator, Office of Policy 

Development and Research, 

Employment and Training 

Administration, U.S. Department of 

Labor, 200 Constitution Avenue NW., 

Room N–5641, Washington, DC 20210. 

Please submit your comments by only 

one method and within the designated 

comment period. Comments received by 

means other than those listed above or 

received after the comment period has 

closed will not be reviewed. The 

Department will post all comments 

received on http://www.regulations.gov 

without making any change to the 

comments, including any personal 

information provided. The http://

www.regulations.gov Web site is the 

Federal e-rulemaking portal and all 

comments posted there are available 

and accessible to the public. The 

Department cautions commenters 

against including personal information 

such as Social Security Numbers, 

personal addresses, telephone numbers, 

and email addresses in their comments 

as such information will become 

viewable by the public on the http://

www.regulations.gov Web site. It is the 

commenter’s responsibility to safeguard 

his or her information. Comments 

submitted through http://

www.regulations.gov will not include 

the commenter’s email address unless 

the commenter chooses to include that 

information as part of his or her 

comment. 

Postal delivery in Washington, DC, 

may be delayed due to security 

concerns. Therefore, the Department 

encourages the public to submit 

comments through the http://

www.regulations.gov Web site. 

Docket: For access to the docket to 

read background documents or 

comments received, go to the Federal 

eRulemaking portal at http://

www.regulations.gov. The Department 

will also make all the comments it 

receives available for public inspection 

during normal business hours at the 

Employment and Training 

Administration’s (ETA) Office of Policy 

Development and Research at the above 

address. If you need assistance to review 

the comments, the Department will 

provide you with appropriate aids such 

as readers or print magnifiers. The 

Department will make copies of the rule 

available, upon request, in large print 

and as an electronic file on computer 

disk. The Department will consider 

providing the proposed rule in other 

formats upon request. To schedule an 

appointment to review the comments 

and/or obtain the rule in an alternate 

format, contact the ETA Office of Policy 

Development and Research at (202) 

693–3700 (VOICE) (this is not a toll-free 

number) or 1–877–889–5627 (TTY/

TDD). 

FOR FURTHER INFORMATION CONTACT: For 

further information, contact William W. 

Thompson, II, Acting Administrator, 

Office of Foreign Labor Certification, 

ETA, U.S. Department of Labor, 200 

Constitution Avenue NW., Room C– 

4312, Washington, DC 20210; 

Telephone (202) 693–3010 (this is not a 

toll-free number). Individuals with 

hearing or speech impairments may 

access the telephone number above via 

TTY by calling the toll-free Federal 

Information Relay Service at 1–800– 

877–8339. 

SUPPLEMENTARY INFORMATION: 

I. Background 

A. The Statutory and Regulatory 

Framework 

The Immigration and Nationality Act 

(INA or the Act) establishes the H–2A 

visa classification for employers to 

employ foreign workers on a temporary 

basis to perform agricultural labor or 

services. INA Section 

101(a)(15)(H)(ii)(a), 8 U.S.C. 

1101(a)(15)(H)(ii)(a); see also INA Secs. 

214(c)(1) and 218, 8 U.S.C. 1184(c)(1) 

and 1188. The INA authorizes the 

Secretary of the Department of 

Homeland Security (DHS) to permit the 

admission of foreign workers to perform 

agricultural labor or services of a 

temporary or seasonal nature if the 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 20301 

1The Immigration and Nationality Act of 1952 

created the H–2 temporary worker program. Pub. L. 

82–414, 66 Stat. 163. In 1986, IRCA divided the H– 

2 program into separate agricultural and nonagricultural temporary worker programs. See Pub. 

L. 99–603, sec. 301, 100 Stat. 3359 (1986). The H– 

2A agricultural worker program designation 

corresponds to the statute’s agricultural worker 

classification in 8 U.S.C. 1101(a)(15)(H)(ii)(a). 

Secretary of the Department of Labor 

(Secretary) certifies that: 

(A) There are not sufficient workers 

who are able, willing, and qualified, and 

who will be available at the time and 

place needed to perform the labor or 

services involved in the petition; and 

(B) The employment of the foreign 

worker(s) in such labor or services will 

not adversely affect the wages and 

working conditions of workers in the 

United States similarly employed. 8 

U.S.C. 1188(a)(1). 

The Secretary has delegated these 

responsibilities, through the Assistant 

Secretary, Employment and Training 

Administration (ETA), to ETA’s Office 

of Foreign Labor Certification (OFLC). 

Sec. Order 06–2010, 75 FR 66268 (Oct. 

27, 2010). The Secretary has delegated 

responsibility for enforcement of the 

worker protections to the Administrator 

of the Wage and Hour Division (WHD). 

Sec. Order 5–2010, 75 FR 55352 (Sept. 

10, 2010). 

The Department has operated the H– 

2A program for more than two decades 

under regulations promulgated under 

the authority of the Immigration Reform 

and Control Act of 1986 (IRCA), which 

amended the INA and established the 

H–2A program.1 In 1987, the 

Department issued the first H–2A 

regulations (the 1987 regulations). 52 FR 

20496 (Jun. 1, 1987). The Department’s 

1987 regulations provided for the 

establishment of special procedures for 

certain occupations, as long as they did 

not deviate from the Secretary’s 

statutory responsibility to determine 

U.S. worker availability and to ensure 

that the importation of foreign workers 

will not adversely affect the wages and 

working conditions of workers in the 

United States similarly employed. 8 

U.S.C. 1188(a)(1)(B); 20 CFR 655.93(b) 

1987. The Department has issued 

several special procedures guidance 

documents under the 1987 regulations. 

The 1987 regulations remained in 

effect, largely unchanged, until the 

Department promulgated new H–2A 

regulations on December 18, 2008. 73 

FR 77110 (Dec. 18, 2008) (the 2008 Final 

Rule). The 2008 Final Rule 

implemented several substantive 

changes to the program, and revised the 

companion regulations at 29 CFR part 

501 governing WHD’s enforcement 

responsibilities under the H–2A 

program. The 2008 Final Rule retained 

the authority of the OFLC Administrator 

to develop, amend, or rescind special 

procedures, enumerating those in effect 

at that time, including H–2A 

applications for sheepherders in the 

Western States as well as the adaptation 

of such procedures to the open range 

production of livestock. 20 CFR 

655.102. 

After the Department determined that 

the policy underpinnings of the 2008 

Final Rule did not provide an adequate 

level of protection for either U.S. or 

foreign workers, the Department 

commenced a new rulemaking process 

that culminated in the publication of 

revised H–2A regulations on February 

12, 2010. 75 FR 6884 (Feb. 12, 2010) 

(the 2010 Final Rule). The 2010 Final 

Rule better met the Department’s 

responsibility to provide that wages and 

working conditions of U.S. workers are 

not adversely affected, by adjusting 

wages and working conditions 

requirements and establishing 

incentives for ensuring employers 

demonstrate that they have performed 

an adequate test of the U.S. labor 

market. The 2010 Final Rule retained 

the authority of the OFLC Administrator 

to develop, amend, or rescind special 

procedures, recognizing that variances 

from the regular H–2A labor 

certification processes are appropriate to 

permit access to the program for specific 

industries or occupations. 

B. Legislative and Sub-Regulatory 

Framework for Special Procedures for 

Herding and Production of Livestock on 

the Open Range 

Historically, employers in a number 

of States (primarily but not exclusively 

in the West) have used what is now the 

H–2A program to bring in foreign 

workers to work as sheep and goat 

herders. Sheep and goat herders attend 

to herds of sheep or goats, and oversee 

the herd as it moves from one area to 

another. Herders facilitate grazing, and 

they settle the herd to rest for the night, 

guard it from predatory animals and 

other dangers (e.g., poisonous plants 

and dangerous terrain), examine 

animals for illness, and administer 

medication, vaccinations, and 

insecticide care, as needed. This 

herding takes place on the open range 

which requires the herders to live on the 

open range with the herd, monitoring 

and attending to the herd’s needs on an 

on-call basis up to 24 hours per day, 7 

days per week, as the herd moves across 

remote range lands and isolated and 

often mountainous terrain. These 

herders may also assist in lambing, 

docking, and shearing. The employer 

may require the herd to be brought to 

the main ranch or farm location for 

short periods, for the care or sorting of 

the animals. A herder’s time at the 

ranch is limited, however, as the 

purpose of the work is to attend to the 

herd as it grazes on the open range. The 

unique occupational characteristics of 

sheep and goat herding (spending 

extended periods of time herding 

animals across remote open range lands; 

being on call to protect and maintain 

herds up to 24 hours a day, 7 days a 

week) have long been recognized by the 

Department as significant factors that 

limit the number of U.S. workers 

interested in performing these jobs. 

Congress has recognized the lack of 

U.S. workers available to perform these 

jobs and has sought to address 

employers’ need for labor. During the 

early 1950’s, Congress enacted statutes 

authorizing the permanent admission of 

a certain number of ‘‘foreign workers 

skilled in sheepherding’’ to fill the 

demand for workers in sheepherding 

jobs. Pub. L. 81–587, 64 Stat. 306 (Jun. 

30, 1950); Pub. L. 82–307, 66 Stat. 50 

(Apr. 9, 1952); and Pub. L. 83–770, 68 

Stat. 1145 (1954). These statutes enabled 

skilled foreign sheepherders to gain 

entry into the country on an expedited 

basis, provided that they were otherwise 

admissible into the United States for 

permanent residence. 

During 1955 and 1956, the House 

Judiciary Committee (Committee), in 

response to requests from sheep 

ranchers, investigated allegations that a 

number of foreign sheep and goat 

herders admitted under those statutes 

were leaving herding shortly after 

arriving in the United States, and were 

instead becoming employed in other 

industries and occupations. In a report 

issued on February 14, 1957, the 

Committee found that American 

employers and the sheep-raising 

industry had not fully benefitted from 

the services of foreign sheepherders, as 

was intended by the legislation. H.R. 

Rep. No. 67, 85th Cong., 1st Session 

(1957). The Committee recommended 

that no additional legislation be enacted 

to admit foreign sheepherders and also 

that the process for bringing future 

foreign sheepherders be governed by the 

H–2 temporary worker provisions of the 

INA administered by the Immigration 

and Naturalization Service (INS) (now, 

U.S. Citizenship and Immigration 

Services (USCIS)) and the Department. 

Id. at 4–5. 

Following the recommendation in the 

Committee’s report, Congress permitted 

the previously-enacted legislation to 

expire. No additional legislation for 

foreign sheepherders has been enacted 

since then. The labor certification 

program for temporary foreign sheep 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

20302 Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 

2 In 2004, sheepherders were added to the 

Department’s permanent residence program as a 

specific occupation eligible for exemption from the 

permanent labor certification process, now referred 

to as PERM, upon meeting certain employment 

criteria. 20 CFR 656.16. 

3The Department’s policy directives and 

advisories for the H–2A program, including TEGLs 

related to herding and livestock production on the 

open range, are available at on the OFLC Web site 

at http://www.foreignlaborcert.doleta.gov/reg.cfm. 

4The AEWR neutralizes any adverse effect on 

U.S. workers resulting from the influx of temporary 

foreign workers, and is the minimum wage rate that 

agricultural employers seeking nonimmigrant alien 

workers must offer to and pay their U.S. and foreign 

workers, if prevailing wages are below the AEWR. 

Employment and Training Administration, Labor 

Certification Process for the Temporary 

Employment of Aliens in Agriculture and Logging 

in the United States, 52 FR 20496, 20502 (June 1, 

1987). The AEWR is intended to ensure that the 

wages of similarly employed U.S. workers will not 

be adversely affected by the importation of foreign 

workers. Id. As noted above, the Department has set 

the prevailing wage as the AEWR for these 

occupations. 

and goat herders was instead 

implemented through the H–2 program 

and then the successor H–2A program 

after the passage of IRCA.2

Beginning in 1989, consistent with 

Congress’s historical approach and in 

recognition of employers’ need for 

appropriate access to foreign workers to 

perform these jobs, the Department 

established variances from certain H–2A 

regulatory requirements and procedures 

to allow employers of open range 

herders to use the H–2 program. Thus, 

Field Memorandum (FM) 74–89, Special 

Procedures: Labor Certification for 

Sheepherders Under the H–2A Program 

(1989) established special procedures 

for sheep and goat herders. Due to the 

evolution of the H–2A program, these 

special procedures were rescinded and 

new special procedures were 

established by FM 24–01, Special 

Procedures: Labor Certification for 

Sheepherders Under the H–2A Program, 

which were in use from August 1, 2001 

until June 14, 2011. In 2011, new 

special procedures containing 

references to and incorporating the 

principles of the 2010 Final Rule were 

implemented in Training and 

Employment Guidance Letter (TEGL) 

No. 32–10, Special Procedures: Labor 

Certification Process for Employers 

Engaged in Sheepherding and 

Goatherding Occupations under the H– 

2A Program.3

While the sheepherding program 

history provided a basis for establishing 

special procedures for the temporary 

employment of foreign workers in sheep 

and goat herding occupations, the 

Department recognized that the 

production of other types of livestock on 

the open range (e.g., cattle) involved 

duties and occupational characteristics 

similar to sheep and goat herders. Like 

sheep and goat herders, herders of other 

types of livestock grazing on the open 

range also spend extended periods of 

time herding animals across remote 

open range lands living in mobile 

housing, and are on call up to 24 hours 

a day, 7 days a week to care for and 

protect the herd. Accordingly, in 2007, 

the Department established similar 

special procedures for the processing of 

H–2A applications for certification of 

temporary employment in those 

occupations. Rather than amending the 

TEGL specific to sheep and goat herding 

occupations to encompass open range 

herding of other types of livestock, the 

Department adapted and extended 

similar variances through TEGL No. 15– 

06, which guided the regulated 

community until the TEGL was 

rescinded and replaced on June 14, 

2011, with TEGL No. 15–06, Change 1, 

Special Procedures: Labor Certification 

Process for Occupations Involved in the 

Open Range Production of Livestock 

under the H–2A Program. These new 

special procedures for livestock that 

were issued on June 14, 2011 were 

based on the 2010 Final Rule, which 

provided the OFLC Administrator (as 

the previous regulations had) with the 

authority to establish, continue, revise 

or revoke special procedures for 

processing H–2A applications so long as 

those procedures do not deviate from 

statutory requirements under the INA. 

20 CFR 655.102. 

C. The Mendoza Litigation and Need for 

Rulemaking 

On October 7, 2011, four workers filed 

a lawsuit in the U.S. District Court for 

the District of Columbia challenging 

these special procedures. Mendoza v. 

Solis, 924 F. Supp. 2d 307 (D.D.C. 2013). 

The plaintiffs, who are U.S. workers 

interested in herding employment, 

asserted that the Department violated 

the Administrative Procedure Act (APA) 

by adopting the special procedures 

without first providing notice and an 

opportunity for interested parties to 

comment. The district court dismissed 

the case, holding the plaintiffs lacked 

standing to bring a lawsuit on this issue. 

On appeal, the U.S. Court of Appeals 

for the District of Columbia Circuit 

reversed the district court’s dismissal 

for lack of standing, finding that the 

plaintiffs had both Article III and 

prudential standing. Mendoza et al. v. 

Perez, 754 F.3d 1002 (D.C. Cir. 2014). 

The court concluded that ‘‘[a]s 

participants in the labor market for 

herders, the plaintiffs were injured by 

the Department of Labor’s promulgation 

of the TEGLs and fall within the zone 

of interests protected by the INA.’’ Id. at 

1025. In the interest of judicial 

efficiency, the D.C. Circuit also ruled on 

the merits of the plaintiffs’ claim, 

agreeing with the plaintiffs that the 

Department’s TEGLs constituted 

legislative rules subject to notice and 

comment under the APA. The appellate 

court remanded the case to the district 

court, which has set a rulemaking 

schedule. 

Through this rulemaking, the 

Department seeks to remedy the APA 

violations identified by the D.C. Circuit. 

The Mendoza decision, however, is but 

one reason for the promulgation of this 

NPRM. In these occupations the 

prevailing wage has served as the 

Adverse Effect Wage Rate (AEWR).4 The 

on-call nature (up to 24 hours a day, 7 

days a week) of the work associated 

with these occupations, coupled with 

the sustained scarcity of U.S. workers 

employed in open range herding and 

livestock production, has made 

determining the appropriate prevailing 

wage increasingly difficult under the 

current methodology for determining 

wages for these occupations. Few 

employers provide U.S. worker wage 

information in response to prevailing 

wage survey requests for these 

occupations, making it difficult for State 

Workforce Agencies (SWAs) to submit 

statistically valid prevailing wage 

findings to the OFLC Administrator. 

Therefore, through this rulemaking, the 

Department plans to establish a more 

effective and workable methodology for 

determining and adjusting a monthly 

AEWR for these unique occupations that 

adequately protects U.S. and H–2A 

workers in these occupations. 

II. Discussion of 20 CFR Part 655, 

Subpart C 

A. Introductory Sections 

1. § 655.200 Scope and Purpose of 

Subpart C 

These introductory provisions 

propose to establish that, because of the 

unique nature of the occupations, 

employers who seek to hire temporary 

agricultural foreign workers to perform 

herding or production of livestock on 

the open range, as described in 

proposed § 655.200(b), are subject to 

certain standards that are different from 

the regular H–2A procedures in Subpart 

B of this part. To date, the Department 

has processed these applications using 

two different Departmental guidance 

letters containing substantially similar 

variances, one specific to sheep and goat 

herding on the open range and the other 

specific to open range production of 

other types of livestock. TEGL No. 32– 

10 (Jun. 14, 2011); TEGL No. 15–06, 

Change 1 (Jun. 14, 2011). In this 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 20303 

5Compliance with 20 CFR 655.122(l) of Subpart 

B requires an employer to ‘‘pay the worker at least 

the AEWR, the prevailing hourly wage rate, the 

prevailing piece rate, the agreed-upon collective 

bargaining rate, or the Federal or State minimum 

wage rate, in effect at the time work is performed, 

whichever is highest, for every hour or portion [of 

an hour] worked during a pay period.’’ 

rulemaking, the Department proposes to 

create a single set of procedures for 

employers engaged in the herding or 

production of livestock on the open 

range. Establishing a single set of 

procedures for these occupations will 

create administrative efficiencies for the 

Department, promote greater 

consistency in the review of H–2A 

applications, provide foreign workers 

and workers similarly employed in the 

United States with the same benefits 

and guarantees, and provide greater 

clarity for employers with respect to 

program requirements. 

In order to use Subpart C, an 

employer’s job opportunity must 

possess all of the characteristics 

described in this subpart. The employer 

must be seeking workers in the herding 

or production of livestock on the open 

range, on an on-call basis, up to 24 

hours per day and 7 days a week, and 

in locations requiring the use of mobile 

housing for at least 50 percent of the 

workdays included in the work contract 

period. 

The Department recognizes that the 

employer may, at times, require the 

workers to bring the herd to the fixedsite ranch or farm and stay at or near the 

ranch or farm for periods to assist with 

work involving the herd that constitutes 

the production of livestock (e.g., 

lambing or calving, shearing, tending to 

a sick animal, branding, culling, or 

splitting livestock from the herd for sale 

or transfer). During such periods at the 

ranch the workers may also perform 

minor, sporadic, and incidental work 

closely and directly related to the 

herding and production of livestock. 

However, any such ranch duties must be 

included in the job order. Such minor, 

sporadic, and incidental work may 

occur on no more than 20 percent of the 

workdays that the worker is at the ranch 

during the contract period. The job 

order must not include any work other 

than work that is herding or production 

of livestock or work that is closely and 

directly related to the herding or 

production of livestock. 

The Department seeks comments 

about whether sheep and goat herding 

involve distinct temporary positions at 

different times of the year that require 

more than one certification to reflect 

distinct temporary and/or seasonal 

needs under the INA. Under this 

proposal, open range livestock 

occupations would continue to be 

limited to periods of need of not more 

than 10 month as under the current 

special procedures. Should a similar 10 

month limitation apply to sheep and 

goat herders, to reflect more 

appropriately their temporary or 

seasonal need as required by the INA? 

Specifically, the Department seeks 

comment on the following: 

• Based on information obtained 

during enforcement investigations, the 

Department understands that in some 

circumstances separate winter open 

range seasons and summer open range 

seasons exist. Between these seasons, 

workers may spend months at a time at 

the ranch; however, the amount of this 

time may vary substantially based on 

numerous factors, including geography 

and/or size of employer. Therefore, 

while recognizing that employer 

operations differ, the Department seeks 

comments, as reflected in the questions 

below, regarding a typical cycle of 

differing functions/locations for sheep 

and goat herders across the country, and 

the length of time and defined time 

periods within which these employees 

are on the open range as opposed to 

working at the ranch. 

• The Department seeks information 

about the time periods and location of 

each duty typically performed by these 

workers. 

• Do sheep and goat herders typically 

spend certain time periods on the range 

and other time periods on the ranch? 

• If so, which periods are spent on 

the range? Which periods are spent at 

the ranch? 

• What duties are typically performed 

while on the range? What duties are 

typically performed while on the ranch? 

• If there are distinct seasonal needs 

for ranch and range work, would there 

be a need for an allowance for minor, 

sporadic and incidental work for open 

range occupations? 

Where the job opportunity does not 

fall within the scope of this Subpart, the 

employer must comply with all of the 

regular H–2A procedures in Subpart B. 

If an employer submits an application 

containing information and attestations 

indicating that its job opportunity is 

eligible for processing under the 

procedures in Subpart C but later, as a 

result of an investigation or other 

compliance review, it is determined that 

the worker did not spend at least 50 

percent of the workdays on the open 

range, that work performed on the ranch 

was not included within the scope of 

the job order (e.g., unrelated ranch 

chores such as tilling soil for hay or 

constructing an irrigation well), or the 

worker performed work that is closely 

and directly related to herding or 

production of livestock during more 

than 20 percent of the workdays at the 

ranch, the employer will be in violation 

of its obligations under this part and, 

depending upon the precise nature of 

the violation, may owe back wages or 

have to provide other relief. Depending 

upon all the facts and circumstances, 

including but not limited to factors such 

as the percentage of days the worker 

spent at the ranch, whether the work 

was closely and directly related to 

herding and the production of livestock, 

and whether the employer had violated 

these or other H–2A requirements in the 

past, the employer will be responsible 

for compliance with all of the regular 

H–2A procedures and requirements in 

Subpart B of this part, including 

payment of the highest applicable wage 

rate, determined in accordance with 20 

CFR 655.122(l) for all hours worked.5 In 

addition, the Department may seek 

other remedies, such as civil monetary 

penalties and potentially debarment 

from use of the H–2A program, for the 

violations. 

This provision is also intended to 

provide notice to employers seeking 

workers in the open range production of 

livestock and herding occupations that 

they must comply with all the 

obligations contained in Subpart B of 

the rule, unless specifically addressed 

in Subpart C. Such employers must refer 

to all of the obligations in Subpart B 

before utilizing the specific variances 

from those requirements that comprise 

proposed Subpart C. The obligations 

contained in Subpart B, such as 

ensuring the general contents of job 

orders, the three-fourths guarantee, 

obligations to workers in corresponding 

employment, the prohibition of agency 

payments, and the provision of housing 

and transportation, have been fully 

explained elsewhere. See 75 FR 6884 

(Feb. 12, 2010). 

2. § 655.201 Definition of Terms 

The proposed definitions contained in 

this subpart supplement the definitions 

in Subpart B of 20 CFR part 655, 

subparts B and F of 20 CFR part 653, 

and 20 CFR part 654. This subpart adds 

definitions for terms specific to the 

herding or production of livestock 

occupations working on the open range: 

Herding; livestock; minor, sporadic, and 

incidental work; mobile housing; open 

range; and production of livestock. 

These are new definitions, which did 

not previously exist in the TEGLs. They 

are intended to assist employers in 

understanding the type of work that 

qualifies for these special procedures. 

The proposed definitions of herding 

and production of livestock describe 

typical activities associated with 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

20304 Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 

managing livestock on the open range, 

while the proposed definition of 

livestock describes the type of animals, 

when managed on the open range, 

covered by this Subpart. The proposed 

definition of mobile housing focuses on 

the movable nature of the housing used 

on the open range and specifies the 

provision in the regulation that sets 

forth the standards such housing must 

meet. The proposed definition of minor, 

sporadic, and incidental work is 

intended to help employers evaluate 

whether their job opportunity is an open 

range occupation covered under 

Subpart C (e.g., duties performed at the 

fixed-site ranch or farm that do not 

constitute the production of livestock 

must be closely and directly related to 

herding or the production of livestock 

and are limited to no more than 20 

percent of the workdays spent at the 

ranch in the contract period). 

The Department’s proposed definition 

of open range describes an essential 

characteristic of the jobs covered under 

this Subpart. Whether on public or 

private lands, owned or not owned by 

the employer, the animals are roaming 

across range lands or remote 

mountainous locations not easily 

accessible on a daily basis from the 

employer’s fixed-site ranch or farm. 

Moreover, the animals are not enclosed. 

For the purposes of this rule, animals 

are not enclosed where there are no 

fences or other barriers protecting them 

from predators or restricting their 

freedom of movement; rather the worker 

must actively herd the animals and 

direct their movement. Open range may 

include intermittent fencing or barriers 

to prevent or discourage animals from 

entering a particularly dangerous area 

(e.g., a steep cliff). These types of 

barriers prevent access to dangers rather 

than containing the animals, and 

therefore supplement rather than 

replace the herders’ efforts. 

The Department seeks comment on all 

the definitions. In particular, we seek 

comment on whether the definition of 

open range should include a minimum 

acreage of the land on which the 

animals roam. We also seek comment on 

whether, and under what circumstances 

(i.e., state requirements related to the 

‘‘open range’’), the regulation may take 

into account barriers, fences, or other 

enclosures on this same land. The 

Department also seeks comment on 

other factors that should be considered 

in the definition of open range. 

B. Variances From Pre-Filing Procedures 

This section enumerates the pre-filing 

procedures for employers seeking 

workers in open range production of 

livestock and herding occupations. 

These provisions are intended to assist 

employers with understanding their 

basic obligations. 

1. § 655.205 Variances From Job Order 

Requirements 

This provision addresses variances 

from the job order filing requirements in 

20 CFR 655.121(a) through (d). The 

Department is proposing that an eligible 

employer seeking workers in open range 

production of livestock or herding 

occupations must submit its job order, 

Agricultural and Food Processing 

Clearance Order, Form ETA 790, 

directly to the National Processing 

Center (NPC) designated by the OFLC 

Administrator, rather than to the SWA. 

The employer must submit the job order 

to the NPC at the same time it submits 

its Application for Temporary 

Employment Certification, Form ETA 

9142A, as outlined in 20 CFR 655.130. 

An employer submitting its application 

electronically using the iCERT Visa 

Portal System must scan and upload the 

job order as well as all other supporting 

documents. 

This proposal reflects the current 

filing requirement in TEGL 32–10 for an 

association filing a master application as 

a joint employer with its employermembers for sheep or goat herding 

positions. The proposal to make the 

filing process the same for individual 

employers and associations filing as 

joint employers and for open range 

herding and livestock production 

occupations is intended to establish 

consistent handling of all applications 

eligible to use these procedures. 

2. § 655.210 Variances From Contents of 

Job Orders 

This provision contains requirements 

for the content of the job order in 

addition to those in 20 CFR 655.122. 

Proposed § 655.210(a) reminds 

employers that if a requirement of 

Subpart B of this part is not addressed 

in Subpart C (such as workers’ 

compensation, among other 

requirements), then employerapplicants must comply with the 

regulation as stated in Subpart B. 

a. § 655.210(b) Job Qualifications and 

Requirements 

The Department is proposing to retain 

a long-standing practice that the job 

offer in these occupations must include 

a statement that the hours of work are 

‘‘on call for up to 24 hours per day, 7 

days per week,’’ rather than specific 

work hours. Additionally, the employer 

may require in its job offer that 

applicants possess up to 6 months of 

experience in similar occupations 

involving the herding and production of 

livestock and provide verifiable 

references. We are proposing that an 

employer may specify other appropriate 

job qualifications and requirements for 

its job opportunity. These qualifications 

and requirements could include the 

ability to ride a horse, use a gun for 

occupational safety to protect the 

livestock herd from predators, or 

operate certain motorized vehicles (e.g., 

an all-terrain vehicle). The Certifying 

Officer (CO) may require the employer 

to submit documentation to substantiate 

the appropriateness of any job 

qualifications and requirements 

specified in the job order. In all cases, 

the employer must apply all 

qualifications and requirements 

included in the job offer equally to U.S. 

and foreign workers in order to maintain 

compliance with the prohibition against 

preferential treatment of foreign workers 

contained at 20 CFR 655.122(a). 

b. § 655.210(c) Mobile Range Housing 

The Department proposes that the 

employer disclose the use of mobile 

range housing when satisfying its 

obligation under 20 CFR 655.122(d) to 

ensure that it will provide sufficient 

housing to workers unable to reasonably 

return to their residence within the 

same day, at no cost to the worker. 

In §§ 655.230 and 655.235, the 

Department proposes housing standards 

for range housing to account for the 

mobile nature of the housing typically 

used in this industry. The standards are 

discussed in Section E: Mobile Housing. 

c. § 655.210(d) Employer-Provided Items 

All H–2A employers must provide to 

their workers, free of charge, all tools, 

supplies, and equipment required to 

perform the duties assigned. See 20 CFR 

655.122(f). DOL Wage and Hour 

Division investigations have found 

instances in which employers have 

failed to provide the tools/supplies/

equipment necessary for the job, i.e., 

failing to provide boots, raingear, and/ 

or ATV necessary for the work and/or in 

which the employers have charged the 

workers for such tools and brought them 

below the required wage. The proposed 

Subpart C regulations require the 

employer to provide, without charge or 

deposit charge, the tools, supplies, and 

equipment required by law, by the 

employer, or by the nature of the work 

to do the job safely and effectively. The 

Department proposes to add the 

additional requirement that the 

employer must also specify in the job 

order which items he or she will 

provide for the worker. 

Because of the isolated nature of these 

occupations, an effective means of 

communication between worker and 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 20305 

employer—to enable the employer to 

check the worker’s status and the 

worker to communicate an emergency to 

persons capable of responding—is 

required. The proposal specifies that 

such means of communication may 

include, but are not limited to, satellite 

phones, cell phones, wireless devices, 

radio transmitters, or other types of 

electronic communication systems. The 

worker’s location may be so remote that 

electronic communication devices may 

not work at all times. Where the 

employer will not otherwise make 

contact with the worker (e.g., when 

delivering food or checking on the 

worker and herd in-person), the 

employer must establish a regular 

schedule when the worker will be 

located in a place in which the 

electronic communication device will 

work so that the worker’s safety and 

needs can be monitored. The 

Department expects that while the 

definition of ‘‘regularly’’ could vary, a 

worker must be able to communicate 

with his or her employer at intervals 

appropriate to monitoring the health 

and safety of the worker. The 

Department believes such contact is in 

the best interests of both the employer 

and the worker in the event that there 

are problems with the herd, the worker 

suffered a medical emergency, or the 

worker’s safety is threatened. The 

employer’s commitment to make contact 

with the worker at least at these regular 

intervals must also be disclosed in the 

job order. The Department seeks 

comment on the minimum allowable 

interval between contacts initiated by 

the employer, and whether a satellite 

phone or other electronic device would 

be an adequate substitute for a 

requirement related to the frequency of 

employer-employee contact. The 

Department also invites comments on 

how employers may satisfy the interval 

requirement without any new or 

increased costs. 

In addition to the electronic 

communication device, other tools, 

supplies, and equipment are required by 

the nature of the work to perform the job 

safely and effectively. Depending on 

such factors as the terrain, weather, or 

size of the herd; particular tools, 

supplies, and equipment are required. 

For example, some workers need 

binoculars to monitor the herd’s 

location and safety, or a gun to protect 

both the herd and themselves from 

predators. Others need boots, rain gear, 

a horse, or an all-terrain vehicle to 

effectively cover difficult terrain. As 

provided in § 655.235 regarding mobile 

housing standards, in areas in which the 

temperature is generally mild, the 

employer may provide protective 

bedding and clothing as an alternative 

to heating equipment. This bedding and 

clothing, provided as an alternative to 

heating equipment, is required to 

perform the job and must be provided 

to the worker free of charge. The actual 

equipment required to perform the 

duties assigned vary, based upon factors 

such as the location of the herd, the 

number of workers available to tend the 

herd, and the time of year; however, 

whatever equipment is required by law 

or regulation, by the employer, or by the 

nature of the work must be disclosed in 

the job order and provided without 

charge to the worker. The Department 

invites comments on other tools, 

supplies, and equipment required by 

law, by employers, or by the nature of 

the work in order to perform it safely 

and effectively and whether it would be 

helpful to include in the regulation a list 

of items that typically are required by 

law or the nature of the work and 

location. 

d. § 655.210(e) Meals 

All H–2A employers of open range 

workers must provide either three 

sufficient prepared meals a day or 

provide free and convenient cooking 

facilities and enough food and water 

that is potable, or easily rendered 

potable, to enable the worker(s) to 

prepare their own meals. Historically, 

employers of open range sheep and goat 

herders have been prohibited from 

deducting the cost of food and meals 

from wages due, and employers of 

workers in other occupations, including 

open range livestock production, have 

had the option of doing so. As a result, 

under the sheep and goat herding TEGL, 

and pursuant to practice in the industry 

for some employers engaged in open 

range production of livestock, 

employers provide food, free of charge, 

to their workers in the field. This 

proposed rule adopts the practice 

applicable to employers of sheep and 

goat herders, and applies it to both 

employers engaged in open range 

herding and those engaged in open 

range livestock production; therefore, 

under this proposal, employers will not 

be permitted to deduct the cost of food 

from wages, and employers must 

disclose the provision of meals in the 

job order. However, particularly in light 

of the proposed increase in wages, the 

Department seeks comment about 

whether employers should be permitted 

to deduct costs of food and, if so, the 

reasonable amount of that deduction. 

The Department also seeks comment on 

what constitutes a sufficient meal for 

these workers, given the physically 

demanding nature of their work, as well 

as what constitutes adequate food 

provision given the remote location of 

these workers. Also, given the remote 

nature of herding and production of 

livestock occupations on the open 

range, we are proposing a new specific 

obligation to provide workers with an 

adequate supply of potable water when 

working on the open range. See section 

E of this preamble for a fuller discussion 

on the requirements for food and 

potable water. 

e. § 655.210(f) Hours and Earnings 

Statements 

Employees principally engaged in the 

open range herding and livestock 

production are generally exempt from 

Fair Labor Standards Act (FLSA) 

minimum wage and overtime 

obligations under 29 U.S.C. 213(a)(6)(E), 

and therefore the typical FLSA 

recordkeeping requirements, such as 

those pertaining to hours worked each 

day and each workweek, do not apply 

to employers of such employees. See 29 

CFR 516.1, 516.33. However, for the 

purpose of implementing and enforcing 

the requirements of the INA, some type 

of recordkeeping of compensable time 

actually worked is necessary for the 

Department to monitor compliance with 

and enforce H–2A program obligations, 

such as the three-fourths guarantee. See 

20 CFR 655.122(i). As the Department is 

proposing a minimum required monthly 

wage rate, an hourly record for days 

spent working on the open range is not 

necessary (see proposed § 655.211). 

Except as discussed in the next 

paragraph, the Department is proposing 

that employers be required to keep and 

maintain no less than daily records for 

those employees engaged in open range 

herding or production of livestock. The 

records must reflect each day that the 

employee works or was available to 

work, as well as where the work is 

performed—on the open range or on the 

ranch or farm. Thus, for days when 

work is performed on the open range, 

the employer is exempt from recording 

the hours actually worked each day as 

well as the time the worker begins and 

ends each workday. All other regulatory 

requirements found in 20 CFR 

655.122(j) and (k) apply. 

The Department is also proposing that 

when herders or livestock production 

workers perform work on the ranch or 

farm, the employers must keep and 

maintain records of the hours that the 

workers work and the duties performed 

in that setting. Such records will enable 

the employer, and the Department, if 

necessary, to determine wages due and 

whether work at the ranch or farm that 

does not fall within the definition of the 

production of livestock was minor, 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

20306 Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 

6Under 20 CFR 655.122(l) of Subpart B an 

employer must ‘‘pay the worker at least the AEWR, 

the prevailing hourly wage rate, the prevailing piece 

rate, the agreed-upon collective bargaining rate, or 

the Federal or State minimum wage rate, in effect 

at the time work is performed, whichever is highest, 

for every hour or portion [of an hour] worked 

during a pay period.’’ 

7WHD Field Assistance Bulletins are available at 

on the WHD Web site at http://www.dol.gov/whd/ 

FieldBulletins/. 

sporadic, and incidental (i.e., occurred 

no more than 20 percent of the 

workdays spent at the ranch in the 

contract period). Moreover, the 

requirement to record employees’ duties 

performed at the ranch permits the 

Department to distinguish herder- or 

livestock production-related ranch work 

from unrelated ranch work to determine 

whether the work performed at the 

ranch is in compliance with the job 

order and the applicable wage rate. 

Employers should already be keeping 

and maintaining hourly work records 

where applicable for other ranch or farm 

employees as required under the regular 

H–2A regulations, the Migrant and 

Seasonal Agricultural Worker Protection 

Act (MSPA), and the FLSA. Therefore, 

the Department believes that keeping 

records for the herders or open range 

production workers who are performing 

work on the ranch or farm does not 

create a significant new burden on 

employers. 

The Department specifically invites 

comments on the two proposed 

recordkeeping requirements (to keep 

hourly records for work performed at 

the ranch and daily records of the work 

performed on the range) and other 

appropriate records employers should 

keep of compensable time worked in 

these occupations that will balance any 

new burdens imposed on the employer 

against the Department’s need to 

monitor and enforce H–2A program 

obligations for open range applications 

as it does with all applications filed 

under the H–2A program. 

As previously noted in this preamble, 

the Department is proposing to permit 

herders and livestock production 

workers, when at the ranch, to assist 

with minor, sporadic, and incidental 

work involving the herd that does not 

fall within the definition of the 

production of livestock (e.g., the 

inspection and repair of the corral) so 

long as these duties are identified on the 

job order and they occur on no more 

than 20 percent of the workdays spent 

at the ranch in the contract period. This 

allowance should not be construed as a 

means by which to circumvent the 

regular H–2A program by using herders 

as ranch workers. The provisions of 

Subpart C do not apply to workers 

labeled as ‘‘herders’’ but who perform 

duties at the ranch on more than a 

minor, sporadic and incidental basis; 

rather, the regular H–2A program 

requirements apply to those workers. 

For example, the employer would not be 

permitted to pay those workers the 

monthly AEWR as provided in Subpart 

C. Instead, the employer would be 

required to pay the workers according to 

the regular H–2A program provisions 

(i.e., payment of the highest applicable 

rate under 20 CFR 655.122(l) for all 

hours worked 6). If it is determined that 

work performed by the herders or 

livestock production workers on the 

ranch or farm is not included within the 

scope of the job order, occurs at the 

ranch on more than 50 percent of the 

workdays in the contract period, or 

exceeds the 20 percent allowance for 

minor, sporadic, and incidental work, 

the employer will be in violation of the 

requirements of this part. For purposes 

of the 50 percent limitation for ranch 

work, if a majority of hours worked 

during a workday are spent on the 

ranch, it is considered to be a day 

worked at the ranch. If a majority of 

hours worked during a workday are 

spent on the range, it is considered a 

day worked on the range. However, for 

the purpose of determining whether the 

20 percent allowance for minor, 

sporadic, or incidental work has been 

met, if any minor, sporadic, and 

incidental work occurs on a workday, 

that workday is counted towards the 20 

percent allowance. As discussed above, 

the Department seeks comment on the 

nature and extent of work typically 

performed at the ranch or farm by 

herder and livestock production 

workers. 

f. § 655.210(g) Rates of Pay 

The Department is proposing, 

consistent with current practice and 

with Subpart B, that the employer must 

guarantee a wage that is no less than the 

minimum wage rate issued and 

announced annually by the Department. 

This amount will be set consistent with 

§ 655.211, discussed in detail below. 

An employer may prorate the monthly 

wage if the initial month of the job order 

is a partial month, or if an employee 

does not enter the country and report for 

work until the middle of a month. For 

example, an employer who pays based 

on the calendar month may pay half the 

required monthly wage for April if the 

job order begins on April 16, and may 

prorate if the job order begins on April 

1 but the employee is unable for 

personal reasons to report for duty until 

April 16. Similarly, an employer may 

prorate the monthly wage if the final 

month of the job order is a partial 

month. For example, an employer who 

pays based on the calendar month may 

pay two-thirds of the monthly wage if 

the job order ends on June 20. An 

employer also may prorate the required 

monthly wage if an employee is 

voluntarily absent from work for 

personal reasons. For example, if an 

employee returns to his home country 

for two weeks because of a family 

emergency. However, an employer must 

pay workers whenever they are 

available for work and may not 

encourage employees to miss work, 

such as when business is slow and 

fewer workers are required, and use that 

as a basis for prorating the required 

monthly wage. See WHD Field 

Assistance Bulletin 2012–1 (Feb. 28, 

2012).7

g. § 655.210(h) Frequency of Pay 

This provision proposes to establish 

the frequency of pay for these 

occupations to be no less than monthly. 

This requirement is a long-established 

standard in occupations involving the 

herding or production of livestock on 

the open range. With jobs in remote 

locations, employees may not be 

available to receive physical paychecks 

more frequently. However, employers 

must pay wages when due and such 

wage payments must be received free 

and clear. Therefore, if the employee 

voluntarily requests that the employer 

deposit the wages into a bank account 

or send a wire transfer back to the 

worker’s home country, for example, the 

employer is still responsible for 

ensuring that wages are paid when due. 

The employer may not derive any 

benefit or profit from the transaction 

and must be able to demonstrate that the 

wage payment was properly transmitted 

to and deposited in the designated bank 

account or recipient on behalf of the 

employee. See WHD Field Assistance 

Bulletin 2012–3 (May 17, 2012). The 

Department specifically invites 

comments on how frequently employers 

in these industries should be obligated 

to provide pay, and whether the 

Department should require employers to 

prorate the salaries and issue paychecks 

in response to workers’ requests in the 

event they want access to their wages on 

a more frequent basis. 

C. § 655.211 Variance From the Wage 

Rate 

Historically, herding employers have 

not paid the hourly AEWR required for 

other H–2A employers. As discussed 

above, the 1987 and subsequent 

regulations authorized the creation of 

special procedures for certain 

occupations. Further, the OFLC 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 20307 

8See State of California Department of Industrial 

Relations, Division of Labor Standards Enforcement 

at http://www.dir.ca.gov/dlse/faq_

minimumwage.htm. 

9According to the Oregon SWA’s ETA Form 232, 

Domestic Agricultural In-Season Wage Report, the 

SWA applied the State minimum wage statute and 

the guidelines in the Zapata settlement to arrive at 

$1,319.07, the minimum monthly wage applicable 

to sheepherders in Oregon in 2014. 

10The Department understands that the wage set 

by the Zapata settlement may be superseded by the 

State’s more recent interpretation of its minimum 

wage requirements. See http://www.oregon.gov/

boli/TA/pages/t_faq_taagric.aspx. Based on this 

analysis, workers who spend more than 50 percent 

of their time in the range production of livestock 

are exempt from minimum wage. However, to be 

exempt, Oregon workers must be paid on a salary 

basis, which is defined as 2,080 hours times the 

current minimum wage, then divided by 12. For 

example, effective January 1, 2015, the Oregon 

minimum wage increased to $9.25, so the required 

minimum salary for workers in the range 

production of livestock is $9.25 times 2,080 hours 

divided by 12 months, or $1,603.33 per month. 

11OFLC used three main principles in 

establishing the prevailing wage rates for States that 

had no official wage rate findings: (1) Where a State 

directly borders a State with a wage rate finding, 

that wage rate finding is assigned to the adjoining 

(bordering) State; (2) where a State borders more 

than one State with wage rate findings, the findings 

of the State that is more adjoining (i.e., more shared 

geographic characteristics, including a longer 

shared border) are applied to the State with no wage 

rate finding; and (3) where a State does not directly 

border a State with a wage rate finding but is within 

a U.S. Department of Agriculture (USDA) farm 

production region that includes another State either 

with its own wage rate finding or to which findings 

were applied consistent with one of the other two 

Continued 

Administrator assumed the authority to 

establish monthly, weekly, or semimonthly AEWRs for ‘‘occupations 

characterized by other than a reasonably 

regular workday or workweek, such as 

the range production of sheep or other 

livestock.’’ See 20 CFR 655.102. 

Accordingly, the guidance for these 

occupations exempted employers from 

paying at least the hourly AEWR in 

favor of an occupation-specific monthly, 

weekly, or semi-monthly AEWR. 

Historically, the AEWR for these 

occupations was determined based on 

prevailing wage surveys of employers 

conducted by the SWAs. The 

Department proposes to continue to use 

a monthly AEWR for these occupations 

because of the difficulties in tracking 

and paying an hourly wage rate to 

workers engaged in open range 

occupations given the remote location of 

the work and the sporadic and 

unpredictable nature of the duty hours 

on any given day. 

To determine the AEWR for these 

occupations under the guidance, the 

Department historically followed the 

process as described in the ETA 

Handbook 385, defining the ‘‘Domestic 

Agricultural In-Season Wage Finding 

Process.’’ Each year since the 

promulgation of the 1987 regulations, 

SWAs conducted agricultural prevailing 

wage surveys, including surveys of 

employers in States where open range 

herding and production of livestock 

occupations are typically found. The 

SWAs attempted to obtain information 

from these employers, voluntarily, about 

the wages being paid exclusively to U.S. 

workers. The exclusion of H–2A 

nonimmigrant workers from the survey 

is required by ETA Handbook 385. After 

the OFLC Administrator determined 

that the computed wage rate derived 

from a SWA survey was statistically 

valid, it was designated as the 

prevailing wage rate and used as the 

AEWR for the occupation in that State. 

The central dilemma faced by the 

Department for decades has been the 

dearth of information available to it 

through these surveys regarding the 

actual wages paid to U.S. workers. 

Often, and almost always more recently, 

the SWAs determine that there are no 

survey results or the survey does not 

return statistically valid results. Thus, 

for many years, the Department has 

been unable to determine a statistically 

valid prevailing wage rate each year in 

each State in which one is needed, 

requiring the OFLC Administrator to set 

the AEWR based on other data or to use 

the survey results from another 

adjoining area or State. 

Both Field Memorandum 24–01, 

which established the special 

procedures from 2001 to 2011 for sheep 

and goat herding occupations, and Field 

Memorandum 74–89, the predecessor 

guidance in place from 1989 to 2001 

(with various amendments), established 

that in the event of inadequate sample 

sizes, ‘‘every attempt will be made to 

establish a prevailing wage by using 

other comparable information, e.g., 

utilizing data from adjoining areas or 

States, merging sheepherder (goat 

herder) data from several States or using 

past survey data for sheepherders (goat 

herders) in that State.’’ Therefore, the 

Department set wages based, where 

possible, on the wages actually provided 

in that State to U.S. workers in the 

occupation; but where such data is not 

available the guidance permitted 

aggregating data from contiguous States, 

or continuing the previous year’s wage. 

Where several contiguous States did not 

produce a statistically valid wage, it was 

not possible to aggregate State wage 

data, and previous survey data from the 

same State could be carried forward 

instead. Because almost every State 

experienced years in which no wage 

report could be statistically verified, 

wage stagnation in varying degrees 

across these occupations has been the 

inevitable result in all but two States. 

Two States have legal mandates that 

set wages for these occupations, which 

have typically been higher than the 

DOL-set AEWR for the occupations. 

California law provides for increases to 

sheepherder wages established by its 

Industrial Welfare Commission based on 

corresponding increases in the State’s 

minimum wage. Cal. Labor Code 

§ 2695.2(a) (West 2003). The current 

minimum salary for sheepherders in 

California as of July 1, 2014, is 

$1,600.34 per month, and effective 

January 1, 2016, the minimum monthly 

salary for sheepherders will be 

$1,777.98.8 Oregon’s sheepherder wages 

are based on a court settlement reached 

two decades ago, which set a wage for 

sheepherders and required them to be 

adjusted annually to reflect adjustments 

to the State minimum wage and the 

Consumer Price Index; that amount is 

$1,319.07 per month in 2014.9 Zapata v. 

Western Range Association, Civ. N. 92– 

10–25, 244L (Ore. 1994).10

In contrast, wages for these 

occupations in other States effectively 

have not increased since 1994. A 

memorandum from Barbara Ann 

Farmer, Administrator, Office of 

Regional Management, to regional 

Certifying Officers in 1993, noted that of 

the 14 State-based AEWRs for 

Sheepherders and Goat Herders that 

were determined in 1994–1995, nine 

were set at $700 per month and three 

were set at $650 per month. Of the 

remaining two AEWR determinations, 

the Arizona AEWR was based on a 

reported weekly wage of $205, and the 

Idaho AEWR was set at $750 per month. 

By comparison, 11 of the current 14 

listed AEWRs for sheep and goat 

herding are $750 per month, indicating 

that in the vast majority of States sheep 

and goat herder wages have increased 

only $50 per month in the most recent 

20 years of the program. The open range 

livestock wages are currently somewhat 

higher, set in every case at $875 per 

month. 78 FR 19019, 19021 (Mar. 28, 

2013). 

The 2011 TEGLs provided for small 

but distinct variations to the process. 

First, where the SWA survey results 

were insufficient to establish a 

prevailing wage rate for occupations 

involving the open range production of 

livestock, sheepherding and goat 

herding, due to inadequate sample size 

or another valid reason, the applicable 

TEGL’s wage setting procedures allowed 

the Department to issue a prevailing 

wage or piece rate for that State based 

on the wage rate findings submitted by 

an adjoining or proximate SWA for the 

same or similar agricultural activity, 

among other options.11 This sought to 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

20308 Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 

principles, that wage rate finding is applied to the 

State with no wage rate finding. See Notice, Labor 

Certification Process for the Temporary 

Employment of Aliens in Agriculture in the United 

States: Prevailing Wage Rates for Certain 

Occupations Processed Under H–2A Special 

Procedures, 78 FR 1260, 1261 (Jan. 8, 2013). See 

also TEGL No. 15–06, Change 1 and TEGL No. 32– 

10. 

12 Information about the methodology of the FLS 

is publicly available at: http://www.nass.usda.gov/ 

About_NASS/index.asp. 

13The FLS includes work done in connection 

with the production of agricultural products, 

including nursery and greenhouse products and 

animal specialties such as fur farms or apiaries. It 

also includes work done off the farm to handle 

farm-related business, such as trips to buy feed or 

deliver products to local markets. 

14To the extent workers receive incentive pay, 

the average wage rate would exceed the workers’ 

actual wage rate. Because the ratio of gross pay to 

hours worked may be greater than a workers’ actual 

wage rate, some statistics agencies refer to the ratio 

as average hourly earnings, and not as hourly wages 

or wage rate. 

15As proposed elsewhere in this NPRM, all 

employers must pay the higher of the Department’s 

AEWR or the agreed-upon collective bargaining 

wage, or the applicable minimum wage specific to 

the occupation(s) imposed by Federal or State law 

or judicial action. Accordingly, where a Statemandated minimum wage for the occupation is 

higher than the Department’s AEWR, which has 

been the case for employers in California and 

Oregon, the employer would be required to offer 

and pay the higher state-mandated minimum wage 

rate. 

avoid the continuation of the previous 

year’s wage into one or more subsequent 

years. Second, the wage rates were to be 

published in the Federal Register after 

collection and analysis each year. 

On January 8, 2013, the first wage 

rates after the promulgation of the 2011 

TEGLs were published in the Federal 

Register. 78 FR 1260 (Jan. 8, 2013). On 

March 28, 2013, as a result of litigation, 

the Department issued a Notice 

amending and rescinding parts of the 

previous Notice ‘‘because of issues 

regarding the wage finding process in 

these states.’’ 78 FR 19020 (Mar. 28, 

2013). The wages were set in that 

second Notice at the previous rates, 

with herding wages in California and 

Oregon reflecting the applicable 

statutory or judicially set amounts. 

Thus, wages currently are set according 

to the methodology in place before the 

2011 TEGLs: FM 24–10 for sheep and 

goat herding occupations and TEGL 15– 

06 for open range livestock production. 

The Department has been given a 

broad statutory mandate to balance the 

competing goals of the statute to provide 

an adequate labor supply and to protect 

the jobs of U.S. workers. See Rogers v. 

Larson, 563 F.2d 617, 626 (3rd Cir. 

1977), cert. denied, 439 U.S. 803, (1978); 

AFL–CIO v. Brock, 923 F.2d 182, 187 

(D.C. Cir. 1991). With this balance in 

mind, we must set the prevailing wage 

to provide that H–2A workers are 

employed only where U.S. workers are 

not available for the job and will not be 

adversely affected by the presence of 

foreign workers, and also to foster the 

provision of workers for these 

occupations. 

Given this statutory mandate, the 

Department proposes to establish the 

monthly AEWR for these occupations 

based on the Farm Labor Survey (FLS) 

conducted by the National Agricultural 

Statistics Service (NASS) of the U.S. 

Department of Agriculture (USDA). 

Conducted annually in collaboration 

with the U.S. Department of Labor, the 

FLS provides estimates of the number of 

hired workers, average hours worked, 

total wages by type of worker (field, 

livestock, supervisor/manager, and 

other) for a specified survey week, and 

provides wage rates at regional and 

national levels. Annual average 

estimates for the number of all hired 

workers, hours worked by hired workers 

and wage rates are included in the 

October FLS report, which is published 

in November.12 The Department 

currently uses the NASS Farm Labor 

Survey to set the AEWR in the H–2A 

program, so its adoption for herder 

occupations in this rulemaking would 

be consistent with the Department’s 

practice with respect to all other 

temporary agriculture work. 

The FLS defines hired workers as 

anyone, other than workers supplied by 

a services contractor, who was paid for 

at least 1 hour of agricultural work on 

a farm or a ranch. Worker type is 

determined by what the employee was 

primarily hired to do, not necessarily 

what work was done during the survey 

week. The survey seeks data on four 

types of hired workers: Field workers, 

livestock workers, supervisors (hired 

managers, range foremen, and crew 

leaders) and other workers engaged in 

agricultural work not included in the 

other three categories.13

The FLS report is based on farmers’ 

gross wages paid to workers grouped 

into two broad categories: Field workers 

and livestock workers. Wage rates are 

not calculated and published for 

supervisors or other workers, but are for 

field workers, livestock workers, field 

and livestock workers combined, and 

total hired workers. Field workers 

include employees engaged in planting, 

tending and harvesting crops, including 

operation of farm machinery on crop 

farms. Livestock workers include 

employees tending livestock, milking 

cows or caring for poultry, including 

operation of farm machinery on 

livestock or poultry operations.14

The USDA survey is conducted semiannually (the April survey collects wage 

estimates for the January and April 

reference weeks, and the October survey 

collects wage estimates for the July and 

October reference weeks). Annual 

average wage estimates are based on 

these four quarterly estimates. The 

survey is designed to produce 

statistically reliable estimates of overall 

hired labor use and costs for California, 

Florida and Hawaii, and provide data 

for other States except Alaska under 15 

multistate groupings. Thus, for 

California, Florida and Hawaii, we 

propose to set the AEWR each year as 

the annual average of the previous 

calendar year’s semi-annual FLS hourly 

wage estimates for field and livestock 

workers (combined) in each of these 

States. For the other States the AEWR 

will be set as the annual average of the 

previous calendar year’s semi-annual 

FLS hourly wage estimates for field and 

livestock workers (combined) of the FLS 

multistate crop region to which the 

State belongs. Every State in the same 

region will be assigned the same AEWR 

amount. The Department bases the 

AEWR in the regular H–2A program on 

the combined wage estimates for both 

field and livestock workers. As a result, 

we propose that the AEWR for herder 

occupations be similarly based on the 

combined estimates for field and 

livestock workers. The State groupings 

are as follows.15

Northeast I Connecticut, Maine, 

Massachusetts, New Hampshire, New 

York, Rhode Island and Vermont. 

Northeast II Delaware, Maryland, New 

Jersey and Pennsylvania. 

Appalachian I Virginia and North 

Carolina. 

Appalachian II Kentucky, Tennessee 

and West Virginia. 

Southeast Alabama, Georgia and South 

Carolina. 

Delta Arkansas, Louisiana and 

Mississippi. 

Cornbelt I Illinois, Indiana and Ohio. 

Cornbelt II Iowa and Missouri. 

Lake Michigan, Minnesota and 

Wisconsin. 

Northern Plains Kansas, Nebraska, 

North Dakota and South Dakota. 

Southern Plains Oklahoma and Texas. 

Mountain I Idaho, Montana and 

Wyoming. 

Mountain II Colorado, Utah and 

Nevada. 

Mountain III Arizona and New 

Mexico. 

Pacific Oregon and Washington. 

The FLS defines livestock workers as 

follows: 

Livestock Workers: Employees tending 

livestock, milking cows or caring for poultry, 

including operation of farm machinery on 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 20309 

16As we stated in the 2010 H–2A rule, 75 FR 

6884, 6896 (Feb. 12, 2010): 

The OES agricultural wage data has a number of 

significant shortcomings with respect to its 

accuracy as a measure of the wages of hired farm 

labor suitable to be used as the AEWR. Perhaps its 

most substantial shortcoming in this context is that 

the OES data do not include wages paid by farm 

employers. Data is not gathered directly from 

farmers but from non-farm establishments whose 

operations support farm production, rather than 

engage in farm production. . . . Given that the 

employees of non-farm establishments constitute a 

minority of the overall agricultural labor force, the 

Department has concluded that these data are 

therefore not representative of the farm labor supply 

and do not provide an appropriately representative 

sample for the labor engaged by H–2A employers. 

17We received a communication from Mountain 

Plains Agricultural Service, dated October 8, 2014. 

We also received a report from consultant Julie 

Stepanek Shiflett on behalf of three employer 

associations—Mountain Plains Agricultural Service, 

Western Range Association and the American 

Sheep Industry Association—dated October 9, 2014. 

Finally, we received a letter from attorney Edward 

Tuddenham on behalf of worker representatives, 

dated October 30, 2014. We have placed all three 

submissions in the administrative record related to 

this rulemaking so that the public may review and 

comment on them. 

18The data relied on by the worker advocate letter 

included a survey of range workers in Colorado that 

found that the majority of workers work over 81 

hours per week. See Colorado Legal Services, 

Overworked and Underpaid, January 14, 2010, at 18 

(which can be accessed at https://

www.creighton.edu/fileadmin/user/

StudentServices/MulticulturalAffairs/docs/

OverworkedandUnderpaidReport.pdf. In response, 

the Colorado Wool Growers Association suggested 

that a typical work day for range workers consists 

of 6–8 hours of actively watching the sheep, with 

longer days of 10 hours in the spring and shorter 

days of 4–6 hours in the fall and winter, which 

averages to 49.5 hours per week (based on the 

seven-day workweek). Julie Stepanek Shiflett, The 

Real Wage Benefits Provided To H–2A Sheep 

Herders And The Economic Cost To Colorado 

Ranchers (March 2010). 

19Zapata v. Western Range Association, Civ. N. 

92–10–25, 244L (Ore. 1994). 

20 In its separate letter dated October 8, 2014, the 

Mountain Plains Agricultural Service submitted 

that herders work 4–8 hours per day on average. 

Because this suggestion encompassed a very broad 

range, which could result in hours worked per week 

anywhere between 28 (4 hours × 7 days) and 56 (8 

hours × 7 days), we found it difficult to incorporate 

it into our proposal. However, the average hours per 

week based on this suggested range is 42, which is 

very close to the proposed 44 hours-per-week 

standard. 

livestock or poultry operations. SOC codes 

and titles associated with livestock workers 

are 45–2041: graders and sorters, farm, ranch 

and aquacultural animal products; 45–2093: 

farm workers, farms, ranch and aquacultural 

animal products; 45–2099: all other workers, 

farms, ranch and aquacultural animal 

products; 53–7064: packers and packagers, 

hand, farms, ranch and aquacultural animal 

products. 

The FLS methodology includes both 

livestock work performed on the ranch 

and on the open range. 

The Department may reasonably rely 

on the FLS combined wage estimates for 

both field and livestock workers for the 

purpose of setting the wage for the 

occupation addressed in this NPRM, 

consistent with the Department’s long 

standing practice for the rest of the H– 

2A program and the regulations in 

Subpart B. Brock, supra, 923 F.2d at 

187; United Farm Workers v. Solis, 697 

F. Supp. 2d 5, 9–10 (D.D.C. 2010). Both 

historically and in this NPRM, the 

Department has defined the work 

performed by sheep, goat and other 

livestock herders who tend to their 

herds and oversee them as they move 

from one area to another on the open 

range largely based on the care and 

upkeep of the animals. Accordingly, we 

propose in this NPRM to define herding 

as ‘‘activities associated with the caring, 

controlling, feeding, gathering, moving, 

tending, and sorting of livestock on the 

open range.’’ In addition, we propose to 

define the production of livestock as 

‘‘care or husbandry of livestock 

throughout one or more seasons during 

the year, including guarding and 

protecting livestock from predatory 

animals and poisonous plants; feeding, 

fattening, and watering livestock; 

examining livestock to detect diseases, 

illnesses, or other injuries; 

administering medical care to sick or 

injured livestock; applying vaccinations 

and spraying insecticides on the open 

range; and assisting with the breeding, 

birthing, raising, weaning, castration, 

branding, and general care of livestock.’’ 

These primary duties are the same as 

those performed by livestock workers 

who are covered by the FLS survey. The 

FLS represents the most comprehensive 

survey available for wages of livestock 

workers, and it is the best available 

source for wage data related to livestock 

work. 

The Department has considered 

alternatives to adopting the FLS as the 

basis for setting herders’ wages. As 

noted elsewhere in this NPRM, SWA 

surveys of range herders have become 

increasingly unreliable because of the 

small numbers of U.S. workers 

employed in the occupation. The lack of 

reportable data in the SWA surveys 

have likely contributed to the stagnation 

of wages over the last 20 years in these 

occupations, which has a prohibited 

adverse effect on the domestic labor 

market. As a result, the Department 

cannot continue to rely on these surveys 

under current conditions and fulfill its 

statutory mandate to prevent adverse 

effect to workers’ wages and working 

conditions. In addition, for the reasons 

contained in the Department’s 2010 H– 

2A rule, the Bureau of Labor Statistics 

(BLS) Occupational Employment 

Statistics (OES) survey is not the 

preferred method for determining the 

prevailing wage for agricultural 

livestock workers.16 See ‘‘Temporary 

Agricultural Employment of H–2A 

Aliens in the United States; Final Rule,’’ 

75 FR 6884, 6896–6898 (Feb. 12, 2010). 

Finally, the U.S. Census Bureau’s 

occupational description for ‘‘farming 

occupations’’ in the American 

Community Survey (ACS) is not 

sufficiently disaggregated for 

application to herding occupations. The 

ACS provides data based on samples, 

and because herder occupations are so 

small, any sample would be insufficient 

for statistical purposes. Moreover, 

census data for herders is not available 

from the ACS. Accordingly, based on 

review of available data sets on which 

to base herder wages and our 

consideration of alternatives within the 

context of the statute’s requirements, the 

Department proposes to adopt the FLS 

as the tool for setting the AEWR for 

these occupations. The Department 

seeks comment from the public on the 

selection of the FLS as the data set on 

which to set the AEWR for herder 

occupations, any alternative reliable and 

applicable data sets that may be used for 

this purpose, and the relative 

advantages and disadvantages of each. 

In order to set a monthly wage, as 

discussed earlier, the Department 

proposes to convert the hourly AEWRs 

based on a 44-hour workweek, which is 

intended to reflect the average hours 

worked per week over the course of the 

employment period in these 

occupations. We base the proposed 44- 

hour workweek on comments the 

Department received from both 

associations of industry employers and 

from worker advocates following the 

court’s decision in Mendoza v. Perez.17

The worker advocates’ letter suggested 

that the salary for these occupations 

should be based on a 48-hour 

workweek, which they offered as a 

‘‘conservative’’ estimate using employer 

data.18 Industry employers submitted 

that workers on the open range work 

173.33 hours per month, or 40 hours per 

week, which they based on the Oregon 

court’s approach in the Zapata 

settlement, discussed earlier.19

Therefore, the Department based its 

proposed 44-hour workweek on the 

average of the suggested 40- and 48-hour 

workweeks.20 Accordingly, the hourly 

AEWRs applicable to each State would 

be multiplied by 44 hours per week and 

4.333 weeks per month to arrive at the 

monthly AEWRs. The monthly AEWRs 

may increase or decrease each year, as 

the hourly AEWRs do, reflecting USDA 

survey results. The Department seeks 

comment on using a 44-hour workweek 

to calculate the monthly AEWRs for 

these occupations and invites 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

20310 Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 

21This would continue the current practice that 

permits a variance from the geographic scope 

limitations of 20 CFR 655.132(a) for H–2ALCs 

engaged in open range herding and livestock 

production, and from 20 CFR 655.131(b) for master 

applications that include worksites in more than 

two contiguous States. 

22The current guidance provides this variance 

from the date of need requirement in 20 CFR 

655.131(b). 

information about studies or expert 

opinion supporting alternative 

methodologies that would result in 

using a different workweek figure to 

compute the wage. 

The Department proposes to phase in 

the new wage requirement over a 5-year 

transition period. In doing so, we are 

striking a balance between the 

competing goals of the statute, as 

discussed earlier, that require us to 

foster an adequate labor supply and 

protect U.S. workers. Rogers v. Larson, 

563 F.2d at 626; Brock, 923 F.2d at 187. 

The new wage methodology will begin 

to address immediately the stagnation 

concerns discussed earlier. A phase-in 

also recognizes that the full wage 

increase in a single year could lead to 

significant disruptions that might cause 

job losses that could be avoided by a 

gradual implementation period. In 

ensuring that prevailing wage is set at a 

level where it will not have adverse 

effect, it is appropriate for the 

Department to consider whether a 

significantly higher wage can be 

immediately absorbed by employers or 

might have the unintended consequence 

of reducing the availability of jobs for 

U.S. workers because the wage would 

result in some employers going out of 

business or scaling back their 

operations. This proposed rule will 

eventually result in wage increases of 

greater than one hundred percent to 

many employers. Given the long history 

of employers paying a substantially 

lower wage rate than would be required 

at the end of the phase-in period under 

this proposed rule, the Department 

proposes to set the monthly AEWR 

initially at 60 percent of the monthly 

AEWR calculated using the proposed 

methodology, with incremental 

increases over the 5-year period 

following implementation. This 

proposal is intended to ensure that this 

rule will not have adverse effect on U.S. 

workers due to significant job losses. As 

reflected in the projection charts below, 

during the first year, employers filing 

under Subpart C would be subject to 

monthly AEWRs that are 60 percent of 

the current USDA hourly AEWRs 

converted to a monthly rate. Each year 

thereafter until 2020, the monthly 

AEWRs applicable to these employers 

would increase by 10 percent (i.e., 70 

percent in 2017; 80 percent in 2018; 90 

percent in 2019). Beginning in 2020, the 

monthly AEWR applicable to the 

occupations covered under Subpart C 

would be 100 percent of that year’s 

hourly regional AEWR converted into a 

monthly rate by multiplying it by 44 

hours per week and 4.333 weeks per 

month. 

Wages in Year One will make a 

significant impact on wage stagnation, 

and subsequent years will continue to 

do so. By 2020, the Department 

anticipates this methodology will have 

addressed wage stagnation concerns 

fully. The Department invites comment 

on other options for determining the 

monthly AEWRs for these occupations, 

including other options for phasing in 

the new methodology. 

Finally, the Department is proposing 

that an employer must offer and pay at 

least the monthly AEWR established 

using the adopted wage-setting 

methodology, unless another applicable 

wage source reflects a higher threshold 

wage rate. Specifically, if one of the 

following wage sources reflects a higher 

wage rate requirement for the 

occupation than the monthly AEWR, 

then the Department proposes the 

employer must offer and pay at least 

that wage rate: (1) Specified in an 

agreed-upon collective bargaining 

agreement; or (2) imposed by Federal or 

State law or judicial action. The current 

TEGLs establish that the prevailing 

wage is the required wage unless there 

is a State occupation-specific wage rate 

for sheepherders; no additional wage 

obligation is imposed on the open range 

employers. The Department has 

developed these limited exceptions to 

account for increases that have occurred 

in States as a matter of legislative or 

judicial action. The Department has also 

opted to account for collective 

bargaining to permit a higher wage rate 

requirement where such an agreement 

exists. Accordingly, the Department 

proposes that the monthly AEWR 

determination will be the employer’s 

minimum wage requirement, unless a 

CBA wage rate or State law or judicially 

required rate for the occupation is 

higher. 

As always, an employer may choose 

to offer and pay more than the 

minimum required. The proposed 

methodology described in this provision 

is intended to set a more appropriate 

minimum wage requirement for 

employers seeking temporary open 

range workers through the H–2A 

program while preventing wage 

stagnation or regression. 

The Department seeks comment on all 

aspects of the new wage methodology 

for these occupations. In particular, we 

seek comment on the proposal to 

combine open range herding and 

livestock production into one wagesetting structure, which is predicated on 

the similarity of the job duties, the 

nature of the activities, the location and 

the conditions under which the 

activities are performed, and the 

isolated, on-call nature of the 

employment. In addition, we 

particularly seek comment on the 

proposed wage setting method used to 

establish a monthly AEWR for these 

occupations, which, when 

implemented, will determine the 

minimum wage an employer must offer, 

free and clear, without altering other 

benefits, wages, and working condition 

obligations (e.g., provision of housing 

without charge or deposit charge) 

applicable to these occupations. 

D. Variances From Filing, Processing, 

and Post-Acceptance Procedures 

1. § 655.215 Variances From Filing 

Procedures 

The Department proposes to continue 

to require employers (whether an 

individual, an association, or an H–2A 

Labor Contractor) seeking workers in 

open range production of livestock and 

herding occupations to include an 

attachment listing the locations, 

estimated start and end dates, and, if 

applicable, names for each farmer/

rancher where work will be performed 

under the job order when filing an 

Application for Temporary Employment 

Certification. The locations should be 

identified with as much specificity as 

possible in order to apprise potential 

U.S. workers of where the work will be 

performed and to ensure recruitment in 

all areas of intended employment. 

The Department proposes to continue 

to allow employers or employer 

associations engaged in open range 

herding and livestock production to file 

applications and job orders covering 

work locations in multiple areas of 

intended employment and within one or 

more States.21 This approach is 

warranted by the unique nature of the 

herding or production of livestock on 

the open range, particularly the 

transient nature of herding or livestock 

operations, often covering many 

hundreds of miles. In addition, the 

Department proposes to continue to 

allow an association of agricultural 

employers filing a master application as 

a joint employer to identify different 

dates of need for each of its employermembers on the application and job 

order.22 Unless a modification to the job 

order is required by the CO or requested 

by the employer under 20 CFR 

655.121(e), the association with 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 20311 

sheepherding or goat herding positions 

will not need to resubmit its job order 

during the calendar year. 

Finally, consistent with 20 CFR 

655.103(d) and the history of herding, 

under the proposal, the total period of 

need that an employer seeking 

temporary labor certification for herding 

on the open range is permitted to state 

on the application and job order must be 

no longer than 364 days. The 

Department seeks comments regarding 

the temporary and seasonal nature of 

the work, including the amount of time 

spent on the open range during a year. 

The recognition of sheep and goat 

herding work on the open range has 

resulted from decades of past practices 

and draws upon the unique 

characteristics of the work that cannot 

be completely addressed within the 

generally applicable regulatory 

definition of temporary need; however, 

the Department seeks comments 

regarding whether the unique 

characteristics of the work exist yearround. The Department’s long standing 

special procedures that allow sheep or 

goat herding employers to participate in 

the H–2A program with a total period of 

need lasting up to 364 calendar days 

have their origins in prior statutory 

provisions from the 1950s, see, supra, 

Sec. I.A. However, the Department is 

considering whether to modify this 

approach if evidence shows that the 

unique characteristics of sheep or goat 

herding on the open range do not exist 

for the entire period of the job order. 

The issuance of temporary labor 

certifications in this manner to 

employers engaged in sheep or goat 

herding on the open range has 

historically been based on the idea that 

the work is unique and, thus, has 

recognized the peculiarities of the 

industry and work involved. Thus, as 

we stated in Section II.A.1, we are 

seeking information on the seasonal 

nature as well as the duration of sheep 

and goat herding. 

The proposal retains the 364-day 

duration of need in sheep and goat 

herding on the open range and does not 

expand this approach to applications for 

temporary open range livestock 

production occupations, for which an 

employer must continue to demonstrate 

a temporary need period of not more 

than 10 months. Despite similarities 

between herding and livestock 

production occupations performed on 

the open range, experience processing 

applications indicates that open range 

production of livestock involves distinct 

temporary positions at different times of 

the year. In any case, range livestock 

employers have been able to operate 

successfully without needing this 

unique benefit for many years. See, e.g., 

In the Matter of Vermillion Ranch 

Limited Partnership, 2014–TLC–00002 

(Dec. 5, 2013). As discussed in 

Vermillion, open range livestock 

employers may require separate 

temporary labor certifications for 

different time periods of the year to 

accurately reflect the distinct seasonal 

labor needs of the employer. 2014–TLC– 

00002, at *9–10. The Department seeks 

comments as to whether sheep and goat 

herding similarly involves distinct 

temporary positions at different times of 

the year and should require more than 

one certification to match the various 

phases of the herding cycle to reflect 

temporary need under the INA. In 

addition, if separate certifications are 

required, should herding and open 

range livestock production employers be 

required to pay the hourly AEWR, as 

under the regular H–2A requirements, 

for temporary labor certifications 

covering time periods at a location other 

than the open range (i.e., ranch or farm)? 

2. § 655.220 Variance From Processing 

Procedures 

This section contains the only 

variances the Department proposes to 

make from the general filing procedures 

in Subpart B for eligible employers 

seeking workers in open range 

production of livestock and herding 

occupations. Unless specifically 

addressed in these provisions, 

employers must comply, as they do 

currently, with the processing 

procedures in 20 CFR 655.140–655.145. 

The Department is proposing that under 

§ 655.220, when the CO determines that 

an application and job order meet all 

regulatory requirements, the CO will 

notify the employer and transmit a copy 

of the job order to any one of the SWAs 

with jurisdiction over the anticipated 

worksites so that recruitment can begin. 

Where an association of agricultural 

employers files a master application as 

a joint employer and submits a single 

job order on behalf of its employermembers, the CO will transmit the copy 

of the job order to the SWA with 

jurisdiction over the association’s 

location. The CO’s notification will also 

direct the SWA receiving the job order 

copy to place the job order promptly in 

intrastate and interstate clearance, 

including forwarding the applications to 

all States where work will be performed. 

Consistent with the OFLC’s handling 

of other job orders approved for an 

association of agricultural employers 

filing a master application as a joint 

employer on behalf of its employermembers, the Department proposes that 

it will keep the job order posted on the 

OFLC’s electronic job registry until 50 

percent of the work contract period has 

elapsed for all employer-members 

identified on the job order (i.e., the 50 

percent period will be measured based 

on the employer-member with the last 

date of need). Since these job orders 

involve employer-members with 

different dates of need, each with its 

own 50 percent mark, this provision 

provides greater clarity for associations 

filing as joint employers with respect to 

the period the job order will appear on 

the electronic job registry. 

3. § 655.225 Variances From PostAcceptance Procedures 

The Department is proposing to 

continue for sheep and goat herding 

occupations and expand to open range 

livestock production the practice under 

the TEGLs of waiving the requirement 

for placement of an advertisement on 

two separate days in a newspaper of 

general circulation as provided under 20 

CFR 655.151. Because both open range 

herding and livestock production cover 

multiple areas of intended employment 

in remote, inaccessible areas within one 

or more States, and where fewer 

communities have newspapers, the 

newspaper advertisement is impractical 

and ineffective for recruiting domestic 

workers for these types of job 

opportunities. 

Consistent with the OFLC’s handling 

of other job orders approved for an 

association of agricultural employers 

filing a master application as a joint 

employer on behalf of its employermembers, the CO will direct the SWAs 

to keep the job order on its active file 

until 50 percent of the period of the 

work contract has elapsed for all 

employer-members identified on the 

approved job order. The SWA will refer 

all qualified U.S. workers to the 

association, with this proposed rule 

codifying the association’s obligation to 

make every effort to accommodate a 

U.S. worker’s worksite location 

preference (e.g., the location with an 

opening nearest to his or her place of 

residence). In addition, this rule 

clarifies that an association handling the 

recruitment requirements for its 

employer-members must maintain a 

recruitment report containing the 

information required by 20 CFR 655.156 

in a manner that allows the Department 

to see the recruitment results for each 

employer-member identified on the H– 

2A application and approved job order. 

E. Mobile Housing 

1. § 655.230 Use of Mobile Housing 

Employers covered under this Subpart 

may use mobile housing for open range 

herding and livestock production job 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

20312 Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 

23Current requirements mandate the provision of 

sufficient water for cooking, drinking and bathing. 

Therefore, the proposal represents a modest 

expansion of the existing requirements by adding 

the obligation to supply water sufficient for 

cleaning and laundry as well. 

opportunities, as provision of nonmobile housing is not practicable due to 

the remote locations of the work or 

terrain. Currently, there are no specific 

Department of Labor Occupational 

Safety and Health Administration 

(OSHA) standards for worker housing 

on the open range. OSHA’s rules for 

temporary labor camps under 29 CFR 

1910.142 are applicable only to workers 

housed in fixed structures or units. 

Similarly, the Department’s rules for 

housing temporary agricultural workers 

under 20 CFR part 654, subpart E 

(published in the Federal Register on 

March 4, 1980) are only applicable to 

fixed structures or units and refer back 

to the OSHA standards in 29 CFR 

1910.142 for employer-provided 

housing for agricultural workers. 

However, 29 CFR 654.400(b) requires 

mobile housing on the open range to 

‘‘meet existing Departmental 

guidelines.’’ The Department is 

proposing to codify these guidelines in 

§ 655.235. 

Since the mobile housing is often 

located in remote or isolated areas and 

is moved frequently, often covering 

hundreds of miles, the Department 

proposes continuing its long-standing 

practice of requiring the SWA to 

schedule and conduct an inspection of 

the employer’s mobile housing no less 

frequently than once every 3 years (i.e., 

36 months). Based on that inspection, 

the SWA must provide a certification to 

the employer for a period lasting no 

more than 36 months. During the 

validity period of the SWA’s housing 

certification, the Department will 

continue to allow employers to selfcertify on each new application for 

certification that its mobile housing 

continues to meet the guidelines in 

§ 655.235. To self-certify the employer 

must submit a copy of the SWA’s valid 

housing certification along with a 

written statement, signed and dated by 

the employer, assuring the SWA and 

NPC that the employer’s mobile housing 

continues to comply with all the 

applicable standards for mobile 

housing. The NPC may deny the H–2A 

application in situations where the 

certification provided by the SWA has 

expired or the housing does not meet all 

the applicable standards. 

There are times when the mobile 

housing is temporarily located at or near 

the ranch or farm (or a similar central 

location) that has fixed housing for 

workers for certain operations that are a 

normal part of the herding cycle, such 

as birthing, shearing, or branding, and 

for minor, sporadic, and incidental work 

within the open range worker’s duties. 

The Department acknowledges that the 

mobile housing may in such instances 

continue to be used, or even be 

preferred, by workers, even where 

access to fixed housing exists. In 

situations in which the workers are 

temporarily stationed at or near the 

ranch or farm (reasonably able to return 

to it each night), the Department 

proposes that employers do not need to 

maintain full fixed-site housing for open 

range workers, but must provide access 

when employees are at the ranch to 

toilets, kitchens, and cleaning facilities 

for both person and clothing, including 

showers with hot and cold water under 

pressure. Where workers are 

temporarily located in employerprovided fixed-site housing at the ranch 

site, rather than remaining in the 

worker’s mobile unit, such fixed-site 

housing must meet the standards 

applicable to such housing under 20 

CFR 655.122(d). The Department invites 

comments about whether the employer 

must provide the worker a second 

sleeping facility in a fixed-site housing 

unit at the ranch or farm or other central 

location whenever the worker is located 

there. 

2. § 655.235 Standards for Mobile 

Housing 

The NPRM, in large measure, 

proposes to codify the minimum 

standards historically applied by the 

Department to mobile housing. These 

standards are generally consistent with 

the housing rules for temporary 

agricultural workers published under 20 

CFR part 654, subpart E, but contain 

adaptations due to the unique 

circumstances of mobile housing. 

Because mobile housing for herders 

requires frequent movement to remote 

or isolated sites on the open range and 

must accommodate a very small number 

of workers, the current housing rules for 

temporary agricultural workers must be 

modified. For example, although the 

Department requires that mobile 

housing sites be well drained and free 

from depressions in which water may 

stagnate, the existing rules under 20 

CFR 655.404(c)–(d) concerning the 

controlling of noxious plants and 

uncontrolled weeds or brush, as well as 

provision of space for recreation related 

to the size of the facility and type of 

occupancy, cannot practically be 

enforced due to the topography of the 

open range and highly mobile nature of 

the housing. Similarly, although the 

standards for water supply are 

consistent with those outlined under 20 

CFR 654.405(a) and (c), the requirement 

under 20 CFR 654.405(b) concerning the 

provision of a cold water tap within 100 

feet of each individual living unit is not 

feasible due to the remote and highly 

mobile nature of the housing units. 

Finally, the Department proposes 

guidelines clarifying that, in situations 

where workers are located in rough or 

mountainous terrain or where land use 

regulations may not permit the use of 

certain kinds of mobile housing, tents 

may be used as a temporary housing 

option where the worker’s health and 

safety will not be impaired. 

The proposed rule also addresses 

health and safety concerns for workers 

living in the mobile housing. Workers 

must be able to escape from the mobile 

housing in an emergency, such as a fire. 

As electricity is not available in open 

range areas, alternative heating, lighting, 

and refrigeration or food preservation 

options are necessary. The Department 

invites comments related to safe and 

effective heating and lighting options for 

open range housing as well as refuse 

disposal methods that will avoid 

attracting wildlife. Further, the 

Department invites comments on food 

and food preservation options in 

keeping with food safety and nutrition 

concerns. 

The Department proposes that each 

worker must have a separate bed, cot, or 

bunk with a clean mattress. The 

Department recognizes, however, that 

an employer must occasionally send a 

second worker to a remote open range 

location where only one, single-capacity 

mobile housing unit is located, and that 

bringing a second mobile housing unit 

or tent may not be feasible or 

appropriate. The second worker may be 

replacing the first worker, for example, 

and a short transition time may be 

necessary during which the workers 

will share the single-occupancy mobile 

housing unit. In those cases, the 

proposed rule codifies the Department’s 

intent to limit the duration of the shared 

occupancy situation to no more than 

three consecutive days. Further, the rule 

proposes continuing the current 

requirement that, in such a temporary 

situation, each worker must have a 

separate bed or bedding (e.g., sleeping 

bag). 

The Department is expanding upon 

the current standards in a number of 

areas. For example, the Department is 

proposing that the employer provide the 

workers with water in quantities 

sufficient for basic cooking, 

consumption, cleaning, laundry and 

bathing requirements.23 In WHD 

investigations, the Department has 

found employers who do not provide 

water at all times, and employees who 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 20313 

24To estimate the new wage rates, the Department 

first calculates the annual percent change in each 

USDA region’s average hourly AEWR for each year 

from 2009 to 2015. We then take the averages of the 

resulting six values to estimate the average annual 

percent changes by USDA region. Using each USDA 

region’s average annual percent change, we forecast 

the hourly AEWR from 2016 to 2025 for each USDA 

region. This methodology is described in detail in 

Section 4: Subject-by-Subject Analysis. 

25The estimate of $2.97 million is likely an 

overestimate based on the fact employers are 

already required to provide water for drinking, 

cooking and bathing that meets state health 

standards. 

were forced to melt snow for drinking 

water. The water to be used for cooking 

and consumption must be potable or 

easily rendered potable and the 

employee must be provided with the 

means to do so. Potable water is water 

that meets the water quality standards 

for drinking purposes of either the state 

or local authority having jurisdiction 

over supplies of drinking water or the 

U.S. Environmental Protection Agency’s 

National Primary Drinking Water 

regulations, 40 CFR part 141. This 

definition mirrors the OSHA field 

sanitation regulations that define 

potable water for agricultural 

establishments, 29 CFR 1928.110. The 

supply of potable water must also be 

readily available in order to ensure that 

the water is available for cooking and 

consumption when needed by the 

worker. OSHA requires that drinking 

water must always be available in 

amounts needed for satisfying thirst, 

cooling, waste elimination, and 

metabolism. Occupational Safety and 

Health Administration, Field Sanitation, 

52 FR 16050, 16087 (May 1, 1987). The 

Department is also proposing that the 

employer provide individual drinking 

cups. 

The Department invites comments on 

the amount of water needed for each 

worker for these purposes. The 

Department further seeks comment on 

how much of the water should be 

potable (or easily rendered potable) for 

cooking and consumption and how 

much water is sufficient for cleaning, 

laundry, and bathing requirements. 

When exigent circumstances make 

transporting water to remote locations 

temporarily impossible, the employer 

must identify an alternative water 

supply and methods for making water 

obtained from alternate supplies 

potable. The employer must provide the 

employee with the appropriate means 

for making the water potable. The 

Department seeks comment on what 

alternative water supplies may be used 

when exigent circumstances preclude 

the employer from transporting water to 

the worker, as well as what means are 

available to make alternate water 

sources potable for cooking and 

consumption. 

The Department is aware that these 

rules may involve additional expense of 

providing a sufficient supply of potable 

water (or water easily rendered potable), 

but concludes that any additional 

expense is justified fully given the 

necessity of making drinkable water 

available for a vulnerable worker 

population performing physical labor 

outdoors, sometimes in extreme weather 

conditions. 

In sum, the Department is proposing 

to maintain most of the existing 

requirements that have governed mobile 

housing for workers engaged in herding 

and the open range production of 

livestock for many years. The 

Department invites comments on all 

aspects of the standards for mobile 

housing on the open range as well as 

appropriate standards for tents, 

including size, material, accessories 

(e.g., rainfly and ground cover), and 

related sleeping units (e.g., thermal 

sleeping pad and type of sleeping bag). 

III. Administrative Information 

A. Executive Order 13563 and Executive 

Order 12866 

Executive Order (E.O.) 13563 directs 

agencies to propose or adopt a 

regulation only upon a reasoned 

determination that its benefits justify its 

costs; tailor the regulation to impose the 

least burden on society, consistent with 

achieving the regulatory objectives; and 

in choosing among alternative 

regulatory approaches, select those 

approaches that maximize net benefits. 

E.O. 13563 recognizes that some 

benefits are difficult to quantify and 

provides that, where appropriate and 

permitted by law, agencies may 

consider and discuss qualitatively 

values that are difficult or impossible to 

quantify, including equity, human 

dignity, fairness, and distributive 

impacts. 

Under E.O. 12866, the Office of 

Management and Budget’s (OMB’s) 

Office of Information and Regulatory 

Affairs (OIRA) determines whether a 

regulatory action is significant and, 

therefore, subject to the requirements of 

the E.O. and OMB review. Section 3(f) 

of E.O. 12866 defines a ‘‘significant 

regulatory action’’ as any regulatory 

action that is likely to result in a rule 

that: (1) Has an annual effect on the 

economy of $100 million or more or 

adversely affects in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or tribal governments or 

communities (also referred to as 

‘‘economically significant’’); (2) creates 

serious inconsistency or otherwise 

interferes with an action taken or 

planned by another agency; (3) 

materially alters the budgetary impacts 

of entitlement grants, user fees, or loan 

programs, or the rights and obligations 

of recipients thereof; or (4) raises novel 

legal or policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the E.O. 

The proposed rule is a significant 

regulatory action under sec. 3(f) of E.O. 

12866. 

The economic effects of the costs and 

transfers that would result from the 

changes in this proposed rule, above 

and beyond the impacts of the program 

as it is currently implemented, are not 

economically significant. The largest 

impact on employers will result from 

implementation of the proposed wage 

setting methodology, which would be 

phased in over a 5-year period. This 

proposal will result in average annual 

transfers from employers to employees 

due to increased wages of $45.08 

million between 2016 and 2025, which 

includes a 5-year phase-in period from 

2016 through 2020.24 For those 

employers engaged in open range 

production of livestock other than sheep 

and goat herding, the proposed rule 

requires employers to provide food or 

meals, free of charge, to workers at an 

average annual cost of $1.74 million. 

The special procedures guidance 

currently in place for open range 

production of livestock and 

sheepherding/goat herding require the 

provision of an adequate and 

convenient supply of water that meets 

the standards of the State health 

authority in sufficient amount to 

provide for drinking, cooking and 

bathing. The proposed rule expands the 

required water supply by including 

water for cleaning and laundry. In 

addition, the proposed rule requires that 

the water used for drinking and cooking 

be potable or easily rendered potable. 

The additional costs on employers 

resulting from this proposed rule 

include those involved in the provision 

of water for laundry and cleaning. The 

average additional annual cost for the 

employers to provide this water is $2.97 

million, which includes the cost of the 

potable water, utility trailers, vehicle 

mileage, and labor to deliver the water 

and food to workers.25 The proposed 

rule includes a requirement that 

employers provide access to cooking 

and cleaning facilities when workers are 

located at or near a fixed-site ranch or 

farm. As the Department anticipates 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

20314 Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 

existing cooking facilities will 

accommodate the requirement, the 

anticipated average annual cost to 

employers for costs related to the 

provision of cleaning facilities is $0.36 

million. Finally, the cost for the time 

required to read and review the 

proposed rule is $0.01 million per year. 

Therefore, the average annual cost of the 

proposed rule is $5.08 million. The 

proposed rule involves some cost 

reductions for employers, primarily for 

those who will no longer be required to 

place newspaper advertisements, which 

range from $0.09 million to $0.11 

million per year. 

1. The Mendoza Litigation and Need for 

Rulemaking 

In Mendoza, et al. v. Solis et al., U.S. 

workers filed a lawsuit in the U.S. 

District Court for the District of 

Columbia challenging the special 

procedures for sheepherding, goat 

herding, and occupations involved in 

the production of livestock on the open 

range, asserting that the Department 

violated the Administrative Procedure 

Act (APA) by adopting ‘‘special 

procedures’’ without first providing 

notice and an opportunity for public 

comment. The district court granted a 

motion to dismiss for lack of standing, 

but the Court of Appeals for the D.C. 

Circuit reversed the district court’s 

dismissal and held that the 

Department’s TEGLs containing special 

procedures for herding and production 

of livestock occupations on the open 

range constituted legislative rules 

subject to the APA’s procedural notice 

and comment requirements. 

Through this rulemaking, the 

Department is complying with an order 

issued by the district court on remand 

to remedy the APA violation found by 

the D.C. Circuit. The lawsuit, however, 

is only one of the reasons for the 

promulgation of this Notice of Proposed 

Rulemaking (NPRM). The unique oncall nature (up to 24 hours a day, 7 days 

a week) of the work activity in isolated 

areas associated with these occupations, 

coupled with the sustained scarcity of 

U.S. workers employed in herding, has 

made determining an appropriate 

prevailing wage increasingly difficult 

under the current methodology for 

determining wages for these 

occupations. In these occupations, the 

prevailing wage serves as the Adverse 

Effect Wage Rate (AEWR). Few 

employers provide U.S. worker wage 

information in response to prevailing 

wage survey requests for these 

occupations, making it difficult for State 

Workforce Agencies (SWAs) to submit 

statistically valid prevailing wage 

findings to the OFLC Administrator. For 

example, based on a review of employer 

surveys conducted over the last three 

years by approximately 10 States 

located in the mountain plains/western 

regions of the United States, all of the 

SWAs reported a combined total of only 

30 (FY 2012), 26 (FY 2013), and 18 (FY 

2014) domestic workers performing 

sheepherding; these numbers are 

insufficient to report statistically 

reliable wage results by State. Therefore, 

through this rulemaking, the 

Department plans to establish a more 

effective methodology for determining 

and adjusting a monthly AEWR for 

these unique occupations that 

adequately protects U.S. and H–2A 

workers in these occupations. In 

addition, DOL has received complaints 

concerning housing conditions and has 

found violations of the housing 

standards in both complaint and 

directed (non-complaint) investigations. 

In addition, several cases have been 

litigated in which workers’ health and 

safety were at question (Ruiz v. 

Fernandez, 949 F. Supp. 2d 1055, 1060 

(E.D. Wash. 2013) (denying defendants’ 

motion for summary judgment where 

plaintiff-sheepherders alleged 

mistreatment, including denied breaks, 

threats of deportation, inadequate food, 

and housing that did not meet the 

minimum health and safety standards); 

Camayo v. John Peroulis & Sons Sheep, 

Inc., No. 10–CV–00772–MSK–MJW, 

2012 WL 4359086, at *1 (D. Colo. Sept. 

24, 2012) (denying defendant’s motion 

to dismiss where plaintiff-sheepherders 

alleged severe mistreatment, including 

lack of food); In the Matter of: John 

Peroulis & Sons Sheep, Inc., ALJ Case 

No. 2012–TAE–00004 (appeal pending 

before ARB) (ALJ upheld DOL’s charges 

against employer for multiple 

violations, including lack of adequate 

housing). 

2. Regulatory Alternatives 

The Department has considered three 

alternatives: (1) To make the policy 

changes contained in the proposed rule 

in which the wage determination is 

based on forecasted AEWR values by 

U.S. Department of Agriculture (USDA) 

region, which are incrementally phased 

in over five years; (2) to make the same 

proposed policy changes contained in 

the proposed rule in which the wage 

determination is based on forecasted 

AEWR values by USDA region, which 

are incrementally phased in over three 

years; or (3) to make the policy changes 

contained in the proposed rule in which 

the wage determination is based on 

forecasted AEWR values by USDA 

region, which do not utilize a phase-in 

schedule. The Department believes that 

the first alternative—making the policy 

changes contained in the proposed rule 

using the wage based on forecasted 

AEWR values by USDA region phased 

in over five years—will most effectively 

enable the Department to meet its 

statutory obligations to determine that 

there are not sufficient workers 

available to perform the labor or 

services requested and that the 

employment of foreign workers will not 

adversely affect the wages and working 

conditions of workers in the United 

States similarly employed before the 

admission of foreign workers is 

permitted, given these occupations and 

their unique characteristics that have 

historically resulted in a limited number 

of U.S. workers interested in performing 

these jobs. The new wage methodology 

will begin to address immediately the 

stagnation concerns discussed earlier. A 

phase-in also recognizes that the full 

wage increase in a single year could 

lead to significant disruptions that 

might cause job losses that could be 

avoided by a gradual implementation 

period. In ensuring that prevailing wage 

is set at a level where it will not have 

adverse effect, it is appropriate for the 

Department to consider whether a 

significantly higher wage can be 

immediately absorbed by employers or 

might have the unintended consequence 

of reducing the availability of jobs for 

U.S. workers because the wage would 

result in some employers going out of 

business or scaling back their 

operations. This proposed rule will 

eventually result in wage increases of 

greater than 100 percent to many 

employers. Given the long history of 

employers paying a substantially lower 

wage rate than would be required at the 

end of the phase-in period, under this 

proposed rule the Department proposes 

to set the monthly AEWR initially at 60 

percent of the monthly AEWR 

calculated using the proposed 

methodology, with incremental 

increases over the 5-year period 

following implementation. This 

proposal is intended to ensure that this 

rule will not have adverse effect on U.S. 

workers due to significant job losses. 

The Department invites comments from 

the public on these and other possible 

alternatives to consider with the goal of 

ensuring that the Final Rule best enables 

the Department to fulfill its statutory 

mandate. 

3. Economic Analysis 

The economic analysis presented 

below covers herding and open range 

livestock production occupations. The 

Department’s economic analysis under 

this Part (III.A) is strictly limited to 

meeting the requirements under 

Executive Orders 12866 and 13563. The 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 20315 

26For the purposes of the cost-benefit analysis, 

the 10-year period starts on October 1, 2015. 

Department did not use the economic 

analysis under this Part (III.A) as a 

factor or basis for determining the scope 

or extent of the Department’s obligations 

or responsibilities under the 

Immigration and Nationality Act, as 

amended. Nor did the Department use 

the economic analysis in this Part (III.A) 

as a relevant factor relating to any 

requirement under the Administrative 

Procedure Act, or any case interpreting 

the requirements under the 

Administrative Procedure Act. 

The Department derives its estimates 

by comparing the baseline, that is, the 

program benefits and costs under the 

2010 Final Rule and Training and 

Employment Guidance Letters (TEGLs) 

32–10 (Special Procedures: Labor 

Certification Process for Employers 

Engaged in Sheepherding and 

Goatherding Occupations under the H– 

2A Program) and 15–06, Change 1, 

(Special Procedures: Labor Certification 

Process for Occupations Involved in the 

Open Range Production of Livestock 

under the H–2A Program), against the 

benefits and costs associated with the 

implementation of provisions contained 

in the proposed rule. We explain how 

the required actions of employers in 

herding and open range livestock 

production occupations are linked to 

the expected impacts of the proposed 

rule. 

The Department has quantified and 

monetized the impacts of the proposed 

rule where feasible. Where we were 

unable to quantify benefits and costs— 

for example, due to data limitations— 

we describe them qualitatively and 

identify which data were not available 

to quantify the costs. The analysis 

covers 10 years (2016 through 2025) to 

ensure it captures all major impacts.26

When summarizing the benefits, costs, 

or transfers resulting from specific 

provisions of the proposed rule, we 

present the 10-year averages to estimate 

the typical annual effect or 10-year 

discounted totals to estimate the present 

value of the overall effects. 

In the remaining sections, the 

Department first presents a subject-bysubject analysis of the impacts of the 

proposed rule. We then present a 

summary of the costs and transfers of 

the proposed rule, including total 

impacts over the 10-year analysis 

period. 

4. Subject-by-Subject Analysis 

The Department’s analysis below 

considers the expected impacts of the 

following provisions of the proposed 

rule against the baseline (i.e., the 2010 

Final Rule; TEGL 32–10; and TEGL 15– 

06, Change 1): (a) Proportion/type of 

work permitted at the ranch (i.e., not on 

the open range); (b) the new 

methodology for determining the wages 

of workers; (c) filing requirements; (d) 

job order submissions; (e) job order 

duration; (f) newspaper advertisements; 

(g) placement of workers on master 

applications; (h) employer-provided 

items; (i) meals; (j) potable water; (k) 

expanded cooking/cleaning facilities; (l) 

earnings records; and (m) time to read 

and review the rule. 

For each of these subjects, the 

Department discusses the relevant costs, 

benefits, and transfers. In addition, we 

provide a qualitative assessment of 

transfer payments associated with the 

increased wages and protections of U.S. 

workers. Transfer payments, as defined 

by OMB Circular A–4, are payments 

from one group to another that do not 

affect total resources available to 

society. Transfer payments are 

associated with a distributional effect 

but do not result in additional costs or 

benefits to society. 

a. Proportion/Type of Work Permitted at 

the Ranch 

The proposed rule codifies certain 

procedures for employers who apply to 

the Department to obtain temporary 

agricultural labor certifications to hire 

foreign workers to perform herding or 

production of livestock on the open 

range. The proposed rule also clarifies 

the proportion/type of work that is 

permitted to be performed by workers at 

the fixed-site ranch. Any job duties 

performed at a place other than the open 

range (e.g., a fixed site farm or ranch) 

must be performed on no more than 50 

percent of the workdays in a work 

contract period, and any additional 

duties above and beyond the production 

of livestock must be minor, sporadic, 

and incidental to the herding or 

production of livestock, i.e. closely and 

directly related to herding and the 

production of livestock and be 

performed on no more than 20 percent 

of the workdays spent at the ranch in a 

work contract period. The proposed rule 

thus clarifies and makes more specific 

the provision in current TEGL 32–10, 

which similarly provides that it applies 

in the unique situation of sheepherding, 

which requires ‘‘spending extended 

periods of time with grazing herds of 

sheep in isolated mountainous terrain,’’ 

and states that workers may perform 

‘‘other farm or ranch chores related to 

the production and husbandry of sheep 

and/or goats on an incidental basis.’’ As 

in current TEGL 32–10, the proposed 

rule states that the work activities must 

also generally require the workers to be 

on call 24 hours per day, 7 days per 

week. In addition, the work performed 

in the open range must require the use 

of mobile housing because the worker is 

not reasonably able to return to his or 

her place of residence or the employerprovided fixed-site housing within the 

same day. However, as discussed 

previously, the Department is requesting 

comments regarding the length of time 

and nature of work performed while at 

the ranch and whether the ranch work 

duties should be considered a separate 

and distinct job from the open range 

duties, requiring a separate job order. 

i. Costs 

This change represents a cost to 

herding and open range livestock 

production employers that have had or 

will have workers at the ranch for more 

than 50 percent of the contracted 

workdays or have had workers perform 

minor, sporadic, and incidental duties 

on more than 20 percent of the 

contracted workdays spent at the ranch. 

These employers will be excluded from 

applying for workers pursuant to the 

special procedures in subpart C unless 

they commit to complying with the 

proposed percentage limitations for 

such workers. The Department is not 

able to estimate this cost, however, 

because we do not know how many 

workers currently spend more than 50 

percent of their days working at the 

farm or ranch, although we believe the 

number is very small given the typical 

cycles for months spent on the range. 

Further, the Department cannot predict 

the adjustments of employers in 

response to the 20 percent cap. The 

Department anticipates that it is likely 

that affected employers will adjust their 

practices so that minor, sporadic, and 

incidental work performed at the 

employer’s fixed-site ranch will be 

equal to or less than the 20 percent cap. 

However, as discussed previously, the 

Department is requesting comments 

regarding the length of time and nature 

of work performed while at the ranch 

and whether the ranch work duties 

should be considered a separate and 

distinct job from the open range duties, 

requiring a separate job order. Also, the 

Department invites comments regarding 

possible data sources that could be used 

to estimate this cost. 

b. New Methodology for Determining 

the Wages of Workers 

The proposed rule changes the 

methodology for determining the 

required wages of herding and open 

range livestock production workers. The 

Department proposes for both sets of 

occupations to establish the required 

wage by using forecasted AEWR values 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

20316 Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 

27The FY 2012 certification dataset provides the 

most recent data available in a useable form. Data 

from FY 2013 was not available in a useable form 

due to the Department’s settlement of litigation 

regarding prevailing wages during FY 2013:Q1 

where the wage offers for many employers certified 

for H–2A open range workers changed postcertification and, therefore, the existing 

administrative did not accurately reflect the actual 

wage offers for purposes of conducting the analysis. 

Data for FY 2014 was not yet available in a useable 

form at the time the analysis was conducted. 

by USDA region, and incrementally 

phasing the wages in over the first five 

years of the analysis period. The 

Department considered two other 

alternatives: Using forecasted AEWR 

values by USDA region, which are 

incrementally phased in over the first 

three years of the analysis period; and 

using forecasted AEWR values by USDA 

region that do not utilize a phase-in 

schedule. The Department analyzes 

these alternatives relative to the 

baseline—the monthly AEWR for FY 

2014—which is the most recent AEWR 

data available and which reflects what 

employers currently are paying. To 

convert the monthly wage rate to an 

hourly wage rate, the Department 

divides the monthly wage rate by 44 

hours and 4.333 weeks. Exhibit 1 

presents the baseline wages by State. 

EXHIBIT 1—BASELINE WAGE—FY 2014 MONTHLY AEWR 

[Hourly AEWR] 

State 

Required wage for 

sheep 

and goat herders 

Required wage for open 

range livestock 

production workers 

AL ............................................................................................................................................. $750.00 ($3.93) N/A 

AZ ............................................................................................................................................ $750.00 ($3.93) N/A 

AR ............................................................................................................................................ $750.00 ($3.93) N/A 

CA ............................................................................................................................................ $1,600.34 ($8.39) N/A 

CO ............................................................................................................................................ $750.00 ($3.93) $875.00 ($4.59) 

HI ............................................................................................................................................. $1,422.52 ($7.46) N/A 

ID ............................................................................................................................................. $750.00 ($3.93) $875.00 ($4.59) 

MO ........................................................................................................................................... $750.00 ($3.93) N/A 

MT ............................................................................................................................................ $750.00 ($3.93) $875.00 ($4.59) 

NM ........................................................................................................................................... $750.00 ($3.93) $875.00 ($4.59) 

NV ............................................................................................................................................ $800.00 ($4.20) $875.00 ($4.59) 

ND ............................................................................................................................................ N/A $875.00 ($4.59) 

OK ............................................................................................................................................ $750.00 ($3.93) N/A 

OR ............................................................................................................................................ $1,227.67 ($6.44) $875.00 ($4.59) 

SD ............................................................................................................................................ $750.00 ($3.93) $875.00 ($4.59) 

TX ............................................................................................................................................ $750.00 ($3.93) $875.00 ($4.59) 

UT ............................................................................................................................................ $750.00 ($3.93) $875.00 ($4.59) 

WA ........................................................................................................................................... $750.00 ($3.93) N/A 

WY ........................................................................................................................................... $750.00 ($3.93) $875.00 ($4.59) 

Exhibit 2 presents the number and 

percentage of goat/sheepherding and 

open range livestock production 

employers participating in the H–2A 

program and the State for which they 

applied for certified H–2A workers. The 

number of employers is based on the FY 

2012 H–2A certification dataset.27 Note 

that each employer is counted once for 

each State for which the employer 

applied for workers; some employers 

applied for workers in multiple States. 

Hence, Exhibit 2 overstates the number 

of employers participating in the H–2A 

herder and open range livestock 

program. As Exhibit 2 illustrates, sheep 

and goat herders are most heavily 

concentrated in California, Utah, and 

Colorado, while open range livestock 

production workers are most heavily 

concentrated in Colorado, Texas, Utah, 

and Wyoming. 

EXHIBIT 2—NUMBER AND PERCENTAGE OF H–2A EMPLOYERS BY OCCUPATION AND STATE

State 

Number of 

sheep and 

goat herder 

employers 

Percent of 

sheep and 

goat herder 

employers 

Number of 

open range 

livestock 

production 

employers 

Percent of 

open range 

livestock 

production 

employers 

AL ..................................................................................................................... 2 0.4 ........................ ........................

AZ .................................................................................................................... 50 10.0 ........................ ........................

AR .................................................................................................................... 46 9.2 ........................ ........................

CA .................................................................................................................... 91 18.2 ........................ ........................

CO .................................................................................................................... 66 13.2 37 30.6 

HI ..................................................................................................................... 2 0.4 ........................ ........................

ID ..................................................................................................................... 43 8.6 5 4.1 

MO ................................................................................................................... 1 0.2 ........................ ........................

MT .................................................................................................................... 25 5.0 7 5.8 

NM ................................................................................................................... ........................ ........................ 1 0.8 

NV .................................................................................................................... 1 0.2 1 0.8 

ND .................................................................................................................... 27 5.4 1 0.8 

OK .................................................................................................................... 3 0.6 ........................ ........................

OR .................................................................................................................... 15 3.0 1 0.8 

SD .................................................................................................................... 4 0.8 1 0.8 

TX .................................................................................................................... 10 2.0 25 20.7 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 20317 

EXHIBIT 2—NUMBER AND PERCENTAGE OF H–2A EMPLOYERS BY OCCUPATION AND STATE—Continued 

State 

Number of 

sheep and 

goat herder 

employers 

Percent of 

sheep and 

goat herder 

employers 

Number of 

open range 

livestock 

production 

employers 

Percent of 

open range 

livestock 

production 

employers 

UT .................................................................................................................... 71 14.2 22 18.2 

WA ................................................................................................................... 4 0.8 ........................ ........................

WY ................................................................................................................... 38 7.6 20 16.5 

Total .......................................................................................................... 499 100 121 100 

Note: The total number of employers by State (620) exceeds the number of actual employers participating in the H–2A herder and open range 

livestock program (517). This discrepancy is due to some employers submitting applications for certified H–2A workers in multiple States. 

1. AEWR Values Incrementally Phased 

In Over Five Years 

To estimate the new wage rates, the 

Department first calculates the annual 

percent change in each USDA region’s 

average hourly AEWR for each year 

from 2009 to 2015. We then take the 

averages of the resulting six values to 

estimate the average annual percent 

changes by USDA region. Using each 

USDA region’s average annual percent 

change, we forecast the hourly AEWR 

for the 5-year phase-in period from 2016 

to 2020 for each USDA region. Using the 

Southeast region as an example, the 

average annual percent change over the 

six years is 2.2 percent. The Department 

applies the 2.2 percent growth rate to 

the 2015 hourly AEWR to obtain the 

forecasted 2016 hourly AEWR ($10.00 × 

1.022 = $10.22). We then apply the same 

2.2 percent growth rate to the forecasted 

2016 hourly AEWR to forecast the 2017 

hourly AEWR ($10.22 × 1.022 = $10.44). 

We repeat this calculation to forecast 

the hourly AEWRs for the remaining 

years in the analysis period. Exhibit 3 

presents the actual and forecasted 

hourly AEWRs for each USDA region. 

EXHIBIT 3—ACTUAL AND FORECASTED HOURLY AEWRS BY USDA REGION

USDA Survey region (state) 

Actual average hourly AEWR Forecasted hourly AEWR 

2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020–2025 

Southeast (AL) ................................................................ $8.77 $9.11 $9.12 $9.39 $9.78 $10.00 $10.00 $10.22 $10.44 $10.67 $10.91 $11.15 

Annual Percent Change .......................................... .............. 3.90% 0.10% 3.00% 4.20% 2.20% 0.00% Forecasted hourly AEWR calculated using the average 

annual percent change of 2.2% 

Cornbelt II (MO) .............................................................. $10.77 $10.86 $11.03 $11.50 $11.41 $12.22 $12.62 $12.96 $13.31 $13.67 $14.04 $14.42 

Annual Percent Change .......................................... .............. 0.80% 1.60% 4.30% ¥0.80% 7.10% 3.30% Forecasted hourly AEWR calculated using the average 

annual percent change of 2.7% 

Delta (AR) ....................................................................... $8.92 $9.10 $8.97 $9.30 $9.50 $9.87 $10.18 $10.40 $10.63 $10.87 $11.11 $11.35 

Annual Percent Change .......................................... .............. 2.00% ¥1.40% 3.70% 2.20% 3.90% 3.10% Forecasted hourly AEWR calculated using the average 

annual percent change of 2.2% 

Northern Plains (KS, NE, ND, SD) ................................. $10.39 $10.66 $11.52 $11.61 $12.33 $13.41 $13.59 $14.22 $14.87 $15.55 $16.27 $17.02 

Annual Percent Change .......................................... .............. 2.60% 8.10% 0.80% 6.20% 8.80% 1.30% Forecasted hourly AEWR calculated using the average 

annual percent change of 4.6% 

Southern Plains (OK, TX) ............................................... $9.27 $9.78 $9.65 $9.88 $10.18 $10.86 $10.35 $10.55 $10.75 $10.95 $11.16 $11.37 

Annual Percent Change .......................................... .............. 5.50% ¥1.30% 2.40% 3.00% 6.70% ¥4.70% Forecasted hourly AEWR calculated using the average 

annual percent change of 1.9% 

Mountain I (ID, MT, WY) ................................................. $9.64 $9.90 $9.90 $10.19 $9.99 $10.69 $11.14 $11.42 $11.70 $12.00 $12.30 $12.60 

Annual Percent Change .......................................... .............. 2.70% 0.00% 2.90% ¥2.00% 7.00% 4.20% Forecasted hourly AEWR calculated using the average 

annual percent change of 2.5% 

Mountain II (CO, NV, UT) ............................................... $9.88 $10.06 $10.48 $10.43 $10.08 $10.89 $11.37 $11.64 $11.92 $12.21 $12.50 $12.80 

Annual Percent Change .......................................... .............. 1.80% 4.20% ¥0.50% ¥3.40% 8.00% 4.40% Forecasted hourly AEWR calculated using the average 

annual percent change of 2.4% 

Mountain III (AZ, NM) ..................................................... $9.82 $9.71 $9.60 $9.94 $9.73 $9.97 $10.54 $10.67 $10.79 $10.92 $11.06 $11.19 

Annual Percent Change .......................................... .............. ¥1.10% ¥1.10% 3.50% ¥2.10% 2.50% 5.70% Forecasted hourly AEWR calculated using the average 

annual percent change of 1.2% 

Pacific (OR, WA) ............................................................. $10.12 $10.85 $10.60 $10.92 $12.00 $11.87 $12.42 $12.87 $13.33 $13.81 $14.31 $14.82 

Annual Percent Change .......................................... .............. 7.20% ¥2.30% 3.00% 9.90% ¥1.10% 4.60% Forecasted hourly AEWR calculated using the average 

annual percent change of 3.6% 

California ......................................................................... $10.16 $10.25 $10.31 $10.24 $10.74 $11.01 $11.33 $11.53 $11.74 $11.95 $12.17 $12.39 

Annual Percent Change .......................................... .............. 0.90% 0.60% ¥0.70% 4.90% 2.50% 2.90% Forecasted hourly AEWR calculated using the average 

annual percent change of 1.8% 

Hawaii ............................................................................. $11.06 $11.45 $12.01 $12.26 $12.72 $12.91 $12.98 $13.33 $13.69 $14.06 $14.44 $14.83 

Annual Percent Change .......................................... .............. 3.50% 4.90% 2.10% 3.80% 1.50% 0.50% Forecasted hourly AEWR calculated using the average 

annual percent change of 2.7% 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

20318 Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 

The new wage rate determination 

methodology would be implemented 

over the first five years of the proposed 

rule. The Department estimates each 

region’s hourly wage rate for each year 

of the analysis period as follows: 

EXHIBIT 4—WAGE RATE PHASING

SCHEDULE FOR ALTERNATIVE 1 

Year Wage rate estimate 

2016 .... 60 percent of the forecasted 2016 

AEWR. 

2017 .... 70 percent of the forecasted 2017 

AEWR. 

EXHIBIT 4—WAGE RATE PHASING

SCHEDULE FOR ALTERNATIVE 1— 

Continued 

Year Wage rate estimate 

2018 .... 80 percent of the forecasted 2018 

AEWR. 

2019 .... 90 percent of the forecasted 2019 

AEWR. 

2020 .... 100 percent of the forecasted 2020 

AEWR. 

2021 .... 100 percent of the forecasted 2021 

AEWR. 

2022 .... 100 percent of the forecasted 2022 

AEWR. 

EXHIBIT 4—WAGE RATE PHASING

SCHEDULE FOR ALTERNATIVE 1— 

Continued 

Year Wage rate estimate 

2023 .... 100 percent of the forecasted 2023 

AEWR. 

2024 .... 100 percent of the forecasted 2024 

AEWR. 

2025 .... 100 percent of the forecasted 2025 

AEWR. 

Exhibit 5 presents the phased-in 

forecasted hourly AEWRs for each 

USDA region under Alternative 1—the 

proposed 5-year phase-in. 

EXHIBIT 5—FORECASTED HOURLY AEWRS BY USDA REGION PHASED IN OVER 5 YEARS

USDA Region States included 2016 2017 2018 2019 2020–2025 

Southeast ......................................... AL $6.13 $7.31 $8.54 $9.82 $11.15 

Cornbelt II ......................................... MO 7.78 9.32 10.94 12.64 14.42 

Delta ................................................. AR 6.24 7.44 8.69 10.00 11.35 

Northern Plains ................................. KS, NE, ND, SD 8.53 10.41 12.44 14.64 17.02 

Southern Plains ................................ OK, TX 6.33 7.52 8.76 10.04 11.37 

Mountain I ......................................... ID, MT, WY 6.85 8.19 9.60 11.07 12.60 

Mountain II ........................................ CO, NV, UT 6.99 8.35 9.77 11.25 12.80 

Mountain III ....................................... AZ, NM 6.40 7.56 8.74 9.95 11.19 

Pacific ............................................... OR, WA 7.72 9.33 11.05 12.88 14.82 

California .......................................... CA 6.92 8.22 9.56 10.95 12.39 

Hawaii ............................................... HI 8.00 9.58 11.25 13.00 14.83 

To convert the hourly wage rate to a 

monthly wage rate, the Department 

multiplies the hourly wage rate by 44 

hours and 4.333 weeks. Exhibit 6 

presents the monthly wage rate by State. 

EXHIBIT 6—FORECASTED MONTHLY AEWRS BY STATE PHASED IN OVER 5 YEARS

State 2016 2017 2018 2019 2020–2025 

AL ......................................................................................... $1,169.08 $1,393.93 $1,628.11 $1,871.92 $2,125.67 

AZ ......................................................................................... 1,220.15 1,440.59 1,666.15 1,896.91 2,132.97 

AR ........................................................................................ 1,190.12 1,419.02 1,657.42 1,905.62 2,163.93 

CA ........................................................................................ 1,319.38 1,566.99 1,823.08 2,087.88 2,361.62 

CO ........................................................................................ 1,331.84 1,591.11 1,862.05 2,145.08 2,440.63 

HI .......................................................................................... 1,524.89 1,827.07 2,144.46 2,477.65 2,827.28 

ID .......................................................................................... 1,306.18 1,561.97 1,829.73 2,109.91 2,402.96 

MO ....................................................................................... 1,482.59 1,776.40 2,084.98 2,408.93 2,748.86 

MT ........................................................................................ 1,306.18 1,561.97 1,829.73 2,109.91 2,402.96 

NM ........................................................................................ 1,220.15 1,440.59 1,666.15 1,896.91 2,132.97 

NV ........................................................................................ 1,331.84 1,591.11 1,862.05 2,145.08 2,440.63 

ND ........................................................................................ 1,626.09 1,984.37 2,372.17 2,791.45 3,244.29 

OK ........................................................................................ 1,206.44 1,434.26 1,670.30 1,914.79 2,167.97 

OR ........................................................................................ 1,471.89 1,779.02 2,106.36 2,454.96 2,825.93 

SD ........................................................................................ 1,626.09 1,984.37 2,372.17 2,791.45 3,244.29 

TX ......................................................................................... 1,206.44 1,434.26 1,670.30 1,914.79 2,167.97 

UT ........................................................................................ 1,331.84 1,591.11 1,862.05 2,145.08 2,440.63 

WA ....................................................................................... 1,471.89 1,779.02 2,106.36 2,454.96 2,825.93 

WY ....................................................................................... 1,306.18 1,561.97 1,829.73 2,109.91 2,402.96 

Exhibits 7 and 8 present the wage 

differential between the hourly wage 

under Alternative 1—the proposed 5- 

year phase-in—and the baseline by State 

for sheep and goat herders and open 

range livestock production workers, 

respectively. In the case of California, 

the hourly wage under Alternative 1 is 

lower than the baseline wage for the 

first two years, because State law 

requires a higher wage than the 

proposed methodology. In those years, 

the workers would continue to receive 

the baseline wage; therefore, no wage 

differential results. Additionally, the 

hourly wage differentials for States that 

did not have a baseline wage because 

there were no H–2A workers employed 

as herders or open range livestock 

workers are denoted as ‘‘N/A.’’ Note that 

these values are for informational 

purposes only and were not used in the 

analysis. 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 20319 

EXHIBIT 7—HOURLY WAGE DIFFERENTIAL BY STATE FOR SHEEP AND GOAT HERDERS PHASED IN OVER 5 YEARS

State 2016 2017 2018 2019 2020–2025 

AL ......................................................................................... $2.20 $3.38 $4.61 $5.88 $7.22 

AZ ......................................................................................... 2.47 3.62 4.81 6.02 7.25 

AR ........................................................................................ 2.31 3.51 4.76 6.06 7.42 

CA ........................................................................................ ........................ ........................ 1.17 2.56 3.99 

CO ........................................................................................ 3.05 4.41 5.83 7.32 8.87 

HI .......................................................................................... 0.54 2.12 3.79 5.53 7.37 

ID .......................................................................................... 2.92 4.26 5.66 7.13 8.67 

MO ....................................................................................... 3.84 5.38 7.00 8.70 10.48 

MT ........................................................................................ 2.92 4.26 5.66 7.13 8.67 

NM ........................................................................................ 2.47 3.62 4.81 6.02 7.25 

NV ........................................................................................ 2.79 4.15 5.57 7.06 8.61 

ND ........................................................................................ N/A N/A N/A N/A N/A 

OK ........................................................................................ 2.39 3.59 4.83 6.11 7.44 

OR ........................................................................................ 1.28 2.89 4.61 6.44 8.38 

SD ........................................................................................ 4.60 6.47 8.51 10.71 13.08 

TX ......................................................................................... 2.39 3.59 4.83 6.11 7.44 

UT ........................................................................................ 3.05 4.41 5.83 7.32 8.87 

WA ....................................................................................... 3.79 5.40 7.11 8.94 10.89 

WY ....................................................................................... 2.92 4.26 5.66 7.13 8.67 

EXHIBIT 8—HOURLY WAGE DIFFERENTIAL BY STATE FOR OPEN RANGE LIVESTOCK PRODUCTION WORKERS PHASED IN

OVER 5 YEARS

State 2016 2017 2018 2019 2020–2025 

AL ......................................................................................... N/A N/A N/A N/A N/A 

AZ ......................................................................................... N/A N/A N/A N/A N/A 

AR ........................................................................................ N/A N/A N/A N/A N/A 

CA ........................................................................................ N/A N/A N/A N/A N/A 

CO ........................................................................................ $2.40 $3.76 $5.18 $6.66 $8.21 

HI .......................................................................................... N/A N/A N/A N/A N/A 

ID .......................................................................................... 2.26 3.60 5.01 6.48 8.01 

MO ....................................................................................... N/A N/A N/A N/A N/A 

MT ........................................................................................ 2.26 3.60 5.01 6.48 8.01 

NM ........................................................................................ 1.81 2.97 4.15 5.36 6.60 

NV ........................................................................................ 2.40 3.76 5.18 6.66 8.21 

ND ........................................................................................ 3.94 5.82 7.85 10.05 12.43 

OK ........................................................................................ N/A N/A N/A N/A N/A 

OR ........................................................................................ 3.13 4.74 6.46 8.29 10.23 

SD ........................................................................................ 3.94 5.82 7.85 10.05 12.43 

TX ......................................................................................... 1.74 2.93 4.17 5.45 6.78 

UT ........................................................................................ 2.40 3.76 5.18 6.66 8.21 

WA ....................................................................................... N/A N/A N/A N/A N/A 

WY ....................................................................................... 2.26 3.60 5.01 6.48 8.01 

2. AEWR Values Incrementally Phased 

in Over Three Years 

Under this alternative wage rate 

determination methodology, the 

Department estimates each region’s 

hourly wage rate using the same AEWR 

values presented in Exhibit 3 but uses 

the following phase-in schedule: 

EXHIBIT 9—WAGE RATE PHASING

SCHEDULE FOR ALTERNATIVE 2 

Year Wage rate estimate 

2016 .... 60 percent of the forecasted 2016 

AEWR. 

EXHIBIT 9—WAGE RATE PHASING

SCHEDULE FOR ALTERNATIVE 2— 

Continued 

Year Wage rate estimate 

2017 .... 80 percent of the forecasted 2017 

AEWR. 

2018 .... 100 percent of the forecasted 2018 

AEWR. 

2019 .... 100 percent of the forecasted 2019 

AEWR. 

2020 .... 100 percent of the forecasted 2020 

AEWR. 

2021 .... 100 percent of the forecasted 2021 

AEWR. 

2022 .... 100 percent of the forecasted 2022 

AEWR. 

EXHIBIT 9—WAGE RATE PHASING

SCHEDULE FOR ALTERNATIVE 2— 

Continued 

Year Wage rate estimate 

2023 .... 100 percent of the forecasted 2023 

AEWR. 

2024 .... 100 percent of the forecasted 2024 

AEWR. 

2025 .... 100 percent of the forecasted 2025 

AEWR. 

Exhibit 10 presents the phased-in 

forecasted hourly AEWRs for each 

USDA region under Alternative 2. 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

20320 Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 

EXHIBIT 10—FORECASTED HOURLY AEWRS BY USDA REGION PHASED IN OVER 3 YEARS

USDA region States included 2016 2017 2018 2019 2020–2025 

Southeast ......................................... AL $6.13 $8.36 $10.67 $10.91 $11.15 

Cornbelt II ......................................... MO 7.78 10.65 13.67 14.04 14.42 

Delta ................................................. AR 6.24 8.51 10.87 11.11 11.35 

Northern Plains ................................. KS, NE, ND, SD 8.53 11.90 15.55 16.27 17.02 

Southern Plains ................................ OK, TX 6.33 8.60 10.95 11.16 11.37 

Mountain I ......................................... ID, MT, WY 6.85 9.36 12.00 12.30 12.60 

Mountain II ........................................ CO, NV, UT 6.99 9.54 12.21 12.50 12.80 

Mountain III ....................................... AZ, NM 6.40 8.64 10.92 11.06 11.19 

Pacific ............................................... OR, WA 7.72 10.66 13.81 14.31 14.82 

California .......................................... CA 6.92 9.39 11.95 12.17 12.39 

Hawaii ............................................... HI 8.00 10.95 14.06 14.44 14.83 

To convert the hourly wage rate to a 

monthly wage rate, the Department 

multiplies the hourly wage rate by 44 

hours and 4.333 weeks. Exhibit 11 

presents the monthly wage rate by State. 

EXHIBIT 11—FORECASTED MONTHLY AEWRS BY STATE PHASED IN OVER 3 YEARS

State 2016 2017 2018 2019 2020–2025 

AL ......................................................................................... $1,169.08 $1,593.06 $2,035.14 $2,079.91 $2,125.67 

AZ ......................................................................................... 1,220.15 1,646.39 2,082.68 2,107.68 2,132.97 

AR ........................................................................................ 1,190.12 1,621.74 2,071.77 2,117.35 2,163.93 

CA ........................................................................................ 1,319.38 1,790.84 2,278.84 2,319.86 2,361.62 

CO ........................................................................................ 1,331.84 1,818.41 2,327.56 2,383.43 2,440.63 

HI .......................................................................................... 1,524.89 2,088.08 2,680.57 2,752.95 2,827.28 

ID .......................................................................................... 1,306.18 1,785.11 2,287.17 2,344.35 2,402.96 

MO ....................................................................................... 1,482.59 2,030.17 2,606.23 2,676.59 2,748.86 

MT ........................................................................................ 1,306.18 1,785.11 2,287.17 2,344.35 2,402.96 

NM ........................................................................................ 1,220.15 1,646.39 2,082.68 2,107.68 2,132.97 

NV ........................................................................................ 1,331.84 1,818.41 2,327.56 2,383.43 2,440.63 

ND ........................................................................................ 1,626.09 2,267.85 2,965.21 3,101.61 3,244.29 

OK ........................................................................................ 1,206.44 1,639.16 2,087.87 2,127.54 2,167.97 

OR ........................................................................................ 1,471.89 2,033.16 2,632.95 2,727.73 2,825.93 

SD ........................................................................................ 1,626.09 2,267.85 2,965.21 3,101.61 3,244.29 

TX ......................................................................................... 1,206.44 1,639.16 2,087.87 2,127.54 2,167.97 

UT ........................................................................................ 1,331.84 1,818.41 2,327.56 2,383.43 2,440.63 

WA ....................................................................................... 1,471.89 2,033.16 2,632.95 2,727.73 2,825.93 

WY ....................................................................................... 1,306.18 1,785.11 2,287.17 2,344.35 2,402.96 

Exhibits 12 and 13 present the wage 

differential between the hourly wage 

under Alternative 2 and the baseline by 

State for sheep and goat herders and 

open range livestock production 

workers, respectively. In the case of 

California, the hourly wage under 

Alternative 2 was lower than the 

baseline wage for the first year. The 

Department assumed that the workers 

would continue to receive the baseline 

wage; therefore, no wage differential 

results. Additionally, the hourly wage 

differentials for States that did not have 

a baseline wage because there were no 

H–2A workers certified are denoted as 

‘‘N/A.’’ Note that these values are for 

informational purposes only and were 

not used in the analysis. 

EXHIBIT 12—HOURLY WAGE DIFFERENTIAL BY STATE FOR SHEEP AND GOAT HERDERS PHASED IN OVER 3 YEARS

State 2016 2017 2018 2019 2020–2025 

AL ......................................................................................... $2.20 $4.42 $6.74 $6.98 $7.22 

AZ ......................................................................................... 2.47 4.70 6.99 7.12 7.25 

AR ........................................................................................ 2.31 4.57 6.93 7.17 7.42 

CA ........................................................................................ ........................ 1.00 3.56 3.77 3.99 

CO ........................................................................................ 3.05 5.60 8.27 8.57 8.87 

HI .......................................................................................... 0.54 3.49 6.60 6.98 7.37 

ID .......................................................................................... 2.92 5.43 8.06 8.36 8.67 

MO ....................................................................................... 3.84 6.71 9.74 10.11 10.48 

MT ........................................................................................ 2.92 5.43 8.06 8.36 8.67 

NM ........................................................................................ 2.47 4.70 6.99 7.12 7.25 

NV ........................................................................................ 2.79 5.34 8.01 8.31 8.61 

ND ........................................................................................ N/A N/A N/A N/A N/A 

OK ........................................................................................ 2.39 4.66 7.02 7.23 7.44 

OR ........................................................................................ 1.28 4.22 7.37 7.87 8.38 

SD ........................................................................................ 4.60 7.96 11.62 12.33 13.08 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 20321 

EXHIBIT 12—HOURLY WAGE DIFFERENTIAL BY STATE FOR SHEEP AND GOAT HERDERS PHASED IN OVER 3 YEARS— 

Continued 

State 2016 2017 2018 2019 2020–2025 

TX ......................................................................................... 2.39 4.66 7.02 7.23 7.44 

UT ........................................................................................ 3.05 5.60 8.27 8.57 8.87 

WA ....................................................................................... 3.79 6.73 9.88 10.37 10.89 

WY ....................................................................................... 2.92 5.43 8.06 8.36 8.67 

EXHIBIT 13—HOURLY WAGE DIFFERENTIAL BY STATE FOR OPEN RANGE LIVESTOCK PRODUCTION WORKERS PHASED IN

OVER 3 YEARS

State 2016 2017 2018 2019 2020–2025 

AL ......................................................................................... N/A N/A N/A N/A N/A 

AZ ......................................................................................... N/A N/A N/A N/A N/A 

AR ........................................................................................ N/A N/A N/A N/A N/A 

CA ........................................................................................ N/A N/A N/A N/A N/A 

CO ........................................................................................ $2.40 $4.95 $7.62 $7.91 $8.21 

HI .......................................................................................... N/A N/A N/A N/A N/A 

ID .......................................................................................... 2.26 4.77 7.41 7.71 8.01 

MO ....................................................................................... N/A N/A N/A N/A N/A 

MT ........................................................................................ 2.26 4.77 7.41 7.71 8.01 

NM ........................................................................................ 1.81 4.05 6.33 6.47 6.60 

NV ........................................................................................ 2.40 4.95 7.62 7.91 8.21 

ND ........................................................................................ 3.94 7.31 10.96 11.68 12.43 

OK ........................................................................................ N/A N/A N/A N/A N/A 

OR ........................................................................................ 3.13 6.07 9.22 9.72 10.23 

SD ........................................................................................ 3.94 7.31 10.96 11.68 12.43 

TX ......................................................................................... 1.74 4.01 6.36 6.57 6.78 

UT ........................................................................................ 2.40 4.95 7.62 7.91 8.21 

WA ....................................................................................... N/A N/A N/A N/A N/A 

WY ....................................................................................... 2.26 4.77 7.41 7.71 8.01 

3. AEWR Values With No Phase-In 

Under this alternative wage rate 

determination methodology, the 

Department estimates each region’s 

hourly wage rate using the same AEWR 

values presented in Exhibit 3 but does 

not use a phase-in schedule. To convert 

the hourly wage rate to a monthly wage 

rate, the Department multiplies the 

hourly wage rate by 44 hours and 4.333 

weeks. With no phase-in, the monthly 

AEWR requirement each year would be 

100 percent of that year’s hourly AEWR 

converted to a monthly rate by 

multiplying the hourly wage rate by 44 

hours and 4.333 weeks. Exhibit 14 

presents the monthly wage rate by State. 

EXHIBIT 14—FORECASTED MONTHLY AEWRS BY STATE

[No phase-in] 

State 2016 2017 2018 2019 2020–2025 

AL ......................................................................................... $1,948.46 $1,991.33 $2,035.14 $2,079.91 $2,125.67 

AZ ......................................................................................... 2,033.59 2,057.99 2,082.68 2,107.68 2,132.97 

AR ........................................................................................ 1,983.54 2,027.17 2,071.77 2,117.35 2,163.93 

CA ........................................................................................ 2,198.97 2,238.55 2,278.84 2,319.86 2,361.62 

CO ........................................................................................ 2,219.74 2,273.01 2,327.56 2,383.43 2,440.63 

HI .......................................................................................... 2,541.48 2,610.10 2,680.57 2,752.95 2,827.28 

ID .......................................................................................... 2,176.96 2,231.38 2,287.17 2,344.35 2,402.96 

MO ....................................................................................... 2,470.99 2,537.71 2,606.23 2,676.59 2,748.86 

MT ........................................................................................ 2,176.96 2,231.38 2,287.17 2,344.35 2,402.96 

NM ........................................................................................ 2,033.59 2,057.99 2,082.68 2,107.68 2,132.97 

NV ........................................................................................ 2,219.74 2,273.01 2,327.56 2,383.43 2,440.63 

ND ........................................................................................ 2,710.14 2,834.81 2,965.21 3,101.61 3,244.29 

OK ........................................................................................ 2,010.74 2,048.94 2,087.87 2,127.54 2,167.97 

OR ........................................................................................ 2,453.14 2,541.46 2,632.95 2,727.73 2,825.93 

SD ........................................................................................ 2,710.14 2,834.81 2,965.21 3,101.61 3,244.29 

TX ......................................................................................... 2,010.74 2,048.94 2,087.87 2,127.54 2,167.97 

UT ........................................................................................ 2,219.74 2,273.01 2,327.56 2,383.43 2,440.63 

WA ....................................................................................... 2,453.14 2,541.46 2,632.95 2,727.73 2,825.93 

WY ....................................................................................... 2,176.96 2,231.38 2,287.17 2,344.35 2,402.96 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

20322 Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 

28For the purpose of this analysis, H–2A workers 

are considered non-residents. 

29The FY 2012 certification dataset provides the 

most recent data available in a useable form. Data 

from FY 2013 was not available in a useable form 

due to the Department’s settlement of litigation 

regarding prevailing wages during FY 2013:Q1 

where the wage offers for many employers certified 

for H–2A open range workers changed postcertification and, therefore, the existing 

administrative did not accurately reflect the actual 

wage offers for purposes of conducting the analysis. 

Data for FY 2014 was not yet available in a useable 

form at the time the analysis was conducted. 

Exhibits 15 and 16 present the wage 

differential between the hourly wage 

under Alternative 3 and the baseline by 

State for sheep and goat herders and 

open range livestock production 

workers, respectively. The hourly wage 

differentials for States that did not have 

a baseline wage are denoted as ‘‘N/A.’’ 

Note that these values are for 

informational purposes only and were 

not used in the analysis. 

EXHIBIT 15—HOURLY WAGE DIFFERENTIAL BY STATE FOR SHEEP AND GOAT HERDERS

[No phase-in] 

State 2016 2017 2018 2019 2020–2025 

AL ......................................................................................... $6.29 $6.51 $6.74 $6.98 $7.22 

AZ ......................................................................................... 6.73 6.86 6.99 7.12 7.25 

AR ........................................................................................ 6.47 6.70 6.93 7.17 7.42 

CA ........................................................................................ 3.14 3.35 3.56 3.77 3.99 

CO ........................................................................................ 7.71 7.99 8.27 8.57 8.87 

HI .......................................................................................... 5.87 6.23 6.60 6.98 7.37 

ID .......................................................................................... 7.48 7.77 8.06 8.36 8.67 

MO ....................................................................................... 9.03 9.38 9.74 10.11 10.48 

MT ........................................................................................ 7.48 7.77 8.06 8.36 8.67 

NM ........................................................................................ 6.73 6.86 6.99 7.12 7.25 

NV ........................................................................................ 7.45 7.73 8.01 8.31 8.61 

ND ........................................................................................ N/A N/A N/A N/A N/A 

OK ........................................................................................ 6.61 6.81 7.02 7.23 7.44 

OR ........................................................................................ 6.43 6.89 7.37 7.87 8.38 

SD ........................................................................................ 10.28 10.94 11.62 12.33 13.08 

TX ......................................................................................... 6.61 6.81 7.02 7.23 7.44 

UT ........................................................................................ 7.71 7.99 8.27 8.57 8.87 

WA ....................................................................................... 8.93 9.40 9.88 10.37 10.89 

WY ....................................................................................... 7.48 7.77 8.06 8.36 8.67 

EXHIBIT 16—HOURLY WAGE DIFFERENTIAL BY STATE FOR OPEN RANGE LIVESTOCK PRODUCTION WORKERS

[No phase-in] 

State 2016 2017 2018 2019 2020–2025 

AL ......................................................................................... N/A N/A N/A N/A N/A 

AZ ......................................................................................... N/A N/A N/A N/A N/A 

AR ........................................................................................ N/A N/A N/A N/A N/A 

CA ........................................................................................ N/A N/A N/A N/A N/A 

CO ........................................................................................ $7.05 $7.33 $7.62 $7.91 $8.21 

HI .......................................................................................... N/A N/A N/A N/A N/A 

ID .......................................................................................... 6.83 7.11 7.41 7.71 8.01 

MO ....................................................................................... N/A N/A N/A N/A N/A 

MT ........................................................................................ 6.83 7.11 7.41 7.71 8.01 

NM ........................................................................................ 6.08 6.20 6.33 6.47 6.60 

NV ........................................................................................ 7.05 7.33 7.62 7.91 8.21 

ND ........................................................................................ 9.63 10.28 10.96 11.68 12.43 

OK ........................................................................................ N/A N/A N/A N/A N/A 

OR ........................................................................................ 8.28 8.74 9.22 9.72 10.23 

SD ........................................................................................ 9.63 10.28 10.96 11.68 12.43 

TX ......................................................................................... 5.96 6.16 6.36 6.57 6.78 

UT ........................................................................................ 7.05 7.33 7.62 7.91 8.21 

WA ....................................................................................... N/A N/A N/A N/A N/A 

WY ....................................................................................... 6.83 7.11 7.41 7.71 8.01 

i. Transfers 

The proposed wage determination 

methodology and the two alternatives 

will each result in an increase in wages 

paid to H–2A workers and workers in 

corresponding employment, which 

represents a transfer from herding and 

open range livestock production 

employers.28

1. Transfers Using the Forecasted AEWR 

Incrementally Phased In Over Five 

Years 

To estimate the transfer, the 

Department first subtracts the 

appropriate 2014 monthly AEWR value 

(i.e., the baseline as reflected in Exhibit 

1) from the phased-in monthly AEWR to 

estimate the increase in monthly wages 

for each open range livestock 

production and sheepherding/goat 

herding job certified in FY 2012.29 Next, 

we calculate the average increase in 

monthly wages across all records in the 

certification dataset. We then convert 

the average increase in monthly wages 

per worker to the average increase in 

hourly wages per worker by dividing the 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 20323 

30Using the number of H–2A workers certified 

may be an overestimate of the number of affected 

workers. Employers do not bring into the country 

all the workers for which they are certified each 

year, and the workers do not all stay for the entire 

period of the certification. However, there likely are 

some corresponding workers who would also 

receive the increased wages. In some cases, the 

Department estimates the number of affected 

workers using the approximate number of H–2A 

workers per employer. For example, in FY 2012, 

there were 2,706 H–2A affected workers certified on 

1,013 applications for 517 estimated unique 

employers. The Department could approximate the 

average number of H–2A workers per small entity 

by dividing the total number of certified H–2A 

workers in FY 2012 (2,706) by the total number of 

certified applications (1,013) to derive the estimate 

of approximately 3 H–2A workers per small entity 

(2,706/1,013). 

average increase in monthly wages per 

worker by the number of weeks in a 

month (4.333) as well as by the number 

of hours in a full-time workweek (44). 

Exhibit 17 presents the average increase 

in monthly and hourly wages per 

worker under Alternative 1—the 

proposed 5-year phase-in. 

EXHIBIT 17—AVERAGE INCREASE IN

MONTHLY AND HOURLY WAGES PER

WORKER FOR ALTERNATIVE 1 

Year 

Monthly 

increase 

Hourly 

increase 

A b = a/4.333/44 

2016 .......... $515.66 $2.70 

2017 .......... 771.28 4.05 

2018 .......... 883.09 4.63 

2019 .......... 1,159.61 6.08 

2020 .......... 1,447.96 7.59 

2021 .......... 1,447.96 7.59 

2022 .......... 1,447.96 7.59 

2023 .......... 1,447.96 7.59 

2024 .......... 1,447.96 7.59 

2025 .......... 1,447.96 7.59 

The Department multiplies the 

average increase in hourly wages per H– 

2A worker under this wage 

determination option in 2016 ($2.70) by 

the number of hours in a full-time 

workweek (44) and the average duration 

of need (50 weeks) to obtain the total 

increase per H–2A worker in 2016 

($5,950). We then multiply the total 

increase per worker by the number of 

H–2A certified workers 30 to obtain total 

transfer due to increased wages of $17.4 

million in 2016. We repeat this 

calculation for each year of the analysis 

period using the average increases in 

hourly wages shown in Exhibit 17. 

Using an annual growth rate of two 

percent, the Department estimates that 

there will be 2,929 H–2A workers 

certified in 2016, which it estimates will 

increase to 3,500 in 2025. This results 

in an average annual transfer payment 

of $45.1 million. The Department 

invites comments from the public on its 

calculation of the number of affected 

workers using the number of H–2A 

workers certified. 

2. Transfers Using the Forecasted AEWR 

Incrementally Phased In Over Three 

Years 

To estimate the transfer under the 

alternative wage option using a 3-year 

phase-in, the Department first subtracts 

the appropriate 2014 monthly AEWR 

value (i.e., the baseline) from the phased 

monthly AWER to estimate the increase 

in monthly wages for each record in the 

certification dataset for FY 2012. Next, 

we calculate the average increase in 

monthly wages across all records in the 

certification dataset. We then convert 

the average increase in monthly wages 

per worker to the average increase in 

hourly wages per worker by dividing the 

average increase in monthly wages per 

worker by the number of weeks in a 

month (4.333) as well as by the number 

of hours in a full-time workweek (44). 

Exhibit 18 presents the average increase 

in monthly and hourly wages per 

worker under Alternative 2. 

EXHIBIT 18—AVERAGE INCREASE IN

MONTHLY AND HOURLY WAGES PER

WORKER FOR ALTERNATIVE 2 

Year 

Monthly 

increase 

Hourly 

increase 

a b = a/4.333/44 

2016 .......... $515.66 $2.70 

2017 .......... 841.92 4.42 

2018 .......... 1,341.27 7.04 

2019 .......... 1,393.97 7.31 

2020 .......... 1,447.96 7.59 

2021 .......... 1,447.96 7.59 

2022 .......... 1,447.96 7.59 

2023 .......... 1,447.96 7.59 

2024 .......... 1,447.96 7.59 

2025 .......... 1,447.96 7.59 

The Department multiplies the 

average increase in hourly wages per 

worker in 2016 ($2.70) by the number of 

hours in a full-time workweek (44 

hours) and the average duration of need 

(50 weeks) to obtain the total increase 

per worker ($5,950). We then multiply 

the total increase per worker by the 

number of H–2A workers certified in 

2016 (2,929) to obtain a total transfer in 

2016 of $17.4 million. We repeat this 

calculation for each remaining year of 

the analysis period using the average 

increases in hourly wages shown in 

Exhibit 18. Using an annual growth rate 

of two percent, the Department 

estimates that there will be 2,929 H–2A 

workers certified in 2016, which it 

estimates will increase to 3,500 in 2025. 

This results an average annual transfer 

payment due to increased wages of 

$47.8 million. 

3. Transfers Using the Forecasted AEWR 

With No Phase-In 

To estimate the transfer under the 

alternative wage option using no phasein, the Department first subtracts the 

appropriate 2014 monthly AEWR value 

(i.e., the baseline) from the monthly 

AWER to estimate the increase in 

monthly wages for each record in the 

certification dataset for FY 2012. Next, 

we calculate the average increase in 

monthly wages across all records in the 

certification dataset. We then convert 

the average increase in monthly wages 

per worker to the average increase in 

hourly wages per worker by dividing the 

average increase in monthly wages per 

worker by the number of weeks in a 

month (4.333) as well as by the number 

of hours in a full-time workweek (44). 

Exhibit 19 presents the average increase 

in monthly and hourly wages per 

worker under Alternative 3. 

EXHIBIT 19—AVERAGE INCREASE IN

MONTHLY AND HOURLY WAGES PER

WORKER FOR ALTERNATIVE 3 

Year 

Monthly 

increase 

Hourly 

increase 

a b = a/4.333/44 

2016 .......... $1,239.56 $6.50 

2017 .......... 1,289.81 6.77 

2018 .......... 1,341.27 7.04 

2019 .......... 1,393.97 7.31 

2020 .......... 1,447.96 7.59 

2021 .......... 1,447.96 7.59 

2022 .......... 1,447.96 7.59 

2023 .......... 1,447.96 7.59 

2024 .......... 1,447.96 7.59 

2025 .......... 1,447.96 7.59 

The Department multiplies the 

average increase in hourly wages per 

worker in 2016 ($6.50) by the number of 

hours in a full-time work (44) week and 

the average duration of need (50 weeks) 

to obtain the total increase per worker 

($14,304) in 2016. We then multiply the 

total increase per worker by the number 

of H–2A workers certified in 2016 

(2,929) to obtain a total transfer in 2016 

of $41.9 million. We repeat this 

calculation for each remaining year of 

the analysis period using the average 

increases in hourly wages shown in 

Exhibit 19. Using an annual growth rate 

of two percent, the Department 

estimates that there will be 2,929 H–2A 

workers certified in 2016, which it 

estimates will increase to 3,500 in 2025. 

This results in an average annual 

transfer payment due to increased wages 

of $51.8 million. 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

20324 Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 

The increase in the wage rates for 

some workers represents an important 

transfer from agricultural employers to 

corresponding U.S. workers, not just H– 

2A workers. As noted previously, the 

higher wages for workers associated 

with the new methodology for 

estimating the AEWR will result in an 

improved ability on the part of workers 

and corresponding U.S. workers and 

their families to meet their costs of 

living and spend money in their local 

communities. On the other hand, higher 

wages represent an increase in costs of 

production from the perspective of 

employers that affects economic profit 

and, on the margin, creates a 

disincentive to hire H–2A and 

corresponding U.S. workers. The 

Department does not have sufficient 

information to measure the net effect of 

these countervailing impacts. 

There also may be a transfer of costs 

from government entities to employers 

as a result of lower expenditures on 

unemployment insurance benefits 

claims. Previously unemployed 

individuals who were not willing to 

accept a job at the lower wage may now 

be willing to accept the job and would 

not need to seek new or continued 

unemployment insurance benefits. The 

Department, however, is not able to 

quantify these transfer payments with 

precision. 

The Department invites comments 

regarding the assumptions and data 

sources used to estimate the value of 

these wage transfers. 

c. Job Order Submissions 

The proposed rule extends the waiver 

of job order filing requirements in 20 

CFR 655.121(a) through (d) to employers 

of H–2A workers in open range 

livestock production occupations. The 

Department is proposing that a covered 

employer will submit its job order, 

Agricultural and Food Processing 

Clearance Order, Form ETA 790, 

directly to the National Processing 

Center (NPC), not to the State Workforce 

Agency (SWA). The employer will 

submit the job order to the NPC at the 

same time it submits its Application for 

Temporary Employment Certification, 

Form ETA 9142A, as outlined in 20 CFR 

655.130. 

This provision does not represent a 

change for an association filing a master 

application as joint employer with its 

employer-members for sheep or goat 

herding positions. However, to ensure 

consistency in the handling of all 

employers eligible to use these special 

procedures, the Department is 

proposing to extend this existing 

practice to all employers involved in 

open range herding and livestock 

production. 

i. Cost Reductions 

This change represents a minor cost 

reduction to employers of H–2A 

workers in open range livestock 

production occupations who will no 

longer be required to prepare and send 

a separate ETA Form 790 submission to 

the SWA and then communicate 

directly with the SWA about any 

concerns the SWA raises with the ETA 

Form 790. Due to data limitations, 

however, the Department is not able to 

quantify the staff time and resource 

costs saved relative to the baseline in 

which form submission and 

communication with the SWA is 

required. The Department invites 

comments regarding possible data 

sources regarding the staff time and 

resource costs saved that could be used 

to estimate this cost reduction. 

d. Filing Requirements 

The proposed rule permits an 

association of agricultural employers 

filing as a joint employer to submit a 

single job order and master Application 

for Temporary Employment 

Certification on behalf of its employermembers located in more than two 

contiguous States with different start 

dates of need. 

This provision does not represent a 

change for an association filing a master 

application as joint employer with its 

employer-members for sheep or goat 

herding positions. However, to ensure 

consistency in the handling of all 

employers eligible to use these special 

procedures, the Department is 

proposing to extend this existing 

practice to employers in the herding or 

production of other livestock. 

i. Cost Reductions 

This change represents a minor cost 

reduction to employers of H–2A 

workers in open range livestock 

production occupations that file a 

master application as joint employer 

with its employer-members. Due to data 

limitations regarding the time savings 

realized by filing a master application 

relative to separate applications and the 

extent to which open range livestock 

production employers would file master 

applications as joint employers with 

their employer-members, however, the 

Department is not able to quantify this 

impact. The Department invites 

comments regarding possible data 

sources regarding the time savings 

realized by filing a master application 

relative to separate applications and the 

extent to which open range livestock 

production employers would file master 

applications that could be used to 

estimate this cost reduction. 

e. Job Order Duration 

The proposed rule requires that, 

where a single job order is approved for 

an association of agricultural employers 

filing as a joint employer on behalf of 

its employer-members with different 

start dates of need, each of the SWAs to 

which the job order was transmitted by 

the Contracting Officer (CO) or the SWA 

having jurisdiction over the location of 

the association must keep the job order 

on its active file until 50 percent of the 

period of the work contract has elapsed 

for all employer-members identified on 

the job order, and must refer each 

qualified U.S. worker who applies (or 

on whose behalf an application is made) 

for the job opportunity. The proposed 

rule also requires that the Department 

keep the job order posted on the OFLC 

electronic job registry for the same 

period. 

i. Cost Reductions 

This change represents a possible cost 

reduction for an H–2A employer 

association that files a master 

application as a joint employer with its 

employer-members for workers in sheep 

and goat herding occupations. These 

employers were previously required to 

accept referrals throughout the work 

contract period. Under the proposed 

rule, these employers will only have to 

accept referrals for 50 percent of the 

work contract period, resulting in 

avoided costs of accepting referrals 

during the second half of the work 

contract period. Due to data limitations 

regarding the number of referrals during 

the second half of the work contract 

period, however, the Department is not 

able to quantify this impact. The 

Department invites comments regarding 

possible data sources regarding the 

number of referrals that could be used 

to estimate this cost reduction. 

f. Newspaper Advertisements 

The Department is proposing to 

continue for sheep and goat herding 

occupations and expand to production 

of livestock occupations on the open 

range the TEGL practice of granting a 

waiver of the requirement to place an 

advertisement on two separate days in 

a newspaper of general circulation 

serving the area of intended 

employment. Because both herding and 

production of livestock on the open 

range cover multiple areas of intended 

employment in remote, inaccessible 

areas within one or more States, the 

newspaper advertisement is impractical 

and ineffective for recruiting domestic 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 20325 

31This newspaper advertisement cost estimate is 

based on an advertisement of 158 words placed in 

The Salt Lake Tribune for one day (Source: The Salt 

Lake Tribune. Available at http://

placead.yourutahclassifieds.com/webbase/en/std/

jsp/WebBaseMain.do. Accessed Nov. 13, 2014). 

32The Department estimates that this work would 

be performed by a human resources manager at an 

agricultural employer at an hourly rate of $53.45 (as 

published by the Department’s OES Survey, O*Net 

Online), which we multiply by 1.42 to account for 

employee benefits to obtain a total hourly labor cost 

of $75.90. 

workers for these types of job 

opportunities. 

i. Cost Reductions 

This change represents a cost 

reduction to employers of workers in 

open range livestock production 

occupations. The Department estimates 

this cost reduction by multiplying the 

estimated number of applications filed 

by open range livestock production 

employers in 2016 (157) by the average 

cost of placing a newspaper 

advertisement ($258.64) and the number 

of advertisements per employer (2).31

We repeat this calculation for each 

remaining year of the analysis period. 

Using an annual growth rate of two 

percent, the Department estimates that 

157 applications will be filed by open 

range livestock production employers in 

2016, which it estimates will increase to 

188 applications filed in 2025. This 

results in an average annual cost 

reduction of $0.09 million. 

Because these activities require time 

on the part of a human resources 

manager on the ranch, we add to the 

result the incremental cost of preparing 

the advertisement, which we calculate 

by multiplying the estimated number of 

applications filed by open range 

livestock production employers in 2016 

(157) by the time required to prepare a 

newspaper advertisement (0.5 hours), 

the hourly labor compensation rate of a 

human resources manager at an 

agricultural business ($75.90), and the 

number of advertisements per employer 

(2).32 Using the projected number of 

applications, we repeat the above 

calculation for each remaining year of 

the analysis period to obtain an average 

annual cost reduction of $0.01 million. 

In total, the cost reduction from not 

having to place the advertisement and 

saved labor yield an average annual cost 

reduction of $0.1 million. The 

Department invites comments regarding 

the assumptions and data sources used 

to estimate the value of this cost 

reduction. 

g. Placement of Workers on Master 

Applications 

The proposed rule requires that 

eligible U.S. workers who apply for the 

job opportunities and are hired be 

placed at the locations nearest to them, 

absent a request for a different location 

by U.S. workers. The proposed rule also 

requires that associations that fulfill the 

recruitment requirements for their 

members maintain a written recruitment 

report for each individual employermember identified in the application or 

job order, including any approved 

modifications. 

i. Cost Reductions and Costs 

The U.S. worker placement 

requirement represents a minor cost 

reduction. Because U.S. workers will be 

placed at locations nearest to them, the 

proposed rule will yield a decrease in 

travel costs to arrive at and return from 

the work site. Due to data limitations 

regarding travels costs to arrive at and 

return from the work site for 

participating U.S. workers, however, the 

Department is not able to quantify this 

impact with any certainty. The 

Department invites comments regarding 

possible data sources regarding travel 

costs to arrive at and return from the 

work site for participating U.S. workers 

that could be used to estimate this cost 

reduction. 

The recruitment report requirement 

represents a cost to an association of 

employers of workers in open range 

livestock occupations. Associations will 

be required to maintain a written 

recruitment report for each individual 

employer-member; however, 

associations are currently required to 

document all applications and their 

disposition, making this a change in the 

form of the recordkeeping rather than its 

substance. The Department invites 

comment on whether there is an 

increased burden as a result of this 

requirement. This will likely lead to a 

marginal increase in costs for the 

association to prepare and maintain a 

more detailed recruitment report for 

each employer-member named on a 

master application. The Department is 

not able to quantify this impact with 

any certainty, however, due to data 

limitations regarding the time required 

for associations to prepared and 

maintain a more detailed recruitment 

report. The Department invites 

comments regarding possible data 

sources that could be used to estimate 

this additional cost. 

h. Employer-Provided Items 

This provision requires that all 

herding and open range livestock 

production employers seeking 

temporary workers through the H–2A 

program must provide to their workers, 

free of charge, all tools, supplies, and 

equipment required to perform the 

duties assigned. The Department is 

proposing that the job offer specify that 

the employer will provide, without 

charge or deposit charge, those tools, 

supplies, and equipment required by 

law, by the employer, or by the nature 

of the work to do the job safely and 

effectively. Because of the isolated 

nature of these occupations, an effective 

means of communication between 

worker and employer—to enable the 

employer to check the worker’s status 

and the worker to communicate an 

emergency to persons capable of 

responding—is required because it is 

necessary to perform the job safely and 

effectively. The workers’ location may 

be so remote that electronic 

communication devices may not work at 

all times. Where the employer will not 

otherwise make contact with the worker 

(e.g., when delivering food or checking 

on the worker and herd in-person), the 

employer must establish a regular 

schedule when the workers will be 

geographically located in a place where 

the electronic communication device 

will function (e.g., mobile phone in an 

area with adequate reception) so that the 

workers’ safety and needs can be 

monitored. 

i. Costs 

This change represents a possible 

minor cost to herding or open range 

livestock production employers. The 

requirement that employers establish a 

regular schedule when the workers will 

be located in a place where the 

electronic communication device will 

work may impose restrictions on land 

use or the purchase of particular types 

of communication devices. The 

Department cannot, however, predict 

this impact or quantify it as a cost to 

employers. The Department invites 

comments regarding how this provision 

may impose a cost on employers and 

how that cost may be estimated, given 

the existing requirement in the TEGLs 

for an effective means of communicating 

in case of an emergency and the 

employers’ normal methods of 

communicating with and visiting their 

workers. 

i. Meals 

All H–2A employers must provide 

either three meals a day or free and 

convenient kitchen facilities. Currently, 

as required under the sheep and goat 

herding TEGL and pursuant to practice 

in the industry for open range 

production of livestock occupations, 

employers with these open range 

occupations provide food, free of 

charge, to their workers in the field. We 

are proposing to adopt this common 

practice as a requirement for both 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

20326 Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 

33The meal cost estimate of $3.86 is from 

Allowable Meal Charges and Reimbursements for 

Daily Subsistence published by the U.S. Department 

of Labor, Employment & Training Administration 

(Source: http://www.foreignlaborcert.doleta.gov/

meal_travel_subsistence.cfm. Accessed Dec. 8, 

2014). 

34This potable water cost estimate is from the 

2014 Water and Wastewater Survey produced by 

the Texas Municipal League (Source: http://www.

tml.org/surveys. Accessed Nov. 13, 2014). It is 

estimated based on the average cost of potable water 

for commercial entities in Texas cities with a 

population below 2,000 and based on the fee for 

50,000 gallons. 

35This trailer cost estimate is based on the 

average costs for a 5 x 8 ft. utility trailer from 

Tractor Supply Co. (Source: http://www.tractor

supply.com/en/store/search/utility-trailers. 

Accessed Nov. 13, 2014), Lowes, and Home Depot. 

36This cost per mile of owning and operating an 

automobile is based on the average costs in the DOT 

Bureau of Transportation Statistics. (source: http:// 

www.rita.dot.gov/bts/sites/rita.dot.gov.bts/files/

publications/national_transportation_statistics/

html/table_03_17.html. Accessed Nov. 13, 2014). 

The Department assumes the workers are all located 

within the 100-mile roundtrip distance so only one 

roundtrip per employer per week would be needed 

to transport water and meals to workers. 

37The Department assumes that the water 

delivery will be performed by an agricultural 

worker at an hourly rate of $9.16 (as published by 

the Department’s OES Survey, O*Net Online), 

which we multiply by 1.42 to account for employee 

benefits to obtain a total hourly labor cost of $13.01. 

The time required to transport the potable water 

and meals roundtrip was estimated using the 

assumptions that a roundtrip is 100 miles and that 

the agricultural worker would drive at 35 mph. The 

Department assumes the workers are all located 

within the 100-mile roundtrip distance, so only one 

roundtrip per employer per week would be needed 

to transport water and meals to workers. 

employers engaged in herding and those 

engaged in the production of livestock 

on the open range and to require 

employers to disclose it in the job offer. 

i. Costs 

Because this is a requirement of the 

sheep and goat herding TEGL, this 

provision does not represent a cost to 

sheep and goat herding employers. This 

provision does, however, represent a 

cost to open range livestock production 

employers. The Department estimates 

this cost by multiplying the number of 

meals required per worker on a weekly 

basis (21), the average cost of a meal 

($3.86), and the average duration of 

need (50 weeks) to obtain the total cost 

of meals per worker ($4,053).33 We then 

multiply the total cost of meals per 

worker by the estimated number of open 

range livestock production employers in 

2016 (131) and the average number of 

H–2A workers per employer needing 

meals on a weekly basis (3) to obtain a 

total cost in 2016 of $1.6 million. We 

repeat the above calculation for each 

remaining year of the analysis period. 

Using an annual growth rate of two 

percent, the Department estimates that 

there will be 131 open range livestock 

production employers in 2016, which it 

estimates will increase to 157 in 2025. 

This results in an average annual cost 

due to meals of $1.7 million. 

In addition to the cost incurred by 

open range livestock production 

employers to purchase food, open range 

livestock production employers would 

incur costs to transport the food to the 

workers. The Department assumes that 

food would be transported to the 

workers on a weekly basis along with 

the potable water. The costs related to 

transporting food and potable water are 

accounted for below in the section on 

costs related to potable water. The 

Department invites comments regarding 

the assumptions and data sources used 

to estimate the value of this cost. 

j. Potable Water 

The proposed rule requires that 

employers provide to workers an 

adequate supply of water for drinking, 

cooking, bathing, cleaning and laundry 

that complies with State or local health 

standards of which cooking and 

drinking water must also be potable, or 

easily rendered potable. The proposed 

rule expands upon the current TEGLs, 

which require sufficient water that 

meets the standards of the State health 

authority for drinking, cooking, and 

bathing, by requiring employers also to 

provide sufficient water for cleaning 

and laundry. In addition it requires that 

drinking and cooking water be potable 

or easily rendered potable. 

i. Costs 

This change represents a cost to 

herding and open range livestock 

production employers. The Department 

estimates the cost of providing potable 

water to workers as the sum of the cost 

of the potable water, the cost of 

purchasing utility trailers to transport 

the water and meals, the cost of mileage 

for the vehicles transporting the water 

and meals, and the labor costs to 

transport the water and meals. 

The Department estimates the cost of 

purchasing the water by multiplying the 

estimated number of employers in 2016 

(560) by the average number of H–2A 

workers per employer needing potable 

water on a weekly basis (3), the number 

of gallons of potable water needed per 

worker on a weekly basis (28), the 

average cost of a gallon of potable water 

($0.005), and the average duration of 

need (50 weeks).34 This results in a cost 

of $0.01 million in 2016. We repeat this 

calculation for each remaining year of 

the analysis period. Using an annual 

growth rate of two percent, the 

Department estimates that there will be 

560 employers in 2016, which it 

estimates will increase to 669 in 2025. 

This results in an average annual cost of 

$0.01 million. 

Because the employers must have the 

means to transport the potable water 

and food to the workers, the Department 

estimates the cost of purchasing utility 

trailers. We assume that 10 percent of 

agricultural employers do not currently 

have a trailer sufficient to transport the 

water and food to workers. In the first 

year of the rule, we include the cost 

incurred by existing and new H–2A 

employers to purchase trailers; in future 

years, we include the cost incurred only 

by new participants. To calculate the 

cost for the first year of the proposed 

rule, we estimate the number of existing 

H–2A participants that would need to 

purchase a trailer in 2016, which we 

calculate by multiplying the number of 

existing participants (560) by the 

assumed percentage of employers that 

would need to purchase a trailer (10%). 

We then multiply the number of 

employers needing to purchase a trailer 

(56) by the average cost of a trailer 

($838.34) to estimate the total cost of 

purchasing utility trailers in 2016 

($46,971).35 We repeat this calculation 

for each remaining year in the analysis 

time period using the following 

numbers of new participants: 11 in 

years 2017–2018, 12 in years 2019– 

2022, and 13 in years 2023–2025. This 

calculation results in an average annual 

cost of $5,613. The Department also 

estimates the cost of mileage on the 

employers’ vehicles. We estimate this 

cost by multiplying the estimated 

number of employers in 2016 (560) by 

the average cost per mile of owning and 

operating an automobile ($0.59), the 

number of miles driven (roundtrip) to 

deliver the water and meals (100), and 

the number of roundtrips expected per 

year (50).36 This calculation results in a 

cost of $1.7 million in 2016. We repeat 

this calculation for each remaining year 

of the analysis period. Using an annual 

growth rate of two percent, the 

Department estimates that there will be 

560 employers in 2016, which it 

estimates will increase to 669 in 2025. 

This results in an average annual cost of 

$1.8 million. 

Because these activities require time 

on the part of an agricultural worker on 

the ranch, the Department estimates the 

cost of transporting the potable water 

and food to the workers, which we 

calculate by multiplying the estimated 

number of employers in 2016 (560) by 

the assumed time required to transport 

the potable water and food (2.86 hours), 

the hourly labor compensation rate of an 

agricultural worker ($13.01), and the 

number of roundtrips per year (50).37

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 20327 

38This cost per square foot estimate is based on 

the average cost to add a bathroom to a building 

from The Nest (Source: http://

budgeting.thenest.com/average-cost-per-squarefoot-add-addition-house-23356.html. Accessed Nov. 

13, 2014). 

39The Department estimates that herding and 

open range livestock production employers will 

spend 6 minutes each week to record and store 

worker time sheets. The average period of need for 

an H–2A worker is 50 weeks a year. The median 

hourly wage for a human resources manager is 

$53.45 (as published by the Department’s OES 

survey, O*Net Online), which we multiply by 1.42 

to account for private-sector employee benefits 

(Source: Bureau of Labor Statistics). This 

calculation yields an hourly labor cost of $75.90. 

40The median hourly wage for a human resources 

manager is $53.45 (as published by the 

Department’s OES survey, O*Net Online), which 

we multiply by 1.42 to account for private-sector 

employee benefits (source: Bureau of Labor 

Statistics). This calculation yields an hourly labor 

cost of $75.90. 

This calculation results in a cost of $1.0 

million in 2016. We repeat this 

calculation for each year of the analysis 

period. Using an annual growth rate of 

two percent, the Department estimates 

that there will be 560 employers in 

2016, which it estimates will increase to 

669 in 2025. This results in an average 

annual cost of $1.1 million. 

This calculation yields an average 

annual cost of $3.0 million for the cost 

of the water, utility trailers, vehicle 

mileage, and labor to deliver the water 

and food. 

The Department has considered 

several alternatives in addition to the 

methodology presented above. While 

the estimation methodology described 

above produces an overestimate because 

it assumes that no herding or open range 

livestock production employers are 

currently delivering water or food to 

their workers and that some herding and 

open range livestock production 

employers will be required to purchase 

trailers to transport the water to workers 

in remote locations, we also considered 

the scenario in which herding and open 

range livestock production employers 

already deliver supplies to workers and 

simply add the additional potable water 

to the bed of a truck already owned by 

the ranch. This alternative scenario 

would yield a cost estimate that does 

not include the full roundtrip cost of 

mileage on the truck or the purchase of 

a trailer. This methodology would, 

however, include a cost incurred due to 

the decreased fuel efficiency of the truck 

because of the weight of the water in the 

bed of the truck. The Department invites 

comments regarding which of these 

scenarios is more likely to occur. 

k. Expanded Cooking/Cleaning 

Facilities 

The Department recognizes that there 

are times when the mobile housing is 

located at or near the ranch or farm (or 

a similar central location) that has fixed 

housing for workers for certain 

operations that are a normal part of the 

herding cycle, such as birthing (in some 

cases), shearing, or branding. We 

acknowledge that the mobile housing 

may in such instances continue to be 

used, or even preferred, by workers, 

even where access to fixed housing 

exists. 

Where a worker continues to use the 

mobile housing provided for open range 

work while temporarily stationed at or 

near the ranch, the proposed rule 

obligates the herding or open range 

livestock production employer to 

provide the workers with access to 

facilities such as toilets and showers 

with hot and cold water under pressure. 

Similarly, the workers must be provided 

access to cooking and cleaning facilities. 

Herding and open range livestock 

production employers do not need to 

maintain full housing in such cases, but 

must provide access to toilets, kitchens, 

and cleaning facilities for both person 

and clothing. 

i. Costs 

The Department expects that farm 

kitchens will be able to increase 

production to a sufficient extent to 

provide for the additional workers; thus, 

we do not anticipate herding and open 

range livestock production employers 

incurring a cost for constructing or 

expanding cooking facility space. 

The requirement to provide access to 

cleaning facilities, however, will likely 

impose a cost on herding and open 

range livestock production employers 

that do not have cleaning facilities for 

worker use. This change represents a 

cost to employers. To estimate the cost 

of constructing or expanding the 

cleaning facilities for the first year of the 

proposed rule, the Department estimates 

the number of existing H–2A 

participants that would need to 

construct/expand cleaning facilities, 

which we calculate by multiplying the 

number of existing H–2A participants 

(560) by the assumed percentage of 

employers that would need to construct 

or expand their facilities (20%). We 

then multiply the number of existing 

employers that would need to construct/ 

expand facilities (112) by the average 

cost per square foot to construct or 

expand cleaning facilities ($270.00) and 

the assumed size of the cleaning facility 

(100 sq. ft.). 38 This calculation results 

in a cost of $3.0 million in 2016. 

We repeat this calculation for each of 

the remaining years using the following 

numbers of new participants: 11 in 

years 2017–2018, 12 in years 2019– 

2022, and 13 in years 2023–2025. Over 

the 10-year period, this calculation 

yields an average annual cost of $0.4 

million to existing and new employers. 

The Department invites comments 

regarding the assumptions used for the 

average size of the cleaning facilities to 

be constructed or expanded and the 

average cost per square foot to construct 

or expand the cleaning facilities. 

l. Earnings Records 

The proposed rule requires that 

employers generate a daily record of the 

site of the employee’s work, or 

availability to work, whether it was on 

the open range or on the ranch or farm. 

The proposed rule also requires that 

employers retain records of hours 

worked and duties performed when the 

worker is performing work on the ranch 

or farm. This provision is new and will 

allow the Department to monitor 

compliance with and enforce H–2A 

program obligations. 

i. Costs 

This change represents a possible 

minor cost to herding or open range 

livestock production employers who are 

not already retaining hours worked 

records. The Department estimates the 

cost by multiplying the time required to 

prepare and store timesheets by the 

average compensation of a human 

resources manager at an agricultural 

business. In the first year of the rule, the 

Department estimates that the average 

employer will spend approximately 6 

minutes each week or approximately 5 

hours a year (based on a 50 week 

average period of need) to prepare and 

store timesheets, which amounts to 

approximately $379.50 ($75.90 x 5) in 

labor costs per year.39 The Department 

invites comments regarding the 

assumptions and data sources used to 

estimate the value of this cost. 

m. Time To Read and Review the Rule 

During the first year that this rule 

would be in effect, herding and open 

range livestock production employers 

would need to learn about the new 

requirements. 

i. Costs 

This requirement represents a cost to 

herding and open range livestock 

production employers in the first year of 

the rule. The Department estimates this 

cost by multiplying the time required to 

read and review the new rule, 

application, compliance processes, and 

outreach materials explaining the 

program (2 hours) by the average 

compensation of a human resources 

manager at an agricultural business 

($75.90).40 This amounts to 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

20328 Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 

approximately $151.80 in labor costs in 

the first year and an average annual cost 

of $15.18 over the 10-year analysis 

period. The Department invites 

comments regarding the assumptions 

and data sources used to estimate the 

value of this cost. 

5. Summary of Impacts 

Costs and Transfers 

Exhibit 20 presents a summary of 

first-year, the sixth-year, and average 

annual costs and transfers by affected 

entity. The Department estimates the 

total first-year costs and transfers of the 

proposed rule to be $7.45 million and 

$17.43 million, respectively. The 

transfer from all herding and open range 

livestock production employers to 

workers due to the revised wage 

determination methodology based on 

the forecasted AEWR phased in over 

five years amounts to $17.43 million. 

The largest first-year cost is the cost to 

expand cooking/cleaning facilities at 

$3.02 million, followed by the cost of 

providing water to workers, the cost of 

providing food to workers, and the time 

required to read and review the NPRM. 

These costs and transfers are incurred 

by all herding and open range livestock 

production employers with the 

exception of the cost of providing food 

to workers, which is incurred only by 

open range livestock production 

employers. Open range livestock 

production employers experience a cost 

reduction of approximately $0.09 

million in the first year of the rule due 

to the proposed elimination of the 

newspaper advertising requirement. 

The Department included the total 

costs and transfers of the proposed rule 

in the sixth year of the analysis. These 

are the costs and transfers that would 

prevail once the 5-year phase-in is 

complete. The Department estimates the 

total sixth-year costs and transfers of the 

proposed rule to be $4.81 million and 

$54.03 million, respectively. The 

transfer from all herding and open range 

livestock production employers to 

workers due to the revised wage 

determination methodology based on 

the forecasted AEWR phased in over 

five years amounts to $54.03 million. 

The largest sixth-year cost is the cost to 

provide water to workers at $2.99 

million, followed by the cost of 

providing food to workers, and the cost 

to expand cooking/cleaning facilities. 

Open range livestock production 

employers experience a cost reduction 

of approximately $0.10 million in the 

first year of the rule due to the proposed 

elimination of the newspaper 

advertising requirement. 

In general, average annual costs and 

transfers are larger than those in the first 

year because of the phase-in of the wage 

increases and because the Department 

estimates the H–2A participant 

population to increase over the 10-year 

analysis period. The exceptions to this 

are the impacts that include fixed costs 

in the first year of the rule (i.e., 

Expanded Cooking/Cleaning Facilities, 

Time to Read and Review NPRM). The 

average annual transfer from employers 

to employees due to the revised wage 

determination methodology amounts to 

$45.08 million per year. The largest cost 

is providing water to workers at $2.97 

million per year, followed by the cost of 

providing meals to workers at $1.74 

million per year, the cost of expanding 

cooking/cleaning facilities at $0.36 

million per year, and the time required 

to read and review the NPRM at $0.01 

million per year. The Department 

estimates the average annual cost of the 

proposed rule to be $5.08 million. Open 

range livestock production employers 

experience an average annual cost 

reduction of approximately $0.10 

million. 

EXHIBIT 20—SUMMARY OF COSTS AND TRANSFERS

Required action Entity affected 

Monetized year 1 

costs/transfers 

($millions) 

Monetized year 6 

costs/transfers 

($millions) 

Average annual 

costs/transfers 

($millions) 

Costs 

1 Proportion/type of work 

permitted at the ranch.

All Employers .................... Not Monetized ................... Not monetized ................... Not Monetized. 

2 Filing requirements ...... Open Range Employers ... Not Monetized ................... Not Monetized ................... Not Monetized.

3 Job order submissions Open Range Employers ... Not Monetized ................... Not Monetized ................... Not Monetized. 

4 Job order duration ....... Herding Employers ........... Not Monetized ................... Not Monetized ................... Not Monetized. 

5 Newspaper advertisements.Open Range Employers ... ($0.09) ............................... ($0.10) ............................... ($0.10). 

6 Placement of workers 

on master applications.

All Employers .................... Not Monetized ................... Not Monetized ................... Not Monetized. 

7 Employer-provided 

items.

All Employers .................... Not Monetized ................... Not Monetized ................... Not Monetized. 

8 Meals ........................... Open Range Employers ... $1.59 ................................. $1.76 ................................. $1.74. 

9 Water ........................... All Employers .................... 2.76 ................................... 2.99 ................................... 2.97. 

10 Expanded cooking/

cleaning facilities.

All Employers .................... 3.02 ................................... 0.07 ................................... 0.36. 

11 Earnings records ........ All Employers .................... Not Monetized ................... Not Monetized ................... Not Monetized. 

12 Time required to read 

and review the NPRM.

All Employers .................... 0.08 ................................... 0.00 ................................... 0.01. 

Total Costs ................. ........................................... 7.36 ................................... 4.71 ................................... 4.98. 

Transfers 

1 New wage determination methodology based 

on the phased-in AEWR.

All Employers .................... 17.43 ................................. 54.03 ................................. 45.08. 

Total Transfers ........... ........................................... 17.43 ................................. 54.03 ................................. 45.08. 

Note: Totals may not sum due to rounding. 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 20329 

41Reich, Michael, Peter Hall, and Ken Jacobs, 

‘‘Living Wages and Economic Performance: The San 

Francisco Airport Model,’’ Institute of Industrial 

Relations, University of California, Berkeley, March 

2003. Fairris, David, David Runsten, Carolina 

Briones, and Jessica Goodheart, ‘‘Examining the 

Evidence: The Impact of the Los Angeles Living 

Wage Ordinance on Workers and Businesses,’’ 

LAANE, 2005. 

42Holzer, Harry, ‘‘Wages, Employer Costs, and 

Employee Performance in the Firm,’’ Industrial and 

Labor Relations Review, Vol. 43, No. 3, pp 147–164, 

1990. 

Exhibit 21 presents a summary of the 

economic impact analysis of the 

proposed rule. The monetized net costs 

and transfers displayed are the yearly 

summations of the calculations 

described above. In some cases, the 

totals for one year are less than the 

totals of the annual averages described 

above. The total (undiscounted) costs 

and transfers of the rule sum to $49.82 

million and $450.84 million over the 10- 

year analysis period, respectively. This 

amounts to an average annual cost and 

transfer of $4.98 million and $45.08 

million per year, respectively. In total, 

the 10-year discounted costs of the 

proposed rule range from $35.35 million 

to $42.67 million (with 7 and 3 percent 

discounting, respectively). In total, the 

10-year discounted transfers of the 

proposed rule range from $298.33 

million to $374.97 million (with 7 and 

3 percent discounting, respectively). 

Because the Department was not able 

to quantify any benefits of the proposed 

rule, the costs and transfers exceed the 

benefits at both 7 percent and 3 percent 

discounting. 

EXHIBIT 21—SUMMARY OF MONETIZED COSTS/TRANSFERS

Year Net costs 

($millions/year) 

Transfers 

($millions/year) 

1 2016 ............................................................................................................................................... 7.36 17.43 

2 2017 ............................................................................................................................................... 4.35 26.59 

3 2018 ............................................................................................................................................... 4.44 31.05 

4 2019 ............................................................................................................................................... 4.53 41.59 

5 2020 ............................................................................................................................................... 4.62 52.97 

6 2021 ............................................................................................................................................... 4.71 54.03 

7 2022 ............................................................................................................................................... 4.81 55.11 

8 2023 ............................................................................................................................................... 4.90 56.22 

9 2024 ............................................................................................................................................... 5.00 57.34 

10 2025 ............................................................................................................................................. 5.10 58.49 

Undiscounted total ........................................................................................................................ 49.82 450.84 

Average annual impact ................................................................................................................. 4.98 45.08 

Total with 7% discounting ............................................................................................................ 35.35 298.33 

Total with 3% discounting ............................................................................................................ 42.67 374.97 

Note: Totals may not sum due to rounding. 

Benefits 

The Department was able to identify 

cost reductions of the proposed rule due 

to the elimination of the newspaper 

advertising requirement, which range 

from $0.09 million to $0.11 million per 

year over the 10-year analysis period. 

The Department also expects there to be 

cost reductions due to the revised job 

order submission requirements and the 

revised master application filing 

requirements. However, the Department 

was not able to quantify those cost 

reductions resulting from the proposed 

rule. 

Due to data limitations, the 

Department also did not quantify 

several of the important benefits to 

society provided by the proposed 

policies. Through this rulemaking the 

Department is establishing a new 

methodology for determining a monthly 

AEWR and clarifying employer 

obligations for these unique occupations 

with the aim of protecting the wages 

and working conditions of U.S. workers 

and better assessing their availability for 

these jobs based on appropriate terms 

and conditions of employment. The 

higher wages for workers will result in 

an improved ability on the part of 

workers and their families to meet their 

costs of living and spend money in their 

local communities. Higher wages may 

also decrease turnover among U.S. 

workers and thereby decrease the costs 

of recruitment and retention to 

employers. Reduced worker turnover is 

associated with lower costs to 

employers arising from recruiting and 

training replacement workers. Because 

seeking and training new workers is 

costly, reduced turnover leads to 

savings for employers. Research 

indicates that decreased turnover costs 

partially offset increased labor costs 

(Reich, Hall, and Jacobs 2003; Fairris, 

Runstein, Briones, and Goodheart 

2005).41

This potential retention of U.S. 

workers may reduce the need to import 

temporary foreign workers to fill these 

jobs. Furthermore, higher wages may 

have positive impacts on productivity. 

Higher wages can boost employee 

morale, thereby leading to increased 

effort and greater productivity. For 

example, Holzer (1990) 42 finds that 

high-wage firms can sometimes offset 

more than half of their higher wage 

costs through improved productivity 

and lower hiring and turnover costs. 

In addition, proposed clarifications 

for such requirements as providing 

sufficient housing; supplying all tools, 

supplies, and equipment required, free 

of charge; establishing effective means 

of communication in case of 

emergencies; and providing meals and 

potable water will better foster the 

safety and health of both U.S. and H– 

2A workers as they perform these jobs. 

Due to data limitations, the Department 

was not able to quantify or monetize the 

impact of these protective measures. 

The Department invites comments 

regarding possible data sources or 

calculation methodologies for the 

estimation of this protective benefit. In 

addition, the Department invites 

comments regarding other benefits that 

may arise from the rule and how these 

benefits may be estimated. 

6. Alternatives 

The Department conducted economic 

analyses of the alternatives discussed 

above to better understand their costs 

relative to the baseline. For each of the 

analyses, the baseline is the 2010 Final 

Rule, TEGL 32–10, and TEGL 15–06, 

Change 1. 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

20330 Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 

a. Policy Changes in the NPRM Using 

the AEWR Values by USDA Region, 

Which Are Incrementally Phased In 

Over Five Years 

The first alternative—this NPRM— 

retains the most effective features of the 

2010 Final Rule, TEGL 32–10, TEGL 15– 

06, Change 1, and proposes provisions 

to best achieve the Department’s policy 

objectives. The analysis presented above 

lays out the calculations of the costs and 

benefits of the proposed regulation. The 

proposed regulation increases the 

responsibilities of the employers in 

herding and open range production 

occupations by establishing required 

wage rates using the AEWR values by 

USDA region, which are incrementally 

phased in over five years and by 

codifying special procedures in the H– 

2A program. As calculated above, the 

10-year monetized costs of this 

alternative range from $35.35 million to 

$42.67 million (with 7 and 3 percent 

discounting, respectively). The 10-year 

monetized transfers of this alternative 

range from $298.33 million to $374.97 

million (with 7 and 3 percent 

discounting, respectively). 

b. Policy Changes in the NPRM Using 

the AEWR Values by USDA Region, 

Which Are Incrementally Phased In 

Over Three Years 

The second alternative retains the 

same features of the 2010 Final Rule, 

TEGL 32–10, TEGL 15–06, Change 1, 

and proposes the same provisions as the 

first alternative; the only difference is 

that the AEWR-based wage 

determination is incrementally phased 

in over three years. As calculated above, 

the 10-year monetized costs of this 

alternative range from $35.35 million to 

$42.67 million (with 7 and 3 percent 

discounting, respectively). The 10-year 

monetized transfers of this alternative 

range from $320.03 million to $399.48 

million (with 7 and 3 percent 

discounting, respectively). 

c. Policy Changes in the NPRM Using 

the AEWR Values by USDA Region 

With no Phase-in Period 

The third alternative retains the same 

features of the 2010 Final Rule, TEGL 

32–10, TEGL 15–06, Change 1, and 

proposes the same provisions as the first 

alternative; the only difference is that 

the AEWR-based wage determination 

does not utilize a phase-in schedule. As 

calculated above, the 10-year monetized 

costs of this alternative range from 

$35.35 million to $42.67 million (with 

7 and 3 percent discounting, 

respectively). The 10-year monetized 

transfers of this alternative range from 

$356.38 million to $437.79 million 

(with 7 and 3 percent discounting, 

respectively). 

B. Initial Regulatory Flexibility Analysis 

The Regulatory Flexibility Act of 1980 

(RFA), 5 U.S.C. 601 et seq., establishes 

‘‘as a principle of regulatory issuance 

that agencies shall endeavor, consistent 

with the objectives of the rule and of 

applicable statutes, to fit regulatory and 

informational requirements to the scale 

of the business, organizations, and 

governmental jurisdictions subject to 

regulation.’’ Pub. L. 96–354, Sec. 2(b). 

To achieve that objective, the Act 

requires agencies promulgating 

proposed rules to prepare an initial 

regulatory flexibility analysis, and to 

develop alternatives whenever possible, 

when drafting regulations that will have 

a significant economic impact on a 

substantial number of small entities. 

The Act requires the consideration of 

the impact of a proposed regulation on 

a wide range of small entities, including 

small businesses, not-for-profit 

organizations, and small governmental 

jurisdictions. 

Agencies must perform a review to 

determine whether a proposed or final 

rule would have a significant economic 

impact on a substantial number of small 

entities. See 5 U.S.C. 603. If the 

determination is that it would, the 

agency must prepare a regulatory 

flexibility analysis as described in the 

RFA. Id. 

However, if an agency determines that 

a proposed or final rule is not expected 

to have a significant economic impact 

on a substantial number of small 

entities, the RFA provides that the head 

of the agency may so certify and a 

regulatory flexibility analysis is not 

required. See 5 U.S.C. 605. The 

certification must include a statement 

providing the factual basis for this 

determination, and the reasoning should 

be clear. 

The Department believes that this 

proposed rule will have a significant 

economic impact on a substantial 

number of small entities and is therefore 

publishing this initial regulatory 

flexibility analysis as required, and to 

aid stakeholders in understanding the 

small entity impacts of the proposed 

rule and to obtain additional 

information on the small entity impacts. 

The Department invites interested 

persons to submit comments on the 

following estimates, including the 

number of small entities affected by the 

proposed rule, the compliance cost 

estimates, and whether alternatives exist 

that will reduce the burden on small 

entities while still remaining consistent 

with the objectives of the proposed rule. 

1. Why the Department Is Considering 

Action 

As explained earlier in this preamble, 

the Department has concluded that 

developments in the H–2A program, 

including the APA violation found by 

the Court of Appeals in Mendoza and 

the continuing difficulty the Department 

experiences in determining an 

appropriate AEWR using the current 

wage setting methodology, require 

additional notice and comment 

rulemaking on proper regulatory 

standards and minimum wage setting 

methodology for these occupations in 

the H–2A program. The Department 

continues to evaluate its policy choices 

in light of additional public input and 

program experience. As a result, the 

Department publishes this NPRM on the 

proper standards and wage methodology 

for open range herding and livestock 

production occupations in the H–2A 

program, and we seek public input on 

all aspects of the proposals presented 

here. 

2. Objectives of and Legal Basis for Rule 

The Department is proposing to 

establish the standards that employers 

seeking H–2A workers to perform open 

range herding and livestock production 

work must meet to comply with H–2A 

program obligations, including wage 

rates determined under a new wage 

setting methodology that allows the 

Department to fulfill its statutory 

obligations. Sections 214(c)(1) and 218 

of the INA, 8 U.S.C. 1184(c)(1) and 

1188, require an H–2A employer to 

petition DHS for classification of a 

prospective temporary worker as an H– 

2A nonimmigrant. The INA authorizes 

the DHS to admit foreign workers to the 

United States under the H–2A visa 

classification if the Secretary of Labor 

certifies both that there are not 

sufficient workers who are able, willing, 

and qualified, and who will be available 

at the time and place needed to perform 

the labor or services involved in the 

petition, and that the employment of the 

foreign worker(s) in such labor or 

services will not adversely affect the 

wages and working conditions of 

workers in the United States similarly 

employed. 8 U.S.C. 1188(a)(1). 

Accordingly, DHS regulations require 

employers to obtain certification from 

DOL that these conditions are met 

before submitting a petition to DHS. 8 

CFR 214.2(h)(5)(i). 

The Secretary of Labor has delegated 

the responsibility for making the factual 

determinations necessary to issue 

certifications, through the Assistant 

Secretary, ETA, to ETA’s OFLC. Sec. 

Order 06–2010, 75 FR 66268 (Oct. 27, 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 20331 

2010). The Department’s regulations 

governing H–2A certifications authorize 

the OFLC Administrator to establish, 

continue, revise, or revoke special 

procedures for processing certain H–2A 

applications, including H–2A 

applications for open range herders and 

livestock production occupations. 20 

CFR 655.102. 

3. Compliance Requirements of the 

Proposed Rule, Including Reporting and 

Recordkeeping 

The Department has estimated the 

incremental costs for small businesses 

from the baseline (i.e., the 2010 Final 

Rule, TEGL 32–10, and TEGL 15–06, 

Change 1) to this proposed rule. We 

have estimated the costs of (a) the new 

methodology for determining the 

monthly Adverse Effect Wage Rate 

(AEWR) of workers engaged in the 

herding or production of livestock on 

the open range; (b) elimination of 

requirements to advertise in a 

newspaper of general circulation in the 

area of intended employment (cost 

reduction); (c) provision of meals; (d) 

provision of additional water for 

laundry and cleaning, and the provision 

of potable water for drinking and 

cooking; (e) provision of cooking/

cleaning facilities at the ranch; and (f) 

time to read and review the rule. This 

analysis includes the incremental cost 

of this proposed rule as it adds to the 

requirements in the 2010 Final Rule, 

TEGL 32–10, and TEGL 15–6, Change 1. 

The cost estimates included in this 

analysis for the provisions of the 

proposed rule are consistent with those 

presented in the EO 12866 section. 

The Department identified the 

following provisions of the proposed 

rule to have an impact on industry but 

was not able to quantify the impacts due 

to data limitations: Proportion/type of 

work permitted at the ranch (i.e., not on 

the open range); filing requirements; job 

order submissions; job order duration; 

placement of workers on master 

applications; employer-provided items; 

and retaining earnings records. 

a. New Methodology for Estimating the 

Wages of Workers 

Through this rulemaking, the 

Department is proposing to change the 

methodology for determining the 

monthly AEWR for workers engaged in 

the herding or production of livestock 

on the open range by using the FLS 

conducted by the USDA NASS. 

Specifically, the Department proposes to 

create a single monthly minimum 

AEWR for all occupations subject to this 

part by converting the hourly AEWRs 

into monthly rates by using 44 hours per 

week and 4.333 weeks per month to 

arrive at the monthly AEWR for each 

State. 

b. Newspaper Advertisements 

The Department is proposing to 

continue for sheep and goat herding 

occupations and expand to production 

of livestock occupations on the open 

range the TEGL practice of granting a 

waiver of the regulatory requirement to 

place two advertisements in a 

newspaper of general circulation serving 

the area of intended employment. 

Because both herding and production of 

livestock on the open range cover 

multiple areas of intended employment 

within one or more States, this 

regulatory requirement is impractical 

and ineffective for recruiting domestic 

workers for these types of job 

opportunities. 

c. Meals 

All H–2A employers must provide 

either three meals a day or free and 

convenient kitchen facilities. Currently, 

as required under the sheep and goat 

herding TEGL and practice in the 

industry for herding or production of 

livestock on the open range, employers 

provide, at no cost to the worker, 

provisions (food), utensils, and other 

kitchen facilities for workers to use in 

preparing their own meals. During 

certain seasons of the year, the employer 

may provide workers with prepared 

meals, at no cost to the worker. The 

proposed rule codifies this common 

practice as a requirement for both 

employers engaged in herding and those 

engaged in the production of livestock 

on the open range that must be 

disclosed in the job offer, and employers 

must provide H–2A workers and 

workers in corresponding employment 

either three sufficient meals a day, free 

of charge, or free food provisions and 

free and convenient cooking and 

kitchen facilities. 

d. Water 

In addition to providing three 

sufficient meals per day or furnishing 

free food and convenient cooking and 

kitchen facilities, the proposed rule also 

requires that employers provide to 

workers a supply of water sufficient to 

meet the needs of the worker(s), 

including not only cooking, 

consumption, and bathing, but also for 

cleaning and laundry requirements. The 

water for drinking and cooking must be 

potable or easily rendered potable, and 

the employer must provide the means 

necessary to render adequate quantities 

of water potable. 

e. Provision of Cooking/Cleaning 

Facilities at the Ranch 

The Department recognizes that there 

are times when the mobile housing is 

located at or near the ranch or a central 

location that has fixed housing for 

workers for certain operations that are a 

normal part of the herding cycle, such 

as birthing (in some cases), shearing, or 

branding. We acknowledge that the 

mobile housing may in such instances 

continue to be used, even preferred, by 

workers, even where access to fixed 

housing exists. 

Where a worker continues to use the 

mobile housing provided for open range 

work while temporarily stationed at the 

ranch, the proposed rule obligates the 

herding or open range livestock 

production employer to provide the 

workers with access to facilities such as 

toilets and showers with hot and cold 

water under pressure. 

In situations in which the workers are 

near the ranch (reasonably able to return 

to it each night) but choose not to do so, 

they must still be provided access to 

cooking and cleaning facilities. Herding 

and open range livestock production 

employers do not need to maintain full 

housing in such cases, but must provide 

access to toilets, kitchens, and cleaning 

facilities for both person and clothing. 

f. Time To Read and Review the Rule 

During the first year that this rule 

would be in effect, herding and open 

range livestock production employers 

would need to learn about the new 

requirements. 

4. Calculating the Impact of the 

Proposed Rule on Small Business Firms 

The Department has estimated the 

incremental costs for small businesses 

from the baseline (i.e., the 2010 Final 

Rule, TEGL 32–10, and TEGL 15–06, 

Change 1) to this proposed rule. We 

have estimated the costs of (a) the new 

methodology for determining the 

monthly AEWR of workers engaged in 

the herding or production of livestock 

on the open range; (b) elimination of 

requirements to advertise in a 

newspaper of general circulation in the 

area of intended employment (cost 

reduction); (c) provision of meals; (d) 

provision of potable water; (e) provision 

of cooking/cleaning facilities at the 

ranch; and (f) time to read and review 

the rule. This analysis includes the 

incremental cost of this proposed rule as 

it adds to the requirements in the 2010 

Final Rule, TEGL 32–10, and TEGL 15– 

6, Change 1. The Department was not 

able to quantify the impacts of the 

following provisions of the proposed 

rule: Proportion/type of work permitted 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

20332 Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 

43According to the 2012 Census of Agriculture, 

the average revenue (i.e., the average market value 

of agricultural products sold and government 

payments) per farm in the relevant industries is 

$248.411. Adjusting for inflation using the 

Consumer Price Index for All Urban Consumers 

(CPI–U), the average revenue per farm in the 

relevant industries is $252,050 in 2013 dollars. 

Thus, the Department estimates that a small farm 

in the relevant industries will have average annual 

revenues of approximately $252,050. As discussed 

in section 5, the SBA defines a small entity in these 

industries as an establishment with annual 

revenues of less than $0.75 million. 

at the ranch; filing requirements; job 

order submissions; job order duration; 

placement of workers on master 

applications; employer-provided items; 

and retaining earnings records. Thus, 

the total cost to small entities is likely 

higher than the total cost presented in 

this analysis, although the Department 

believes those additional costs are 

minor. 

To examine the impact of this 

proposed rule on small entities, the 

Department evaluates the impact of the 

incremental costs on the average small 

entity in the relevant industries, which 

is assumed to apply for certification to 

employ 3 H–2A workers. The 

Department estimates this value based 

on the number of H–2A workers 

requested by employers in these 

industries using data from the FY 2012 

H–2A certification dataset. In FY 2012, 

there were 2,706 H–2A workers certified 

on 1,013 applications. Not all of these 

2,706 certified workers entered the U.S. 

to work for the 517 estimated unique 

employers, and some of the employers 

had multiple applications that were 

fully certified, resulting in the double 

counting of workers in some cases. 

Therefore, the Department 

approximated the average number of H– 

2A workers per small entity by dividing 

the total number of certified H–2A 

workers in FY 2012 (2,706) by the total 

number of certified applications (1,013) 

to derive the estimate of approximately 

3 H–2A workers per small entity (2,706/ 

1,013). The Department invites 

comments from the public on its 

calculation of the average number of H– 

2A workers per small entity. 

Additionally, the Department estimates 

that the farms in these industries have 

average annual revenues of 

approximately $252,050.43

a. New Methodology for Determining 

the Monthly AEWR 

As discussed above, under the 

proposed wage determination 

methodology, the use of the five year 

phased-in hourly AEWR to determine 

an average hourly wage results in an 

increase of $2.70 in hourly wages paid 

to H–2A workers in 2016. Please refer to 

Section A(4)(b) above (New 

Methodology for Determining Wages of 

Workers) for a discussion of the baseline 

and new wage determination 

methodology. The Department 

multiplies this average hourly wage 

increase by 44 hours per week to obtain 

a weekly cost per worker of $118.80 

($2.70 × 44) in 2016. The Department 

then multiplies this weekly cost by 50, 

which is the average period of need for 

workers in these industries. This results 

in a total cost of $5,940.00 ($118.80 × 

50) per H–2A worker in 2016. For 

employers hiring the average number of 

H–2A workers (3), this results in a total 

cost of $17,820.00 ($5,940.00 × 3) due to 

the increase in wages in 2016. 

To estimate the average annual cost of 

increased wages paid to H–2A workers 

under the first wage determination 

methodology alternative, the 

Department calculates the average 

annual hourly wage increase over the 

period of analysis using the following 

average hourly wage increases relative 

to the appropriate 2014 monthly AEWR 

decomposed into hourly wage rates 

$2.70 for 2016, $4.05 for 2017, $4.63 for 

2018, $6.08 for 2019, and $7.59 for 2020 

to 2025. Given the average annual 

hourly wage increase ($6.30), a 44-hour 

workweek, and an average period of 

need for workers of 50 weeks, the 

Department estimates an average annual 

cost of $13,860.00 ($6.30 × 44 × 50) per 

H–2A worker. For employers hiring the 

average number of H–2A workers (3), 

this results in an average annual cost of 

$41,580.00 ($13,860.00 × 3) per small 

entity due to the increase in wages. 

Under the wage determination 

methodology alternative applying the 

forecasted AEWR phased in over three 

years, the use of the phased-in hourly 

AEWR to estimate an average hourly 

wage results in an increase of $2.70 in 

hourly wages paid to H–2A workers in 

2016. The Department multiplies this 

average hourly wage increase by 44 

hours per week to obtain a weekly cost 

per worker of $118.80 ($2.70 × 44) in 

2016. The Department then multiplies 

this weekly cost by 50, which is the 

average period of need for workers in 

these industries. This results in a total 

cost of $5,940.00 ($118.80 × 50) per H– 

2A worker in 2016. For employers 

hiring the average number of H–2A 

workers (3), this results in a total cost 

of $17,820.00 ($5,940.00 × 3) per small 

entity due to the increase in wages in 

2016. 

To estimate the average annual cost of 

increased wages paid to H–2A workers 

under the 3-year alternative, the 

Department calculates the average 

annual hourly wage increase over the 

period of analysis using the following 

average hourly wage increases relative 

to the appropriate 2014 monthly AEWR 

decomposed into hourly wage rates: 

$2.70 for 2016, $4.42 for 2017, $7.04 for 

2018, $7.31 for 2019, and $7.59 for 2020 

to 2025. Given the average annual 

hourly wage increase ($6.70), a 44-hour 

workweek, and an average period of 

need for workers of 50 weeks, the 

Department estimates an average annual 

cost of $14,742.20 ($6.70 × 44 × 50) per 

H–2A worker. For employers hiring the 

average number of H–2A workers (3), 

this results in an average annual cost of 

$44,226.60 ($14,742.20 × 3) per small 

entity due to the increase in wages. 

Under the wage determination 

methodology alternative applying the 

forecasted AEWR with no phase-in, the 

use of the hourly AEWR to estimate an 

average hourly wage results in an 

increase of $6.50 in hourly wages paid 

to H–2A workers in 2016. The 

Department multiplies this average 

hourly wage increase by 44 hours per 

week to obtain a weekly cost per worker 

of $286.00 ($6.50 × 44) in 2016. The 

Department then multiplies this weekly 

cost by 50, which is the average period 

of need for workers in these industries. 

This results in a total cost of $14,300.00 

($286.00 × 50) per H–2A worker in 

2016. For employers hiring the average 

number of H–2A workers (3), this 

results in a total cost of $42,900.00 

($14,300.00 × 3) per small entity due to 

the increase in wages in 2016. 

To estimate the average annual cost of 

increased wages paid to H–2A workers 

under the alternative using no phase-in, 

the Department calculates the average 

annual hourly wage increase over the 

period of analysis using the following 

average hourly wage increases relative 

to the appropriate 2014 monthly AEWR 

decomposed into hourly wage rates: 

$6.50 for 2016, $6.77 for 2017, $7.04 for 

2018, $7.31 for 2019, and $7.59 for 2020 

to 2025. Given the average annual 

hourly wage increase ($7.32), a 44-hour 

workweek, and an average period of 

need for workers of 50 weeks, the 

Department estimates an average annual 

cost of $16,095.20 ($7.316 × 44 × 50) per 

H–2A worker. For employers hiring the 

average number of H–2A workers (3), 

this results in an average annual cost of 

$48,285.60 ($16,095.20 × 3) per small 

entity due to the increase in wages. 

b. Newspaper Advertisements 

Through this proposed rule, the 

Department is proposing to expand to 

production of livestock occupations on 

the open range the TEGL practice for 

sheep and goat herding occupations of 

granting a waiver of the requirement to 

place two advertisements in a 

newspaper serving the area of intended 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 20333 

44The newspaper advertisement cost estimate is 

based on an advertisement of 158 words placed in 

The Salt Lake Tribune for one day; it is available 

at http://placead.yourutahclassifieds.com/webbase/ 

en/std/jsp/WebBaseMain.do. (accessed on 

November 13, 2014). 45The Department estimates that the median 

hourly wage for a human resources manager is 

$53.45 (as published by the Department’s OES 

survey, O*Net Online), which we increased by 1.42 

to account for private-sector employee benefits 

(source: Bureau of Labor Statistics) for an hourly 

compensation rate of $75.90. 46The meal cost estimate of $3.86 is from 

Allowable Meal Charges and Reimbursements for 

Daily Subsistence published by the U.S. Department 

of Labor, Employment and Training Administration 

(source: http://www.foreignlaborcert.doleta.gov/

meal_travel_subsistence.cfm; accessed on December 

8, 2014). 

47The Department estimated the potable water 

cost using data published in the 2014 Water and 

Wastewater Survey by the Texas Municipal League. 

(Source: http://www.tml.org/surveys; accessed on 

November 13, 2014). The estimate is based on the 

average cost of potable water for commercial 

entities in all Texas cities with a population below 

2,000 using the fee for 50,000 gallons. 48The trailer cost estimate is based on the average 

cost for a 5 x 8 ft. utility trailer from Tractor Supply 

Company, Lowes, and Home Depot. 49The cost per mile of owning and operating an 

automobile is based on the average costs in the U.S. 

Department of Transportation, Bureau of 

Transportation Statistics. (source: http://

www.rita.dot.gov/bts/sites/rita.dot.gov.bts/files/

publications/national_transportation_statistics/

html/table_03_17.html; accessed on November 13, 

2014). 

50The Department assumes that a roundtrip 

would be 100 miles and that an agricultural worker 

would drive at 35 mph. We divide the 100 miles 

by 35 mph to estimate that it would take an 

agricultural worker 2.86 hours to drive roundtrip 

(100/35). The Department assumes the workers are 

located within the 100-mile roundtrip distance so 

only one roundtrip per employer per week would 

be needed to transport water and meals to workers. 

51The Department estimates that the median 

hourly wage for an agricultural worker is $9.16 (as 

published by the Department’s OES survey, O*Net 

Online), which we increased by 1.42 to account for 

private-sector employee benefits (source: Bureau of 

Labor Statistics) for an hourly compensation rate of 

$13.01. 

employment. This would result in a 

minor cost reduction. To estimate this 

cost reduction, the Department 

multiplies the number of newspaper 

advertisements required per open range 

livestock production employer (2) by 

the average cost of placing a newspaper 

advertisement ($258.64) to obtain an 

avoided cost of purchasing advertising 

space equal to $517.28 (2 × $258.64) per 

open range livestock production 

employer per year.44 The Department 

also estimates the labor cost required to 

prepare the advertisements by 

multiplying the number of newspaper 

advertisements required per open range 

livestock production employer (2) by 

the assumed time required to prepare a 

newspaper advertisement (0.5 hours) 

and the hourly compensation of a 

human resources manager ($75.90), 

which amounts to $75.90 (2 × 0.5 × 

$75.90) in avoided labor costs per open 

range livestock production employer per 

year.45 In total, this requirement would 

result in a cost reduction of $593.18 

($517.28 + $75.90) per year for 

employers of open range livestock 

production occupations. 

c. Meals 

Under the proposed rule, the 

Department is proposing to require H– 

2A employers to provide either three 

sufficient meals per day or free and 

convenient kitchen facilities and food 

provisions to workers. This change 

represents a cost to open range livestock 

production employers but not to sheep 

or goat herding employers because this 

is already a requirement under TEGL 

32–10. To estimate this cost, the 

Department multiplies the number of 

meals required per open range livestock 

production worker per week (21) by the 

average cost of a meal ($3.86) and the 

average duration of need in weeks (50) 

to obtain a cost of $4,053.00 (21 × $3.86 

× 50) per open range livestock 

production worker per year.46

In addition to the cost to purchase 

food, open range livestock production 

employers would also incur costs to 

transport the food to the workers. The 

Department assumes that food would be 

transported to the workers on a weekly 

basis along with the potable water. The 

costs related to transporting food and 

potable water are accounted for below 

in the section on costs related to potable 

water. 

d. Water 

The proposed rule requires that the 

herding or open range livestock 

production employer continue to 

provide to the workers adequate 

provision of water for drinking, cooking 

and bathing; the proposed rule adds 

requirements for sufficient water for 

laundry and cleaning. In addition, the 

rule proposes to require that drinking 

and cooking water be potable or easily 

rendered potable. The Department 

estimates this cost by summing the cost 

of purchasing the water, the cost of 

purchasing a trailer to transport the 

water and meals, the cost of vehicle 

mileage, and the labor cost of the time 

required to transport the water and 

meals to the workers. 

The Department estimates the cost of 

purchasing the water by multiplying the 

cost per gallon of potable water ($0.005) 

by the number of gallons of water per 

worker per week (28) and the average 

duration of need in weeks (50). This 

calculation yields a cost of providing 

potable water equal to $7.00 ($0.005 × 

28 × 50) per worker per year.47

The Department estimates the cost of 

purchasing a utility trailer to be 

$839.34.48 This results in a one-time 

cost of $839.34 for the average employer 

in the first year of the rule. This value 

yields an average annual cost of $83.93 

over the 10-year analysis period. 

The Department estimates the cost of 

vehicle mileage per employer by 

multiplying the average vehicle mileage 

cost ($0.59) by the number of miles 

driven to transport the potable water 

and meals roundtrip (100) and the 

average number of roundtrips per year 

(50).49 This calculation yields a mileage 

cost equal to $2,960.00 ($0.592 × 100 × 

50) per employer per year. 

The Department estimates the labor 

cost of time to transport the water and 

meals to workers by multiplying the 

average number of roundtrips required 

per employer (50) by the assumed time 

required to transport the water (2.86 

hours) and the hourly compensation of 

an agricultural worker ($13.01), which 

amounts to $1,860.03 (50 × 2.86 × 

$13.01) in labor costs per employer per 

year.50 51

Finally, the Department sums the cost 

of purchasing water, the cost of 

purchasing a trailer to transport the 

water and meals, the cost of vehicle 

mileage, and the labor cost of the time 

required to transport the water and 

meals to the workers. This requirement 

would result in a cost of $5,666.37 

($7.00 + $839.34 + $2,960.00 + 

$1,860.03) per employer hiring only one 

H–2A worker during the first year of the 

rule. The average annual cost of this 

provision for employers hiring only one 

H–2A worker is $4,910.96 ($7.00 + 

$83.93 + $2,960.00 + $1,860.03) over the 

10-year analysis period. For employers 

hiring the average number of H–2A 

workers (3), the first-year cost increases 

to $5,680.37 ($7.00 × 3 + $839.34 + 

$2,960.00 + $1,860.03), and the average 

annual cost increases to $4,924.96 

($7.00 × 3 + $83.93 + $2,960.00 + 

$1,860.06). This is an upper-bound 

estimate because employers currently 

are required to provide water that meets 

State health requirements that is 

sufficient to meet the employees’ needs 

for drinking, cooking, and bathing. 

Therefore, employers likely already 

have trailers and are making trips to 

deliver the water. 

e. Expanded Cooking/Cleaning Facilities 

Where a worker continues to use the 

mobile housing provided for open range 

work while temporarily stationed at the 

ranch, the proposed rule obligates the 

herding or open range livestock 

production employer to provide the 

worker with access to facilities such as 

toilets and showers with hot and cold 

water with pressure. To estimate this 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

20334 Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 

52The Department assumes that the average 

employer will require a cleaning facility of 

approximately 100 square feet. 53The Department estimates that the median 

hourly wage for a human resources manager is 

$53.45 (as published by the Department’s OES 

survey, O*Net Online), which we increased by 1.42 

to account for private-sector employee benefits 

(source: Bureau of Labor Statistics) for an hourly 

compensation rate of $75.90. 54For illustration, the total average annual cost of 

$49,220 for the average small entity applying for 3 

workers in sheep or goat herding occupations 

results from summing the totals for the various rule 

requirements described above as follows: $49,220 = 

$13,860.00 × 3 + $7.00 × 3 + $83.93 + $2,960.00 + 

$1,860.03 + $2,700.00 + $15.18. 55For illustration, the total average annual cost of 

$60,786 for the average small entity applying for 3 

workers in open range livestock production 

occupations results from summing the totals for the 

various rule requirements described above as 

follows: $60,786 = $13,860.00 × 3 + $4,053.00 × 3 

+ $7.00 × 3 + $83.93 + $2,960.00 + $1,860.03 + 

$2,700.00 + $15.18¥$593.18. 56For illustration, the total average annual cost of 

$21,486 for the average small entity applying for 1 

worker in a sheep or goat herding occupation 

results from summing the totals for the various rule 

requirements described above as follows: $21,486 = 

$13,860.00 + $7.00 + $83.93 + $2,960.00 + 

$1,860.03 + $2,700.00 + $15.18. 

57For illustration, the total average annual cost of 

$24,946 for the average small entity applying for 1 

worker in an open range livestock production 

occupation results from summing the totals for the 

various rule requirements described above as 

follows: $24,946 = $13,860.00 + 4,053.00 + $7.00 + 

$83.93 + $2,960.00 + $1,860.03 + $2,700.00 + 

$15.18¥$593.18. 

cost, the Department multiplies the 

average cost per square foot to 

construct/expand cleaning facilities 

($270.00) by the assumed size of the 

facility that would be required to be 

constructed/expanded (100 square feet). 

This calculation results in a one-time 

cost of $27,000.00 ($270.00 × 100) for 

the average employer, which amounts to 

an average annual cost of $2,700.00 over 

the 10-year analysis period.52

f. Time To Read and Review the 

Proposed Rule 

During the first year that the proposed 

rule would be in effect, herding and 

open range livestock production 

employers would need to learn about 

the rule provisions and the activities 

necessary to remain compliant. In the 

first year of the rule, the Department 

estimates that the average small farm 

would spend approximately 2 hours of 

staff time to read and review the new 

rule, which amounts to approximately 

$151.80 ($75.90 × 2) in labor costs per 

employer in the first year of the rule. 

This amounts to an average annual cost 

of $15.18 ($151.80/10) over the 10-year 

analysis period.53

g. Total Cost Burden for Small Entities 

The Department’s calculations 

indicate that the total average annual 

cost of this proposed rule is $49,220 (or 

19.5 percent of annual revenues) for the 

average small entity employing three 

workers in sheep or goat herding 

occupations.54 The total average annual 

cost of this proposed rule is $60,786 (or 

24.1 percent of annual revenues) for the 

average small entity employing workers 

in open range livestock production 

occupations.55

For small entities that apply for 1 

worker instead of 3—representing the 

smallest of the small farms that hire 

workers—the Department estimates that 

the total average annual cost of the 

proposed rule is $21,486 (or 8.5 percent 

of annual revenues) for entities 

employing a worker in a sheepherding 

or goat herding occupation.56 The total 

average annual cost of the proposed rule 

is $24,946 (or 9.9 percent of annual 

revenues) for small entities employing a 

worker in an open range livestock 

production occupation.57

Exhibit 22 presents a summary of the 

average annual cost per employer. The 

Department focuses on the average 

annual cost of the rule rather than costs 

in the first year because the phasing of 

the wage methodology increases the 

costs of compliance over the analysis 

time period. The total cost per employer 

varies depending on whether the 

employer is a sheepherding/goat 

herding employer or an open range 

livestock production employer. The 

Department defines a ‘‘significant 

economic impact’’ as an impact that 

amounts to at least 3 percent of annual 

revenues. Due primarily to the increase 

in wages paid to H–2A workers, the 

proposed rule is expected to have a 

significant economic impact on affected 

small entities. 

EXHIBIT 22—SUMMARY OF COSTS PER EMPLOYER

Provision Entity affected 

Average annual cost 

per employer 

Hiring 1 worker Hiring 3 workers 

(a) New wage determination methodology based 

on the five-year phased-in AEWR.

All Employers ......................................................... $13,860.00 $41,580.00 

(b) Newspaper advertisements ............................... Open Range Employers ......................................... (593.18) (593.18 ) 

(c) Meals ................................................................. Open Range Employers ......................................... 4,053.00 12,159.00 

(d) Potable water .................................................... All Employers ......................................................... 4,910.96 4,924.96 

(e) Expanded cooking/cleaning facilities ................ All Employers ......................................................... 2,700.00 2,700.00 

(f) Time required to read and review the NPRM .... All Employers ......................................................... 15.18 15.18 

Average annual revenue $252,050 

Total Annual Cost Per Sheep/Goat herding Employer ............................................................................... $21,486 49,220 

Average Annual Cost as a Percentage of Revenue ................................................................................... 8.5% 19.5% 

Total Annual Cost Per Open Range Employer ........................................................................................... $24,946 $60,786 

Average Annual Cost as a Percentage of Revenue ................................................................................... 9.9% 24.1% 

The Department seeks feedback on the 

estimated total summary of compliance 

costs of this rule for small businesses, 

and the estimates for the individual 

requirements listed above. The 

Department seeks input on the data and 

assumptions that the agency utilized to 

make this calculation. In particular, the 

Department seeks feedback on its 

estimates regarding the annual revenues 

for small entities, the baseline utilized 

for this analysis and the estimates of the 

numbers of H–2B workers and 

corresponding workers per employer. In 

addition, the Department seeks 

comments on whether there is a better 

data source available to use for wage 

information, or alternatives to reduce 

the paperwork burden or other costs of 

the proposed rule. 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 20335 

58Animal Aquaculture (NAICS 1125) is not 

considered a relevant industry for this proposed 

rulemaking. However, the IRFA analysis uses data 

from the 2012 Census of Agriculture, which does 

not distinguish between Animal Aquaculture (1125) 

and Other Animal Production (1129). Due to this 

data limitation, the Department includes Animal 

Aquaculture industry data in the calculations of 

this IRFA analysis. In addition, the Department 

excludes farms in the Cattle Feedlots (NAICS 

112112) industry because cattle in feedlots do not 

graze on the open range; therefore, employers in the 

cattle feedlot industry would not be affected by the 

proposed rule. 

59Source: U.S. Small Business Administration. 

Table of Small Business Size Standards Matched to 

North American Industry Classification System 

Codes (July 2014). Available at http://www.sba.gov/ 

sites/default/files/Size_Standards_Table.pdf 

(accessed on November 13, 2014). 

60The relevant industries include the following: 

Beef Cattle Ranching and Farming (112111), Dairy 

Cattle and Milk Production (11212), Sheep and Goat 

Farming (1124), Animal Aquaculture (1125), and 

Other Animal Production (1129). 

61For illustration, the total average annual cost of 

$49,220 for the average small entity applying for 3 

workers in sheepherding or goat herding 

occupations results from summing the totals for the 

various rule requirements described above as 

follows: $49,220 = $13,860.00 × 3 + $7.00 × 3 + 

$83.93 + $2,960.00 + $1,860.03 + $2,700.00 + 

$15.18. 

62For illustration, the total average annual cost of 

$60,786 for the average small entity applying for 3 

workers in open range livestock production 

occupations results from summing the totals for the 

various rule requirements described above as 

follows: $60,786 = $13,860.00 × 3 + $4,053.00 × 3 

+ $7.00 × 3 + $83.93 + $2,960.00 + $1,860.03 + 

$2,700.00 + $15.18¥$593.18. 

63For illustration, the total average annual cost of 

$21,486 for the average small entity applying for 1 

worker in a sheep or goat herding occupation 

results from summing the totals for the various rule 

requirements described above as follows: $21,486 = 

$13,860.00 + $7.00 + $83.93 + $2,960.00 + 

$1,860.03 + $2,700.00 + $15.18. 

64For illustration, the total average annual cost of 

$24,946 for the average small entity applying for 1 

worker in an open range livestock production 

occupation results from summing the totals for the 

various rule requirements described above as 

follows: $24,946 = $13,860.00 + 4,053.00 + $7.00 + 

$83.93 + $2,960.00 + $1,860.03 + $2,700.00 + 

$15.18 ¥ $593.18. 

5. Estimating the Number of Small 

Businesses Affected by the Rulemaking 

A small entity is one that is 

‘‘independently owned and operated 

and which is not dominant in its field 

of operation.’’ The definition of small 

business varies from industry to 

industry to the extent necessary to 

properly reflect industry size 

differences. An agency must either use 

the SBA definition for a small entity or 

establish an alternative definition for 

the relevant industries to which a rule 

applies, which in this case includes 

Beef Cattle Ranching and Farming 

(NAICS 112111), Dairy Cattle and Milk 

Production (NAICS 11212), Sheep and 

Goat Farming (NAICS 1124), and Other 

Animal Production (NAICS 1129).58 The 

Department has adopted the SBA 

definition for these industries, which is 

an establishment with annual revenues 

of less than $0.75 million.59

Approximately 99 percent of U.S. 

farms in the relevant industries have 

annual revenues of less than $0.75 

million and, therefore, fall within the 

SBA’s definition of a small entity.60 The 

Department considers a rule to have an 

impact on a ‘‘substantial number of 

small entities’’ when the total number of 

small entities impacted by the rule is 

equal to or greater than 15 percent of the 

relevant universe of small entities 

affected in a given industry. Therefore, 

the Department concludes that the 

proposed rule will have a significant 

economic impact on a substantial 

number of small entities. In 2012, there 

were 517 employers participating in the 

H–2A program in the industries subject 

to the proposed rule. Using an annual 

growth rate of 2 percent, the Department 

estimates that there will be 

approximately 669 participants by 2025. 

6. Relevant Federal Rules Duplicating, 

Overlapping, or Conflicting With the 

Rule 

The Department is not aware of any 

relevant Federal rules that conflict with 

this NPRM. 

7. Alternatives to the Proposed Rule 

The Department has considered three 

alternatives: (1) To make the policy 

changes contained in the proposed rule 

in which the wage determination is 

based on forecasted AEWR values by 

U.S. Department of Agriculture (USDA) 

region, which are incrementally phased 

in over five years; (2) to make the policy 

changes contained in the proposed rule 

in which the wage determination is 

based on forecasted AEWR values by 

USDA region, which are incrementally 

phased in over three years; or (3) to 

make the policy changes contained in 

the proposed rule in which the wage 

determination is based on forecasted 

AEWR values by USDA region, which 

do not utilize a phase-in schedule. The 

Department believes that the first 

alternative—to make the policy changes 

contained in the proposed rule using the 

wage based on forecasted AEWR values 

by USDA region, which are 

incrementally phased in over five 

years—is the most consistent with its 

dual statutory mandate to ensure that 

there are not sufficient workers who are 

able, willing, qualified and available to 

perform the labor or services required, 

and that the employment of the foreign 

workers will not adversely affect the 

wages and working conditions of 

workers in the United States similarly 

employed and appropriately accounts 

for labor market concerns. The 

Department does not consider the 3-year 

phase in and no phase in period 

alternatives appropriate because they do 

not appropriately account for the unique 

characteristics of these occupations that 

have historically resulted in a limited 

number of U.S. workers interested in 

performing the jobs and raise concerns 

about labor market disruption, such as 

loss of jobs and lack of labor when and 

where it is needed. The Department 

invites comments from the public on 

other possible alternatives to consider, 

including alternatives to the specific 

provisions contained in this NPRM. 

The Department estimated the total 

cost burden on small entities for each of 

the alternatives as follows. 

Wage Methodology Calculation 

a. Policy Changes in the NPRM Using 

the AEWR Values by USDA Region, 

Which Are Incrementally Phased In 

Over Five Years 

The first alternative—this NPRM— 

retains the most effective features of the 

2010 Final Rule, TEGL 32–10, TEGL 15– 

06, Change 1 and proposes provisions to 

best achieve the Department’s policy 

objectives. The Department’s 

calculations indicate that the total 

average annual cost of this proposed 

rule is $49,220 (or 19.5 percent of 

annual revenues) for the average small 

entity employing three workers in sheep 

or goat herding occupations.61 The total 

average annual cost of this proposed 

rule is $60,786 (or 24.1 percent of 

annual revenues) for the average small 

entity employing three workers in open 

range livestock production 

occupations.62

For small entities that apply for 1 

worker instead of 3—representing the 

smallest of the small farms that hire 

workers—the Department estimates that 

the total average annual cost of the 

proposed rule is $21,486 (or 8.5 percent 

of annual revenues) for entities 

employing a worker in a sheep or goat 

herding occupation.63 The total average 

annual cost of the proposed rule is 

$24,946 (or 9.9 percent of annual 

revenues) for small entities employing a 

worker in an open range livestock 

production occupation.64

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

20336 Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 

65For illustration, the total average annual cost of 

$51,867 for the average small entity applying for 3 

workers in sheep or goat herding occupations 

results from summing the totals for the various rule 

requirements described above as follows: $51,867 = 

$14,742.20 × 3 + $7.00 × 3 + $83.93 + $2,960.00 + 

$1,860.03 + $2,700.00 + $15.18. 

66For illustration, the total average annual cost of 

$63,433 for the average small entity applying for 3 

workers in open range livestock production 

occupations results from summing the totals for the 

various rule requirements described above as 

follows: $63,433 = $14,742.20 × 3 + $4,053.00 × 3 

+ $7.00 × 3 + $83.93 + $2,960.00 + $1,860.03 + 

$2,700.00 + $15.18¥$593.18. 

67For illustration, the total average annual cost of 

$22,368 for the average small entity applying for 1 

worker in a sheep or goat herding occupation 

results from summing the totals for the various rule 

requirements described above as follows: $22,368 = 

$14,742.20 + $7.00 + $83.93 + $2,960.00 + 

$1,860.03 + $2,700.00 + $15.18. 

68For illustration, the total average annual cost of 

$25,828 for the average small entity applying for 1 

worker in an open range livestock production 

occupation results from summing the totals for the 

various rule requirements described above as 

follows: $25,828 = $14,742.20 + 4,053.00 + $7.00 + 

$83.93 + $2,960.00 + $1,860.03 + $2,700.00 + 

$15.18 ¥ $593.18. 

69For illustration, the total average annual cost of 

$55,926 for the average small entity applying for 3 

workers in sheep or goat herding occupations 

results from summing the totals for the various rule 

requirements described above as follows: $55,926 = 

$16,095.20 × 3 + $7.00 × 3 + $83.93 + $2,960.00 + 

$1,860.03 + $2,700.00 + $15.18. 

70For illustration, the total average annual cost of 

$67,492 for the average small entity applying for 3 

workers in open range livestock production 

occupations results from summing the totals for the 

various rule requirements described above as 

follows: $67,492 = $16,095.20 × 3 + $4,053.00 × 3 

+ $7.00 × 3 + $83.93 + $2,960.00 + $1,860.03 + 

$2,700.00 + $15.18 ¥ $593.18. 

71For illustration, the total average annual cost of 

$23,721 for the average small entity applying for 1 

worker in a sheep or goat herding occupation 

results from summing the totals for the various rule 

requirements described above as follows: $23,721 = 

$16,095.20 + $7.00 + $83.93 + $2,960.00 + 

$1,860.03 + $2,700.00 + $15.18. 

72For illustration, the total average annual cost of 

$27,181 for the average small entity applying for 1 

worker in an open range livestock production 

occupation results from summing the totals for the 

various rule requirements described above as 

follows: $27,181 = $16,095.20 + 4,053.00 + $7.00 + 

$83.93 + $2,960.00 + $1,860.03 + $2,700.00 + 

$15.18¥$593.18. 

b. Policy Changes in the NPRM Using 

the AEWR Values by USDA Region, 

Which Are Incrementally Phased In 

Over Three Years 

The second alternative retains the 

same features of the 2010 Final Rule, 

TEGL 32–10, TEGL 15–06, Change 1, 

and proposes the same provisions as the 

first alternative; the only difference is 

that the AEWR-based wage 

determination is incrementally phase in 

over three years. The Department’s 

calculations indicate that the total 

average annual cost of this alternative 

would be $51,867 (or 20.6 percent of 

annual revenues) for the average small 

entity employing sheep or goat herding 

occupations.65 The total average annual 

cost of this alternative would be $63,433 

(or 25.2 percent of annual revenues) for 

the average small entity employing open 

range livestock production 

occupations.66

For small entities that apply for 1 

worker instead of 3—representing the 

smallest of the small farms that hire 

workers—the Department estimates that 

the total average annual cost of this 

alternative would be $22,368 (or 8.9 

percent of annual revenues) for entities 

employing a worker in a sheep or goat 

herding occupation.67 The total average 

annual cost of this alternative would be 

$25,828 (or 10.2 percent of annual 

revenues) for small entities employing a 

worker in an open range livestock 

production occupation.68

c. Policy Changes in the NPRM Using 

the AEWR Values by USDA Region 

With No Phase-In Period 

The third alternative retains the same 

features of the 2010 Final Rule, TEGL 

32–10, TEGL 15–06, Change 1, and 

proposes the same provisions as the first 

alternative; the only difference is that 

the AEWR-based wage determination 

does not utilize a phase-in schedule. 

The Department’s calculations indicate 

that the total average annual cost of this 

alternative would be $55,926 (or 22.2 

percent of annual revenues) for the 

average small entity employing sheep or 

goat herding occupations.69 The total 

average annual cost of this alternative 

would be $67,492 (or 26.8 percent of 

annual revenues) for the average small 

entity employing open range livestock 

production occupations.70

For small entities that apply for 1 

worker instead of 3—representing the 

smallest of the small farms that hire 

workers—the Department estimates that 

the total average annual cost of this 

alternative would be $23,721 (or 9.4 

percent of annual revenues) for entities 

employing a worker in a sheep or goat 

herding occupation.71 The total average 

annual cost of this alternative would be 

$27,181 (or 10.8 percent of annual 

revenues) for small entities employing a 

worker in an open range livestock 

production occupation.72

The Department seeks feedback on its 

chosen method for the wage 

determination, and seeks input on other 

wage methodologies that would 

minimize the economic impact of this 

rule for small entities while protecting 

against adverse effect. For example, is 

there a better data source that should be 

utilized? Is the 5-year phase-in period 

appropriate? 

d. Differing Compliance and Reporting 

Requirements for Small Entities 

The NPRM provides for no differing 

compliance requirements and reporting 

requirements for small entities. As 

discussed above, approximately 99 

percent of the U.S. firms in the relevant 

industries fall within the SBA’s 

definition of a small entity. 

However, DOL is interested in 

receiving feedback on alternatives to the 

proposed compliance and reporting 

requirements for all regulated entities 

that would minimize the costs of this 

rulemaking while still achieving the 

objectives of the rulemaking. For 

example, are there any significant 

alternatives for any of the following 

requirements: (a) Recording the type of 

work performed at the ranch (i.e., not on 

the open range); (b) filing requirements; 

(c) job order submissions; (d) job order 

duration; (e) newspaper advertisements; 

(f) placement of workers on master 

applications; (g) employer-provided 

items; (h) meals; (i) potable water; (j) 

expanded cooking/cleaning facilities; (k) 

provision of communication access, (l) 

earnings records; and (m) time to read 

and review the rule? 

e. Clarification, Consolidation, and 

Simplification of Compliance and 

Reporting Requirements for Small 

Entities 

This NPRM was drafted to clearly 

state the compliance requirements for 

all small entities subject to this 

proposed rule. The paperwork burden 

associated with the reporting burden 

related to the proposed recordkeeping 

requirements is addressed below in 

section N. 

The Department seeks feedback on 

any ways it can clarify, consolidate or 

simplify the requirements in this 

regulation. 

f. Use of Performance Rather Than 

Design Standards 

The NPRM was written to provide 

clear guidelines to ensure compliance 

with the proposed rule’s requirements. 

Under the proposed rule, small entities 

may achieve compliance through a 

variety of means. The Department 

makes available a variety of resources to 

small entities for understanding their 

obligations and achieving compliance. 

g. Exemption From Coverage of the Rule 

for Small Entities 

All small entities that avail 

themselves of the H–2A program and 

seek H–2A workers to perform open 

range herding and livestock production 

occupations must comply with the 

proposed procedures and standards, 

including wage rate determinations 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 20337 

using the proposed wage methodology, 

if finalized. The Department has no 

authority to exempt small businesses 

from the proposed regulation. 

Furthermore, as noted above, 

approximately 99 percent of the U.S. 

firms in the relevant industries fall 

within the SBA’s definition of a small 

entity. 

C. Unfunded Mandates Reform 

Executive Order 12875—This rule 

will not create an unfunded Federal 

mandate upon any State, local or tribal 

government. 

Unfunded Mandates Reform Act of 1995 

Title II of the Unfunded Mandates 

Reform Act of 1995 (2 U.S.C. 1531) 

directs agencies to assess the effects of 

Federal regulatory actions on State, 

local, and Tribal governments, and the 

private sector. This Proposed Rule has 

no Federal mandate, which is defined in 

2 U.S.C. 658(6) to include either a 

‘‘Federal intergovernmental mandate’’ 

or a ‘‘Federal private sector mandate.’’ A 

Federal mandate is any provision in a 

regulation that imposes an enforceable 

duty upon State, local, or Tribal 

governments, or imposes a duty upon 

the private sector which is not 

voluntary. A decision by a private entity 

to obtain an H–2A worker is purely 

voluntary and is, therefore, excluded 

from any reporting requirement under 

the Act. 

The SWAs are mandated to perform 

certain activities for the Federal 

Government under this program, and 

are compensated for the resources used 

in performing these activities. 

This NPRM includes no new 

mandates for the SWAs in the H–2A 

application process and does not 

include any Federal mandate that may 

result in increased expenditures by 

State, local, and tribal governments, in 

the aggregate, of $100 million or more. 

It also does not result in increased 

expenditures by the private sector of 

$100 million or more, because 

participation in the H–2A program is 

entirely voluntary. SWA activities under 

the H–2A program are currently funded 

by the Department through grants 

provided under the Wagner-Peyser Act. 

29 U.S.C. 49 et seq. The Department 

anticipates continuing funding under 

the Wagner-Peyser Act. As a result of 

this NPRM and the publication of a final 

regulation, the Department will analyze 

the amounts of such grants made 

available to each State to fund the 

activities of the SWAs. 

D. Small Business Regulatory 

Enforcement Fairness Act of 1996 

The Department has determined that 

this proposed rulemaking will impose a 

significant impact on a substantial 

number of small entities under the RFA; 

therefore, if the rule is finalized as 

proposed, the Department will be 

required to produce a Compliance 

Guide for Small Entities as mandated by 

the SBREFA. The Department has 

concluded that this Proposed Rule is not 

a major rule requiring review by the 

Congress under the SBREFA because it 

will not likely result in: (1) An annual 

effect on the economy of $100 million 

or more; (2) a major increase in costs or 

prices for consumers, individual 

industries, Federal, State or local 

Government agencies, or geographic 

regions; or (3) significant adverse effects 

on competition, employment, 

investment, productivity, innovation, or 

on the ability of U.S.-based enterprises 

to compete with foreign-based 

enterprises in domestic or export 

markets. 

E. The Congressional Review Act 

The Congressional Review Act (5 

U.S.C. 801 et seq.) requires rules to be 

submitted to Congress before taking 

effect. If implemented as proposed, we 

will submit to Congress and the 

Comptroller General of the United 

States a report regarding the issuance of 

the Final Rule prior to its effective date, 

as required by 5 U.S.C. 801(a)(1). 

F. Executive Order 13132—Federalism 

The Department has reviewed this 

NPRM in accordance with E.O. 13132 

regarding federalism and has 

determined that it does not have 

federalism implications. The NPRM 

does not have substantial direct effects 

on States, on the relationship between 

the States, or on the distribution of 

power and responsibilities among the 

various levels of Government as 

described by E.O. 13132. Therefore, the 

Department has determined that this 

NPRM will not have a sufficient 

federalism implication to warrant the 

preparation of a summary impact 

statement. 

G. Executive Order 13175—Indian 

Tribal Governments 

This NPRM was reviewed under the 

terms of E.O. 13175 and determined not 

to have Tribal implications. The NPRM 

does not have substantial direct effects 

on one or more Indian Tribes, on the 

relationship between the Federal 

Government and Indian Tribes, or on 

the distribution of power and 

responsibilities between the Federal 

Government and Indian Tribes. As a 

result, no Tribal summary impact 

statement has been prepared. 

H. Assessment of Federal Regulations 

and Policies on Families 

Section 654 of the Treasury and 

General Government Appropriations 

Act, enacted as part of the Omnibus 

Consolidated and Emergency 

Supplemental Appropriations Act of 

1999 (Pub. L. 105–277, 112 Stat. 2681) 

requires the Department to assess the 

impact of this NPRM on family wellbeing. A rule that is determined to have 

a negative effect on families must be 

supported with an adequate rationale. 

The Department has assessed this 

NPRM and determines that it will not 

have a negative effect on families. 

I. Executive Order 12630—Government 

Actions and Interference With 

Constitutionally Protected Property 

Rights 

This NPRM is not subject to E.O. 

12630, Governmental Actions and 

Interference with Constitutionally 

Protected Property Rights, because it 

does not involve implementation of a 

policy with takings implications. 

J. Executive Order 12988—Civil Justice 

This NPRM has been drafted and 

reviewed in accordance with E.O. 

12988, Civil Justice Reform, and will not 

unduly burden the Federal court 

system. The regulation has been written 

to minimize litigation and provide a 

clear legal standard for affected conduct, 

and has been reviewed carefully to 

eliminate drafting errors and 

ambiguities. 

K. Plain Language 

The Department drafted this NPRM in 

plain language. 

L. Executive Order 13211—Energy 

Supply 

This NPRM is not subject to E.O. 

13211. It will not have a significant 

adverse effect on the supply, 

distribution, or use of energy. 

M. Paperwork Reduction Act 

This NPRM proposes a new 

information collection to the H–2A 

program and seeks approval from the 

Office of Management and Budget 

(OMB) under OMB Control Number 

1205–NEW. The Department is not 

creating a specific form for this new 

collection requirement. Rather, the 

Department’s proposal would require 

that employers keep and maintain 

records that reflect each day that the 

worker works, whether the work was 

performed on the open range or at the 

employer’s ranch or farm. In addition, 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

20338 Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 

73Source: Bureau of Labor Statistics. 

Occupational Employment Statistics: May 2013 

National Occupational Employment and Wage 

Estimates; Management Occupations 

. 

for work that is conducted at the ranch 

or farm, the employer must keep records 

of the days worked and the nature of the 

work performed. Such records will 

enable the employer, and the 

Department, if necessary, to determine 

whether the worker performed work on 

the range at least 50 percent of the days 

during the contract period and that the 

work at the ranch that does not 

constitute the production of livestock 

was minor, sporadic, and incidental 

(i.e., closely and directly related to 

herding and the production of livestock 

and occurred on no more than 20 

percent of the workdays at the ranch). 

This proposal constitutes a new 

information collection and creates an 

associated paperwork burden on the 

employers that must be assessed under 

the Paperwork Reduction Act (PRA), 44 

U.S.C. 3501–3521. Based on the number 

of current applications for H–2A 

workers to perform herding work, the 

Department estimates that by 2016 the 

proposed information collection will 

affect 560 employers employing foreign 

sheepherders, goat herders, and other 

workers engaged in the open range 

production of livestock. The Department 

further estimates that it will take each 

employer, on average, 5 minutes each 

week to prepare timesheets for its 

employees, and 1 minute each week to 

store these timesheets. Thus, the 

reporting burden for 560 employers is 

2,800 minutes (560 employers × 5 

minutes) per week, or 47 hours per 

week. When annualized, the total 

reporting burden is 2,444 hours per year 

(47 hours per week × 52 weeks). The 

total record keeping burden for 560 

employers is 560 minutes (560 

employers × 1 minute) per week, or 9 

hours per week. When annualized, the 

total recordkeeping burden is 468 hours 

per year (9 hours per week × 52 weeks). 

When these two sums are added 

together, the total employer reporting 

and recordkeeping burden is 2,912 

hours per year. 

When estimating the cost burden of 

paperwork requirements, the 

Department used the average salary of a 

Human Resources Manager based on the 

national cross-industry mean hourly 

wage rate for a Human Resources 

Manager ($53.45), from the U.S. 

Department of Labor, Bureau of Labor 

Statistics, Occupational Employment 

Statistics survey wage data,73 and 

increased by a factor of 1.42 to account 

for employee benefits and other 

compensation, for a total hourly cost of 

$75.90. This number was multiplied by 

the total hourly annual burden created 

for this new requirement proposed by 

this NPRM, which, as noted above, is 

2,912 hours per year. The total annual 

respondent hourly costs for this new 

burden placed on the employers in the 

sheepherding and open range 

production of livestock is estimated as 

follows: 

Total Burden Cost of This Provision is 2,912 

hours × $75.90 = $221,021 per year 

As noted above, this collection of 

information is subject to the PRA. 

Accordingly, this information collection 

in this proposed rule has been 

submitted to OMB for review under 44 

U.S.C. 3507(d) of the PRA. The PRA 

package for OMB Control Number 1205– 

NEW can be obtained by contacting the 

office listed below or in the ADDRESSES

section of this Notice of Proposed 

Rulemaking or at the Web site: http://

www.reginfo.gov/public/dol/pramain. 

Written comments are encouraged 

and will be accepted until June 15, 

2015. 

When submitting comments on the 

new information collection, your 

comments should address one or more 

of the following four points: 

• Evaluate whether the proposed 

collection of information is necessary 

for the proper performance of the 

functions of the agency, including 

whether the information will have 

practical utility; 

• evaluate the accuracy of the 

agency’s estimate of the burden of the 

proposed collection of information, 

including the validity of the 

methodology and assumptions used; 

• enhance the quality, utility, and 

clarity of the information to be 

collected; and 

• minimize the burden of the 

collection of information on those who 

are to respond, including through the 

use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology, 

e.g., permitting electronic submissions 

of responses. 

Overview of Information Collection for 

the New Provision Proposed by This 

NPRM 

Type of Review: New Collection. 

Agency: Employment and Training 

Administration. 

Title: H–2A Temporary Labor 

Certification Program. 

OMB Number: 1205–NEW. 

Affected Public: Farm businesses. 

Form(s): None. 

Total Annual Respondents: 560. 

Annual Frequency: Weekly. 

Total Annual Responses: 29,120. 

Average Time per Response: 6 

minutes. 

Estimated Total Annual Burden 

Hours: 2,912 hours per year. 

Total Annual Start-up/Capital/

Maintenance Costs for Respondents: $0. 

The Department invites comments on 

all aspects of the PRA analysis. 

Comments submitted in response to this 

request will be summarized and/or 

included in the request for OMB 

approval of the information collection. 

They will also be included on the 

administrative record of this 

rulemaking, and we will consider them 

in developing the final rule. 

All comments and suggestions or 

question regarding additional 

information should be directed to the 

Federal e-Rulemaking Portal at: http://

www.regulations.gov and a copy sent to 

the Office of Information and Regulatory 

Affairs of the Office of Management and 

Budget, Washington, DC 20503, 

Attention: Desk Officer for Employment 

and Training Administration, AND to 

Michel Smyth, Departmental Clearance 

Officer, Department of Labor, 200 

Constitution Ave. NW., Washington, DC 

20210 or email: Smyth.Michel@dol.gov. 

The information collection aspects of 

the proposed rulemaking will not take 

effect until published in a final rule and 

approved by OMB. Persons are not 

required to respond to a collection of 

information unless it displays a 

currently valid OMB control number as 

required in 5 CFR 1320.11(k)(1). 

List of Subjects in 20 CFR Part 655 

Administrative practice and 

procedure, Foreign workers, 

Employment, Employment and training, 

Enforcement, Forest and forest products, 

Fraud, Health professions, Immigration, 

Labor, Passports and visas, Penalties, 

Reporting and recordkeeping 

requirements, Unemployment, Wages, 

Working conditions. 

For the reasons discussed in the 

preamble, Department of Labor proposes 

to amend 20 CFR part 655 as follows: 

PART 655—TEMPORARY 

EMPLOYMENT OF FOREIGN 

WORKERS IN THE UNITED STATES 

■ 1. The authority citation for part 655 

continues to read in part as follows: 

Authority: Section 655.0 issued under 8 

U.S.C. 1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) 

and (ii), 8 U.S.C. 1103(a)(6), 1182(m), (n) and 

(t), 1184(c), (g), and (j), 1188, and 1288(c) and 

(d); sec. 3(c)(1), Pub. L. 101–238, 103 Stat. 

2099, 2102 (8 U.S.C. 1182 note); sec. 221(a), 

Pub. L. 101 649, 104 Stat. 4978, 5027 (8 

U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102– 

232, 105 Stat. 733, 1748 (8 U.S.C. 1101 note); 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 20339 

sec. 323(c), Pub. L. 103–206, 107 Stat. 2428; 

sec. 412(e), Pub. L. 105–277, 112 Stat. 2681 

(8 U.S.C. 1182 note); sec. 2(d), Pub. L. 106– 

95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); 

29 U.S.C. 49k; Pub. L. 109–423, 120 Stat. 

2900; 8 CFR 214.2(h)(4)(i); and 8 CFR 

214.2(h)(6)(iii). 

* * * * * 

■ 2. Subpart C is added to read as 

follows: 

Subpart C—Labor Certification Process for 

Temporary Agricultural Employment in 

Open Range Sheepherding, Goat Herding, 

and Production of Livestock Occupations 

Sec. 

655.200 Scope and purpose. 

655.201 Definition of terms. 

655.205 Job orders. 

655.210 Contents of job orders. 

655.211 Wage rate. 

655.215 Procedures for filing applications 

for temporary employment certification. 

655.220 Processing applications for 

temporary employment certification. 

655.225 Post-acceptance requirements. 

655.230 Mobile housing. 

655.235 Standards for mobile housing. 

Subpart C—Labor Certification 

Process for Temporary Agricultural 

Employment in Open Range 

Sheepherding, Goat Herding, and 

Production of Livestock Occupations 

§ 655.200 Scope and purpose. 

(a) Purpose. The purpose of this 

subpart is to establish certain 

procedures for employers who apply to 

the Department of Labor to obtain labor 

certifications to hire temporary 

agricultural foreign workers to perform 

herding or production of livestock on 

the open range, as defined in this 

subpart. Unless otherwise specified in 

this subpart, employers whose job 

opportunities meet the qualifying 

criteria under this subpart must fully 

comply with all of the requirements of 

part 655, subpart B; part 653, subparts 

B and F; and part 654 of this chapter. 

(b) Jobs subject to this subpart. These 

procedures apply to job opportunities 

with the following unique 

characteristics: 

(1) The work activities involve the 

herding or production of livestock, as 

defined under § 655.201. Any additional 

job duties performed by the worker 

must be minor, sporadic, and incidental 

to the herding or production of 

livestock; 

(2) The work is performed on the 

open range requiring the use of mobile 

housing, as defined under § 655.201, for 

at least 50 percent of the workdays in 

the work contract period because the 

worker is not reasonably able to return 

to his or her place of residence or to 

employer-provided fixed site housing 

within the same day. Any additional 

work performed at a place other than 

the open range (e.g., an enclosed farm or 

ranch) that does not constitute the 

production of livestock must be minor, 

sporadic, and incidental to the herding 

or production of livestock; and 

(3) The work activities generally 

require the workers to be on call 24 

hours per day, 7 days a week. 

§ 655.201 Definition of terms. 

The following are terms that are not 

defined in subpart B of this part and are 

specific to applications for labor 

certifications involving the herding or 

production of livestock on the open 

range. 

Herding. Activities associated with 

the caring, controlling, feeding, 

gathering, moving, tending, and sorting 

of livestock on the open range. 

Livestock. An animal species or 

species group such as sheep, cattle, 

goats, horses, or other domestic hooved 

animals. In the context of this subpart, 

livestock refers to those species raised 

on the open range. 

Minor, sporadic, and incidental work. 

Work duties and activities that are 

closely and directly related to herding 

and the production of livestock and are 

performed on no more than 20 percent 

of the workdays spent at the ranch in a 

work contract period. 

Mobile housing. Housing meeting the 

standards articulated under § 655.235 

that can be moved from one area to 

another area on the open range. 

Open range. Unenclosed public or 

private land outside of cities and towns 

in which sheep, cattle, goats, horses, or 

other domestic hooved animals, by 

ownership, custom, license, lease, or 

permit, are allowed to graze and roam. 

Animals are not meaningfully enclosed 

where there are no fences or other 

barriers protecting them from predators 

or restricting their freedom of 

movement; rather a worker must 

actively herd the animals and direct 

their movement. Open range may 

include intermittent fencing or barriers 

to prevent or discourage animals from 

entering a particularly dangerous area. 

These types of barriers prevent access to 

dangers rather than containing the 

animals, and therefore supplement 

rather than replace the worker’s efforts. 

Production of livestock. The care or 

husbandry of livestock throughout one 

or more seasons during the year, 

including guarding and protecting 

livestock from predatory animals and 

poisonous plants; feeding, fattening, and 

watering livestock; examining livestock 

to detect diseases, illnesses, or other 

injuries; administering medical care to 

sick or injured livestock; applying 

vaccinations and spraying insecticides 

on the open range; and assisting with 

the breeding, birthing, raising, weaning, 

castration, branding, and general care of 

livestock. 

§ 655.205 Job orders. 

The employer whose job opportunity 

has been determined to qualify for these 

procedures, whether individual, 

association, or H–2ALC, is not required 

to comply with the job order filing 

requirements in § 655.121(a) through 

(d). Rather, the employer must submit a 

job order, Form ETA 790, directly to the 

National Processing Center (NPC) 

designated by the Office of Foreign 

Labor Certification (OFLC 

Administrator) along with a completed 

Application for Temporary Employment 

Certification, Form ETA 9142, as 

required in § 655.130. 

§ 655.210 Contents of job orders. 

(a) Content of job offers. Unless 

otherwise specified in this subpart, the 

employer, whether individual, 

association, or H–2ALC, must satisfy the 

requirements for job orders established 

under § 655.121(e) and for the content of 

job offers established under part 653, 

subpart F of this chapter and § 655.122. 

(b) Job qualifications and 

requirements. The job offer must 

include a statement that the workers are 

on call for up to 24 hours per day, 7 

days per week and that the workers are 

primarily engaged (spend at least 50 

percent of the workdays during the 

contract period) in the herding or 

production of livestock on the open 

range. Duties may include activities 

performed at the ranch or farm only if 

such duties constitute the production of 

livestock or are closely and directly 

related to herding and the production of 

livestock. Work that is closely and 

directly related to herding or the 

production of livestock must be 

performed on no more than 20 percent 

of the workdays spent at the ranch in a 

work contract period. All such duties 

must be specifically disclosed on the job 

order. The job offer may also specify 

that applicants possess up to 6 months 

of experience in similar occupations 

involving the herding or production of 

livestock on the open range and require 

reference(s) for the employer to verify 

applicant experience. An employer may 

specify other appropriate job 

qualifications and requirements for its 

job opportunity. Job offers may not 

impose on U.S. workers any restrictions 

or obligations that will not be imposed 

on the employer’s H–2A workers 

engaged in herding or the production of 

livestock on the open range. Any such 

requirements must be applied equally to 

both U.S. and foreign workers. Each job 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

20340 Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 

qualification and requirement listed in 

the job offer must be bona fide, and the 

Certifying Officer (CO) may require the 

employer to submit documentation to 

substantiate the appropriateness of any 

other job qualifications and 

requirements specified in the job offer. 

(c) Mobile range housing. The 

employer must specify in the job order 

mobile housing will be provided. The 

housing must meet the requirements set 

forth in § 655.235. 

(d) Employer-provided items. The 

employer must provide to the worker, 

without charge or deposit charge, all 

tools, supplies, and equipment required 

by law, by the employer, or by the 

nature of the work to perform the duties 

assigned in the job offer safely and 

effectively. The employer must specify 

in the job order which items it will 

provide to the worker. Because of the 

unique nature of the herding or 

production of livestock on the open 

range, this equipment must include an 

effective means of communicating with 

persons capable of responding to the 

worker’s needs in case of an emergency 

including, but not limited to, satellite 

phones, cell phones, wireless devices, 

radio transmitters, or other types of 

electronic communication systems. 

Although there may be periods of time 

when the workers are in locations where 

electronic communication devices may 

not operate effectively, the employer 

must arrange for workers to be located 

in geographic areas where electronic 

communication devices can operate 

effectively on a regular basis, unless the 

employer will make contact in-person 

with the worker regularly. The employer 

must specify in the job order that it will 

make contact with the worker in-person 

or using an electronic communication 

device regularly. 

(e) Meals. The employer must specify 

in the job offer and provide to the 

worker, without charge or deposit 

charge, three sufficient meals a day, or 

furnish free and convenient cooking 

facilities and adequate provision of food 

to enable the worker to prepare his own 

meals, and adequate potable water, or 

water that can be easily rendered 

potable and the means to do so. 

(f) Hours and earnings statements. (1) 

The employer must keep accurate and 

adequate records with respect to the 

worker’s earnings and furnish to the 

worker on or before each payday a 

statement of earnings. The employer is 

exempt from recording the hours 

actually worked each day as well as the 

time the worker begins and ends each 

workday when the worker is performing 

duties on the open range, but all other 

regulatory requirements in § 655.122(j) 

and (k) apply. 

(2) The employer must keep daily 

records indicating the site of the 

employee’s work, whether it was on the 

open range or on the ranch or farm. The 

employer must also keep and maintain 

records of hours worked and duties 

performed over the course of the day 

when the worker is performing work on 

the ranch or farm. If the employer 

prorates a worker’s monthly wage 

pursuant to paragraph (g)(2) of this 

section because of the worker’s 

voluntary absence for personal reasons, 

it must also keep a record of the reason 

for the worker’s absence. 

(g) Rates of pay. The employer must 

pay the worker at least the monthly 

AEWR, as specified in § 655.211, the 

agreed-upon collective bargaining wage, 

or the applicable minimum wage 

specific to the occupation(s) imposed by 

Federal or State law or judicial action, 

in effect at the time work is performed, 

whichever is highest, for every month of 

the job order period or portion thereof. 

(1) The offered wage shall not be 

based on commissions, bonuses, or 

other incentives, and must be paid to 

each worker free and clear without any 

unauthorized deductions no less than 

monthly. 

(2) If the worker is paid by the month, 

the employer may prorate the monthly 

wage for the initial and final months of 

the job order period, if its pay period 

does not match the beginning or ending 

dates of the job order (such as if the 

employer pays on a calendar month 

basis and the job order starts or ends in 

the middle of the month). The employer 

also may prorate the monthly wage if an 

employee is voluntarily unavailable for 

work for personal reasons. 

(h) Frequency of pay. The employer 

must state in the job offer the frequency 

with which the worker will be paid, 

which must be no less frequently than 

monthly. Employers must pay wages 

when due. 

§ 655.211 Wage rate. 

(a) Compliance with rates of pay. (1) 

To comply with its obligation under 

§ 655.210(g), an employer must offer, 

advertise in its recruitment and pay 

each worker employed under this 

subpart a wage that is the highest of the 

monthly AEWRs established under this 

section, the agreed-upon collective 

bargaining wage, or the applicable 

minimum wage specific to the 

occupation(s) imposed by Federal or 

State law or judicial action. 

(2) If the monthly AEWR for a State 

established under this section is 

adjusted under the FLS during a work 

contract, and is higher than the highest 

of the monthly AEWR, the agreed-upon 

collective bargaining wage, or the 

applicable minimum wage specific to 

the occupation(s) imposed by Federal or 

State law or judicial action, in effect at 

the time the work is performed, the 

employer must pay that adjusted 

monthly AEWR upon publication by the 

Department in the Federal Register. 

(b) Determining the monthly AEWRs. 

The monthly AEWRs are calculated 

using the hourly AEWRs, as defined 

under § 655.103(b), multiplied by 44 

hours per week, and then multiplied by 

4.333 weeks per month. 

(c) Publication of the monthly 

AEWRs. The OFLC Administrator will 

publish a notice in the Federal Register, 

at least once in each calendar year, on 

a date to be determined by the OFLC 

Administrator, the monthly AEWRs for 

each State. 

(d) Implementation Schedule for the 

monthly AEWRs. The monthly AEWRs 

shall be determined using the method 

specified in paragraph (b) of this section 

and published in the Federal Register, 

as specified in paragraph (c) of this 

section, according to the following 

schedule: 

(1) For calendar year 2016, the 

Department shall determine the 

monthly AEWRs using 60 percent of the 

hourly AEWRs established for each 

State based on wage surveys conducted 

for the preceding calendar year. 

(2) For calendar year 2017, the 

Department shall determine the 

monthly AEWRs using 70 percent of the 

hourly AEWRs established for each 

State based on wage surveys conducted 

for the preceding calendar year. 

(3) For calendar year 2018, the 

Department shall determine the 

monthly AEWRs using 80 percent of the 

hourly AEWRs established for each 

State based on wage surveys conducted 

for the preceding calendar year. 

(4) For calendar year 2019, the 

Department shall determine the 

monthly AEWRs using 90 percent of the 

hourly AEWRs established for each 

State based on wage surveys conducted 

for the preceding calendar year. 

(5) For calendar year 2020 and all 

subsequent calendar years, the 

Department shall determine the 

monthly AEWRs using 100 percent of 

the hourly AEWRs established for each 

State based on wage surveys conducted 

for the preceding calendar year. 

§ 655.215 Procedures for filing 

applications for temporary employment 

certification. 

(a) Compliance with subpart B of this 

part. Unless otherwise specified in this 

subpart, the employer must satisfy the 

requirements for filing an Application 

for Temporary Employment 

Certification with the NPC designated 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 20341 

by the OFLC Administrator as required 

under §§ 655.130–655.132. 

(b) What to file. An employer must 

file a completed Application for 

Temporary Employment Certification 

(Form ETA 9142), job order (Form ETA 

790), and an attachment identifying, 

with as much geographic specificity as 

possible for each farmer/rancher, the 

names, physical locations and estimated 

start and end dates of need where work 

will be performed under the job order. 

(1) The Application for Temporary 

Employment Certification and job order 

may be filed by an individual employer, 

association, or an H–2ALC, covering 

multiple areas of intended employment 

and more than two contiguous States. 

(2) The total period of need identified 

on the Application for Temporary 

Employment Certification and job order 

for open range sheep or goat herding or 

production occupations must be no 

more than 364 calendar days. The total 

period of need identified on the 

Application for Temporary Employment 

Certification and job order for open 

range herding or production of cattle, 

horses, or other domestic hooved 

livestock, except sheep and goats, must 

be for no more than 10 months. 

(3) An association of agricultural 

employers filing as a joint employer 

may submit a single job order and 

master Application for Temporary 

Employment Certification on behalf of 

its employer-members located in more 

than two contiguous States with 

different start dates of need. Unless 

modifications to a sheep or goat herding 

or production job order are required by 

the CO or requested by the employer, 

pursuant to § 655.121(e), the association 

is not required to re-submit the job order 

during the calendar year with its 

Application for Temporary Employment 

Certification. 

§ 655.220 Processing applications for 

temporary employment certification. 

(a) NPC review. Unless otherwise 

specified in this subpart, the CO will 

review and process the Application for 

Temporary Employment Certification 

and the job order in accordance with the 

requirements outlined in §§ 655.140– 

655.145, and will work with the 

employer to address any deficiencies in 

the job order in a manner consistent 

with §§ 655.140–655.141. 

(b) Notice of acceptance. Once the job 

order is determined to meet all 

regulatory requirements, the NPC will 

issue a Notice of Acceptance consistent 

with § 655.143(b)(1). The CO will 

provide notice to the employer 

authorizing conditional access to the 

interstate clearance system; identify and 

transmit a copy of the job order to any 

one of the SWAs having jurisdiction 

over the anticipated worksites, and 

direct the SWA to place the job order 

promptly in intrastate and interstate 

clearance (including all States where the 

work will take place); and commence 

recruitment of U.S. workers. Where an 

association of agricultural employers 

files as a joint employer and submits a 

single job order on behalf of its 

employer-members, the CO will 

transmit a copy of the job order to the 

SWA having jurisdiction over the 

location of the association, again 

directing that SWA to place the job 

order in intrastate and interstate 

clearance, including to those other 

States where the work will take place, 

and commence recruitment of U.S. 

workers. 

(c) Electronic job registry. Under 

§ 655.144(b), where a single job order is 

approved for an association of 

agricultural employers filing as a joint 

employer on behalf of its employermembers with different start dates of 

need, the Department will keep the job 

order posted on the OFLC electronic job 

registry until 50 percent of the period of 

the work contract has elapsed for all 

employer-members identified on the job 

order. 

§ 655.225 Post-acceptance requirements. 

(a) Unless otherwise specified in this 

section, the requirements for recruiting 

U.S. workers by the employer and SWA 

must be satisfied, as specified in 

§§ 655.150–655.158. 

(b) Interstate clearance of job order. 

Pursuant to § 655.150(b), where a single 

job order is approved for an association 

of agricultural employers filing as a joint 

employer on behalf of its employermembers with different start dates of 

need, each of the SWAs to which the job 

order was transmitted by the CO or the 

SWA having jurisdiction over the 

location of the association must keep 

the job order on its active file until 50 

percent of the period of the work 

contract has elapsed for all employermembers identified on the job order, 

and must refer to the association each 

qualified U.S. worker who applies (or 

on whose behalf an application is made) 

for the job opportunity. 

(c) Any eligible U.S. worker who 

applies (or on whose behalf an 

application is made) for the job 

opportunity and is hired will be placed 

at the location nearest to him/her absent 

a request for a different location by the 

U.S. worker. Employers must make 

reasonable efforts to accommodate such 

placement requests by the U.S. worker. 

(d) The employer will not be required 

to place an advertisement in a 

newspaper of general circulation serving 

the area of intended employment, as 

required in § 655.151. 

(e) An association that fulfills the 

recruitment requirements for its 

members is required to maintain a 

written recruitment report containing 

the information required by § 655.156 

for each individual employer-member 

identified in the application or job 

order, including any approved 

modifications. 

§ 655.230 Mobile housing. 

(a) Housing for work performed on the 

open range must be provided in 

accordance with this part. The 

regulations at § 655.122(d)(2) require 

that housing for work performed on the 

open range meet standards of the DOL 

Occupational Safety and Health 

Administration (OSHA). Since such 

standards do not currently exist, range 

housing must meet the minimum 

standards contained in § 655.235. 

(b) The SWA with jurisdiction over 

the location of the mobile housing must 

inspect and certify that the mobile 

housing used on the open range is 

sufficient to accommodate the number 

of certified workers and meets all 

applicable standards contained in 

§ 655.235. The SWA must conduct a 

housing inspection no less frequently 

than once every three calendar years 

after the initial inspection and provide 

documentation to the employer 

certifying the housing for a period 

lasting no more than 36 months. If the 

SWA determines that an employer’s 

housing cannot be inspected within a 3- 

year timeframe or, when it is inspected, 

the housing does not meet all the 

applicable standards, the CO may deny 

the H–2A application in full or in part 

or require additional inspections, to be 

carried out by the SWA, in order to 

satisfy the regulatory requirement. 

(c)(1) The employer may self-certify 

its compliance with the standards 

contained in § 655.235 only when the 

employer has received a certification 

from the SWA for the mobile housing it 

seeks to use within the past 36 months. 

(2) To self-certify the mobile housing, 

the employer must submit a copy of the 

valid SWA housing certification and a 

written statement, signed and dated by 

the employer, to the SWA and the CO 

assuring that the housing is available, 

sufficient to accommodate the number 

of workers being requested for 

temporary labor certification, and meets 

all the applicable standards for mobile 

housing contained in § 655.235. 

(d) The use of mobile housing at a 

location other than the open range (e.g., 

at the farm or ranch), where fixed site 

employer-provided housing would 

otherwise be required, is permissible 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

20342 Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 

only when the worker occupying the 

housing is performing work that 

constitutes the production of livestock 

or is minor, sporadic, and incidental to 

the herding or production of livestock. 

In such a situation, workers must be 

granted access to facilities, including 

but not limited to toilets and showers 

with hot and cold water under pressure, 

as well as cooking and cleaning 

facilities, that would satisfy the 

requirements contained in 

§ 655.122(d)(1)(i). When such work does 

not constitute the production of 

livestock or is not minor, sporadic, and 

incidental to the herding or production 

of livestock, workers must be housed in 

housing that meets all the requirements 

of § 655.122(d). 

§ 655.235 Standards for mobile housing. 

An employer employing workers 

under this subpart may use a mobile 

unit, camper, or other similar mobile 

housing vehicle that meets the following 

standards: 

(a) Housing site. Mobile housing sites 

must be well drained and free from 

depressions where water may stagnate. 

(b) Water supply. (1) An adequate and 

convenient supply of water that meets 

the standards of the state or local health 

authority must be provided. Water used 

for drinking and cooking must be 

potable or easily rendered potable, and 

the employer must provide the worker 

with the means to make the water 

potable. The amount of water provided 

must be enough for normal cooking, 

consumption, cleaning, laundry and 

bathing needs of each worker; and 

(2) Individual drinking cups must be 

provided. 

(c) Excreta and liquid waste disposal. 

(1) Facilities must be provided and 

maintained for effective disposal of 

excreta and liquid waste in accordance 

with the requirements of the state health 

authority or involved Federal agency; 

and 

(2) If pits are used for disposal by 

burying of excreta and liquid waste, 

they must be kept fly-tight when not 

filled in completely after each use. The 

maintenance of disposal pits must be in 

accordance with state and local health 

and sanitation requirements. 

(d) Housing structure. (1) Housing 

must be structurally sound, in good 

repair, in a sanitary condition and must 

provide shelter against the elements to 

occupants; 

(2) Housing, other than tents, must 

have flooring constructed of rigid 

materials easy to clean and so located as 

to prevent ground and surface water 

from entering; 

(3) Each housing unit must have at 

least one window which can be opened 

or skylight opening directly to the 

outdoors; and 

(4) Tents appropriate to weather 

conditions may be used only where the 

terrain and/or land use regulations do 

not permit the use of other more 

substantial mobile housing. 

(e) Heating. (1) Where the climate in 

which the housing will be used is such 

that the safety and health of a worker 

requires heated living quarters, all such 

quarters must have properly installed 

operable heating equipment that 

supplies adequate heat. Where the 

climate in which the housing will be 

used is mild and not reasonably 

expected to drop below 50 degrees 

Fahrenheit continuously for 24 hours, 

no separate heating equipment is 

required as long as proper protective 

clothing and bedding are made 

available, free of charge, to the workers. 

(2) Any stoves or other sources of heat 

using combustible fuel must be installed 

and vented in such a manner as to 

prevent fire hazards and a dangerous 

concentration of gases. If a solid or 

liquid fuel stove is used in a room with 

wooden or other combustible flooring, 

there must be a concrete slab, insulated 

metal sheet, or other fireproof material 

on the floor under each stove, extending 

at least 18 inches beyond the perimeter 

of the base of the stove. 

(3) Any wall or ceiling within 18 

inches of a solid or liquid fuel stove or 

stove pipe must be made of fireproof 

material. A vented metal collar must be 

installed around a stovepipe or vent 

passing through a wall, ceiling, floor or 

roof. 

(4) When a heating system has 

automatic controls, the controls must be 

of the type which cuts off the fuel 

supply when the flame fails or is 

interrupted or whenever a 

predetermined safe temperature or 

pressure is exceeded. 

(5) A heater may be used in a tent if 

the heater is approved by a testing 

service and if the tent is fireproof. 

(f) Lighting. (1) In areas where it is not 

feasible to provide electrical service to 

mobile housing, including tents, 

lanterns must be provided (kerosene 

wick lights meet the definition of 

lantern); and 

(2) Lanterns, where used, must be 

provided in a minimum ratio of one per 

occupant of each unit, including tents. 

(g) Bathing, laundry, and hand 

washing. Movable bathing, laundry and 

hand washing facilities must be 

provided when it is not feasible to 

provide hot and cold water under 

pressure. 

(h) Food storage. When mechanical 

refrigeration of food is not feasible, the 

worker must be provided with another 

means of keeping food fresh and 

preventing spoilage, such as a butane or 

propane gas refrigerator. Other proven 

methods of safeguarding fresh foods, 

such as dehydrating or salting, are 

acceptable. 

(i) Cooking and eating facilities. (1) 

When workers or their families are 

permitted or required to cook in their 

individual unit, a space must be 

provided with adequate lighting and 

ventilation; and 

(2) Wall surfaces next to all food 

preparation and cooking areas must be 

of nonabsorbent, easy to clean material. 

Wall surfaces next to cooking areas must 

be of fire-resistant material. 

(j) Garbage and other refuse. (1) 

Durable, fly-tight, clean containers must 

be provided to each housing unit, 

including tents, for storing garbage and 

other refuse; and 

(2) Provision must be made for 

collecting or burying refuse, which 

includes garbage, at least twice a week 

or more often if necessary. 

(k) Insect and rodent control. 

Appropriate materials, including sprays, 

must be provided to aid housing 

occupants in combating insects, rodents 

and other vermin. 

(l) Sleeping facilities. A separate 

sleeping facility must be provided for 

each person, except in a family 

arrangement. A sleeping facility or 

sleeping accommodation must include a 

comfortable bed, cot, or bunk with a 

clean mattress. When filing an 

application for certification and only 

where it is demonstrated to the CO that 

it is impractical to set up a second 

sleeping facility, the employer may 

request a variance from the separate 

sleeping facility requirement to allow 

for a second worker to temporarily join 

the open range operation. The second 

worker may be temporarily housed in 

the same sleeping facility for no more 

than 3 consecutive days, and the 

employer must supply a sleeping bag or 

bed roll for the second occupant free of 

charge. 

(m) Fire, safety, and first aid. (1) All 

units in which people sleep or eat must 

be constructed and maintained 

according to applicable state or local fire 

and safety law. 

(2) No flammable or volatile liquid or 

materials may be stored in or next to 

rooms used for living purposes, except 

for those needed for current household 

use. 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2

Federal Register / Vol. 80, No. 72 / Wednesday, April 15, 2015 / Proposed Rules 20343 

(3) Mobile housing units for range use 

must have a second means of escape 

through which the worker can exit the 

unit without difficulty. 

(4) Tents are not required to have a 

second means of escape, except when 

large tents with walls of rigid material 

are used. 

(5) Adequate fire extinguishers in 

good working condition and first aid 

kits must be provided in the mobile 

housing. 

Portia Wu, 

Assistant Secretary, Employment and 

Training Administration. 

[FR Doc. 2015–08505 Filed 4–14–15; 8:45 am] 

BILLING CODE 4510–FP–P 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2