Rule2021-26211
Adjudication of Temporary and Seasonal Need for Herding and Production of Livestock on the Range Applications Under the H-2A Program
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Published
December 16, 2021
Effective
January 18, 2022
Issuing agencies
Labor DepartmentEmployment and Training Administration
Abstract
The Department of Labor (the Department or DOL) is amending its regulations regarding the adjudication of temporary need for employers seeking to employ nonimmigrant workers in job opportunities covering the herding or production of livestock on the range. Consistent with a court-approved settlement agreement, this final rule rescinds the regulatory provision that governed the period of need for such job opportunities under the H-2A visa classification to ensure the Department's adjudication of temporary or seasonal need is conducted in the same manner for all applications for temporary agricultural labor certification.
Full Text
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<title>Federal Register, Volume 86 Issue 239 (Thursday, December 16, 2021)</title>
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[Federal Register Volume 86, Number 239 (Thursday, December 16, 2021)]
[Rules and Regulations]
[Pages 71373-71382]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-26211]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
[DOL Docket No. ETA-2020-0005]
RIN 1205-AB99
Adjudication of Temporary and Seasonal Need for Herding and
Production of Livestock on the Range Applications Under the H-2A
Program
AGENCY: Employment and Training Administration, Department of Labor.
ACTION: Final rule.
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SUMMARY: The Department of Labor (the Department or DOL) is amending
its regulations regarding the adjudication of temporary need for
employers seeking to employ nonimmigrant workers in job opportunities
covering the herding or production of livestock on the range.
Consistent with a court-approved settlement agreement, this final rule
rescinds the regulatory provision that governed the period of need for
such job opportunities under the H-2A visa classification to ensure the
Department's adjudication of temporary or seasonal need is conducted in
the same manner for all applications for temporary agricultural labor
certification.
DATES: This final rule is effective January 18, 2022.
FOR FURTHER INFORMATION CONTACT: Brian Pasternak, Administrator, Office
of Foreign Labor Certification, Employment and Training Administration,
Department of Labor, 200 Constitution Avenue NW, Room N-5311,
Washington, DC 20210, telephone: (202) 693-8200 (this is not a toll-
free number). Individuals with hearing or speech impairments may access
the telephone number above via TTY/TDD by calling the toll-free Federal
Information Relay Service at 1 (877) 889-5627.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background on 20 CFR part 655, subpart B
A. Statutory Framework
B. Regulatory Framework
C. The Hispanic Affairs Project Litigation and Need for
Rulemaking
II. Discussion of Proposed Revision to 20 CFR part 655, subpart B
III. Public Comments Received
A. Comments Supporting Rescission of Sec. 655.215(b)(2)
B. Out of Scope Comments
IV. Administrative Information
[[Page 71374]]
I. Background on 20 CFR Part 655, Subpart B
A. Statutory Framework
The H-2A nonimmigrant worker visa program enables U.S. agricultural
employers to employ foreign workers on a temporary basis to perform
temporary or seasonal agricultural labor or services where the
Secretary of Labor (Secretary) certifies that (1) there are not
sufficient workers who are able, willing, and qualified, and who will
be available at the time and place needed to perform the labor or
services involved in the petition; and (2) the employment of foreign
workers in such labor or services will not adversely affect the wages
and working conditions of workers in the United States similarly
employed. See section 101(a)(15)(H)(ii)(a) of the Immigration and
Nationality Act (INA), as amended by the Immigration Reform and Control
Act of 1986 (IRCA), 8 U.S.C. 1101(a)(15)(H)(ii)(a); section 218(a)(1)
of the INA, 8 U.S.C. 1188(a)(1). The Secretary has delegated the
authority to issue temporary agricultural labor certifications to the
Assistant Secretary, Employment and Training Administration (ETA), who
in turn has delegated that authority to ETA's Office of Foreign Labor
Certification (OFLC). Secretary's Order 06-2010 (Oct. 20, 2010).\1\
Once OFLC issues a temporary agricultural labor certification,
employers may then petition the U.S. Department of Homeland Security
(DHS) to employ a nonimmigrant worker in the United States in the H-2A
visa classification.
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\1\ In addition, the Secretary has delegated to the Department's
Wage and Hour Division the responsibility under section 218(g)(2) of
the INA, 8 U.S.C. 1188(g)(2), to assure employer compliance with the
terms and conditions of employment under the H-2A program.
Secretary's Order 01-2014 (Dec. 19, 2014).
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B. Regulatory Framework
Since 1987, the Department has operated the H-2A temporary
agricultural labor certification program under regulations promulgated
pursuant to the INA.\2\ With limited exceptions, including those set
forth below, the Department's current regulations governing the H-2A
program were published in 2010.\3\ The standards and procedures
applicable to the certification and employment of workers under the H-
2A program are found in 20 CFR part 655, subpart B and 29 CFR part
501.\4\
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\2\ The Immigration and Nationality Act of 1952 created the H-2
temporary worker program. Public Law 82-414, 66 Stat. 163. In 1986,
IRCA divided the H-2 program into separate agricultural and
nonagricultural temporary worker programs. See Public Law 99-603,
section 301, 100 Stat. 3359 (1986). The H-2A agricultural worker
program designation corresponds to the statute's agricultural worker
classification in 8 U.S.C. 1101(a)(15)(H)(ii)(a).
\3\ Temporary Agricultural Employment of H-2A Aliens in the
United States, 75 FR 6884 (Feb. 12, 2010).
\4\ The Department remains engaged in a separate rulemaking that
seeks to amend these regulations as they pertain to the H-2A
program. Through a Notice of Proposed Rulemaking published in July
2019 (2019 NPRM), the Department proposed amendments to the current
regulations that focus on modernizing the H-2A program and
eliminating inefficiencies. Temporary Agricultural Employment of H-
2A Nonimmigrants in the United States, 84 FR 36168 (July 26, 2019).
The 2019 NPRM also proposed to amend the regulations for enforcement
of contractual obligations for temporary foreign agricultural
workers and the Wagner-Peyser Act regulations to provide consistency
with proposed revisions to H-2A program regulations governing the
temporary agricultural labor certification process. Id.; see also
Adverse Effect Wage Rate Methodology for the Temporary Employment of
H-2A Nonimmigrants in Non-Range Occupations in the United States, 85
FR 70445, 70447 (Nov. 5, 2020) (establishing a revised methodology
for determining the Adverse Effect Wage Rate (AEWR) methodology for
non-range occupations in one final rule and explaining that ``[t]he
Department intends to address all of the remaining proposals from
the July 26, 2019 proposed rule in a subsequent, second final rule
governing other aspects of the certification of agricultural labor
or services to be performed by H-2A workers and enforcement of the
contractual obligations applicable to employers of such nonimmigrant
workers.'').
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Historically, employers in a number of States (primarily but not
exclusively in the western continental United States) have used what is
now the H-2A program to bring in foreign workers to work as sheep and
goat herders.\5\ Beginning in 1989, and consistent with Congress'
historical approach, the Department established variances from certain
H-2A regulatory requirements and procedures through sub-regulatory
guidance to allow employers of open range sheep and goat herders to use
the H-2A program. The Department established similar variances or
``special procedures'' through sub-regulatory guidance in 2007 for
employers seeking to employ H-2A workers for open range herding or
production of livestock positions. In 2015, the Department incorporated
these ``special procedures'' provisions for the employment of workers
in the herding and production of livestock on the range, with some
modifications, into its H-2A regulations. Temporary Agricultural
Employment of H-2A Foreign Workers in the Herding or Production of
Livestock on the Range in the United States, 80 FR 62958 (Oct. 16,
2015) (2015 Rule).\6\ The 2015 Rule, codified at Sec. Sec. 655.200
through 655.235, continued the agency's recognition of the unique
occupational characteristics of herding positions, which involve
spending extended periods of time herding animals across remote range
lands and being on call to protect and maintain herds for up to 24
hours a day, 7 days a week.\7\
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\5\ As the Department explained in its 2015 herder rulemaking,
Congress enacted statutes during the early 1950s authorizing the
permanent admission of a certain number of ``foreign workers skilled
in sheepherding.'' See Temporary Agricultural Employment of H-2A
Foreign Workers in the Herding or Production of Livestock on the
Open Range in the United States, 80 FR 20300, 20301-20302 (Apr. 15,
2015). Congress subsequently permitted these special laws to expire
and signaled that sheepherders should be admitted under the existing
temporary (then H-2) program. Id.; see also Changes to Requirements
Affecting H-2A Nonimmigrants, 73 FR 76891, 76906-76907 (Dec. 18,
2008).
\6\ The 2015 Rule followed litigation in Mendoza v. Perez, in
which the U.S. Court of Appeals for the District of Columbia Circuit
(D.C. Circuit) held the special procedures pertaining to sheep,
goat, and other open range herding or production of livestock were
subject to the Administrative Procedure Act's notice and comment
requirements. 754 F.3d 1002, 1024 (D.C. Cir. 2014); see Mendoza v.
Perez, 72 F. Supp. 3d 168, 175 (D.D.C. 2014) (remedial order setting
a rulemaking schedule).
\7\ The 2019 NPRM proposed clarifying and technical revisions to
certain provisions concerning the employment of workers in herding
and production of livestock on the range (e.g., portions of 20 CFR
655.205, 655.211, 655.220, and 655.225) that are not the subject of
this rulemaking. 84 FR 36168, 36220-21. The 2019 NPRM also proposed
to incorporate into the H-2A regulations, with some modifications,
the standards and procedures currently found in Training and
Employment Guidance Letters related to animal shearing, commercial
beekeeping, and custom combining, and to rescind the general
provision that allows for the creation of ``special procedures''
(i.e., sub-regulatory variances from the regulations). Id. at 36171-
73. As explained above, the Department remains engaged in a separate
rulemaking addressing these proposed changes.
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Section 101(a)(15)(H)(ii)(a) of the INA permits only ``agricultural
labor or services . . . of a temporary or seasonal nature'' to be
performed under the H-2A visa category. 8 U.S.C. 1101(a)(15)(H)(ii)(a).
Thus, as part of the Department's adjudication of applications for
temporary agricultural labor certification, the Department assesses on
a case-by-case basis whether the employer has established a temporary
or seasonal need for the agricultural work to be performed. See 20 CFR
655.161(a). In its initial rulemaking on the H-2A program, the
Department explained that it would be appropriate for an employer to
apply annually for recurring job opportunities in the same occupation
when it involved ``truly `seasonal' employment,'' but acknowledged that
``the longer the employer needs a `temporary' worker, the more likely
it would seem that the job has in fact become a permanent one.'' Labor
Certification Process for the Temporary Employment of Aliens in
Agriculture and Logging in the United States, 52 FR 20496, 20498 (June
1, 1987). The Department's current regulations, which adopted DHS's
definition of ``temporary
[[Page 71375]]
or seasonal nature,'' specify that employment is of a temporary nature
``where the employer's need to fill the position with a temporary
worker will, except in extraordinary circumstances, last no longer than
1 year,'' and ``of a seasonal nature where it is tied to a certain time
of year by an event or pattern, such as a short annual growing cycle or
a specific aspect of a longer cycle, and requires labor levels far
above those necessary for ongoing operations.'' 20 CFR 655.103(d); 8
CFR 214.2(h)(5)(iv)(A); 75 FR 6884, 6890 (adopting DHS's definition
``was not intended to create any substantive change in how the
Department administers the program''). DHS regulations further provide
that the Department's finding that employment is of a temporary or
seasonal nature is ``normally sufficient'' for the purpose of an H-2A
petition, but state that notwithstanding this finding, DHS adjudicators
will not find employment to be temporary or seasonal in certain
situations, such as when ``substantial evidence'' exists that the
employment is not temporary or seasonal. 8 CFR 214.2(h)(5)(iv)(B).
Notwithstanding the regulatory definition found in 20 CFR
655.103(d) and 8 CFR 214.2(h)(5)(iv)(A), the 2015 Rule allowed
employers of sheep and goat herders to apply for a temporary
agricultural labor certification for a period of up to 364 days. 80 FR
62958, 62999-63000; see 20 CFR 655.215(b)(2) (``The period of need
identified on the H-2A Application for Temporary Employment
Certification and job order for range sheep or goat herding or
production occupations must be no more than 364 calendar days.'').
Conversely, the same rule limited employers of range livestock work to
a temporary agricultural labor certification with a period of need not
to exceed 10 months. 80 FR 62958, 63000; see 20 CFR 655.215(b)(2)
(``The period of need identified on the H-2A Application for Temporary
Employment Certification and job order for range herding or production
of cattle, horses, or other domestic hooved livestock, except sheep and
goats, must be for no more than 10 months.'').
C. The Hispanic Affairs Project Litigation and Need for Rulemaking
On September 22, 2015, four sheepherders and a nonprofit member
organization for immigrant workers filed a lawsuit in federal court
challenging aspects of the 2015 Rule. Hispanic Affairs Project v.
Perez, 206 F. Supp. 3d 348 (D.D.C. 2016). As relevant to this
rulemaking, the plaintiffs challenged the Department's decision to
allow employers seeking temporary agricultural labor certifications for
sheep or goat herder positions to apply for periods of need that last
up to 364 days at a time. See Hispanic Affairs Project v. Acosta, 263
F. Supp. 3d 160, 182 (D.D.C. 2017) (citing 20 CFR 655.215(b)(2)). The
plaintiffs also challenged DHS's alleged practice of automatically
approving sheep and goat herder petitions for recurring periods up to
364 days, asserting that the Department's regulation at Sec.
655.215(b)(2) and DHS's alleged practice did not conform with the INA
or the Departments' regulations, in violation of the APA. See id.
Specifically, the plaintiffs argued Sec. 655.215(b)(2) and DHS's
alleged practice are inconsistent with 8 U.S.C. 1101(a)(15)(H)(ii)(a),
which provides that H-2A visas be only for ``temporary'' work, and
conflicts with the Departments' regulations defining when employment is
of a ``temporary or seasonal nature.'' See id.; compare 20 CFR
655.103(d) and 8 CFR 214.2(h)(5)(iv)(A) (employer's ``need to fill the
position with a temporary worker will . . . last no longer than one
year'') with 20 CFR 655.215(b)(2) (``The period of need identified on
the [application and job order] . . . must be no more than 364 calendar
days.''). The district court dismissed the challenge on procedural
grounds, concluding the plaintiffs waived their claim against the
Department and did not properly or timely raise their claim against
DHS. Id. at 185-86, 190.\8\
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\8\ Plaintiffs also challenged two other aspects of the 2015
Rule: (1) Certain definitions and requirements that limit the scope
and location of work that H-2A workers in sheep and goat herding
positions may perform, 80 FR 62958, 62963-73; and (2) the
methodology by which the Department calculates the minimum required
wage that such workers (and any non-H-2A workers in corresponding
employment) must be offered and paid, id. at 62986-96. The
Department and DHS prevailed on these issues. See Hispanic Affairs
Project v. Acosta, 901 F.3d 378, 391-96 (D.C. Cir. 2018), aff'g in
part 263 F. Supp. 3d 160, 190-207 (D.D.C. 2017).
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On appeal, the D.C. Circuit reversed and remanded the district
court's decision on these claims for a resolution on the merits.
Hispanic Affairs Project v. Acosta, 901 F.3d 378, 396-97 (D.C. Cir.
2018). The court held the plaintiffs preserved their challenge to the
Department's decision in the 2015 Rule to classify sheep and goat
herding as ``temporary'' employment. Id. at 385. In dicta, the court
noted the ``agency has no power under the statute--it is actually
forbidden--to include non-temporary or non-seasonal workers in the H-2A
program.'' Id. at 389. The court also held the complaint adequately
raised a challenge to DHS's alleged practice of extending ``temporary''
H-2A petitions beyond the regulatory definition of temporary
employment. Id. at 385, 388. Taking the evidence submitted by the
plaintiffs as true, the court concluded the plaintiffs had ``plausibly
shown that [DHS]'s de facto policy of authorizing long-term visas is
arbitrary, capricious, and contrary to law, in violation of the APA and
[INA] because it `authorizes the creation of permanent herder jobs that
are not temporary or seasonal.' '' Id. at 386 (original alterations
omitted).
The parties subsequently reached a settlement in which the
Department agreed to engage in rulemaking to propose to rescind Sec.
655.215(b)(2) and DHS, through U.S. Citizenship and Immigration
Services (USCIS), agreed to publish a policy memorandum that provided
guidance on the determination of temporary or seasonal need for H-2A
sheep and goat herder petitions. Joint Status Report at 1, ECF No. 135,
Hispanic Affairs Project, et al. v. Scalia et al., No. 15-cv-1562
(D.D.C. Nov. 8, 2019); see also Order Approving the Parties' Settlement
Agreement, ECF No. 136, Hispanic Affairs Project, et al. v. Scalia et
al., No. 15-cv-1562 (D.D.C. Nov. 12, 2019). Following a 30-day public
comment period, USCIS published a final policy memorandum on February
28, 2020, which became effective on June 1, 2020. See USCIS, Policy
Memorandum: Updated Guidance on Temporary or Seasonal Need for H-2A
Petitions Seeking Workers for Range Sheep and/or Goat Herding or
Production (Feb. 28, 2020) (USCIS Policy Memorandum).\9\ On May 6,
2021, the Department published a NPRM that proposed to rescind Sec.
655.215(b)(2).
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\9\ See <a href="https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2020/2-PMH2A-SeasonalSheepGoatHerder_PolicyMemo.pdf">https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2020/2-PMH2A-SeasonalSheepGoatHerder_PolicyMemo.pdf</a>.
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II. Discussion of Proposed Revision to 20 CFR Part 655, Subpart B
The Department proposed to rescind Sec. 655.215(b)(2) so that the
temporary or seasonal need of an employer seeking to fill a herding or
production of livestock on the range position would be adjudicated
according to the requirement in Sec. 655.103(d) that governs the
adjudication of employment of a temporary or seasonal nature for all
other H-2A applications. See 20 CFR 655.200(a) (noting that employers
whose job opportunities meet the qualifying criteria under Sec. Sec.
655.200-655.235 must fully comply with all the requirements of
Sec. Sec. 655.100-655.185 unless otherwise specified in Sec. Sec.
655.200-655.235).
[[Page 71376]]
The Department explained in the NPRM that the proposed rescission
of Sec. 655.215(b)(2) would eliminate that provision's presumptive
period of need for employment involving range sheep or goat herding and
absolute restriction on the period of need for employment involving
other range livestock activities. As the NPRM acknowledged, the 2015
Rule suggested the unique nature and history of herding work permitted
a variance, on an occupational basis, from the standard H-2A
requirements governing the adjudication of an employer's temporary
need. As such, Sec. 655.215(b)(2) allowed certification of a specific
period of time without requiring the Department to assess the nature of
the employer's need for the labor or services to be performed. The
NPRM, accordingly, proposed to rescind Sec. 655.215(b)(2) so that all
employers applying for temporary agricultural labor certifications must
individually demonstrate a temporary or seasonal need for the
agricultural labor or services to be performed, regardless of
occupation. As the Department explained in the NPRM, this rescission of
Sec. 655.215(b)(2) is not only consistent with the D.C. Circuit's
decision in Hispanic Affairs Project and the guidance issued by USCIS,
but also better complies with the requirements of the INA implemented
in the Departments' regulations that define when employment is of a
``temporary or seasonal nature.'' 8 U.S.C. 1101(a)(15)(H)(ii)(A)
(defining an H-2A nonimmigrant as a foreign worker coming to perform
services of a temporary or seasonal nature); 20 CFR 655.103(d); 75 FR
6884, 6890 (adopting DHS's definition of ``temporary or seasonal
nature'' set forth in 8 CFR 214.2(h)(5)(iv)(A)). The Department sought
public comment on all issues related to its proposal to rescind Sec.
655.215(b)(2), including economic or other regulatory impacts of the
proposed rule on the public.\10\
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\10\ As noted above, the 2019 NPRM proposed to amend regulations
governing the certification of agricultural labor or services to be
performed by temporary foreign workers in H-2A nonimmigrant status
and the enforcement of contractual obligations applicable to
employers of such nonimmigrant workers. 84 FR 36168. In particular,
the 2019 NPRM sought public comment on the possibility of moving the
adjudication of an employer's temporary or seasonal need exclusively
to DHS or exclusively to DOL. Id. at 36178. In the NPRM to this
rule, the Department explained that comments on the proposals
contained in the 2019 NPRM are outside of the scope of the limited
rulemaking here. 86 FR 24368, 24371. Given the narrow scope of this
rulemaking and because a rule finalizing the non-AEWR provisions of
the 2019 NPRM has not published, the rulemaking associated with the
2019 NPRM does not affect the issuance of this rule.
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III. Public Comments Received
The Department's 30-day comment period on its proposed rescission
Sec. 655.215(b)(2) opened on May 6, 2021 and closed on June 7, 2021,
with comments submitted electronically at <a href="http://www.regulations.gov/">http://www.regulations.gov/</a>
using docket number ETA-1205-AB99. During this comment period, ETA
received eight comments, none of which opposed adopting the proposal.
Some contained comments outside of the scope of this rulemaking, as
discussed below, while others were submitted on behalf of multiple
entities. Commenters represented stakeholders from the public, private,
and not-for-profit sectors and included industry associations, worker
advocacy organizations, a State Department of Agriculture, a think
tank, and private individuals. The Department appreciates all of the
comments it received. After full consideration of the comments and for
the reasons explained below, the Department is adopting the proposal to
rescind Sec. 655.215(b)(2).
A. Comments Supporting Rescission of Sec. 655.215(b)(2)
Commenters generally supported the Department's proposal to rescind
Sec. 655.215(b)(2), though some commenters expressed potential
concerns with the Department's implementation of the change. Several
worker advocacy organizations and a think tank stated that the proposed
revision more closely reflects statutory requirements by limiting H-2A
employment to truly seasonal or temporary work for which employers are
unable to find sufficient U.S. workers. Some of these commenters stated
that the rescission of Sec. 655.215(b)(2) would simplify the H-2A
program, promote consistency between USCIS and DOL with regard to the
agencies' adjudication of temporary and seasonal need, and strengthen
labor protections, without imposing a substantial or unfair burden on
herding employers. Industry associations and a State Department of
Agriculture did not oppose the proposed change, though they expressed
concerns with its implementation and employers' ability to fulfill
their labor needs.
Commenters asked the Department to address how it will assess
temporary or seasonal need under Sec. 655.103(d), in particular where
an employer has a history of filing under Sec. 655.215(b)(2). Some of
the worker advocacy organizations urged the Department to remind
employers that the H-2A program is to be used only for agricultural
labor needs of a temporary or seasonal nature and that permanent labor
needs are not eligible for H-2A certification but may be eligible for
employment-based immigrant visas. These commenters also asked the
Department to guard against employers fulfilling permanent job needs
with H-2A workers, by noting, for example, that an employer must meet
both parts of the definition of seasonal need under Sec. 655.103(d).
In contrast, industry associations and a State Department of
Agriculture asked the Department not to weigh an employer's filing
history too heavily, as employers were previously not required to
separate distinct temporary or seasonal needs into different
applications under Sec. 655.215(b)(2). These commenters stressed that
changes in how an employer describes the services or labor needed,
including the period of employment, on new applications may demonstrate
compliance with Sec. 655.103(d) rather than changes in the temporary
or seasonal nature of an employer's labor needs. In addition, these
commenters noted difficulty hiring sufficient U.S. workers to fulfill
employers' labor needs and the potential downstream effects of
downsizing range operations should employers no longer be able to hire
foreign workers, which could necessitate operational changes that
affect an employer's temporary or seasonal need for labor. Both worker
advocacy organizations and an industry association asked the Department
to recognize USCIS' Policy Memorandum and adopt a similar approach to
case-by-case assessment of an employer's temporary or seasonal need and
filing history.
The Department agrees that adopting the proposal will simplify and
promote consistency within the H-2A program, while acknowledging the
concerns expressed by commenters regarding how the agency plans to
assess an employer's seasonal or temporary need under the standard at
Sec. 655.103(d). As noted in the NPRM, the Department will examine--on
a case-by-case basis and taking into consideration the totality of the
facts presented--whether an employer's need to fill a herding or
production of livestock on the range position is of a temporary or
seasonal nature, as those terms are defined in the Department's and
DHS's regulations. See 20 CFR 655.103(d); 8 CFR 214.2(h)(5)(iv)(A).
Section 655.103(d) states that employment ``is of a temporary nature
where the employer's need to fill the position with a temporary worker
will, except in extraordinary circumstances, last no
[[Page 71377]]
longer than 1 year.'' The same section states that ``employment is of a
seasonal nature where it is tied to a certain time of year by an event
or pattern, such as a short annual growing cycle or a specific aspect
of a longer cycle, and requires labor levels far above those necessary
for ongoing operations.'' While this rule rescinds Sec. 655.215(b)(2)
so that the Department's adjudication of temporary or seasonal need is
conducted in the same manner for all H-2A applications pursuant to
Sec. 655.103(d), it does not alter the regulatory definition and
standards by which the Department adjudicates temporary or seasonal
need under Sec. 655.103(d).
In particular, though recurring year-round activities cannot be
classified as temporary, see 75 FR 6884, 6891, the Department
recognizes, as explained in the NPRM, that some herder employers may be
able to establish a need to fill positions on a recurring annual basis
consistent with the definition of employment of a seasonal nature in
Sec. 655.103(d). See 86 FR 24368, 24371; 80 FR 62958, 62999-63000
(2015 Rule describing comments that delineated seasonal aspects of
herder work); 52 FR 20496, 20498 (acknowledging it is appropriate to
apply annually for truly ``seasonal'' employment); see also USCIS
Policy Memorandum at 3 n.3 (explaining that an employer's need for
workers that recurs annually at a given time of year does not mean its
need is permanent in nature as employment of a seasonal nature is
defined as being tied to a certain time of year). As some commenters
noted, such employers will need to show they meet both parts of the
definition of seasonal need in Sec. 655.103(d)--that is, the
employment (1) ``is tied to a certain time of year by an event or
pattern, such as a short annual growing cycle or a specific aspect of a
longer cycle'' and (2) ``requires labor levels far above those
necessary for ongoing operations.'' The Department also acknowledged in
the NPRM that some employers may have a ``temporary'' need to fill
herding and range livestock job opportunities, which is permissible
provided they can show the nature of their need is temporary under
Sec. 655.103(d). See Temporary Workers Under Sec. 301 of the
Immigration Reform and Control Act, 11 Op. O.L.C. 39, 40 & n.4 (1987)
(noting `` `temporary' means something other than seasonal'' and
explaining employers may fill ``permanent jobs that an employer needs
to fill on a temporary basis--for example, because the regular American
employee has fallen ill or extra hands are needed during a busy
period''); 11 Op. O.L.C. at 42 (``The nature of the job itself is
irrelevant. What is relevant is whether the employer's need is truly
temporary.'').
This final rule aligns the Department's adjudication of the
temporary or seasonal need of herder applications with the guidance DHS
has implemented in the USCIS Policy Memorandum, which the Department
encourages employers and other interested parties to review. The
memorandum explains, for example, that USCIS will adjudicate H-2A sheep
and goat herder petitions filed on or after June 1, 2020, on a case-by-
case basis, taking into consideration the totality of the facts
presented, and in the same manner as all other H-2A petitions. USCIS
Policy Memorandum at 1, 9. Past periods of need approved by USCIS prior
to June 1, 2020, will be one element considered when determining
whether an H-2A petition demonstrates a true temporary or seasonal
need. Id. at 9. Similar to USCIS' approach, and as indicated above, the
Department's adjudication will be conducted on a case-by-case basis and
will take into consideration the totality of the facts presented, of
which past periods of need will be one element that is considered in
determining whether an employer's need is truly temporary or
seasonal.\11\
---------------------------------------------------------------------------
\11\ In recognition of employers' need to transition from
compliance with Sec. 655.215(b)(2) to Sec. 655.103(d) and similar
to guidance in USCIS' Policy Memorandum, employers seeking herding
or production of livestock on the range job opportunities are
encouraged, in describing their temporary or seasonal needs in
future filings, to explain why any past filings history is not
indicative of a non-temporary and non-seasonal need. Although the
Department may consider the fact of a past filing history before the
effective date of this rule, the Department will fully consider such
explanation and possible reliance on past procedures in the totality
of the circumstances when making a temporary or seasonal need
determination. See USCIS Policy Memorandum, at 6 n.5, 9 n.11.
---------------------------------------------------------------------------
When an employer is unable to fulfill its need for labor to perform
herding and production of livestock duties on the range under the H-2A
program, as with any employer whose need is neither temporary nor
seasonal, the employer may apply for labor certification through the
visa program appropriate to its need. For example, employers with
permanent, rather than temporary or seasonal, needs may wish to
petition for workers under employment-based immigrant visa programs.
See, e.g., 8 U.S.C. 1153(b)(3); see also 8 U.S.C. 1101(a)(15)(H)(ii)(a)
(INA permits only ``agricultural labor or services . . . of a temporary
or seasonal nature'' to be performed under the H-2A visa category).
B. Out of Scope Comments
The NPRM invited comments related to the Department's proposal to
rescind Sec. 655.215(b)(2). Comments received that are unrelated to
the Department's proposal are beyond the scope of this action and have
not been considered in the Department's assessment of its proposed
rescission.
Several comments were beyond the scope of this action. Two of the
commenters did not address the Department's proposal; instead, one
expressed general dissatisfaction with the H-2A program and the other
appeared to be seeking a herding position. Other commenters addressed
topics that are not the subject of this rulemaking, including wage and
housing requirements for herders and production of livestock workers on
the range as well as the definition of ``temporary'' or ``seasonal''
under 20 CFR 655.103(d), which reflects DHS's regulatory definition at
8 CFR 214.2(h)(5)(iv)(A) and has been in effect for more than a decade.
For example, one comment requested the Department clarify the
definition of ``temporary'' and ``seasonal'' under Sec. 655.103(d),
including how this definition applies across recurring H-2A
applications and in situations where an employer has maintained
substantially similar operations in previous seasons. Because proposed
changes to the wage and housing requirements for herders and the
regulatory definition and standards by which the Department adjudicates
temporary or seasonal need under Sec. 655.103(d) are not the subject
of this regulatory action, the Department deems the above comments as
out of scope.
IV. Administrative Information
A. Executive Order 12866, Regulatory Planning and Review; and Executive
Order 13563, Improved Regulation and Regulatory Review
Under Executive Order (E.O.) 12866, the Office of Management and
Budget (OMB)'s Office of Information and Regulatory Affairs determines
whether a regulatory action is significant and therefore, subject to
the requirements of the E.O. and OMB review. Section 3(f) of E.O. 12866
defines a ``significant regulatory action'' as an action that is likely
to result in a rule that (1) has an annual effect on the economy of
$100 million or more, or adversely affects in a material way a sector
of the economy, productivity, competition, jobs, the environment,
public health or safety, or State, local, or tribal governments or
communities (also referred to as economically significant); (2) creates
serious inconsistency or otherwise
[[Page 71378]]
interferes with an action taken or planned by another agency; (3)
materially alters the budgetary impacts of entitlement grants, user
fees, or loan programs, or the rights and obligations of recipients
thereof; or (4) raises novel legal or policy issues arising out of
legal mandates, the President's priorities, or the principles set forth
in the E.O. This final rule is a significant, but not economically
significant, regulatory action under Section 3(f) of E.O. 12866. The
Department has prepared a Regulatory Impact Analysis (RIA) in
connection with this final rule, as required under section 6(a)(3) of
E.O. 12866.
E.O. 13563 directs agencies to propose or adopt a regulation only
upon a reasoned determination that its benefits justify its costs; the
regulation is tailored to impose the least burden on society,
consistent with achieving the regulatory objectives; and in choosing
among alternative regulatory approaches, the agency has selected those
approaches that maximize net benefits. E.O. 13563 recognizes that some
benefits are difficult to quantify and provides that, where appropriate
and permitted by law, agencies may consider and discuss qualitatively
values that are difficult or impossible to quantify, including equity,
human dignity, fairness, and distributive impacts.
Overview of This Final Rule
The Department has determined that this final rule is necessary to
clarify the Department's adjudication of temporary or seasonal need for
herding and range livestock applications for temporary agricultural
labor certification under the H-2A program, and to align that
adjudication with the requirements of the INA. The final rule also
standardizes the Department's adjudication of temporary need under the
H-2A program. The Department's definition of ``temporary or seasonal
nature'' for the H-2A program, with the exception of its current
definition of ``temporary'' for herding and range livestock
occupations, is consistent with the Department of Homeland Security's
definition specifying that employment is of a temporary nature ``where
the employer's need to fill the position with a temporary worker will,
except in extraordinary circumstances, last no longer than 1 year,''
and ``of a seasonal nature where it is tied to a certain time of year
by an event or pattern, such as a short annual growing cycle or a
specific aspect of a longer cycle, and requires labor levels far above
those necessary for ongoing operations.'' 20 CFR 655.103(d); 8 CFR
214.2(h)(5)(iv)(A).
Notwithstanding the regulatory definition found in 20 CFR
655.103(d) and 8 CFR 214.2(h)(5)(iv)(A), the 2015 Rule allowed
employers of sheep and goat herders to apply for a temporary
agricultural labor certification for a period of up to 364 days.
Conversely, the same rule limited employers of range livestock
occupations to a temporary agricultural labor certification with a
period of need not to exceed 10 months. As discussed above, an
appellate court held that plaintiffs preserved their challenge to the
Department's decision in the 2015 Rule to classify sheep and goat
herding as ``temporary'' employment. The court additionally held the
complaint adequately raised a challenge to DHS's alleged practice of
extending ``temporary'' H-2A petitions beyond the regulatory definition
of temporary employment. Taking the evidence submitted by the
plaintiffs as true, the court concluded the plaintiffs had plausibly
shown DHS's alleged practice of automatically extending H-2A petitions
is inconsistent with the APA and the INA because it `` `authorizes the
creation of permanent herder jobs that are not temporary or seasonal.'
'' 901 F.3d at 386 (original alterations omitted). The parties
subsequently reached a settlement agreement in which the Department
agreed to engage in rulemaking to propose to rescind Sec.
655.215(b)(2) and DHS, through USCIS, agreed to publish a policy
memorandum that provided guidance on the determination of temporary or
seasonal need for H-2A sheep and goat herder petitions.
In this final rule, the Department rescinds Sec. 655.215(b)(2),
eliminating that provision's presumptive period of need for employment
involving range herding and absolute restriction on the period of need
for employment involving range livestock activities. Instead, all
employers applying for H-2A temporary agricultural labor certifications
under the final rule must individually demonstrate that their need for
workers is temporary or seasonal, regardless of occupation.
Economic Impact
The Department estimates that this final rule will result in costs
to employers associated with rule familiarization requirements for all
herding and range livestock employers utilizing the H-2A program. In
addition, the Department believes that employers may incur other
unquantifiable costs from the implementation of the final rule that can
be attributed to changes in business operations, transportation,
staffing turnover, and training requirements. As explained above,
though recurring year-round activities cannot be classified as
temporary, the Department recognizes that there may be seasonal aspects
of herder work for which employers may still establish a need to fill
positions on a recurring annual basis consistent with the definition of
employment of a ``seasonal'' nature in Sec. 655.103(d) and that some
herder employers may also still present a need that is truly
``temporary'' under Sec. 655.103(d) in certain circumstances. The
Department qualitatively discusses the potential costs to employers
incurred by the implementation of this final rule but does not quantify
them due to a lack of available data and the wide spectrum of possible
responses by employers that cannot be predicted with specificity.
Moreover, apart from some commenters expressing concern about potential
downsizing for employers who may not have a demonstrable ``seasonal''
or ``temporary'' need due to labor shortages, the Department did not
receive public comments in response to the NPRM request for feedback
regarding how these employers may be impacted by the proposed change in
regulation.
Transfer payments under this final rule will result from
eliminating the absolute restriction on the period of need for
employment involving other range livestock activities and the
presumptive period of need for employment involving range sheep or goat
herding. In particular, some employers engaged in non-sheep and/or goat
herding activities \12\ may potentially extend their period of need
beyond 10 months, provided they can show the nature of their need is
temporary.\13\ In addition, sheep and/or goat herding employers whose
need is temporary or seasonal in nature and whose period of need
currently exceeds 10 months are generally expected to reduce their
period of need to 10 months or less.\14\ See the costs and
[[Page 71379]]
transfer payments subsections below for a detailed explanation.
---------------------------------------------------------------------------
\12\ This includes range herding or production of cattle,
horses, or other domestic hooved livestock except sheep and goats.
\13\ For the purpose of this analysis, employers engaged in non-
sheep and/or goat herding activities with a minimum period of need
of 300 days and a maximum period of need of 308 days were used to
make the Department's transfer estimates. The Department used 300
days to represent a period of 10 months; in fewer than eight
instances, employers engaged in non-sheep and/or goat herding
activities requested a longer period of need but none of these
requests exceeded 308 days.
\14\ The Department's records indicate that the majority of
employers engaged in sheep and/or goat herding occupations would
likely reduce their requested period of need to 10 months or less.
---------------------------------------------------------------------------
As shown in Exhibit 1, the Department estimates this final rule
will result in a quantified annualized cost of $3,144 at a discount
rate of 7 percent and $2,588 at a discount rate of 3 percent, as well
as unquantified costs associated with changes in business operations,
transportation, staffing turnover, and training requirements.
Additionally, this final rule is expected to result in transfers for
all herding and range livestock employers. Some employers engaged in
non-sheep and/or goat herding activities will incur a transfer from
employers to employees due to rescinding the restriction on the period
of need for employment involving range livestock activities. The
Department also estimates that the final rule will result in annualized
transfers of $95,556 at a discount rate of 7 percent and $91,983 at a
discount rate of 3 percent for these employers. Furthermore, employers
engaged in sheep and/or goat herding activities will experience a
transfer from employees to employers due to a reduction in the allowed
period of need for the majority of the aforementioned employers. The
Department estimates that the final rule will result in annualized
transfers of $8.42 million at a discount rate of 7 percent and $8.11
million at a discount rate of 3 percent for these employers.
Exhibit 1--Estimated Costs and Transfer Payments of the Final Rule
----------------------------------------------------------------------------------------------------------------
Transfer
payments from Transfer
employers of payments to
Costs non-sheep and/ employers of
or goat sheep and/or
herding goat herding
----------------------------------------------------------------------------------------------------------------
Undiscounted 10-Year Total...................................... $22,079 $893,043 $78,731,848
10-Year total with a discount rate of 3%........................ 22,079 784,637 69,174,659
10-Year total with a discount rate of 7%........................ 22,079 671,143 59,168,812
Annualized at a discount rate of 3%............................. 2,588 91,983 8,109,380
Annualized at a discount rate of 7%............................. 3,144 95,556 8,424,308
----------------------------------------------------------------------------------------------------------------
The Department was unable to quantify some costs and benefits of
this final rule, as discussed below.
i. Costs
a. Rule Familiarization Costs
When the final rule takes effect, herding and range livestock
employers will need to familiarize themselves with the new regulations;
consequently, this will impose a one-time cost in the first year upon
implementation. The Department's analysis assumes that the changes
introduced by the rule would be reviewed by Human Resources Specialists
(SOC 13-1071). The median hourly wage for these workers is $29.77 per
hour.\15\ In addition, the Department assumes that benefits are paid at
a rate of 46 percent \16\ and overhead costs are paid at a rate of 17
percent of the base wage, resulting in a fully-loaded hourly wage of
$48.53.\17\ This hourly wage was multiplied by the estimated number of
herding and range livestock employers (910) \18\ and by the estimated
amount of time required to review the rule (.5 hours). This calculation
results in a one-time cost of $22,079 in the first year after this
final rule takes effect. The annualized cost over the 10-year period is
$2,588 and $3,144 at discount rates of 3 and 7 percent, respectively.
---------------------------------------------------------------------------
\15\ Median hourly wage for Human Resources Specialists were
obtained from the Bureau of Labor Statistics Occupational Employment
Statistics Survey, May 2019, <a href="https://www.bls.gov/oes/current/oes131071.htm">https://www.bls.gov/oes/current/oes131071.htm</a>.
\16\ The benefits-earnings ratio is derived from the Bureau of
Labor Statistics' Employer Costs for Employee Compensation data
using variables CMU1020000000000D and CMU1030000000000D.
\17\ $29.77 + $29.77(0.46) + $29.77(0.17) = $48.53.
\18\ The Department's estimate of 910 unique employers is based
on H-2A certification data from Fiscal Years (FYs) 2017, 2018, and
2019. The Department identified the average number of unique
applicants engaged in sheep and/or goat herding activities across
FYs 2017, 2018, and 2019 (744). This was then added to the average
number of unique applicants engaged in non-goat/sheep and/or goat
herding activities across the same time period (166). 744 + 166 =
910.
---------------------------------------------------------------------------
b. Other Costs
The Department assumes some employers will experience increased
costs associated with changes in business operations, transportation,
staffing turnover, and training requirements under this final rule. In
accordance with the Department's current regulation, employers of sheep
and goat herders are permitted to apply for a temporary agricultural
labor certification for a period of up to 364 days. Under this final
rule, sheep and goat herding employers whose need is temporary or
seasonal in nature and whose period of need currently exceeds 10 months
are generally expected to reduce their period of need to 10 months or
less. Although the Department does not anticipate the final rule will
have a significant adverse effect, as employers have already adjusted
to USCIS' policy memorandum,\19\ the Department acknowledges that some
employers of sheep and goat herders may need to replenish their labor
supply by hiring additional U.S. workers to account for the reduced
period of need, petitioning for permanent workers through the
appropriate visa programs as necessary, or extending the work schedule
for U.S. workers that they employ if they are available. The Department
also notes that, in instances where employers have recurring year-round
labor needs that are actually permanent, rather than temporary or
seasonal in nature, the Department expects some employers to utilize
the employment-based immigrant petition process to hire foreign
workers, which includes options for skilled workers, professionals, and
other workers under 8 U.S.C. 1153(b)(3).
---------------------------------------------------------------------------
\19\ Based on OFLC's H-2A public disclosure data that is
accessible at <a href="https://www.dol.gov/agencies/eta/foreign-labor/performance">https://www.dol.gov/agencies/eta/foreign-labor/performance</a>, employers seeking range sheep and/or goat herding job
opportunities filed 914 applications with OFLC from June 1, 2020--
the date USCIS' policy memorandum went into effect--until June 30,
2021 (i.e., the end of the third quarter in FY 2021). Of these
applications, 99 percent requested periods of need that were 10
months or less. In addition, the average period of need for unique
certified employers of sheep and goat herding was approximately 166
days, in contrast to FY 2017 to FY 2019, in which the average period
of need exceeded 10 months, ranging from 356 days in FY 2019 to 360
days in FY 2017. See Exhibit 3.
---------------------------------------------------------------------------
In response to the Department's analysis of costs in the NPRM,
commenters including two industry associations and a State Department
of Agriculture disagreed with the Department's assessment that some
employers of sheep and goat herders will replenish their labor supply
by hiring additional U.S. workers. For example, one industry
association stated that DOL's proposed regulatory changes and economic
analysis misconstrue the idea that U.S. workers are willing and
[[Page 71380]]
able to perform the jobs agricultural employers are seeking throughout
the different times of the year, as ranchers have often found that they
cannot find domestic help where the domestic labor force is in short
supply. Other commenters noted the skillset to perform herding work is
not available domestically and that range management plans on Federal
lands and many State and tribal lease lands require at least one
herder, without providing additional explanation. Due to the dynamic
nature of the labor market, the Department acknowledges that the
domestic workforce may not entirely offset the personnel changes that
could occur following the implementation of this final rule and
anticipates that agricultural employers may also adopt changes to their
business practices, such as extending the work schedules for U.S.
workers that they currently employ or petitioning for permanent workers
through the appropriate visa programs as necessary.
Several industry associations indicated that the cost effects of
this final rule are likely to be experienced over time due to
industries involved in the production of sheep, goats, and livestock
needing time to adapt to the requirements of the new rule. One of these
comments suggested that downstream effects on jobs in the agricultural
supply chain are those most likely to be impacted over time and should
be addressed in the economic analysis of this rulemaking. The
Department did not receive any data or information from commenters to
allow for a quantification of such impacts. As noted above, however,
because USCIS' policy memorandum became effective on June 1, 2020 and--
based on recent filing data, employers have already adjusted to this
guidance--the Department anticipates the change in operation costs for
most employers and any corresponding downstream effects due to the
issuance of this final rule to be limited.
Transfers
The first category of transfers associated with this final rule is
an employer to employee transfer incurred due to a potential increase
in the maximum period of need from 10 months up to 1 year, or longer in
extraordinary circumstances, for a small number of employers engaged in
non-sheep and/or goat herding who can demonstrate that their need is
temporary.
Exhibit 2 presents the distribution of the period of need on
approved applications filed by unique employers of non-sheep and/or
goat herders during FYs 2017, 2018, and 2019.
Exhibit 2--Distribution of Period of Need for Unique Certified Employers
of Non-Sheep/Goat Herding by Year
[FY 17-19]
------------------------------------------------------------------------
Year
Period of need (days) --------------------------------------
2017 2018 2019
------------------------------------------------------------------------
0-70............................. 5 5 10
71-140........................... 15 16 17
141-210.......................... 10 10 7
210-299.......................... 27 47 48
300-308.......................... 72 103 107
>308............................. 0 0 0
Number of Unique Employers....... 129 181 189
Average Period of Need........... 254 260 257
------------------------------------------------------------------------
Transfer payments were calculated by identifying unique employers
engaged in non-sheep and/or goat herding from FYs 2017, 2018, and
2019.\20\ The Department then identified employers within this group of
unique employers whose applications contained periods of need between
300 and 308 days. The Department identified this subset because some
employers whose applications contained periods of need that fall within
this range are likely to extend their period of need up to a year, or
longer in extraordinary circumstances, if they can demonstrate their
need is temporary in nature (e.g., their need is not for recurring
year-round activities). The Department expects that a small number of
employers of non-sheep and/or goat herders will extend their period of
need beyond 10 months. For this analysis, the Department conservatively
assumes that no more than 10 percent of the unique employers who were
identified to have a period of need between 300 and 308 days will
apply, and be approved by OFLC, to extend their period of temporary
need beyond a 10-month period.\21\ In the NPRM, the Department sought
public comment regarding the assumptions on the percentage of unique
employers affected. As discussed above, some commenters noted that
changes in how an employer describes the services or labor needed,
including the period of employment, on new applications filed under
this rule may demonstrate compliance with Sec. 655.103(d) rather than
changes in the temporary (or seasonal) nature of an employer's labor
needs. Based on OFLC's performance data, the Department estimated the
impact of extending the period of need by multiplying the number of
workers certified for each of the unique non-sheep and/or goat herding
employers by the basic rate of pay offered to these workers each year.
The figures for each year were then multiplied by 2 in order to
estimate the impact from an additional 2 months of need, which yields
an annualized transfer of $95,556 at a discount rate of 7 percent and
$91,983 at a discount rate of 3 percent.
---------------------------------------------------------------------------
\20\ Based on FYs 2017, 2018, and 2019 performance data obtained
from OFLC, the Department estimates that the number of non-sheep
and/or goat herding employers is unlikely to increase over the
rule's 10-year time forecast.
\21\ The Department assumes a small percentage of the unique
employers who were identified to have a period of need between 300
and 308 days will apply to extend their period of temporary need
beyond a 10-month period up to 1 year, or longer in extraordinary
circumstances.
---------------------------------------------------------------------------
The second category of transfers associated with this final rule is
an employee to employer transfer incurred due to potential reductions
in sheep and/or goat herding employers' period of need from a maximum
of 364 days to 10 months or less for annually recurring
applications.\22\
---------------------------------------------------------------------------
\22\ The Department's analysis of employers of sheep and goat
herders represents the transfer from employer to employee. The
Department assumes that in some instances employers will seek to
replace H-2A employees who have met the period of need threshold
with U.S. employees, which would constitute a transfer between H-2A
employees and U.S. employees. This potential transfer could not be
evaluated due to data limitations.
---------------------------------------------------------------------------
[[Page 71381]]
Exhibit 3 presents the distribution of the period of need on
approved applications filed by unique employers of sheep and/or goat
herders during FYs 2017, 2018, and 2019.
Exhibit 3--Distribution of Period of Need for Unique Certified Employers
of Sheep/Goat Herding by Year
[FY 17-19]
------------------------------------------------------------------------
Year
Period of need (days) --------------------------------------
2017 2018 2019
------------------------------------------------------------------------
0-70............................. 0 2 3
71-140........................... 1 4 9
141-210.......................... 6 5 3
210-299.......................... 4 7 7
>299............................. 743 673 761
Number of Unique Employers....... 754 691 783
Average Period of Need........... 360 357 356
------------------------------------------------------------------------
Transfer payments were calculated by identifying unique employers
engaged in sheep and/or goat herding from FYs 2017, 2018, and 2019.\23\
The Department identified employers within this group of unique
employers whose applications contained a period of need of 300 days or
more. Based on OFLC's performance data, the Department estimated the
impact of reducing the period of eligibility by multiplying the number
of workers certified for each of the unique sheep and/or goat herding
employers by the basic rate of pay offered to these workers each year.
The figures for each year were then multiplied by the number of days
requested for the period of need of 300 days or more in order to
estimate the impact from reducing the period of need to 10 months or
less, which yields an annualized transfer of $8,424,308 at a discount
rate of 7 percent and $8,109,380 at a discount rate of 3 percent.
---------------------------------------------------------------------------
\23\ Based on FYs 2017, 2018, and 2019 performance data obtained
from OFLC.
---------------------------------------------------------------------------
ii. Benefits
By rescinding 20 CFR 655.215(b)(2), the Department standardizes the
adjudication of temporary need under the H-2A program and aligns the
Department's adjudication of the temporary or seasonal need of herder
applications with the guidance DHS has implemented in the USCIS Policy
Memorandum. Furthermore, the rescission of Sec. 655.215(b)(2) better
complies with pertinent provisions of the INA and the Departments'
applicable implementing regulations that define when employment is of a
``temporary or seasonal nature.'' Therefore, this final rule aims to
help ensure the employment of H-2A workers in herding and range
livestock operations does not adversely affect the wages and working
conditions of workers in the United States similarly employed.
B. Regulatory Flexibility Analysis and Small Business Regulatory
Enforcement Fairness Act and Executive Order 13272: Proper
Consideration of Small Entities in Agency Rulemaking
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996, Public Law 104-121 (March 29, 1996), requires Federal agencies
engaged in rulemaking to consider the impact of their proposals on
small entities, consider alternatives to minimize that impact, and
solicit public comment on their analyses. The RFA requires the
assessment of the impact of a regulation on a wide range of small
entities, including small businesses, not-for-profit organizations, and
small governmental jurisdictions. Agencies must perform a review to
determine whether a proposed or final rule would have a significant
economic impact on a substantial number of small entities. 5 U.S.C.
603, 604. If the determination is that it would, the agency must
prepare a regulatory flexibility analysis as described in the RFA. Id.
However, if an agency determines that a proposed or final rule is
not expected to have a significant economic impact on a substantial
number of small entities, the RFA provides that the head of the agency
may so certify and a regulatory flexibility analysis is not required.
See 5 U.S.C. 605. The certification must include a statement providing
the factual basis for this determination, and the reasoning should be
clear.
The Department collected industry data from the Bureau of Labor
Statistics' Quarterly Census for Employment and Wage for FY 2020. This
process allowed the Department to identify the number of entities
impacted by this final rule for two North American Industry
Classification System (NAICS) Codes that frequently request H-2A
certification for herding and livestock production job opportunities:
NAICS 112410: Sheep Farming, and NAICS 112111: Beef Cattle Ranching,
and Farming. The Department was able to identify 9,329 establishments
that are classified as part of the beef cattle ranching, and farming
industry, and 233 Establishments that are classified as part of the
sheep farming industry. Next, the Department used the Small Business
Administration (SBA) size standards to classify the vast majority of
these employers (approximately 99 percent) as small.
The Department has estimated the cost of the time to read and
review the final rule. In addition, the Department assumes some
employers will experience increased costs associated with changes in
business operations, transportation, staffing turnover, and training
requirements under this final rule.
The Department estimates that small businesses engaged in herding
and livestock production will incur a one-time cost of $48.53 to
familiarize themselves with the changes in this rule. Other costs that
employers could incur are attributed to the potential need to adjust
their staffing and business operations as well as employing more U.S.
workers to offset the loss of H-2A workers. However, the Department
does not expect that these costs will be
[[Page 71382]]
significant. As discussed above, the Department reviewed the impacts of
this final rule for two NAICS Codes that frequently request H-2A
certification for herding and livestock production job opportunities:
NAICS 112410: Sheep Farming, and NAICS 112111: Beef Cattle Ranching,
and Farming.
The SBA estimates that revenue for a small business with NAICS Code
112410 is $1.0 million and for NAICS Code 112111 is $1.0 million. The
rule familiarization cost of $48.53 will be far less than one percent
of the average revenue for small businesses with the two NAICS Codes.
Although the Department does not anticipate the final rule will have a
significant adverse effect as employers have already adjusted to USCIS'
policy memorandum, the Department acknowledges that some employers of
sheep and goat herders may need to replenish their labor supply by
hiring additional U.S. workers to account for the reduced period of
need, petitioning for permanent workers through the appropriate visa
programs as necessary, or extending the work schedule for U.S. workers
that they employ. The Department did not receive any public comments on
this Initial Regulatory Flexibility Analysis. The Department certifies
that this rule will not have a significant impact on a substantial
number of small entities affected.
C. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq.,
and its attendant regulations, 5 CFR part 1320, require the Department
to consider the agency's need for its information collections and their
practical utility, the impact of paperwork and other information
collection burdens imposed on the public, and how to minimize those
burdens. This final rule does not require a collection of information
subject to approval by OMB under the PRA, or affect any existing
collections of information.
D. Congressional Review Act
The Office of Information and Regulatory Affairs has determined
that this final rule is not a major rule, as defined by 5 U.S.C. 804,
for purposes of congressional review of agency rulemaking pursuant to
the Congressional Review Act, Public Law 104-121, sec. 251, 110 Stat.
868, 873 (codified at 5 U.S.C. 804). This rule will not result in an
annual effect on the economy of $100 million or more; a major increase
in costs or prices; or significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based companies to compete with foreign-based companies in
domestic and export markets.
E. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among
other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and tribal governments. Title II of the UMRA
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed or final agency rule
that may result in $100 million or more in expenditures (adjusted
annually for inflation) in any 1 year by State, local, and tribal
governments, in the aggregate, or by the private sector. A Federal
mandate is defined in 2 U.S.C. 658, in part, as any provision in a
regulation that imposes an enforceable duty upon State, local, or
tribal governments, or the private sector. Following consideration of
these factors, the Department has concluded that this final rule
contains no unfunded Federal mandates, including no ``Federal
intergovernmental mandate'' or ``Federal private sector mandate.''
This final rule will not exceed the $100 million in expenditures in
any 1 year when adjusted for inflation, and this rulemaking does not
contain such a mandate. The requirements of Title II of the UMRA,
therefore, do not apply, and the Department is not required to prepare
a statement under the UMRA.
F. Executive Order 13132, Federalism
The Department has concluded that this final rule does not have
federalism implications, because it will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Accordingly,
E.O. 13132 requires no further agency action or analysis.
G. Executive Order 13175, Consultation and Coordination With Indian
Tribal Governments
After consideration, the Department has determined that this final
rule will not result in ``tribal implications,'' because it will not
have substantial direct effects on one or more Indian tribes, on the
relationship between the Federal Government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
Government and tribal governments. Accordingly, E.O. 13175 requires no
further agency action or analysis.
List of Subjects in 20 CFR Part 655
Administrative practice and procedure, Employment, Employment and
training, Enforcement, Foreign workers, Forest and forest products,
Fraud, Health professions, Immigration, Labor, Longshore and harbor
work, Migrant workers, Nonimmigrant workers, Passports and visas,
Penalties, Reporting and recordkeeping requirements, Unemployment,
Wages, Working conditions.
For the reasons set forth above, the Department amends part 655 of
title 20 of the Code of Federal Regulations as follows:
PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED
STATES
0
1. The authority citation for part 655 continues to read as follows:
Authority: Section 655.0 issued under 8 U.S.C.
1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 8 U.S.C.
1103(a)(6), 1182(m), (n), and (t), 1184(c), (g), and (j), 1188, and
1288(c) and (d); sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2102
(8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 4978,
5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102-232, 105
Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103-206,
107 Stat. 2428; sec. 412(e), Pub. L. 105-277, 112 Stat. 2681 (8
U.S.C. 1182 note); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316
(8 U.S.C. 1182 note); 29 U.S.C. 49k; Pub. L. 107-296, 116 Stat.
2135, as amended; Pub. L. 109-423, 120 Stat. 2900; 8 CFR
214.2(h)(4)(i); 8 CFR 214.2(h)(6)(iii); and sec. 6, Pub. L. 115-218,
132 Stat. 1547 (48 U.S.C. 1806).
Subpart A issued under 8 CFR 214.2(h).
Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c),
and 1188; and 8 CFR 214.2(h).
Subpart E issued under 48 U.S.C. 1806.
Subparts F and G issued under 8 U.S.C. 1288(c) and (d); sec.
323(c), Pub. L. 103-206,
107 Stat. 2428; and 28 U.S.C. 2461 note, Pub. L. 114-74 at
section 701.
Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and
(b)(1), 1182(n) and
(t), and 1184(g) and (j); sec. 303(a)(8), Pub. L. 102-232, 105
Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e), Pub. L. 105-277,
112 Stat. 2681; 8 CFR 214.2(h); and 28 U.S.C. 2461 note, Pub. L.
114-74 at section 701.
Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and
1182(m); sec. 2(d),
Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); Pub.
L. 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).
Sec. 655.215 [Amended]
0
2. Amend Sec. 655.215 by removing paragraph (b)(2) and redesignating
paragraph (b)(3) as paragraph (b)(2).
Angela Hanks,
Acting Assistant Secretary for Employment and Training, Labor.
[FR Doc. 2021-26211 Filed 12-15-21; 8:45 am]
BILLING CODE 4510-FP-P
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</html>Indexed from Federal Register on December 16, 2021.
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