# Temporary Agricultural Employment of H-2A Foreign Workers in the Herding or Production of Livestock on the Open Range in the United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2015-08505 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** April 15, 2015 - **Citation:** 80 FR 20300 ## Text 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 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. 1 The 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 non-agricultural 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). 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 and goat herders was instead implemented through the H-2 program and then the successor H-2A program after the passage of IRCA. 2 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. 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 3 The 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 . 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. 4 The 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. 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 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 fixed-site 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. 5 Compliance 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.” 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 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 employer-members 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 employer-applicants 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 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, 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. 6 Under 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.” 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 7 WHD Field Assistance Bulletins are available at on the WHD Web site at http://www.dol.gov/whd/FieldBulletins/ . 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 Administrator assumed the authority to establish monthly, weekly, or semi-monthly 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 8 See State of California Department of Industrial Relations, Division of Labor Standards Enforcement at http://www.dir.ca.gov/dlse/faq_minimumwage.htm . 9 According 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. 10 The 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. 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 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. 11 OFLC 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 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. 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. 12 Information about the methodology of the FLS is publicly available at: http://www.nass.usda.gov/About_NASS/index.asp. 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 13 The 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. 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 14 To 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. The USDA survey is conducted semi-annually (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 15 As 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 State-mandated 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. 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 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. 16 As 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. 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 information about studies or expert opinion supporting alternative methodologies that would result in using a different workweek figure to compute the wage. 17 We 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. 18 The 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). 19 Zapata 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. 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 wage-setting 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 employer-members 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 sheepherding or goat herding positions will not need to resubmit its job order during the calendar year. 21 This 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. 22 The current guidance provides this variance from the date of need requirement in 20 CFR 655.131(b). 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 year-round. 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 employer-members, 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 employer-members, 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 Post-Acceptance 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 employer-members, 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 opportunities, as provision of non-mobile 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 self-certify 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 employer-provided 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 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. 23 Current 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. 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 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. 24 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 from 2016 to 2025 for each USDA region. This methodology is described in detail in Section 4: Subject-by-Subject Analysis. 25 The 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. 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 on-call 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 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. 26 For the purposes of the cost-benefit analysis, the 10-year period starts on October 1, 2015. In the remaining sections, the Department first presents a subject-by-subject 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 employer-provided 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. Ho [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2015-08505. Public record. Not legal advice.