[Federal Register Volume 86, Number 239 (Thursday, December 16, 2021)]
[Rules and Regulations]
[Pages 71373-71382]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-26211]


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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

[DOL Docket No. ETA-2020-0005]
RIN 1205-AB99


Adjudication of Temporary and Seasonal Need for Herding and 
Production of Livestock on the Range Applications Under the H-2A 
Program

AGENCY: Employment and Training Administration, Department of Labor.

ACTION: Final rule.

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SUMMARY: The Department of Labor (the Department or DOL) is amending 
its regulations regarding the adjudication of temporary need for 
employers seeking to employ nonimmigrant workers in job opportunities 
covering the herding or production of livestock on the range. 
Consistent with a court-approved settlement agreement, this final rule 
rescinds the regulatory provision that governed the period of need for 
such job opportunities under the H-2A visa classification to ensure the 
Department's adjudication of temporary or seasonal need is conducted in 
the same manner for all applications for temporary agricultural labor 
certification.

DATES: This final rule is effective January 18, 2022.

FOR FURTHER INFORMATION CONTACT: Brian Pasternak, Administrator, Office 
of Foreign Labor Certification, Employment and Training Administration, 
Department of Labor, 200 Constitution Avenue NW, Room N-5311, 
Washington, DC 20210, telephone: (202) 693-8200 (this is not a toll-
free number). Individuals with hearing or speech impairments may access 
the telephone number above via TTY/TDD by calling the toll-free Federal 
Information Relay Service at 1 (877) 889-5627.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background on 20 CFR part 655, subpart B
    A. Statutory Framework
    B. Regulatory Framework
    C. The Hispanic Affairs Project Litigation and Need for 
Rulemaking
II. Discussion of Proposed Revision to 20 CFR part 655, subpart B
III. Public Comments Received
    A. Comments Supporting Rescission of Sec.  655.215(b)(2)
    B. Out of Scope Comments
IV. Administrative Information

[[Page 71374]]

I. Background on 20 CFR Part 655, Subpart B

A. Statutory Framework

    The H-2A nonimmigrant worker visa program enables U.S. agricultural 
employers to employ foreign workers on a temporary basis to perform 
temporary or seasonal agricultural labor or services where the 
Secretary of Labor (Secretary) certifies that (1) there are not 
sufficient workers who are able, willing, and qualified, and who will 
be available at the time and place needed to perform the labor or 
services involved in the petition; and (2) the employment of foreign 
workers in such labor or services will not adversely affect the wages 
and working conditions of workers in the United States similarly 
employed. See section 101(a)(15)(H)(ii)(a) of the Immigration and 
Nationality Act (INA), as amended by the Immigration Reform and Control 
Act of 1986 (IRCA), 8 U.S.C. 1101(a)(15)(H)(ii)(a); section 218(a)(1) 
of the INA, 8 U.S.C. 1188(a)(1). The Secretary has delegated the 
authority to issue temporary agricultural labor certifications to the 
Assistant Secretary, Employment and Training Administration (ETA), who 
in turn has delegated that authority to ETA's Office of Foreign Labor 
Certification (OFLC). Secretary's Order 06-2010 (Oct. 20, 2010).\1\ 
Once OFLC issues a temporary agricultural labor certification, 
employers may then petition the U.S. Department of Homeland Security 
(DHS) to employ a nonimmigrant worker in the United States in the H-2A 
visa classification.
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    \1\ In addition, the Secretary has delegated to the Department's 
Wage and Hour Division the responsibility under section 218(g)(2) of 
the INA, 8 U.S.C. 1188(g)(2), to assure employer compliance with the 
terms and conditions of employment under the H-2A program. 
Secretary's Order 01-2014 (Dec. 19, 2014).
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B. Regulatory Framework

    Since 1987, the Department has operated the H-2A temporary 
agricultural labor certification program under regulations promulgated 
pursuant to the INA.\2\ With limited exceptions, including those set 
forth below, the Department's current regulations governing the H-2A 
program were published in 2010.\3\ The standards and procedures 
applicable to the certification and employment of workers under the H-
2A program are found in 20 CFR part 655, subpart B and 29 CFR part 
501.\4\
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    \2\ The Immigration and Nationality Act of 1952 created the H-2 
temporary worker program. Public Law 82-414, 66 Stat. 163. In 1986, 
IRCA divided the H-2 program into separate agricultural and 
nonagricultural temporary worker programs. See Public Law 99-603, 
section 301, 100 Stat. 3359 (1986). The H-2A agricultural worker 
program designation corresponds to the statute's agricultural worker 
classification in 8 U.S.C. 1101(a)(15)(H)(ii)(a).
    \3\ Temporary Agricultural Employment of H-2A Aliens in the 
United States, 75 FR 6884 (Feb. 12, 2010).
    \4\ The Department remains engaged in a separate rulemaking that 
seeks to amend these regulations as they pertain to the H-2A 
program. Through a Notice of Proposed Rulemaking published in July 
2019 (2019 NPRM), the Department proposed amendments to the current 
regulations that focus on modernizing the H-2A program and 
eliminating inefficiencies. Temporary Agricultural Employment of H-
2A Nonimmigrants in the United States, 84 FR 36168 (July 26, 2019). 
The 2019 NPRM also proposed to amend the regulations for enforcement 
of contractual obligations for temporary foreign agricultural 
workers and the Wagner-Peyser Act regulations to provide consistency 
with proposed revisions to H-2A program regulations governing the 
temporary agricultural labor certification process. Id.; see also 
Adverse Effect Wage Rate Methodology for the Temporary Employment of 
H-2A Nonimmigrants in Non-Range Occupations in the United States, 85 
FR 70445, 70447 (Nov. 5, 2020) (establishing a revised methodology 
for determining the Adverse Effect Wage Rate (AEWR) methodology for 
non-range occupations in one final rule and explaining that ``[t]he 
Department intends to address all of the remaining proposals from 
the July 26, 2019 proposed rule in a subsequent, second final rule 
governing other aspects of the certification of agricultural labor 
or services to be performed by H-2A workers and enforcement of the 
contractual obligations applicable to employers of such nonimmigrant 
workers.'').
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    Historically, employers in a number of States (primarily but not 
exclusively in the western continental United States) have used what is 
now the H-2A program to bring in foreign workers to work as sheep and 
goat herders.\5\ Beginning in 1989, and consistent with Congress' 
historical approach, the Department established variances from certain 
H-2A regulatory requirements and procedures through sub-regulatory 
guidance to allow employers of open range sheep and goat herders to use 
the H-2A program. The Department established similar variances or 
``special procedures'' through sub-regulatory guidance in 2007 for 
employers seeking to employ H-2A workers for open range herding or 
production of livestock positions. In 2015, the Department incorporated 
these ``special procedures'' provisions for the employment of workers 
in the herding and production of livestock on the range, with some 
modifications, into its H-2A regulations. Temporary Agricultural 
Employment of H-2A Foreign Workers in the Herding or Production of 
Livestock on the Range in the United States, 80 FR 62958 (Oct. 16, 
2015) (2015 Rule).\6\ The 2015 Rule, codified at Sec. Sec.  655.200 
through 655.235, continued the agency's recognition of the unique 
occupational characteristics of herding positions, which involve 
spending extended periods of time herding animals across remote range 
lands and being on call to protect and maintain herds for up to 24 
hours a day, 7 days a week.\7\
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    \5\ As the Department explained in its 2015 herder rulemaking, 
Congress enacted statutes during the early 1950s authorizing the 
permanent admission of a certain number of ``foreign workers skilled 
in sheepherding.'' See Temporary Agricultural Employment of H-2A 
Foreign Workers in the Herding or Production of Livestock on the 
Open Range in the United States, 80 FR 20300, 20301-20302 (Apr. 15, 
2015). Congress subsequently permitted these special laws to expire 
and signaled that sheepherders should be admitted under the existing 
temporary (then H-2) program. Id.; see also Changes to Requirements 
Affecting H-2A Nonimmigrants, 73 FR 76891, 76906-76907 (Dec. 18, 
2008).
    \6\ The 2015 Rule followed litigation in Mendoza v. Perez, in 
which the U.S. Court of Appeals for the District of Columbia Circuit 
(D.C. Circuit) held the special procedures pertaining to sheep, 
goat, and other open range herding or production of livestock were 
subject to the Administrative Procedure Act's notice and comment 
requirements. 754 F.3d 1002, 1024 (D.C. Cir. 2014); see Mendoza v. 
Perez, 72 F. Supp. 3d 168, 175 (D.D.C. 2014) (remedial order setting 
a rulemaking schedule).
    \7\ The 2019 NPRM proposed clarifying and technical revisions to 
certain provisions concerning the employment of workers in herding 
and production of livestock on the range (e.g., portions of 20 CFR 
655.205, 655.211, 655.220, and 655.225) that are not the subject of 
this rulemaking. 84 FR 36168, 36220-21. The 2019 NPRM also proposed 
to incorporate into the H-2A regulations, with some modifications, 
the standards and procedures currently found in Training and 
Employment Guidance Letters related to animal shearing, commercial 
beekeeping, and custom combining, and to rescind the general 
provision that allows for the creation of ``special procedures'' 
(i.e., sub-regulatory variances from the regulations). Id. at 36171-
73. As explained above, the Department remains engaged in a separate 
rulemaking addressing these proposed changes.
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    Section 101(a)(15)(H)(ii)(a) of the INA permits only ``agricultural 
labor or services . . . of a temporary or seasonal nature'' to be 
performed under the H-2A visa category. 8 U.S.C. 1101(a)(15)(H)(ii)(a). 
Thus, as part of the Department's adjudication of applications for 
temporary agricultural labor certification, the Department assesses on 
a case-by-case basis whether the employer has established a temporary 
or seasonal need for the agricultural work to be performed. See 20 CFR 
655.161(a). In its initial rulemaking on the H-2A program, the 
Department explained that it would be appropriate for an employer to 
apply annually for recurring job opportunities in the same occupation 
when it involved ``truly `seasonal' employment,'' but acknowledged that 
``the longer the employer needs a `temporary' worker, the more likely 
it would seem that the job has in fact become a permanent one.'' Labor 
Certification Process for the Temporary Employment of Aliens in 
Agriculture and Logging in the United States, 52 FR 20496, 20498 (June 
1, 1987). The Department's current regulations, which adopted DHS's 
definition of ``temporary

[[Page 71375]]

or seasonal nature,'' specify that employment is of a temporary nature 
``where the employer's need to fill the position with a temporary 
worker will, except in extraordinary circumstances, last no longer than 
1 year,'' and ``of a seasonal nature where it is tied to a certain time 
of year by an event or pattern, such as a short annual growing cycle or 
a specific aspect of a longer cycle, and requires labor levels far 
above those necessary for ongoing operations.'' 20 CFR 655.103(d); 8 
CFR 214.2(h)(5)(iv)(A); 75 FR 6884, 6890 (adopting DHS's definition 
``was not intended to create any substantive change in how the 
Department administers the program''). DHS regulations further provide 
that the Department's finding that employment is of a temporary or 
seasonal nature is ``normally sufficient'' for the purpose of an H-2A 
petition, but state that notwithstanding this finding, DHS adjudicators 
will not find employment to be temporary or seasonal in certain 
situations, such as when ``substantial evidence'' exists that the 
employment is not temporary or seasonal. 8 CFR 214.2(h)(5)(iv)(B).
    Notwithstanding the regulatory definition found in 20 CFR 
655.103(d) and 8 CFR 214.2(h)(5)(iv)(A), the 2015 Rule allowed 
employers of sheep and goat herders to apply for a temporary 
agricultural labor certification for a period of up to 364 days. 80 FR 
62958, 62999-63000; see 20 CFR 655.215(b)(2) (``The period of need 
identified on the H-2A Application for Temporary Employment 
Certification and job order for range sheep or goat herding or 
production occupations must be no more than 364 calendar days.''). 
Conversely, the same rule limited employers of range livestock work to 
a temporary agricultural labor certification with a period of need not 
to exceed 10 months. 80 FR 62958, 63000; see 20 CFR 655.215(b)(2) 
(``The period of need identified on the H-2A Application for Temporary 
Employment Certification and job order for range herding or production 
of cattle, horses, or other domestic hooved livestock, except sheep and 
goats, must be for no more than 10 months.'').

C. The Hispanic Affairs Project Litigation and Need for Rulemaking

    On September 22, 2015, four sheepherders and a nonprofit member 
organization for immigrant workers filed a lawsuit in federal court 
challenging aspects of the 2015 Rule. Hispanic Affairs Project v. 
Perez, 206 F. Supp. 3d 348 (D.D.C. 2016). As relevant to this 
rulemaking, the plaintiffs challenged the Department's decision to 
allow employers seeking temporary agricultural labor certifications for 
sheep or goat herder positions to apply for periods of need that last 
up to 364 days at a time. See Hispanic Affairs Project v. Acosta, 263 
F. Supp. 3d 160, 182 (D.D.C. 2017) (citing 20 CFR 655.215(b)(2)). The 
plaintiffs also challenged DHS's alleged practice of automatically 
approving sheep and goat herder petitions for recurring periods up to 
364 days, asserting that the Department's regulation at Sec.  
655.215(b)(2) and DHS's alleged practice did not conform with the INA 
or the Departments' regulations, in violation of the APA. See id. 
Specifically, the plaintiffs argued Sec.  655.215(b)(2) and DHS's 
alleged practice are inconsistent with 8 U.S.C. 1101(a)(15)(H)(ii)(a), 
which provides that H-2A visas be only for ``temporary'' work, and 
conflicts with the Departments' regulations defining when employment is 
of a ``temporary or seasonal nature.'' See id.; compare 20 CFR 
655.103(d) and 8 CFR 214.2(h)(5)(iv)(A) (employer's ``need to fill the 
position with a temporary worker will . . . last no longer than one 
year'') with 20 CFR 655.215(b)(2) (``The period of need identified on 
the [application and job order] . . . must be no more than 364 calendar 
days.''). The district court dismissed the challenge on procedural 
grounds, concluding the plaintiffs waived their claim against the 
Department and did not properly or timely raise their claim against 
DHS. Id. at 185-86, 190.\8\
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    \8\ Plaintiffs also challenged two other aspects of the 2015 
Rule: (1) Certain definitions and requirements that limit the scope 
and location of work that H-2A workers in sheep and goat herding 
positions may perform, 80 FR 62958, 62963-73; and (2) the 
methodology by which the Department calculates the minimum required 
wage that such workers (and any non-H-2A workers in corresponding 
employment) must be offered and paid, id. at 62986-96. The 
Department and DHS prevailed on these issues. See Hispanic Affairs 
Project v. Acosta, 901 F.3d 378, 391-96 (D.C. Cir. 2018), aff'g in 
part 263 F. Supp. 3d 160, 190-207 (D.D.C. 2017).
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    On appeal, the D.C. Circuit reversed and remanded the district 
court's decision on these claims for a resolution on the merits. 
Hispanic Affairs Project v. Acosta, 901 F.3d 378, 396-97 (D.C. Cir. 
2018). The court held the plaintiffs preserved their challenge to the 
Department's decision in the 2015 Rule to classify sheep and goat 
herding as ``temporary'' employment. Id. at 385. In dicta, the court 
noted the ``agency has no power under the statute--it is actually 
forbidden--to include non-temporary or non-seasonal workers in the H-2A 
program.'' Id. at 389. The court also held the complaint adequately 
raised a challenge to DHS's alleged practice of extending ``temporary'' 
H-2A petitions beyond the regulatory definition of temporary 
employment. Id. at 385, 388. Taking the evidence submitted by the 
plaintiffs as true, the court concluded the plaintiffs had ``plausibly 
shown that [DHS]'s de facto policy of authorizing long-term visas is 
arbitrary, capricious, and contrary to law, in violation of the APA and 
[INA] because it `authorizes the creation of permanent herder jobs that 
are not temporary or seasonal.' '' Id. at 386 (original alterations 
omitted).
    The parties subsequently reached a settlement in which the 
Department agreed to engage in rulemaking to propose to rescind Sec.  
655.215(b)(2) and DHS, through U.S. Citizenship and Immigration 
Services (USCIS), agreed to publish a policy memorandum that provided 
guidance on the determination of temporary or seasonal need for H-2A 
sheep and goat herder petitions. Joint Status Report at 1, ECF No. 135, 
Hispanic Affairs Project, et al. v. Scalia et al., No. 15-cv-1562 
(D.D.C. Nov. 8, 2019); see also Order Approving the Parties' Settlement 
Agreement, ECF No. 136, Hispanic Affairs Project, et al. v. Scalia et 
al., No. 15-cv-1562 (D.D.C. Nov. 12, 2019). Following a 30-day public 
comment period, USCIS published a final policy memorandum on February 
28, 2020, which became effective on June 1, 2020. See USCIS, Policy 
Memorandum: Updated Guidance on Temporary or Seasonal Need for H-2A 
Petitions Seeking Workers for Range Sheep and/or Goat Herding or 
Production (Feb. 28, 2020) (USCIS Policy Memorandum).\9\ On May 6, 
2021, the Department published a NPRM that proposed to rescind Sec.  
655.215(b)(2).
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    \9\ See https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2020/2-PMH2A-SeasonalSheepGoatHerder_PolicyMemo.pdf.
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II. Discussion of Proposed Revision to 20 CFR Part 655, Subpart B

    The Department proposed to rescind Sec.  655.215(b)(2) so that the 
temporary or seasonal need of an employer seeking to fill a herding or 
production of livestock on the range position would be adjudicated 
according to the requirement in Sec.  655.103(d) that governs the 
adjudication of employment of a temporary or seasonal nature for all 
other H-2A applications. See 20 CFR 655.200(a) (noting that employers 
whose job opportunities meet the qualifying criteria under Sec. Sec.  
655.200-655.235 must fully comply with all the requirements of 
Sec. Sec.  655.100-655.185 unless otherwise specified in Sec. Sec.  
655.200-655.235).

[[Page 71376]]

    The Department explained in the NPRM that the proposed rescission 
of Sec.  655.215(b)(2) would eliminate that provision's presumptive 
period of need for employment involving range sheep or goat herding and 
absolute restriction on the period of need for employment involving 
other range livestock activities. As the NPRM acknowledged, the 2015 
Rule suggested the unique nature and history of herding work permitted 
a variance, on an occupational basis, from the standard H-2A 
requirements governing the adjudication of an employer's temporary 
need. As such, Sec.  655.215(b)(2) allowed certification of a specific 
period of time without requiring the Department to assess the nature of 
the employer's need for the labor or services to be performed. The 
NPRM, accordingly, proposed to rescind Sec.  655.215(b)(2) so that all 
employers applying for temporary agricultural labor certifications must 
individually demonstrate a temporary or seasonal need for the 
agricultural labor or services to be performed, regardless of 
occupation. As the Department explained in the NPRM, this rescission of 
Sec.  655.215(b)(2) is not only consistent with the D.C. Circuit's 
decision in Hispanic Affairs Project and the guidance issued by USCIS, 
but also better complies with the requirements of the INA implemented 
in the Departments' regulations that define when employment is of a 
``temporary or seasonal nature.'' 8 U.S.C. 1101(a)(15)(H)(ii)(A) 
(defining an H-2A nonimmigrant as a foreign worker coming to perform 
services of a temporary or seasonal nature); 20 CFR 655.103(d); 75 FR 
6884, 6890 (adopting DHS's definition of ``temporary or seasonal 
nature'' set forth in 8 CFR 214.2(h)(5)(iv)(A)). The Department sought 
public comment on all issues related to its proposal to rescind Sec.  
655.215(b)(2), including economic or other regulatory impacts of the 
proposed rule on the public.\10\
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    \10\ As noted above, the 2019 NPRM proposed to amend regulations 
governing the certification of agricultural labor or services to be 
performed by temporary foreign workers in H-2A nonimmigrant status 
and the enforcement of contractual obligations applicable to 
employers of such nonimmigrant workers. 84 FR 36168. In particular, 
the 2019 NPRM sought public comment on the possibility of moving the 
adjudication of an employer's temporary or seasonal need exclusively 
to DHS or exclusively to DOL. Id. at 36178. In the NPRM to this 
rule, the Department explained that comments on the proposals 
contained in the 2019 NPRM are outside of the scope of the limited 
rulemaking here. 86 FR 24368, 24371. Given the narrow scope of this 
rulemaking and because a rule finalizing the non-AEWR provisions of 
the 2019 NPRM has not published, the rulemaking associated with the 
2019 NPRM does not affect the issuance of this rule.
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III. Public Comments Received

    The Department's 30-day comment period on its proposed rescission 
Sec.  655.215(b)(2) opened on May 6, 2021 and closed on June 7, 2021, 
with comments submitted electronically at http://www.regulations.gov/ 
using docket number ETA-1205-AB99. During this comment period, ETA 
received eight comments, none of which opposed adopting the proposal. 
Some contained comments outside of the scope of this rulemaking, as 
discussed below, while others were submitted on behalf of multiple 
entities. Commenters represented stakeholders from the public, private, 
and not-for-profit sectors and included industry associations, worker 
advocacy organizations, a State Department of Agriculture, a think 
tank, and private individuals. The Department appreciates all of the 
comments it received. After full consideration of the comments and for 
the reasons explained below, the Department is adopting the proposal to 
rescind Sec.  655.215(b)(2).

A. Comments Supporting Rescission of Sec.  655.215(b)(2)

    Commenters generally supported the Department's proposal to rescind 
Sec.  655.215(b)(2), though some commenters expressed potential 
concerns with the Department's implementation of the change. Several 
worker advocacy organizations and a think tank stated that the proposed 
revision more closely reflects statutory requirements by limiting H-2A 
employment to truly seasonal or temporary work for which employers are 
unable to find sufficient U.S. workers. Some of these commenters stated 
that the rescission of Sec.  655.215(b)(2) would simplify the H-2A 
program, promote consistency between USCIS and DOL with regard to the 
agencies' adjudication of temporary and seasonal need, and strengthen 
labor protections, without imposing a substantial or unfair burden on 
herding employers. Industry associations and a State Department of 
Agriculture did not oppose the proposed change, though they expressed 
concerns with its implementation and employers' ability to fulfill 
their labor needs.
    Commenters asked the Department to address how it will assess 
temporary or seasonal need under Sec.  655.103(d), in particular where 
an employer has a history of filing under Sec.  655.215(b)(2). Some of 
the worker advocacy organizations urged the Department to remind 
employers that the H-2A program is to be used only for agricultural 
labor needs of a temporary or seasonal nature and that permanent labor 
needs are not eligible for H-2A certification but may be eligible for 
employment-based immigrant visas. These commenters also asked the 
Department to guard against employers fulfilling permanent job needs 
with H-2A workers, by noting, for example, that an employer must meet 
both parts of the definition of seasonal need under Sec.  655.103(d). 
In contrast, industry associations and a State Department of 
Agriculture asked the Department not to weigh an employer's filing 
history too heavily, as employers were previously not required to 
separate distinct temporary or seasonal needs into different 
applications under Sec.  655.215(b)(2). These commenters stressed that 
changes in how an employer describes the services or labor needed, 
including the period of employment, on new applications may demonstrate 
compliance with Sec.  655.103(d) rather than changes in the temporary 
or seasonal nature of an employer's labor needs. In addition, these 
commenters noted difficulty hiring sufficient U.S. workers to fulfill 
employers' labor needs and the potential downstream effects of 
downsizing range operations should employers no longer be able to hire 
foreign workers, which could necessitate operational changes that 
affect an employer's temporary or seasonal need for labor. Both worker 
advocacy organizations and an industry association asked the Department 
to recognize USCIS' Policy Memorandum and adopt a similar approach to 
case-by-case assessment of an employer's temporary or seasonal need and 
filing history.
    The Department agrees that adopting the proposal will simplify and 
promote consistency within the H-2A program, while acknowledging the 
concerns expressed by commenters regarding how the agency plans to 
assess an employer's seasonal or temporary need under the standard at 
Sec.  655.103(d). As noted in the NPRM, the Department will examine--on 
a case-by-case basis and taking into consideration the totality of the 
facts presented--whether an employer's need to fill a herding or 
production of livestock on the range position is of a temporary or 
seasonal nature, as those terms are defined in the Department's and 
DHS's regulations. See 20 CFR 655.103(d); 8 CFR 214.2(h)(5)(iv)(A). 
Section 655.103(d) states that employment ``is of a temporary nature 
where the employer's need to fill the position with a temporary worker 
will, except in extraordinary circumstances, last no

[[Page 71377]]

longer than 1 year.'' The same section states that ``employment is of a 
seasonal nature where it is tied to a certain time of year by an event 
or pattern, such as a short annual growing cycle or a specific aspect 
of a longer cycle, and requires labor levels far above those necessary 
for ongoing operations.'' While this rule rescinds Sec.  655.215(b)(2) 
so that the Department's adjudication of temporary or seasonal need is 
conducted in the same manner for all H-2A applications pursuant to 
Sec.  655.103(d), it does not alter the regulatory definition and 
standards by which the Department adjudicates temporary or seasonal 
need under Sec.  655.103(d).
    In particular, though recurring year-round activities cannot be 
classified as temporary, see 75 FR 6884, 6891, the Department 
recognizes, as explained in the NPRM, that some herder employers may be 
able to establish a need to fill positions on a recurring annual basis 
consistent with the definition of employment of a seasonal nature in 
Sec.  655.103(d). See 86 FR 24368, 24371; 80 FR 62958, 62999-63000 
(2015 Rule describing comments that delineated seasonal aspects of 
herder work); 52 FR 20496, 20498 (acknowledging it is appropriate to 
apply annually for truly ``seasonal'' employment); see also USCIS 
Policy Memorandum at 3 n.3 (explaining that an employer's need for 
workers that recurs annually at a given time of year does not mean its 
need is permanent in nature as employment of a seasonal nature is 
defined as being tied to a certain time of year). As some commenters 
noted, such employers will need to show they meet both parts of the 
definition of seasonal need in Sec.  655.103(d)--that is, the 
employment (1) ``is tied to a certain time of year by an event or 
pattern, such as a short annual growing cycle or a specific aspect of a 
longer cycle'' and (2) ``requires labor levels far above those 
necessary for ongoing operations.'' The Department also acknowledged in 
the NPRM that some employers may have a ``temporary'' need to fill 
herding and range livestock job opportunities, which is permissible 
provided they can show the nature of their need is temporary under 
Sec.  655.103(d). See Temporary Workers Under Sec.  301 of the 
Immigration Reform and Control Act, 11 Op. O.L.C. 39, 40 & n.4 (1987) 
(noting `` `temporary' means something other than seasonal'' and 
explaining employers may fill ``permanent jobs that an employer needs 
to fill on a temporary basis--for example, because the regular American 
employee has fallen ill or extra hands are needed during a busy 
period''); 11 Op. O.L.C. at 42 (``The nature of the job itself is 
irrelevant. What is relevant is whether the employer's need is truly 
temporary.'').
    This final rule aligns the Department's adjudication of the 
temporary or seasonal need of herder applications with the guidance DHS 
has implemented in the USCIS Policy Memorandum, which the Department 
encourages employers and other interested parties to review. The 
memorandum explains, for example, that USCIS will adjudicate H-2A sheep 
and goat herder petitions filed on or after June 1, 2020, on a case-by-
case basis, taking into consideration the totality of the facts 
presented, and in the same manner as all other H-2A petitions. USCIS 
Policy Memorandum at 1, 9. Past periods of need approved by USCIS prior 
to June 1, 2020, will be one element considered when determining 
whether an H-2A petition demonstrates a true temporary or seasonal 
need. Id. at 9. Similar to USCIS' approach, and as indicated above, the 
Department's adjudication will be conducted on a case-by-case basis and 
will take into consideration the totality of the facts presented, of 
which past periods of need will be one element that is considered in 
determining whether an employer's need is truly temporary or 
seasonal.\11\
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    \11\ In recognition of employers' need to transition from 
compliance with Sec.  655.215(b)(2) to Sec.  655.103(d) and similar 
to guidance in USCIS' Policy Memorandum, employers seeking herding 
or production of livestock on the range job opportunities are 
encouraged, in describing their temporary or seasonal needs in 
future filings, to explain why any past filings history is not 
indicative of a non-temporary and non-seasonal need. Although the 
Department may consider the fact of a past filing history before the 
effective date of this rule, the Department will fully consider such 
explanation and possible reliance on past procedures in the totality 
of the circumstances when making a temporary or seasonal need 
determination. See USCIS Policy Memorandum, at 6 n.5, 9 n.11.
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    When an employer is unable to fulfill its need for labor to perform 
herding and production of livestock duties on the range under the H-2A 
program, as with any employer whose need is neither temporary nor 
seasonal, the employer may apply for labor certification through the 
visa program appropriate to its need. For example, employers with 
permanent, rather than temporary or seasonal, needs may wish to 
petition for workers under employment-based immigrant visa programs. 
See, e.g., 8 U.S.C. 1153(b)(3); see also 8 U.S.C. 1101(a)(15)(H)(ii)(a) 
(INA permits only ``agricultural labor or services . . . of a temporary 
or seasonal nature'' to be performed under the H-2A visa category).

B. Out of Scope Comments

    The NPRM invited comments related to the Department's proposal to 
rescind Sec.  655.215(b)(2). Comments received that are unrelated to 
the Department's proposal are beyond the scope of this action and have 
not been considered in the Department's assessment of its proposed 
rescission.
    Several comments were beyond the scope of this action. Two of the 
commenters did not address the Department's proposal; instead, one 
expressed general dissatisfaction with the H-2A program and the other 
appeared to be seeking a herding position. Other commenters addressed 
topics that are not the subject of this rulemaking, including wage and 
housing requirements for herders and production of livestock workers on 
the range as well as the definition of ``temporary'' or ``seasonal'' 
under 20 CFR 655.103(d), which reflects DHS's regulatory definition at 
8 CFR 214.2(h)(5)(iv)(A) and has been in effect for more than a decade. 
For example, one comment requested the Department clarify the 
definition of ``temporary'' and ``seasonal'' under Sec.  655.103(d), 
including how this definition applies across recurring H-2A 
applications and in situations where an employer has maintained 
substantially similar operations in previous seasons. Because proposed 
changes to the wage and housing requirements for herders and the 
regulatory definition and standards by which the Department adjudicates 
temporary or seasonal need under Sec.  655.103(d) are not the subject 
of this regulatory action, the Department deems the above comments as 
out of scope.

IV. Administrative Information

A. Executive Order 12866, Regulatory Planning and Review; and Executive 
Order 13563, Improved Regulation and Regulatory Review

    Under Executive Order (E.O.) 12866, the Office of Management and 
Budget (OMB)'s Office of Information and Regulatory Affairs determines 
whether a regulatory action is significant and therefore, subject to 
the requirements of the E.O. and OMB review. Section 3(f) of E.O. 12866 
defines a ``significant regulatory action'' as an action that is likely 
to result in a rule that (1) has an annual effect on the economy of 
$100 million or more, or adversely affects in a material way a sector 
of the economy, productivity, competition, jobs, the environment, 
public health or safety, or State, local, or tribal governments or 
communities (also referred to as economically significant); (2) creates 
serious inconsistency or otherwise

[[Page 71378]]

interferes with an action taken or planned by another agency; (3) 
materially alters the budgetary impacts of entitlement grants, user 
fees, or loan programs, or the rights and obligations of recipients 
thereof; or (4) raises novel legal or policy issues arising out of 
legal mandates, the President's priorities, or the principles set forth 
in the E.O. This final rule is a significant, but not economically 
significant, regulatory action under Section 3(f) of E.O. 12866. The 
Department has prepared a Regulatory Impact Analysis (RIA) in 
connection with this final rule, as required under section 6(a)(3) of 
E.O. 12866.
    E.O. 13563 directs agencies to propose or adopt a regulation only 
upon a reasoned determination that its benefits justify its costs; the 
regulation is tailored to impose the least burden on society, 
consistent with achieving the regulatory objectives; and in choosing 
among alternative regulatory approaches, the agency has selected those 
approaches that maximize net benefits. E.O. 13563 recognizes that some 
benefits are difficult to quantify and provides that, where appropriate 
and permitted by law, agencies may consider and discuss qualitatively 
values that are difficult or impossible to quantify, including equity, 
human dignity, fairness, and distributive impacts.
Overview of This Final Rule
    The Department has determined that this final rule is necessary to 
clarify the Department's adjudication of temporary or seasonal need for 
herding and range livestock applications for temporary agricultural 
labor certification under the H-2A program, and to align that 
adjudication with the requirements of the INA. The final rule also 
standardizes the Department's adjudication of temporary need under the 
H-2A program. The Department's definition of ``temporary or seasonal 
nature'' for the H-2A program, with the exception of its current 
definition of ``temporary'' for herding and range livestock 
occupations, is consistent with the Department of Homeland Security's 
definition specifying that employment is of a temporary nature ``where 
the employer's need to fill the position with a temporary worker will, 
except in extraordinary circumstances, last no longer than 1 year,'' 
and ``of a seasonal nature where it is tied to a certain time of year 
by an event or pattern, such as a short annual growing cycle or a 
specific aspect of a longer cycle, and requires labor levels far above 
those necessary for ongoing operations.'' 20 CFR 655.103(d); 8 CFR 
214.2(h)(5)(iv)(A).
    Notwithstanding the regulatory definition found in 20 CFR 
655.103(d) and 8 CFR 214.2(h)(5)(iv)(A), the 2015 Rule allowed 
employers of sheep and goat herders to apply for a temporary 
agricultural labor certification for a period of up to 364 days. 
Conversely, the same rule limited employers of range livestock 
occupations to a temporary agricultural labor certification with a 
period of need not to exceed 10 months. As discussed above, an 
appellate court held that plaintiffs preserved their challenge to the 
Department's decision in the 2015 Rule to classify sheep and goat 
herding as ``temporary'' employment. The court additionally held the 
complaint adequately raised a challenge to DHS's alleged practice of 
extending ``temporary'' H-2A petitions beyond the regulatory definition 
of temporary employment. Taking the evidence submitted by the 
plaintiffs as true, the court concluded the plaintiffs had plausibly 
shown DHS's alleged practice of automatically extending H-2A petitions 
is inconsistent with the APA and the INA because it `` `authorizes the 
creation of permanent herder jobs that are not temporary or seasonal.' 
'' 901 F.3d at 386 (original alterations omitted). The parties 
subsequently reached a settlement agreement in which the Department 
agreed to engage in rulemaking to propose to rescind Sec.  
655.215(b)(2) and DHS, through USCIS, agreed to publish a policy 
memorandum that provided guidance on the determination of temporary or 
seasonal need for H-2A sheep and goat herder petitions.
    In this final rule, the Department rescinds Sec.  655.215(b)(2), 
eliminating that provision's presumptive period of need for employment 
involving range herding and absolute restriction on the period of need 
for employment involving range livestock activities. Instead, all 
employers applying for H-2A temporary agricultural labor certifications 
under the final rule must individually demonstrate that their need for 
workers is temporary or seasonal, regardless of occupation.
Economic Impact
    The Department estimates that this final rule will result in costs 
to employers associated with rule familiarization requirements for all 
herding and range livestock employers utilizing the H-2A program. In 
addition, the Department believes that employers may incur other 
unquantifiable costs from the implementation of the final rule that can 
be attributed to changes in business operations, transportation, 
staffing turnover, and training requirements. As explained above, 
though recurring year-round activities cannot be classified as 
temporary, the Department recognizes that there may be seasonal aspects 
of herder work for which employers may still establish a need to fill 
positions on a recurring annual basis consistent with the definition of 
employment of a ``seasonal'' nature in Sec.  655.103(d) and that some 
herder employers may also still present a need that is truly 
``temporary'' under Sec.  655.103(d) in certain circumstances. The 
Department qualitatively discusses the potential costs to employers 
incurred by the implementation of this final rule but does not quantify 
them due to a lack of available data and the wide spectrum of possible 
responses by employers that cannot be predicted with specificity. 
Moreover, apart from some commenters expressing concern about potential 
downsizing for employers who may not have a demonstrable ``seasonal'' 
or ``temporary'' need due to labor shortages, the Department did not 
receive public comments in response to the NPRM request for feedback 
regarding how these employers may be impacted by the proposed change in 
regulation.
    Transfer payments under this final rule will result from 
eliminating the absolute restriction on the period of need for 
employment involving other range livestock activities and the 
presumptive period of need for employment involving range sheep or goat 
herding. In particular, some employers engaged in non-sheep and/or goat 
herding activities \12\ may potentially extend their period of need 
beyond 10 months, provided they can show the nature of their need is 
temporary.\13\ In addition, sheep and/or goat herding employers whose 
need is temporary or seasonal in nature and whose period of need 
currently exceeds 10 months are generally expected to reduce their 
period of need to 10 months or less.\14\ See the costs and

[[Page 71379]]

transfer payments subsections below for a detailed explanation.
---------------------------------------------------------------------------

    \12\ This includes range herding or production of cattle, 
horses, or other domestic hooved livestock except sheep and goats.
    \13\ For the purpose of this analysis, employers engaged in non-
sheep and/or goat herding activities with a minimum period of need 
of 300 days and a maximum period of need of 308 days were used to 
make the Department's transfer estimates. The Department used 300 
days to represent a period of 10 months; in fewer than eight 
instances, employers engaged in non-sheep and/or goat herding 
activities requested a longer period of need but none of these 
requests exceeded 308 days.
    \14\ The Department's records indicate that the majority of 
employers engaged in sheep and/or goat herding occupations would 
likely reduce their requested period of need to 10 months or less.
---------------------------------------------------------------------------

    As shown in Exhibit 1, the Department estimates this final rule 
will result in a quantified annualized cost of $3,144 at a discount 
rate of 7 percent and $2,588 at a discount rate of 3 percent, as well 
as unquantified costs associated with changes in business operations, 
transportation, staffing turnover, and training requirements. 
Additionally, this final rule is expected to result in transfers for 
all herding and range livestock employers. Some employers engaged in 
non-sheep and/or goat herding activities will incur a transfer from 
employers to employees due to rescinding the restriction on the period 
of need for employment involving range livestock activities. The 
Department also estimates that the final rule will result in annualized 
transfers of $95,556 at a discount rate of 7 percent and $91,983 at a 
discount rate of 3 percent for these employers. Furthermore, employers 
engaged in sheep and/or goat herding activities will experience a 
transfer from employees to employers due to a reduction in the allowed 
period of need for the majority of the aforementioned employers. The 
Department estimates that the final rule will result in annualized 
transfers of $8.42 million at a discount rate of 7 percent and $8.11 
million at a discount rate of 3 percent for these employers.

                       Exhibit 1--Estimated Costs and Transfer Payments of the Final Rule
----------------------------------------------------------------------------------------------------------------
                                                                                     Transfer
                                                                                   payments from     Transfer
                                                                                   employers of     payments to
                                                                       Costs      non-sheep and/   employers of
                                                                                      or goat      sheep and/or
                                                                                      herding      goat herding
----------------------------------------------------------------------------------------------------------------
Undiscounted 10-Year Total......................................         $22,079        $893,043     $78,731,848
10-Year total with a discount rate of 3%........................          22,079         784,637      69,174,659
10-Year total with a discount rate of 7%........................          22,079         671,143      59,168,812
Annualized at a discount rate of 3%.............................           2,588          91,983       8,109,380
Annualized at a discount rate of 7%.............................           3,144          95,556       8,424,308
----------------------------------------------------------------------------------------------------------------

    The Department was unable to quantify some costs and benefits of 
this final rule, as discussed below.
i. Costs
a. Rule Familiarization Costs
    When the final rule takes effect, herding and range livestock 
employers will need to familiarize themselves with the new regulations; 
consequently, this will impose a one-time cost in the first year upon 
implementation. The Department's analysis assumes that the changes 
introduced by the rule would be reviewed by Human Resources Specialists 
(SOC 13-1071). The median hourly wage for these workers is $29.77 per 
hour.\15\ In addition, the Department assumes that benefits are paid at 
a rate of 46 percent \16\ and overhead costs are paid at a rate of 17 
percent of the base wage, resulting in a fully-loaded hourly wage of 
$48.53.\17\ This hourly wage was multiplied by the estimated number of 
herding and range livestock employers (910) \18\ and by the estimated 
amount of time required to review the rule (.5 hours). This calculation 
results in a one-time cost of $22,079 in the first year after this 
final rule takes effect. The annualized cost over the 10-year period is 
$2,588 and $3,144 at discount rates of 3 and 7 percent, respectively.
---------------------------------------------------------------------------

    \15\ Median hourly wage for Human Resources Specialists were 
obtained from the Bureau of Labor Statistics Occupational Employment 
Statistics Survey, May 2019, https://www.bls.gov/oes/current/oes131071.htm.
    \16\ The benefits-earnings ratio is derived from the Bureau of 
Labor Statistics' Employer Costs for Employee Compensation data 
using variables CMU1020000000000D and CMU1030000000000D.
    \17\ $29.77 + $29.77(0.46) + $29.77(0.17) = $48.53.
    \18\ The Department's estimate of 910 unique employers is based 
on H-2A certification data from Fiscal Years (FYs) 2017, 2018, and 
2019. The Department identified the average number of unique 
applicants engaged in sheep and/or goat herding activities across 
FYs 2017, 2018, and 2019 (744). This was then added to the average 
number of unique applicants engaged in non-goat/sheep and/or goat 
herding activities across the same time period (166). 744 + 166 = 
910.
---------------------------------------------------------------------------

b. Other Costs
    The Department assumes some employers will experience increased 
costs associated with changes in business operations, transportation, 
staffing turnover, and training requirements under this final rule. In 
accordance with the Department's current regulation, employers of sheep 
and goat herders are permitted to apply for a temporary agricultural 
labor certification for a period of up to 364 days. Under this final 
rule, sheep and goat herding employers whose need is temporary or 
seasonal in nature and whose period of need currently exceeds 10 months 
are generally expected to reduce their period of need to 10 months or 
less. Although the Department does not anticipate the final rule will 
have a significant adverse effect, as employers have already adjusted 
to USCIS' policy memorandum,\19\ the Department acknowledges that some 
employers of sheep and goat herders may need to replenish their labor 
supply by hiring additional U.S. workers to account for the reduced 
period of need, petitioning for permanent workers through the 
appropriate visa programs as necessary, or extending the work schedule 
for U.S. workers that they employ if they are available. The Department 
also notes that, in instances where employers have recurring year-round 
labor needs that are actually permanent, rather than temporary or 
seasonal in nature, the Department expects some employers to utilize 
the employment-based immigrant petition process to hire foreign 
workers, which includes options for skilled workers, professionals, and 
other workers under 8 U.S.C. 1153(b)(3).
---------------------------------------------------------------------------

    \19\ Based on OFLC's H-2A public disclosure data that is 
accessible at https://www.dol.gov/agencies/eta/foreign-labor/performance, employers seeking range sheep and/or goat herding job 
opportunities filed 914 applications with OFLC from June 1, 2020--
the date USCIS' policy memorandum went into effect--until June 30, 
2021 (i.e., the end of the third quarter in FY 2021). Of these 
applications, 99 percent requested periods of need that were 10 
months or less. In addition, the average period of need for unique 
certified employers of sheep and goat herding was approximately 166 
days, in contrast to FY 2017 to FY 2019, in which the average period 
of need exceeded 10 months, ranging from 356 days in FY 2019 to 360 
days in FY 2017. See Exhibit 3.
---------------------------------------------------------------------------

    In response to the Department's analysis of costs in the NPRM, 
commenters including two industry associations and a State Department 
of Agriculture disagreed with the Department's assessment that some 
employers of sheep and goat herders will replenish their labor supply 
by hiring additional U.S. workers. For example, one industry 
association stated that DOL's proposed regulatory changes and economic 
analysis misconstrue the idea that U.S. workers are willing and

[[Page 71380]]

able to perform the jobs agricultural employers are seeking throughout 
the different times of the year, as ranchers have often found that they 
cannot find domestic help where the domestic labor force is in short 
supply. Other commenters noted the skillset to perform herding work is 
not available domestically and that range management plans on Federal 
lands and many State and tribal lease lands require at least one 
herder, without providing additional explanation. Due to the dynamic 
nature of the labor market, the Department acknowledges that the 
domestic workforce may not entirely offset the personnel changes that 
could occur following the implementation of this final rule and 
anticipates that agricultural employers may also adopt changes to their 
business practices, such as extending the work schedules for U.S. 
workers that they currently employ or petitioning for permanent workers 
through the appropriate visa programs as necessary.
    Several industry associations indicated that the cost effects of 
this final rule are likely to be experienced over time due to 
industries involved in the production of sheep, goats, and livestock 
needing time to adapt to the requirements of the new rule. One of these 
comments suggested that downstream effects on jobs in the agricultural 
supply chain are those most likely to be impacted over time and should 
be addressed in the economic analysis of this rulemaking. The 
Department did not receive any data or information from commenters to 
allow for a quantification of such impacts. As noted above, however, 
because USCIS' policy memorandum became effective on June 1, 2020 and--
based on recent filing data, employers have already adjusted to this 
guidance--the Department anticipates the change in operation costs for 
most employers and any corresponding downstream effects due to the 
issuance of this final rule to be limited.
Transfers
    The first category of transfers associated with this final rule is 
an employer to employee transfer incurred due to a potential increase 
in the maximum period of need from 10 months up to 1 year, or longer in 
extraordinary circumstances, for a small number of employers engaged in 
non-sheep and/or goat herding who can demonstrate that their need is 
temporary.
    Exhibit 2 presents the distribution of the period of need on 
approved applications filed by unique employers of non-sheep and/or 
goat herders during FYs 2017, 2018, and 2019.

Exhibit 2--Distribution of Period of Need for Unique Certified Employers
                    of Non-Sheep/Goat Herding by Year
                               [FY 17-19]
------------------------------------------------------------------------
                                                    Year
      Period of need (days)       --------------------------------------
                                       2017         2018         2019
------------------------------------------------------------------------
0-70.............................            5            5           10
71-140...........................           15           16           17
141-210..........................           10           10            7
210-299..........................           27           47           48
300-308..........................           72          103          107
>308.............................            0            0            0
Number of Unique Employers.......          129          181          189
Average Period of Need...........          254          260          257
------------------------------------------------------------------------

    Transfer payments were calculated by identifying unique employers 
engaged in non-sheep and/or goat herding from FYs 2017, 2018, and 
2019.\20\ The Department then identified employers within this group of 
unique employers whose applications contained periods of need between 
300 and 308 days. The Department identified this subset because some 
employers whose applications contained periods of need that fall within 
this range are likely to extend their period of need up to a year, or 
longer in extraordinary circumstances, if they can demonstrate their 
need is temporary in nature (e.g., their need is not for recurring 
year-round activities). The Department expects that a small number of 
employers of non-sheep and/or goat herders will extend their period of 
need beyond 10 months. For this analysis, the Department conservatively 
assumes that no more than 10 percent of the unique employers who were 
identified to have a period of need between 300 and 308 days will 
apply, and be approved by OFLC, to extend their period of temporary 
need beyond a 10-month period.\21\ In the NPRM, the Department sought 
public comment regarding the assumptions on the percentage of unique 
employers affected. As discussed above, some commenters noted that 
changes in how an employer describes the services or labor needed, 
including the period of employment, on new applications filed under 
this rule may demonstrate compliance with Sec.  655.103(d) rather than 
changes in the temporary (or seasonal) nature of an employer's labor 
needs. Based on OFLC's performance data, the Department estimated the 
impact of extending the period of need by multiplying the number of 
workers certified for each of the unique non-sheep and/or goat herding 
employers by the basic rate of pay offered to these workers each year. 
The figures for each year were then multiplied by 2 in order to 
estimate the impact from an additional 2 months of need, which yields 
an annualized transfer of $95,556 at a discount rate of 7 percent and 
$91,983 at a discount rate of 3 percent.
---------------------------------------------------------------------------

    \20\ Based on FYs 2017, 2018, and 2019 performance data obtained 
from OFLC, the Department estimates that the number of non-sheep 
and/or goat herding employers is unlikely to increase over the 
rule's 10-year time forecast.
    \21\ The Department assumes a small percentage of the unique 
employers who were identified to have a period of need between 300 
and 308 days will apply to extend their period of temporary need 
beyond a 10-month period up to 1 year, or longer in extraordinary 
circumstances.
---------------------------------------------------------------------------

    The second category of transfers associated with this final rule is 
an employee to employer transfer incurred due to potential reductions 
in sheep and/or goat herding employers' period of need from a maximum 
of 364 days to 10 months or less for annually recurring 
applications.\22\
---------------------------------------------------------------------------

    \22\ The Department's analysis of employers of sheep and goat 
herders represents the transfer from employer to employee. The 
Department assumes that in some instances employers will seek to 
replace H-2A employees who have met the period of need threshold 
with U.S. employees, which would constitute a transfer between H-2A 
employees and U.S. employees. This potential transfer could not be 
evaluated due to data limitations.

---------------------------------------------------------------------------

[[Page 71381]]

    Exhibit 3 presents the distribution of the period of need on 
approved applications filed by unique employers of sheep and/or goat 
herders during FYs 2017, 2018, and 2019.

Exhibit 3--Distribution of Period of Need for Unique Certified Employers
                      of Sheep/Goat Herding by Year
                               [FY 17-19]
------------------------------------------------------------------------
                                                    Year
      Period of need (days)       --------------------------------------
                                       2017         2018         2019
------------------------------------------------------------------------
0-70.............................            0            2            3
71-140...........................            1            4            9
141-210..........................            6            5            3
210-299..........................            4            7            7
>299.............................          743          673          761
Number of Unique Employers.......          754          691          783
Average Period of Need...........          360          357          356
------------------------------------------------------------------------

    Transfer payments were calculated by identifying unique employers 
engaged in sheep and/or goat herding from FYs 2017, 2018, and 2019.\23\ 
The Department identified employers within this group of unique 
employers whose applications contained a period of need of 300 days or 
more. Based on OFLC's performance data, the Department estimated the 
impact of reducing the period of eligibility by multiplying the number 
of workers certified for each of the unique sheep and/or goat herding 
employers by the basic rate of pay offered to these workers each year. 
The figures for each year were then multiplied by the number of days 
requested for the period of need of 300 days or more in order to 
estimate the impact from reducing the period of need to 10 months or 
less, which yields an annualized transfer of $8,424,308 at a discount 
rate of 7 percent and $8,109,380 at a discount rate of 3 percent.
---------------------------------------------------------------------------

    \23\ Based on FYs 2017, 2018, and 2019 performance data obtained 
from OFLC.
---------------------------------------------------------------------------

ii. Benefits
    By rescinding 20 CFR 655.215(b)(2), the Department standardizes the 
adjudication of temporary need under the H-2A program and aligns the 
Department's adjudication of the temporary or seasonal need of herder 
applications with the guidance DHS has implemented in the USCIS Policy 
Memorandum. Furthermore, the rescission of Sec.  655.215(b)(2) better 
complies with pertinent provisions of the INA and the Departments' 
applicable implementing regulations that define when employment is of a 
``temporary or seasonal nature.'' Therefore, this final rule aims to 
help ensure the employment of H-2A workers in herding and range 
livestock operations does not adversely affect the wages and working 
conditions of workers in the United States similarly employed.

B. Regulatory Flexibility Analysis and Small Business Regulatory 
Enforcement Fairness Act and Executive Order 13272: Proper 
Consideration of Small Entities in Agency Rulemaking

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996, Public Law 104-121 (March 29, 1996), requires Federal agencies 
engaged in rulemaking to consider the impact of their proposals on 
small entities, consider alternatives to minimize that impact, and 
solicit public comment on their analyses. The RFA requires the 
assessment of the impact of a regulation on a wide range of small 
entities, including small businesses, not-for-profit organizations, and 
small governmental jurisdictions. Agencies must perform a review to 
determine whether a proposed or final rule would have a significant 
economic impact on a substantial number of small entities. 5 U.S.C. 
603, 604. If the determination is that it would, the agency must 
prepare a regulatory flexibility analysis as described in the RFA. Id.
    However, if an agency determines that a proposed or final rule is 
not expected to have a significant economic impact on a substantial 
number of small entities, the RFA provides that the head of the agency 
may so certify and a regulatory flexibility analysis is not required. 
See 5 U.S.C. 605. The certification must include a statement providing 
the factual basis for this determination, and the reasoning should be 
clear.
    The Department collected industry data from the Bureau of Labor 
Statistics' Quarterly Census for Employment and Wage for FY 2020. This 
process allowed the Department to identify the number of entities 
impacted by this final rule for two North American Industry 
Classification System (NAICS) Codes that frequently request H-2A 
certification for herding and livestock production job opportunities: 
NAICS 112410: Sheep Farming, and NAICS 112111: Beef Cattle Ranching, 
and Farming. The Department was able to identify 9,329 establishments 
that are classified as part of the beef cattle ranching, and farming 
industry, and 233 Establishments that are classified as part of the 
sheep farming industry. Next, the Department used the Small Business 
Administration (SBA) size standards to classify the vast majority of 
these employers (approximately 99 percent) as small.
    The Department has estimated the cost of the time to read and 
review the final rule. In addition, the Department assumes some 
employers will experience increased costs associated with changes in 
business operations, transportation, staffing turnover, and training 
requirements under this final rule.
    The Department estimates that small businesses engaged in herding 
and livestock production will incur a one-time cost of $48.53 to 
familiarize themselves with the changes in this rule. Other costs that 
employers could incur are attributed to the potential need to adjust 
their staffing and business operations as well as employing more U.S. 
workers to offset the loss of H-2A workers. However, the Department 
does not expect that these costs will be

[[Page 71382]]

significant. As discussed above, the Department reviewed the impacts of 
this final rule for two NAICS Codes that frequently request H-2A 
certification for herding and livestock production job opportunities: 
NAICS 112410: Sheep Farming, and NAICS 112111: Beef Cattle Ranching, 
and Farming.
    The SBA estimates that revenue for a small business with NAICS Code 
112410 is $1.0 million and for NAICS Code 112111 is $1.0 million. The 
rule familiarization cost of $48.53 will be far less than one percent 
of the average revenue for small businesses with the two NAICS Codes. 
Although the Department does not anticipate the final rule will have a 
significant adverse effect as employers have already adjusted to USCIS' 
policy memorandum, the Department acknowledges that some employers of 
sheep and goat herders may need to replenish their labor supply by 
hiring additional U.S. workers to account for the reduced period of 
need, petitioning for permanent workers through the appropriate visa 
programs as necessary, or extending the work schedule for U.S. workers 
that they employ. The Department did not receive any public comments on 
this Initial Regulatory Flexibility Analysis. The Department certifies 
that this rule will not have a significant impact on a substantial 
number of small entities affected.

C. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq., 
and its attendant regulations, 5 CFR part 1320, require the Department 
to consider the agency's need for its information collections and their 
practical utility, the impact of paperwork and other information 
collection burdens imposed on the public, and how to minimize those 
burdens. This final rule does not require a collection of information 
subject to approval by OMB under the PRA, or affect any existing 
collections of information.

D. Congressional Review Act

    The Office of Information and Regulatory Affairs has determined 
that this final rule is not a major rule, as defined by 5 U.S.C. 804, 
for purposes of congressional review of agency rulemaking pursuant to 
the Congressional Review Act, Public Law 104-121, sec. 251, 110 Stat. 
868, 873 (codified at 5 U.S.C. 804). This rule will not result in an 
annual effect on the economy of $100 million or more; a major increase 
in costs or prices; or significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based companies to compete with foreign-based companies in 
domestic and export markets.

E. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among 
other things, to curb the practice of imposing unfunded Federal 
mandates on State, local, and tribal governments. Title II of the UMRA 
requires each Federal agency to prepare a written statement assessing 
the effects of any Federal mandate in a proposed or final agency rule 
that may result in $100 million or more in expenditures (adjusted 
annually for inflation) in any 1 year by State, local, and tribal 
governments, in the aggregate, or by the private sector. A Federal 
mandate is defined in 2 U.S.C. 658, in part, as any provision in a 
regulation that imposes an enforceable duty upon State, local, or 
tribal governments, or the private sector. Following consideration of 
these factors, the Department has concluded that this final rule 
contains no unfunded Federal mandates, including no ``Federal 
intergovernmental mandate'' or ``Federal private sector mandate.''
    This final rule will not exceed the $100 million in expenditures in 
any 1 year when adjusted for inflation, and this rulemaking does not 
contain such a mandate. The requirements of Title II of the UMRA, 
therefore, do not apply, and the Department is not required to prepare 
a statement under the UMRA.

F. Executive Order 13132, Federalism

    The Department has concluded that this final rule does not have 
federalism implications, because it will not have substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government. Accordingly, 
E.O. 13132 requires no further agency action or analysis.

G. Executive Order 13175, Consultation and Coordination With Indian 
Tribal Governments

    After consideration, the Department has determined that this final 
rule will not result in ``tribal implications,'' because it will not 
have substantial direct effects on one or more Indian tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and tribal governments. Accordingly, E.O. 13175 requires no 
further agency action or analysis.

List of Subjects in 20 CFR Part 655

    Administrative practice and procedure, Employment, Employment and 
training, Enforcement, Foreign workers, Forest and forest products, 
Fraud, Health professions, Immigration, Labor, Longshore and harbor 
work, Migrant workers, Nonimmigrant workers, Passports and visas, 
Penalties, Reporting and recordkeeping requirements, Unemployment, 
Wages, Working conditions.

    For the reasons set forth above, the Department amends part 655 of 
title 20 of the Code of Federal Regulations as follows:

PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED 
STATES

0
1. The authority citation for part 655 continues to read as follows:

    Authority:  Section 655.0 issued under 8 U.S.C. 
1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 8 U.S.C. 
1103(a)(6), 1182(m), (n), and (t), 1184(c), (g), and (j), 1188, and 
1288(c) and (d); sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2102 
(8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 4978, 
5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102-232, 105 
Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103-206, 
107 Stat. 2428; sec. 412(e), Pub. L. 105-277, 112 Stat. 2681 (8 
U.S.C. 1182 note); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 
(8 U.S.C. 1182 note); 29 U.S.C. 49k; Pub. L. 107-296, 116 Stat. 
2135, as amended; Pub. L. 109-423, 120 Stat. 2900; 8 CFR 
214.2(h)(4)(i); 8 CFR 214.2(h)(6)(iii); and sec. 6, Pub. L. 115-218, 
132 Stat. 1547 (48 U.S.C. 1806).
    Subpart A issued under 8 CFR 214.2(h).
    Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), 
and 1188; and 8 CFR 214.2(h).
    Subpart E issued under 48 U.S.C. 1806.
    Subparts F and G issued under 8 U.S.C. 1288(c) and (d); sec. 
323(c), Pub. L. 103-206,
    107 Stat. 2428; and 28 U.S.C. 2461 note, Pub. L. 114-74 at 
section 701.
    Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and 
(b)(1), 1182(n) and
    (t), and 1184(g) and (j); sec. 303(a)(8), Pub. L. 102-232, 105 
Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e), Pub. L. 105-277, 
112 Stat. 2681; 8 CFR 214.2(h); and 28 U.S.C. 2461 note, Pub. L. 
114-74 at section 701.
    Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and 
1182(m); sec. 2(d),
    Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); Pub. 
L. 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).


Sec.  655.215  [Amended]

0
2. Amend Sec.  655.215 by removing paragraph (b)(2) and redesignating 
paragraph (b)(3) as paragraph (b)(2).

Angela Hanks,
Acting Assistant Secretary for Employment and Training, Labor.
[FR Doc. 2021-26211 Filed 12-15-21; 8:45 am]
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