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Federal Register / Vol. 86, No. 239 / Thursday, December 16, 2021 / Rules and Regulations
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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 Presidents priorities, or the principles set forth in the E.O. This final rule is a significant, but not economically significant, regulatory action under Section 3f of E.O. 12866.
The Department has prepared a Regulatory Impact Analysis RIA in connection with this final rule, as required under section 6a3 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 Departments adjudication of temporary or seasonal need for herding and range livestock applications for temporary agricultural labor certification under the H2A program, and to align that adjudication with the requirements of the INA. The final rule also standardizes the Departments adjudication of temporary need under the H2A
program. The Departments definition of temporary or seasonal nature for the H2A program, with the exception of its current definition of temporary for herding and range livestock occupations, is consistent with the Department of Homeland Securitys definition specifying that employment is of a temporary nature where the employers 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 655.103d; 8 CFR
214.2h5ivA.

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Notwithstanding the regulatory definition found in 20 CFR 655.103d and 8 CFR 214.2h5ivA, 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 Departments 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 DHSs alleged practice of extending temporary H2A 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 DHSs alleged practice of automatically extending H2A
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 655.215b2 and DHS, through USCIS, agreed to publish a policy memorandum that provided guidance on the determination of temporary or seasonal need for H2A sheep and goat herder petitions.
In this final rule, the Department rescinds 655.215b2, eliminating that provisions 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 H2A 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
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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 655.103d and that some herder employers may also still present a need that is truly temporary under 655.103d 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 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 Departments 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 Departments 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.

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