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Federal Register / Vol. 86, No. 239 / Thursday, December 16, 2021 / Rules and Regulations
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 andbased on recent filing data, employers have already adjusted to this guidancethe
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 nonsheep 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 2DISTRIBUTION OF PERIOD OF NEED FOR UNIQUE CERTIFIED EMPLOYERS OF NON-SHEEP/GOAT HERDING BY
YEAR
FY 1719
Year
Period of need days
2017

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070
71140
141210
210299
300308
>308
Number of Unique Employers
Average Period of Need

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 yearround activities. The Department expects that a small number of employers of non-sheep and/or goat herders will extend their period of need 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 rules 10-year time forecast.

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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 655.103d rather than changes in the temporary or seasonal nature of an 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.

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2018
5 15
10
27
72
0 129
254

2019
5 16
10
47
103
0 181
260

10
17
7 48
107
0 189
257

employers labor needs. Based on OFLCs 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 nonsheep 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.
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 Departments analysis of employers of sheep and goat herders represents the transfer from employer to employee. The Department assumes
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