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Federal Register / Vol. 86, No. 239 / Thursday, December 16, 2021 / Rules and Regulations transfer payments subsections below for a detailed explanation.
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

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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 1ESTIMATED COSTS AND TRANSFER PAYMENTS OF THE FINAL RULE
Transfer payments from employers of nonsheep and/or goat herding
Costs
Undiscounted 10-Year Total
10-Year total with a discount rate of 3%
10-Year total with a discount rate of 7%
Annualized at a discount rate of 3%
Annualized at a discount rate of 7%

The Department was unable to quantify some costs and benefits of this final rule, as discussed below.
i. Costs
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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 Departments analysis assumes that the changes introduced by the rule would be reviewed by Human Resources Specialists SOC 131071. 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 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 + $29.770.46 + $29.770.17 = $48.53.
18 The Departments estimate of 910 unique employers is based on H2A 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
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time required to review the rule .5
hours. This calculation results in a onetime 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.
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 Departments 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 of unique applicants engaged in non-goat/sheep and/or goat herding activities across the same time period 166. 744 + 166 = 910.
19 Based on OFLCs H2A 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, 2020the date USCIS policy memorandum went into effectuntil June 30, 2021 i.e., the end of the
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$22,079
22,079
22,079
2,588
3,144

$893,043
784,637
671,143
91,983
95,556

Transfer payments to employers of sheep and/or goat herding $78,731,848
69,174,659
59,168,812
8,109,380
8,424,308

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. 1153b3.
In response to the Departments analysis of costs in the NPRM, commenters including two industry associations and a State Department of Agriculture disagreed with the Departments 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 DOLs proposed regulatory changes and economic analysis misconstrue the idea that U.S. workers are willing and 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.

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