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Federal Register / Vol. 86, No. 239 / Thursday, December 16, 2021 / Rules and Regulations Exhibit 3 presents the distribution of the period of need on approved applications filed by unique employers
71381

of sheep and/or goat herders during FYs 2017, 2018, and 2019.

EXHIBIT 3DISTRIBUTION OF PERIOD OF NEED FOR UNIQUE CERTIFIED EMPLOYERS OF SHEEP/GOAT HERDING BY YEAR
FY 1719
Year Period of need days 2017
070
71140
141210
210299
>299
Number of Unique Employers
Average Period of Need

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 OFLCs 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.

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ii. Benefits By rescinding 20 CFR 655.215b2, the Department standardizes the adjudication of temporary need under the H2A program and aligns the Departments 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 655.215b2 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 H2A
workers in herding and range livestock operations does not adversely affect the that in some instances employers will seek to replace H2A employees who have met the period of need threshold with U.S. employees, which would constitute a transfer between H2A

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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 104121 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-forprofit 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.
employees and U.S. employees. This potential transfer could not be evaluated due to data limitations.

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2018
0 1
6 4
743
754
360

2019
2 4
5 7
673
691
357

3
9 3
7 761
783
356

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 H2A
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 onetime 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 H2A
workers. However, the Department does not expect that these costs will be 23 Based on FYs 2017, 2018, and 2019
performance data obtained from OFLC.

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