DOL Issues Final H-2A Rule

DOL Issues Final H-2A Rule

Industry Comments Played Key Role in Changes

ASI might have led the charge against a proposed H-2A rule that would have crippled the sheep industry, but it was comments from industry members and supporters that ultimately led the U.S. Department of Labor to reconsider massive wage hikes and new definitions of open range before issuing the final rule in mid-October.

The work of ASI leaders and members – in conjunction with Mountain Plains Agriculture Service and the Western Range Association – led to more than 500 comments being submitted between April 15 and June 1 regarding the proposed rule. The H-2A rule as originally proposed would have precluded many western producers from utilizing the program. In addition, many of those willing to take on the escalated cost of hiring herders would not have been eligible for the program because of restrictions on herding near fencing or the ranch headquarters.

The DOL published on Oct. 16 in the Federal Register the final rule under which the sheepherder program will operate for the 2,700 herders tending to more than one-third of American sheep.

Fortunately, the department decided to largely adopt one of the wage methodologies proposed by the sheep industry during the formal comment period this spring. 

“The department will implement a wage formula tied to the federal minimum wage similar to our recommendation, and while it is a significant cost increase that won’t fit all ranches, the modification at least provides most farms and ranches the opportunity to sustain their sheep operation,” said ASI Executive Director Peter Orwick. “The proposal of the department in April to triple monthly wages would have put the majority of sheep producing families out of business.”

Sheepherders working under the new H-2A rule will earn the federal minimum wage of $7.25 per hour for a 48-hour work week. As they have in the past, producers will continue to provide food, water, housing and supplies for each of their herders, in addition to covering all travel and visa expenses associated with bringing immigrant workers into the country.

The final rule allows for a two-year transition to the new pay methodology, with full implementation beginning in 2018. Herder salaries are expected to increase to $1,206 in 2016 and $1,383 in 2017 before reaching full implementation at $1,568 in 2018. Beginning in 2017, the monthly pay rate will be adjusted annually based on the Employment Cost Index calculated by the Bureau of Labor Statistics.

Former ASI President Clint Krebs of Oregon added that federal officials also greatly modified their proposal specifying ranches would be eligible to hire sheepherders under the H-2A program provision.

“We estimated 40 percent of the ranches that have hired sheepherders for decades would not have been eligible due to a proposed definition involving fencing where sheep graze,” Krebs said. “We appreciate the department reviewing the hundreds of comments from ranch families regarding the type of lands their sheep graze, and the huge impacts the original proposal would have on the ranches and the entire sheep industry.”

“The department’s final rule retains most of the provisions that have been in place for decades that allowed our industry to use the H-2A program in the first place, including mobile housing and annual visas,” said Orwick.

This fall, ranches will be making adjustments to accomodate the increased wage, but the industry won’t have to witness the wholesale liquidation that would have happened under the proposed rule.

Judging by written observations in DOL’s 398-page final rule, comments from producers played a key role in convincing the department to make dramatic changes in the proposed rule that went out for public comment on April 15.

“From a review of these comments, several overarching general themes emerged,” the report states. “Several commenters observed that the current rules ‘are not broken,’ so no fix is required. Dozens of commenters remarked that the proposed wage methodology would result in the loss of livelihood of many individual ranchers, and dozens of others went further to conclude that the proposed wage methodology would put an end to the production of sheep, goat and cattle industries in the United States as a whole.”

But not all comments centered on the wage increase, according to the report.

“One commenter noted that grazing livestock producers manage 250 million acres of Western land, including public land under the stewardship of the U.S. Forest Service in the U.S. Department of Agriculture and the Bureau of Land Management in the U.S. Department of the Interior. Many of these comments noted that the migratory pattern of animal herding is itself a natural resource management activity.

“Among the natural resource management benefits of controlled animal migration are the improvement of wildlife habitats that promotes animal breeding and sustains migratory fowl; the control of the spread of noxious and invasive weeds; the reduction of the use of herbicides and pesticides; the increased use of sheep ‘fertilizer’ to improve the quality of the land; and the decreased use of machinery for tending the land, thus reducing fuel use and our carbon footprint.

“Several dozen comments indicated that animal grazing aids in the reduction of undergrowth that feeds wild fires in the West. Thus, these commenters asserted that if sheep, goat and cattle producers’ costs are raised, this would result in the reduction of animal grazing overall, which would, in turn, increase wildfires in the Western United States because of the abundance of  ‘fuel’ that would otherwise be reduced by grazing. 

“Such fires would, among other things, result in the devastation of sage brush, which is the habitat of sage grouses that nest in grasslands across the American West. Other commenters noted that without regular grazing, invasive weeds would overtake Western grasslands.”

“The land management issues offered by these comments raise important questions about the role of animal grazing and care of our natural resources.  This Final Rule is limited to the regulation of particular issues dealing with the employment of herders, but we have consulted with our sister agencies, USFS and BLM, about particular issues addressed in this Final Rule, including the proposed definition of ‘open range,’ discussed further below in Sec. IV.A.3. of the section-by-section analysis.”

More information is available at the Legislative Action Center on SheepUSA.org, or by contacting ASI, the Western Range Association or Mountain Plains Agriculture Service offices.

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