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< Back to current issue of Immigration Daily

[Federal Register: August 4, 2011 (Volume 76, Number 150)]
[Notices]               
[Page 47256-47262]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04au11-107]                         

-----------------------------------------------------------------------

DEPARTMENT OF LABOR

Employment and Training Administration

 
Training and Employment Guidance (TEGL) Letter No. 32-10: Special 
Procedures: Labor Certification Process for Employers Engaged in 
Sheepherding and Goatherding Occupations Under the H-2A Program

AGENCY: Employment and Training Administration, Labor.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: The Employment and Training Administration (ETA) of the United 
States Department of Labor (Department) is publishing, for public 
information, notice of the issuance and availability of TEGL 32-10 
entitled Special Procedures: Labor Certification Process for Employers 
Engaged in Sheepherding and Goatherding Occupations under the H-2A 
Program, signed on June 14, 2011, by Jane Oates, Assistant Secretary 
for Employment and Training Administration.

FOR FURTHER INFORMATION CONTACT: William L. Carlson, PhD, 
Administrator, Office of Foreign Labor Certification, ETA, U.S. 
Department of Labor, 200 Constitution Avenue, NW., Room C-4312, 
Washington, DC 20210; Telephone (202) 693-3010 (this is not a toll-free 
number). Individuals with hearing or speech impairments may access the 
telephone number above via TTY by calling the toll-free Federal 
Information Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

Special Procedures: Labor Certification Process for Employers Engaged 
in Sheepherding and Goatherding Occupations under the H-2A Program

    1. Purpose. To transmit special procedures, as updated to reflect 
regulatory and administrative changes in the H-2A Program, for 
employers who apply to the Department to obtain labor certifications to 
hire temporary agricultural foreign workers to perform sheepherding 
and/or goatherding activities.
    2. References.
     20 CFR part 655, subpart B;
     20 CFR part 653, subparts B and F;
     20 CFR part 654, subpart E;
     Field Memorandum (FM) 24-01, Special Procedures: Labor 
Certification for Sheepherders and Goatherders under the H-2A Program;
     FM 74-89, Special Procedures: Labor Certification for 
Sheepherders under the H-2A Program;
     ETA Handbook No. 385.
    3. Background. Historically, employers in several western States 
have utilized the provisions of the Immigration and Nationality Act 
(INA), 8 U.S.C. 1101, et seq., to import nonimmigrant foreign workers 
to work as sheepherders and goatherders in conjunction with their 
ranching activities.
    The unique occupational characteristics of sheepherding (spending 
extended periods of time with grazing herds of sheep in isolated 
mountainous terrain; being on call to protect flocks from predators 24 
hours a day, 7 days a week) have been recognized by the Department, the 
United States Citizenship and Immigration Service (USCIS), and Congress 
as significant factors in limiting the number of United States (U.S.) 
workers who might be available for and capable of performing these 
jobs.
    During the early 1950's, Congress enacted three special laws 
authorizing the admission of a certain number of ``foreign workers 
skilled in sheepherding'' for many of these jobs. Special privileges 
were granted with respect to the issuance of visas which enabled the 
foreign workers to gain entry into the U.S. on an expedited basis, 
provided that they were otherwise admissible into the U.S. for 
permanent residence.
    During 1955 and 1956, the House Judiciary Committee (Committee), in 
response to requests from sheep ranchers, undertook an investigation to 
examine allegations that a number of

[[Page 47257]]

foreign sheepherders and goatherders admitted under the special laws 
were leaving sheepherding shortly after arriving in the U.S., and were 
instead employed in other industries and occupations.
    The Committee's investigation substantiated many of these 
allegations. In a report issued on February 14, 1957, the Committee 
stated that American employers and the sheep raising industry had not 
fully benefitted from the services of foreign sheepherders, as was 
intended by the special legislation. The Committee recommended that no 
additional special legislation be enacted to admit foreign sheepherders 
and also that the future importation of foreign sheepherders be 
governed by the H-2 temporary worker provisions of the INA and 
administered by the Immigration and Naturalization Service (INS) (now, 
USCIS) and the Department. H.R. Rep. No. 67, 85th Cong., 1st Session 
(1957).
    Following the issuance of the Committee's report, Congress 
permitted the special legislation to expire. No additional legislation 
for sheepherders has been enacted to date. The labor certification 
program for temporary foreign sheepherders and goatherders was 
implemented consistent with the H-2 program administered by INS (now, 
USCIS) and the Department.
    In 1986, Congress passed the Immigration Reform and Control Act of 
1986 (IRCA) which amended the INA and established the H-2A Program. In 
1987, the Department issued an Interim Final Rule, promulgating the 
first H-2A regulations (the 1987 regulations) in accordance with IRCA. 
54 FR 20496, Jun. 1, 1987. The 1987 regulations provided for the 
administration of the H-2A Program by the ETA Regional Administrators, 
and instituted procedures to offset the adverse effects of immigration 
on U.S. workers, procedures which did not exist until that time. 
Although neither the IRCA amendments nor the INA specifically address 
the employment of nonimmigrant foreign sheepherders and goatherders in 
the U.S., the Department's 1987 regulations established special 
procedures for certain occupations, as long as they did not deviate 
from the Secretary's statutory responsibility to determine U.S. worker 
availability and to make a determination as to the adverse effect of 
foreign workers on the wages and working conditions of U.S. workers.
    After the promulgation of the 1987 regulations, the Department 
clarified precisely how and when certain new H-2A requirements and 
procedures would be applied to the sheepherder program. Subsequently, 
in 1989, the Department established special procedures for sheepherders 
and goatherders through FM 74-89. Due to the evolution of the H-2A 
Program, these special procedures were rescinded and new special 
procedures established by FM 24-01, which has been in use since August 
1, 2001.
    The 1987 regulations remained in effect, largely unchanged, until 
the Department promulgated new H-2A regulations on December 18, 2008. 
73 FR 77110, Dec. 18, 2008 (the 2008 Final Rule). The 2008 Final Rule 
implemented an attestation-based application process and made several 
substantive changes to the program, but retained the special procedures 
concept. After the Department determined that the 2008 Final Rule did 
not meet H-2A Program policy objectives, the Department commenced 
another rulemaking process culminating in the publication of new H-2A 
regulations on February 12, 2010. 75 FR 6884, Feb. 12, 2010 (the 2010 
Final Rule). The 2010 Final Rule implements changes that affect special 
procedures for the occupations involved in sheep and goat herding. 
Under 20 CFR 655.102 (as amended by the 2010 Final Rule) the Office of 
Foreign Labor Certification (OFLC) Administrator is provided with the 
authority to establish, continue, revise or revoke special procedures 
for processing H-2A applications, including those for sheepherders and 
goatherders, so long as those procedures do not deviate from statutory 
requirements under the INA.
    This TEGL updates the special procedures previously established for 
applications for occupations involved in sheepherding and goatherding 
to reflect organizational changes, in addition to new regulatory and 
policy objectives. It rescinds and replaces previous guidance 
disseminated under FM 24-01, Special Procedures: Labor Certification 
for Sheepherders and Goatherders Under the H-2A Program.
    4. Special Procedures. Attachment A outlines special procedures for 
labor certification applications submitted by employers for occupations 
in sheepherding and goatherding under the H-2A Program. Attachment B 
outlines standards for mobile housing applicable to occupations in 
sheepherding and goatherding under the H-2A Program. Unless otherwise 
specified in Attachments A and B, applications submitted for these 
occupations must comply with the requirements for processing H-2A 
applications contained at 20 CFR part 655, subpart B. Similarly, unless 
otherwise specified, job orders submitted for these occupations must 
comply with the requirements of 20 CFR parts 655, subpart B, 653, 
subparts B and F, and 654.
    5. Effective Date. This guidance applies to all temporary labor 
certification applications for occupations in sheepherding and 
goatherding in the H-2A Program with a start date of need on or after 
October 1, 2011.
    6. Action. The Chicago National Processing Center (Chicago NPC) 
Program Director and the State Workforce Agency (SWA) Administrators 
are directed to immediately provide copies of these special procedures 
to all staff involved with processing H-2A labor certification 
applications for sheepherders and/or goatherders. The revised special 
procedures will apply to all employer applications with a start date of 
need on or after October 1, 2011.
    7. Inquiries. Questions from the Public should be directed to the 
local SWA. Questions from SWA staff should be directed to the Chicago 
NPC. Questions from the Chicago NPC staff should be directed to the 
OFLC National Office.
    8. Attachment.
    Attachment A: Special Procedures: Labor Certification Process for 
Applications for Sheepherding and Goatherding Occupations under the H-
2A Program. See full text below.
    Attachment B: Standards for Mobile Housing Applicable to 
Sheepherders and Goatherders. See full text below.

Attachment A: Special Procedures: Labor Certification Process for 
Applications for Sheepherding and Goatherding Occupations under the H-
2A Program

    This document outlines special procedures for applications 
submitted by employers for sheepherding and/or goatherding occupations 
under the H-2A Program. Unless otherwise specified in this attachment, 
applications submitted for these occupations must comply with the 
requirements for processing H-2A applications outlined in 20 CFR part 
655, subpart B. Similarly, unless otherwise specified, job orders 
submitted for these occupations must comply with the requirements of 20 
CFR parts 655, subpart B, 653, subparts B and F, and 654.

I. Prefiling Procedures

    A. Offered Wage Rate (20 CFR 655.120(a)). The Department is 
continuing a special variance to the offered wage rate requirements 
contained at 20 CFR 655.120(a). Because occupations involving 
sheepherding and/or goatherding are characterized by other than a 
reasonably regular workday

[[Page 47258]]

or workweek, an employer must agree to offer, advertise in the course 
of its recruitment, and pay the monthly, weekly, or semi-monthly 
prevailing wage established by the OFLC Administrator for each State 
listed in an approved itinerary. As a condition of receiving an H-2A 
labor certification, an employer must comply with all applicable 
Federal, State and local employment-related laws and regulations, 
including the mandatory State minimum wage rates for the occupation.
    In establishing the prevailing wage rate for sheepherding and/or 
goatherding, the Department uses findings from prevailing wage surveys 
conducted by SWAs in accordance with the procedures in the ETA Handbook 
No. 385, and consistent with the wage setting procedures historically 
applied to sheepherder occupations in the Western States. SWAs are 
required to transmit wage rate findings covering sheepherding and/or 
goatherding to the OFLC between May 1st and June 1st of each calendar 
year. Following a review of the SWA wage rate findings, the OFLC will 
publish the new agricultural prevailing wage rates in a Federal 
Register notice with an immediate effective date.
    In circumstances where a SWA is unable to produce a wage rate 
finding for an occupation, due to an inadequate sample size or another 
valid reason, the wage setting procedures allow the OFLC to issue a 
prevailing wage rate for that State based on the wage rate findings 
submitted by an adjoining or proximate SWA for the same or similar 
agricultural activities to ensure that the wages of similarly employed 
workers are not adversely affected.
    If the OFLC cannot establish a wage rate by using comparable survey 
data from an adjoining or proximate SWA, the OFLC will give 
consideration to aggregating survey data for sheepherding and/or 
goatherding activities across States to create regional prevailing wage 
rates. When regional prevailing wages are considered, the OFLC may use 
the U.S. Department of Agriculture's (USDA) production or farm resource 
regions or other groupings of States used to conduct its Farm Labor 
Survey.

B. Job Orders and SWA Review (20 CFR 655.121)

    1. Basic Process. An employer engaged in sheepherding and/or 
goatherding activities is allowed to submit a single Agricultural and 
Food Processing Clearance Order, ETA Form 790 (job order), Office of 
Management and Budget (OMB) 1205-0134, and all appropriate attachments 
covering a planned itinerary of work in multiple States. If the job 
opportunity is located in more than one State, either within the same 
area of intended employment or multiple areas of intended employment, 
the employer must submit the job order and all attachments (including a 
detailed itinerary) to the SWA having jurisdiction over the anticipated 
worksite(s) where the work is expected to begin. The employer must 
submit the job order no more than 75 calendar days and no less than 60 
calendar days before the employer's first date of need.
    Unless otherwise specified in these special procedures, the job 
order submitted to the SWA must satisfy the requirements for 
agricultural clearance orders outlined in 20 CFR part 653, subpart F 
and the requirements set forth in 20 CFR 655.122. The SWA will review 
the job order for regulatory compliance and will work with the employer 
to address any noted deficiencies. Upon clearance of the job order, the 
SWA must promptly place the job order in intrastate clearance and 
commence recruitment of U.S. workers.
    The job order shall remain active until 50 percent of the work 
contract period has elapsed for all SWAs in possession of the 
employer's job order (including those receiving it in interstate 
clearance under 20 CFR 655.150), unless otherwise advised by the 
Chicago NPC.
    2. Master Job Orders Filed by Associations. The Department is 
granting a waiver of the required time period and location(s) of filing 
job orders prepared by associations acting as a joint employer with its 
members. Where the job order is being prepared in connection with a 
future master application, the joint employer association will submit a 
single ``master'' job order directly to the Chicago NPC once each 
calendar year in accordance with a schedule approved by the Chicago 
NPC. Because of the unique nature of sheepherding and/or goatherding 
work, and the historic shortage of domestic workers, an association is 
permitted to file a master job order on behalf of a number of its 
employer-members in more than two contiguous States as long as (a) the 
job order remains active on a year-round basis, (b) the job order 
contains the names, addresses, telephone numbers, and number of 
openings of each employer and identifying, with as much geographic 
specificity as possible and for each employer, all of the physical 
locations, directions, and estimated start and end dates of need where 
work will be performed, and (c) the association agrees to place with 
any of its employer-members any qualified U.S worker who applies for 
employment.
    The Chicago NPC will review the job order for compliance with all 
regulatory requirements and work with the association to address any 
deficiencies in a manner that is consistent with 20 CFR 655.140 and 
141. Once the job order is determined to meet all regulatory 
requirements, the Chicago NPC will issue a Notice of Acceptance 
consistent with 20 CFR 655.143, place a copy of the master job order on 
the Department's national electronic job registry, and notify the 
association and all appropriate SWAs with jurisdiction over the 
anticipated worksites.
    C. Contents of Job Offers (20 CFR 655.122). Unless otherwise 
specified in this section, the content of job orders submitted to the 
SWAs and the Chicago NPC for sheepherding and/or goatherding 
occupations must comply with all of the requirements of 20 CFR parts 
655, subpart B, 653, subparts B and F, and, 654.
1. Job Duties, Qualifications, and Requirements
    Job Duties. Based on current industry practice, the SWA may rely on 
the following standard description of the duties to be performed by 
sheepherders and/or goatherders:
    Attends sheep and/or goat flock grazing on the range or pasture. 
Herds flock and rounds up strays using trained dogs. Beds down flock 
near evening campsite. Guards flock from predatory animals and from 
eating poisonous plants. Drenches sheep and/or goats. May examine 
animals for signs of illness and administer vaccines, medications and 
insecticides according to instructions. May assist in lambing, docking, 
and shearing. May perform other farm or ranch chores related to the 
production and husbandry of sheep and/or goats on an incidental basis.
    Any additional job duties must be normal and accepted for the 
occupation, and the SWA and Chicago NPC have the authority to request 
supporting documentation substantiating the appropriateness of the 
duties prior to accepting the job order. Additionally, the SWA or 
Chicago NPC may request modifications to the job duties if additional 
information, such as climatic conditions and/or the size of flocks 
(e.g., open range bands of sheep are often 1,000 heads or more), 
necessitates the use of pack and saddle horses to reach the range in 
order to fully apprise U.S. workers of the nature of the work to be 
performed.
    Experience. Due to the unique nature of the work to be performed, 
the job offer may specify that applicants

[[Page 47259]]

possess up to 6 months of experience in sheepherding or similar 
occupations involving the range tending or production of livestock 
covering multiple seasons and may require reference(s) to verify 
experience in performing these activities. Applicants must provide the 
name, address, and telephone number of any previous employer being used 
as a reference. The appropriateness of any other experience 
requirements must be substantiated by the employer and approved by the 
Chicago NPC.
    Hours. The description of anticipated hours of work must show ``on 
call for up to 24 hours per day, 7 days per week'' in the job order. If 
an application filed for a sheepherder or goatherder does not include 
the requirements of being on call 24 hours per day, 7 days per week, 
the Chicago NPC may not process the employer's application under the 
special procedures enumerated in this TEGL, and must instead require 
compliance with all the requirements of the H-2A regulations outlined 
in 20 CFR part 655, subpart B.
    1. Housing. The employer must state in its job order that 
sufficient housing will be provided at no cost to H-2A workers and any 
workers in corresponding employment who are not reasonably able to 
return to their residence within the same day. Except for long-
established standards for mobile housing as set out in Attachment B, 
all employer-provided housing must comply with requirements set out in 
20 CFR 655.122(d) for the entire period of occupancy. An employer whose 
itinerary requires mobile housing may provide mobile housing to its 
workers.
    2. Workers' compensation. The employer must provide workers' 
compensation insurance coverage as described in 20 CFR 655.122(e) in 
all States where sheepherding and/or goatherding work will be 
performed. Prior to the issuance of the Temporary Labor Certification, 
the employer must provide the Certifying Officer (CO) with proof of 
workers' compensation coverage, including the name of the insurance 
carrier, the insurance policy number, and proof of insurance for the 
dates of need, or if appropriate, proof of State law coverage for each 
State where the sheepherding and/or goatherding work will be performed. 
In the event that the current coverage will expire before the end of 
the certified work contract period or the insurance statement does not 
include all of the information required under the regulations at 20 CFR 
655.122(e), the employer will be required to supplement its proof of 
workers' compensation for that State before a final determination is 
due. Where the employer's coverage will expire before the end of the 
certified work contract period, the employer may submit as proof of 
renewed coverage a signed and dated statement or letter showing proof 
of intent to renew and maintain coverage for the dates of need. The 
employer must maintain evidence that its workers' compensation was 
renewed, in the event the Department requests it.
    3. Employer-provided items. Due to the remote and unique nature of 
the work to be performed, the employer must also specify in the job 
order and provide at no cost to workers an effective means of 
communicating with persons capable of responding to the worker's needs 
in case of an emergency. These means are necessary to perform the work 
and can include, but are not limited to, satellite phones, cell phones, 
wireless devices, radio transmitters, or other types of electronic 
communication systems.
    4. Meals. Based on long standing practice in the industry, the 
employer must provide its U.S. and H-2A workers free of charge either 
three prepared meals a day, when workers are in camp, or free and 
convenient cooking facilities and provision of food for the workers to 
prepare their own meals while in camp or on the range.
    5. Transportation; daily subsistence. Based on long standing 
practice in the industry, the employer must advance inbound 
transportation and subsistence costs to both U.S. and H-2A workers 
being recruited and extend the same benefit to workers in corresponding 
employment, consistent with 20 CFR 655.122(h).
    6. Earnings records and statements. The employer must keep accurate 
and adequate records with respect to the workers' earnings and furnish 
to the worker on or before each payday a statement of earnings. Because 
the unique circumstances of employing sheepherders and/or goatherders 
(i.e., on call 24/7 in remote locations) prevent the monitoring and 
recording of hours actually worked each day as well as the time the 
worker begins and ends each workday, the employer is exempt from 
reporting on these two specific requirements at 20 CFR 655.122(j) and 
(k). However, all other regulatory requirements related to earnings 
records and statements apply.
    7. Frequency of pay. The employer must state in the job offer the 
frequency with which the worker will be paid, which must be at least 
twice monthly or according to the prevailing practice in the area of 
intended employment, whichever is more frequent. Due to the unique 
circumstances of employing sheepherders and/or goatherders, the 
employer is authorized to pay the worker based on a monthly payment 
arrangement as long as the worker mutually agrees and the arrangement 
is reflected in the work contract. Employers must pay wages when due.
    8. Period of Employment and Work Contract. The total period of 
employment (Item No. 9 on ETA Form 790) contained in a job offer must 
be for no more than one year. Employers whose original certified period 
of employment is less than the maximum permissible duration, may 
negotiate a longer-term contract with an H-2A or a U.S. worker after 
workers arrive at the job site consistent with 20 CFR 655.170. An 
extension of the work contract period that is negotiated between the H-
2A employer and a worker which would extend the work contract period 
beyond the 12 months permitted by the Department's H-2A regulations, 
requires that the employer obtain a new labor certification from the 
Department.
    Short term extensions which do not exceed two weeks may be 
submitted directly to the Department of Homeland Security for approval. 
However, the employer must first submit for approval any change in the 
period of employment to the Chicago NPC, consistent with 20 CFR 
655.170, if the change would result in an extension of the work 
contract period in excess of two weeks.
    When a longer term contract is negotiated with a worker, the 
employer is not relieved of the responsibility for reimbursement to the 
worker for travel and subsistence expenses incurred in getting to the 
job site which were advanced by the employer and subsequently withheld 
from the worker's pay until 50 percent of the original contract period 
elapsed. These payments must be made at the 50 percent completion point 
of the original certified period of employment. The employer is also 
responsible for transportation and subsistence expenses from the place 
of employment if the worker successfully fulfills his/her obligations 
under the original certified terms of employment or is terminated 
without cause and has no subsequent H-2A employment. The employer must 
provide or pay for the worker's return transportation and subsistence 
whenever the employment relationship is severed after the completion of 
the original certified work contract period or where the worker is 
terminated without cause. Similarly, an employer is not relieved of its 
obligation to pay for return transportation and subsistence if an H-2A 
worker is displaced as a result of the employer's compliance with the 
50 percent rule. Successful completion

[[Page 47260]]

of the original certified work contract period or job order entitles 
the worker to return transportation and subsistence regardless of 
performance under any short or long-term extension of the contract.

II. Application for Temporary Employment Certification Filing 
Procedures

    A. Application Filing Requirements (20 CFR 655.130). An individual 
employer that desires to apply for temporary employment certification 
for one or more nonimmigrant foreign workers must file the following 
documentation with the Chicago NPC no less than 45 calendar days before 
the employer's date of need:
     ETA Form 9142 (OMB 1205-0466), Application for Temporary 
Employment Certification, and Appendix A.2;
     Copy of the ETA Form 790 and all attachments previously 
submitted to the SWA;
     A planned itinerary listing the names and contact 
information of all farmers/ranchers and identifying, with as much 
geographic specificity as possible and for each farmer/rancher, all of 
the physical locations and estimated start and end dates of need where 
work will be performed; and
     All other required documentation supporting the 
application.
    B. Master Applications Filed by Associations. An association filing 
as a joint employer may submit a master application on behalf of a 
number of its employer-members in more than two contiguous States 
covering multiple start dates of employment as long as the application 
identifies the names, addresses, telephone numbers, directions to all 
work locations/itinerary, estimated dates of need, and the number of 
openings for each employer-member that will employ workers. The 
association may prepare, sign, and submit the Appendix A.2 on behalf of 
its members.
    An association with a master job order on file with the Chicago NPC 
is not required to re-submit the ETA Form 790 and all attachments 
unless the association is requesting modifications. The Chicago NPC 
will verify that the master job order associated with a master 
application is available on the national electronic job registry and 
covers all the employer-members duly named on the ETA Form 9142. Any 
changes to the master job order and/or application must be reviewed and 
approved by the Chicago NPC. Any approved modifications to the master 
job order will be placed on the Department's national electronic job 
registry and notification provided to the association and all 
appropriate SWAs with jurisdiction over the anticipated worksites.
    For both individual employer applications and master applications, 
the filing procedures at 20 CFR 655.130-655.135 apply to ``initial'' 
applications (i.e., where the employer is requesting a labor 
certification to hire a nonimmigrant foreign worker to fill a vacant 
position) as well as to ``renewal'' applications (i.e., where the 
employer is requesting certification for a position which is already 
held by a nonimmigrant foreign worker completing the first or second 
year of a planned 3-year work period with the employer).

III. Post-Acceptance Requirements

    A. Interstate clearance of job order. The Chicago NPC Certifying 
Officer will place a copy of the master job order on the Department's 
national electronic job registry, and notify the association and all 
appropriate SWAs with jurisdiction over the anticipated worksites to 
make available a copy of the master job order on their active files and 
initiate recruitment of U.S. workers. This procedure applies to 
applications filed by an individual employer as well as an association 
and satisfies the agricultural clearance order requirements at 20 CFR 
part 653, subpart F.
    B. Newspaper advertisements. Because of the unique nature of 
sheepherding and/or goatherding work, and the consistent lack of 
qualified applicants responding to newspaper advertisements, all 
applications filed by an individual employer and/or an association are 
exempt from the regulatory requirements at 20 CFR 655.151 to place 
advertisements in a newspaper of general circulation.
    C. Referrals of U.S. workers. In accordance with 20 CFR 655.155, 
SWAs may only refer for employment individuals who have been apprised 
of all the material terms and conditions of employment and have 
indicated, by accepting referral to the job opportunity, that he or she 
is qualified, able, willing, and available for employment. For master 
job orders, the association may accept referrals of U.S. workers, 
conduct interviews, and make hiring commitments on behalf of its 
employer-members. In such circumstances, the master job order must 
clearly explain how applicants will be considered for hire through the 
association, including the method(s) for contact (e.g., telephone, in 
person), hours and/or location(s) for conducting interviews, an 
indication that collect calls will be accepted, and whether referred 
applicants should report to the nearest local office of the SWA when 
they arrive in the area of intended employment. Employers who wish to 
conduct interviews must do so at little or no cost to the worker, in 
accordance with 20 CFR 655.152(j).
    Because of the unique nature of master job orders, the association 
will need to determine if there is a job opening in the geographic area 
of the applicant's choice. The association will make every effort to 
place a qualified applicant with an employer-member in the geographic 
area of the applicant's choice within 3 working days of the telephone 
interview. If the applicant is determined to be qualified and the 
geographic assignment choice can be accommodated, the association, 
after receiving authorization or confirmation from the specific 
employer, will make a hiring commitment on behalf of the employer-
member who has the job opening to which the applicant will be placed.
    The association may also make available to applicants information 
on job openings with non-association employers, particularly in 
situations where the association is not able to readily accommodate the 
applicant's geographic choice of employment. However, receiving such a 
referral will not preclude the applicant from choosing a different 
geographic area covering an employer-member or from deferring a 
decision to accept a job offer until a job opening in the geographic 
area of choice becomes available with an employer-member. After the 
matter of geographic location/assignment is resolved, the association 
will provide notification to the SWA when the applicant has been hired 
and facilitate the arrangements necessary to ensure that transportation 
and subsistence are provided in advance to the worker by the 
association. The association will retain all documentation related to 
referrals of U.S. workers, interviews and the results of such actions 
for a period of 3 years and will make all materials related to the 
recruitment and consideration of U.S. applicants available to the 
Chicago NPC pursuant to a request for audit as required by 20 CFR 
655.180(b).

 IV. Post-Certification: Transfer of Workers

A. Authority

    Pursuant to 8 U.S.C. 1188(d)(2), the Department's certification 
granted to the association may be used for the certified job 
opportunities of any of its members and such workers may be transferred 
among its members to perform the services for which the certification 
was

[[Page 47261]]

granted. Although a worker may be transferred from one member to 
another member, the association may not transfer workers to any non-
member employer or employer-members not disclosed on the master job 
order.
    The employer must disclose in the job offer that workers may be 
transferred to any of its certified members and guarantee that workers 
will be notified at least 7 working days in advance of such transfer. 
When a worker objects to a transfer, the association will consider the 
worker's concerns and preferences. However, ultimate refusal on the 
part of a worker to a transfer may subject the worker to dismissal 
based on a lawful, job-related reason.

B. Notification to the DOL and SWA

    To ensure the employer to whom a worker is being transferred has 
sufficient housing meeting the applicable standards, the association 
shall provide written notification to the SWA with jurisdiction over 
the area of intended employment and the Chicago NPC no less than 7 
working days prior to the transfer. Such notification shall describe 
the details of the transfer, including the number and names of workers 
and employers affected and housing information. This notification will 
provide the SWA with time to make a determination regarding the 
suitability of the housing and, where such a transfer affects the 
available job openings of the association's employer member(s), allow 
the SWA and Chicago NPC to make appropriate modifications to the active 
master job order to reflect any changes in the employer's situation.
    If the SWA determines that suitable housing is not available, the 
SWA shall provide written notification to the association and the 
Chicago NPC that the planned transfer shall be put in abeyance until 
the housing is determined by the SWA to be sufficient and meets the 
applicable standards, or the association agrees to transfer the worker 
to another employer where the SWA has issued a determination that 
housing is suitable.

 C. Contractual Obligations

    The employer who employs the newly transferred worker assumes the 
existing obligations of the work contract entered into with the 
previous employer including any multi-year contract negotiated with the 
worker. The association is responsible for maintaining and making 
available for inspection a copy of all work contracts for its employer-
members. Where the worker is moved to another State with a different 
offered wage rate, the employer will be required to pay the worker the 
established prevailing wage for that State.

Attachment B: Standards for Mobile Housing Applicable to Sheepherders 
and Goatherders

I. Procedures

    Occupations involving sheepherding/goatherding generally require 
workers to live in remote housing of a mobile nature, rather than ``a 
fixed-site farm, ranch or similar establishment.'' This type of housing 
is typically referred to as mobile housing. For purposes of these 
special procedures, mobile housing is any housing that is capable of 
being moved from one area on the open range to another. The employer 
must provide housing at no cost to the H-2A workers and those workers 
in corresponding employment who are not reasonably able to return to 
their residence within the same day.
    Where housing for work performed on the range is provided, the 
regulations at 20 CFR 655.122(d)(2) require that such housing meet 
standards of the DOL Occupational Safety and Health Administration 
(OSHA). In the absence of such standards, range housing must meet 
guidelines issued by OFLC. Due to the fact that OSHA standards 
currently do not cover mobile housing, Section II of this attachment 
establishes the standards for determining the adequacy of employer-
provided mobile housing for use on the range.
    Both mobile housing and fixed-site farm or ranch housing may be 
self-certified by an employer. Employers must submit a signed statement 
to the SWA and the Chicago NPC with the application for labor 
certification assuring that the housing is available, sufficient to 
accommodate the number of workers being requested, and meets all 
applicable standards. However, any other type of housing used by an 
employer to house the workers engaged in sheepherding/goatherding 
activity must meet the standards applicable to such housing under 20 
CFR 655.122(d).
    SWAs must develop and implement a schedule which ensures that each 
employer's self-certified housing is inspected no less frequently than 
at least once every 3 years. These inspections may be performed either 
before or after a request is submitted for nonimmigrant workers on the 
open range. Before referring a worker who is entitled to such housing, 
the SWA office must ensure that the housing is available and has been 
inspected in accordance with the inspection schedule. If the SWA 
determines that an employer's housing cannot be inspected in accordance 
with the inspection schedule or, when it is inspected, does not meet 
all the applicable standards, the Chicago NPC may deny the H-2A 
application in full or in part or require additional inspections in 
order to satisfy the regulatory requirement.

II. Mobile Housing Standards

    An employer may use a mobile unit, camper, or other similar mobile 
vehicle for housing workers that meets the following standards:

A. Housing Site

    Mobile housing sites shall be well drained and free from 
depressions in which water may stagnate.

 B. Water Supply

    1. An adequate and convenient supply of water that meets standards 
of the State health authority shall be provided. The amount of water 
provided must be enough for normal drinking, cooking, and bathing needs 
of each worker; and
    2. Individual drinking cups shall be provided.

 C. Excreta and Liquid Waste Disposal

    1. Facilities shall be provided and maintained for effective 
disposal of excreta and liquid waste in accordance with requirements of 
the State health authority or involved Federal agency; and
    2. If pits are used for disposal by burying of excreta and liquid 
waste, they shall be kept fly-tight when not filled in completely after 
each use. The maintenance of disposal pits must be in accordance with 
State and local health and sanitation requirements.

 D. Housing Structure

    1. Housing shall be structurally sound, in good repair, in sanitary 
condition and shall provide protection to occupants against the 
elements;
    2. Housing, other than tents, shall have flooring constructed of 
rigid materials easy to clean and so located as to prevent ground and 
surface water from entering;
    3. Each housing unit shall have at least one window which can be 
opened or skylight opening directly to the outdoors; and
    4. Tents may be used where terrain and/or land regulations do not 
permit use of other more substantial mobile housing which provides 
facilities and protection closer in conformance with the Department's 
intent.

 E. Heating

    1. Where the climate in which the housing will be used is such that 
the safety and health of a worker requires

[[Page 47262]]

heated living quarters, all such quarters shall have properly installed 
operable heating equipment which supplies adequate heat. In considering 
whether the heating equipment is acceptable, the Chicago NPC shall 
first determine if the housing will be located in a National Forest 
Wilderness Section as specified in the Wilderness Act (16 U.S.C. 1131-
1136). Such a location has a bearing on the type of equipment 
practicable, and whether any heavy equipment can be used. For example, 
the Wilderness Act (16 U.S.C. 1133(c)) restricts certain motorized or 
mechanical transport on certain roads in wilderness areas. The U.S. 
Forest Service has regulations for this at 36 CFR part 293. Aside from 
the above, other factors to consider in evaluating heating equipment 
are the severity of the weather and the types of protective clothing 
and bedding made available to the worker. If the climate in which the 
housing will be used is mild and not reasonably expected to drop below 
50 degrees Fahrenheit continuously for 24 hours, no separate heating 
equipment is required if proper protective clothing and bedding are 
made available;
    2. Any stoves or other sources of heat using combustible fuel shall 
be installed and vented in such a manner as to prevent fire hazards and 
a dangerous concentration of gases. Portable electrical heaters may be 
used, and if approved by Underwriters' Laboratory, kerosene heaters may 
be used according to manufacturer's instructions. If a solid or liquid 
fuel stove is used in a room with wooden or other combustible flooring, 
there shall be a concrete slab, insulated metal sheet, or other 
fireproof material on the floor under each stove, extending at least 18 
inches beyond the perimeter of the base of the stove;
    3. Any wall or ceiling within 18 inches of a solid or liquid fuel 
stove or stove pipe shall be made of fireproof material. A vented metal 
collar shall be installed around a stovepipe or vent passing through a 
wall, ceiling, floor or roof; and
    4. When a heating system has automatic controls, the controls shall 
be of the type which cuts off the fuel supply when the flame fails or 
is interrupted or whenever a predetermined safe temperature or pressure 
is exceeded.

F. Lighting

    1. In areas where it is not feasible to provide electrical service 
to mobile housing, including tents, lanterns shall be provided 
(kerosene wick lights meet the definition of lantern); and
    2. Lanterns, where used, shall be provided in a minimum ratio of 
one per occupant of each unit, including tents.

G. Bathing, Laundry and Hand Washing

    Movable bathing, laundry and hand washing facilities shall be 
provided when it is not feasible to provide hot and cold water under 
pressure.

 H. Food Storage

    When mechanical refrigeration of food is not feasible, the worker 
must be provided with another means of keeping food fresh and 
preventing spoilage, such as a butane or propane gas refrigerator. 
Other proven methods of safeguarding fresh foods, such as salting, are 
acceptable.

I. Cooking and Eating Facilities

    1. When workers or their families are permitted or required to cook 
in their individual unit, a space shall be provided with adequate 
lighting and ventilation; and
    2. Wall surfaces next to all food preparation and cooking areas 
shall be of nonabsorbent, easy to clean material. Wall surfaces next to 
cooking areas shall be of fire-resistant material.

 J. Garbage and Other Refuse

    1. Durable, fly-tight, clean containers shall be provided to each 
housing unit, including tents, for storing garbage and other refuse; 
and
    2. Provision shall be made for collecting or burying refuse, which 
includes garbage, at least twice a week or more often if necessary. 
Refuse disposal shall conform to Federal, State, or local law, 
whichever applies.

 K. Insect and Rodent Control

    Appropriate materials, including sprays, must be provided to aid 
housing occupants in combating insects, rodents and other vermin.

 L. Sleeping Facilities

    A separate sleeping unit shall be provided for each person, except 
in a family arrangement. Such a unit shall include a comfortable bed, 
cot, or bunk with a clean mattress. When filing an application for 
certification and only where it is demonstrated to the Certifying 
Officer that it is impractical to set up a second sleeping unit, the 
employer may request a variance from the separate sleeping unit 
requirement to allow for a second worker to temporarily join the 
sheepherding/goatherding operation. The second worker may be 
temporarily housed in the same sleeping unit for no more than three 
consecutive days and the employer must supply a sleeping bag or bed 
roll free of charge.

 M. Fire, Safety and First Aid

    1. All units in which people sleep or eat shall be constructed and 
maintained according to applicable State or local fire and safety law;
    2. No flammable or volatile liquid or materials shall be stored in 
or next to rooms used for living purposes, except for those needed for 
current household use;
    3. Mobile housing units for range use must have a second means of 
escape. One of the two required means of escape must be a window which 
can be easily opened, a hutch, or other provision. It must be 
demonstrated that the custom combine worker would be able to crawl 
through the second exit without difficulty;
    4. Tents are not required to have a second means of escape, except 
when large tents with walls of rigid material are used. A heater may be 
used in a tent if the heater is approved by a testing service, such as 
Underwriters' Laboratory, and if the tent is fireproof; and
    5. Adequate fire extinguishers in good working condition and first 
aid kits shall be provided in the mobile housing.

    Signed in Washington, DC, this 29th day of July 2011.
Jane Oates,
Assistant Secretary for Employment and Training Administration.
[FR Doc. 2011-19755 Filed 8-3-11; 8:45 am]
BILLING CODE 4510-FP-P



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