Special H-2A procedures for open range livestock work

Accessible letter PDF: https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2007/TEGL15-06_508.pdf

CLASSIFICATION
EMPLOYMENT AND TRAINING ADMINISTRATION H-2A Program
           ADVISORY SYSTEM             CORRESPONDENCE SYMBOL
      U.S. DEPARTMENT OF LABOR         OFLC
         Washington, D. C. 20210       ISSUE DATE
                                       February 9,2007

ADVISORY:       FOREIGN LABOR CERTIFICATION
                TRAINING AND EMPLOYMENT GUIDANCE LETTER NO. 15-06

TO:             OFLC-NATIONAL PROCESSING CENTER DIRECTORS
                STATE WORKFORCE AGENCY ADMINISTRATORS

FROM:           EMILY STOVER DeROCCO /s/
                Assistant Secretary for Employment and Training

SUBJECT:        Special Procedures for Processing H-2A Applications for Occupations
                Involved in the Open Range Production of Livestock

1. Purpose. To establish special procedures as part of the H-2A labor certification
   process for employers who desire to employ temporary foreign workers in the United
   States for occupations involved in the open range production of livestock.

2. References. 20 C.F.R. Part 655, Subpart B; 20 C.F.R. Part 653, Subparts B and F;
   and 20 C.F.R. Part 654, Subpart E.

3. Background. Due to the unique characteristics of the open range production of
   livestock, the Employment and Training Administration (ETA) is establishing certain
   special procedures for the processing of H-2A applications for certification of
   temporary employment in those occupations. 20 C.F.R. 655.93(c) provides the
   Department with the authority to continue and, where appropriate, revise special
   procedures in effect for the handling of applications for occupations involved in the
   open range production of livestock. Historically, H-2A applications for these
   occupations were processed through ETA’s Regional Offices.

   However, in December 2004, the Department opened two new National Processing
   Centers (NPCs), one each located in Atlanta and Chicago. These Centers have
   been designated to process applications for DOL certification to employ foreign
   workers for temporary positions under the H-2A agricultural worker visa program.
   The Department published a notice in the Federal Register (Vol. 70, No. 137, pages
   41430-41438) on July 19, 2005, clarifying that, effective August 1, 2005, employers
   must file original copies of their H-2A applications directly with the NPCs, coinciding
   with the area of intended employment, and simultaneously file a copy with the
   appropriate State Workforce Agency (SWA).

RESCISSIONS                                                    EXPIRATION DATE
None                                                           Continuing

   The special procedures outlined in this memorandum for occupations involving the
   open range production of livestock work in conjunction with this centralized filing
   process, and ensure greater consistency in the processing of these H-2A
   applications through the Centers.

4. Special Procedures. Attachment A outlines special procedures for labor
   certification applications submitted by employers for occupations involved in the
   open range production of livestock under the H-2A program. Unless otherwise
   specified in Attachment A, applications submitted for these occupations must comply
   with the requirements for H-2A applications contained at 20 C.F.R. Part 655, Subpart
   B.

5. Action Required. NPC Directors and SWA Administrators are directed to provide
   staff involved in the processing of H-2A applications for the open range production of
   livestock with a copy of these special procedures.

6. Inquiries. Questions from SWA staff should be directed to the appropriate NPC.
   Questions from NPC staff should be directed to the National Office of Foreign Labor
   Certification.

7. Attachments.

   Attachment A       Special Procedures for Occupations Involved in the Open Range
                      Production of Livestock Under the H-2A Program

Attachment: https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2007/TEGL15-06_Att1.pdf

ATTACHMENT A
          Special Procedures for Occupations Involved in the
      Open Range Production of Livestock under the H-2A Program

This document outlines special procedures for applications submitted by employers
for occupations involved in the open range production of livestock under the H-2A
program. Unless otherwise specified below, employer applications submitted for
these occupations must comply with the requirements for H-2A applications
contained at 20 C.F.R. Part 655, Subpart B.

A. Responsibilities of NPCs. The NPC having jurisdiction over the state where
   employment begins is responsible for processing the employer’s certification
   request. Such responsibilities include directing the SWAs to place job orders into
   intra/interstate clearance, ensuring employers meet advertising and recruitment
   requirements set forth in the H-2A regulations, and determining whether to
   approve or deny certification for some or all of the jobs requested.

B. Application Filing. An employer seeking certification under the H-2A program is
   required to file the application with the NPC having jurisdiction over the state
   where the employment will begin, and is required to simultaneously file a copy of
   the application with the appropriate SWA in the area of intended employment.
   When workers will be employed in one or more adjoining state(s) for the same
   employer, the employer is authorized to file a single application with the SWA
   where the employment will begin. Itineraries that traverse NPC jurisdictions (one
   worksite is in a state assigned to Chicago, another to Atlanta) will not be allowed;
   employers must file separate applications with the respective NPCs.

C. Intra/Interstate Job Order. Upon receipt of the application for labor certification,
   the NPC is responsible for reviewing the request for approval. Once the labor
   certification is approved, the NPC will instruct the order-holding SWA, which is
   the state that received the H-2A application, to transmit copies of the job offer to
   other SWAs. These applicant-holding SWAs, which are states having available
   workers, should refer qualified job applicants and report recruitment results to the
   office of the order-holding SWA. In reaching a final determination decision, the
   NPC will take into consideration information obtained from all sources.

D. Wages and Working Conditions. The regulations at 20 C.F.R 655.93
   specifically allow DOL to establish monthly Adverse Effect Wage Rates “for work
   in occupations characterized by other than a reasonably regular workday or work
   week, such as the range production of sheep or other livestock,” and to adapt the
   special procedures applied to sheepherder occupations in the Western States “to
   occupations in the open range production of livestock.” The minimum wages for
   workers engaged in the range production of livestock are established by ETA
   using the methodology for determining statewide prevailing wage rates as set
   forth by DOL. These wage rates, by state, are available from ETA’s Agricultural
   Online Wage Library at http://www.foreignlaborcert.doleta.gov/aowl.cfm. The use
   of monthly wage rates for occupations engaged in the range production of
   livestock is also consistent with the exemption from Federal minimum wage rates
   in the Fair Labor Standards Act (FLSA) at 29 C.F.R 780.325.

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   When workers are employed in an adjoining state for the same employer, and
   the adjoining state’s prevailing monthly wage rate differs, the employer is
   responsible for identification and payment of the correct monthly wage rate for
   work performed in each state. Employers may offer and pay wages higher than
   the established minimum depending upon experience and longevity as long as
   the same wage levels are offered to both foreign and U.S. workers.

E. Record Keeping and Frequency of Pay. The H-2A regulations at 20 C.F.R
   655.102(b)(7), 655.102(b)(8), and 655.102(b)(9) establish specific requirements
   concerning recordkeeping, pay, and earning statements when the worker is to be
   paid by the hour. Traditionally, the duties of the open range production of
   livestock occupation can only be performed on the open range and require the
   worker to be on call 24 hours per day, 7 days per week, including Sundays and
   holidays. Workers live and work either alone or in small groups, and may be
   isolated for extended periods of time without supervision. The hours of work vary
   depending on the time of year, weather, livestock conditions, and other variables.
   Because unique circumstances prevent the monitoring and recording of specific
   hours of work, as well as the time the worker(s) begin and end each day,
   ranchers are not required to comply with the requirements to maintain records,
   pay, and earnings statements by the hour.

F. Workers’ Compensation. Employers must specify in the job offer that they will
   provide insurance at no cost to the workers, under a state workers’ compensation
   law or otherwise, covering injury and disease arising out of and in the course of
   the worker’s employment. Such coverage must meet the minimum requirements
   for each state where the work will be performed, regardless of whether workers’
   compensation coverage in that specific state is or is not mandatory.

G. Standards for Housing. Open range livestock workers are responsible for the
   care and tending of livestock on the open range, which may be miles from ranch
   headquarters. This occupation requires the workers to live in housing of a mobile
   nature, rather than “a fixed-site farm, ranch or similar establishment.” However,
   when fixed-site housing is utilized, such housing must comply with the full set of
   DOL standards (OSHA standards at 29 C.F.R Part 1910 or ETA standards at 20
   C.F.R Part 654, Subpart E, as applicable).

   Open range livestock workers generally use housing similar to that traditionally
   provided to sheepherders by H-2A employers. They have mobile camps that are
   moved from one area on the open range to another by the rancher using a team
   of horses or a truck. The standards for determining the adequacy of employer-
   provided mobile housing units for use on the range are established under the
   regulations at 20 C.F.R. § 655.102(b)(1)(ii). Housing used exclusively at the
   ranch site is subject to the same standards as those for other agricultural workers
   at 20 C.F.R. §§ 654.400-654.417 (see also 29 C.F.R. § 1910.142). Both range
   and ranch site housing may be self-certified by an employer. Employers must
   submit a signed statement with the application for labor certification assuring that
   the housing is available, sufficient to accommodate the number of workers being
   requested, and meets USDOL standards outlined below.

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The following standards will apply to mobile housing units:

1. Housing Site

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

2. Water Supply

   a) 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 to meet the normal drinking, cooking, and bathing needs
      of each worker; and
   b) Individual drinking cups shall be provided.

3. Excreta and Liquid Waste Disposal

   a) Facilities shall be provided and maintained for effective disposal of
      excreta and liquid waste according to requirements of the state health
      authority or involved Federal agency; and
   b) If pits are used for the disposal by burying of excreta and liquid waste,
      they shall be kept fly-tight when not filled-in completely after each use.

4. Housing Structure

   a) Housing shall be structurally sound, in good repair, in sanitary condition
      and shall provide protection to occupants against the elements;
   b) 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;
   c) Each housing unit shall have at least one window which can be opened or
      skylight opening directly to the outdoors; and
   d) Tents may be used only 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.

5. Heating

   a) Where the climate in which the housing will be used is such that the
      safety and health of an open range livestock worker requires 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 NPC shall first determine if the
      housing will be located in a National Forest Wilderness as specified in the
      Wilderness Act (16 U.S.C. §§ 1131-1136). Such a location has a bearing
      on the type of equipment practicable, or whether any heavy equipment is
      practicable.

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       For example, Section 4 (c) of the Act (16 U.S.C. § 1133(c)) restricts
       certain motorized or mechanical transport and certain roads in wilderness
       areas. The U.S. Forest Service has regulations for this at 36 C.F.R. Part
       293. Aside from the above, other factors to consider in evaluating heating
       equipment are how severe the weather will be and the kinds 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 available;

   b) 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;
   c) Any wall or ceiling within 18 inches of a solid or liquid fuel stove or stove
      pipe shall be of fireproof material. A vented metal collar shall be installed
      around a stovepipe or vent passing through a wall, ceiling, floor or roof;
      and
   d) 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.

6. Lighting

   a) 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
   b) Lanterns, where used, shall be provided in a minimum ratio of one per
      occupant of each unit, including tents.

7. 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 pressure.

8. 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.

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9. Cooking and Eating Facilities

   a) 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
   b) 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.

10. Garbage and Other Refuse

   a) Durable, fly-tight, clean containers shall be provided to each housing unit,
      including tents, for storing garbage and other refuse; and
   b) 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.

11. Insect and Rodent Control

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

12. Sleeping Facilities

   Separate sleeping units 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, or sleeping bag or bed roll in case of tent accommodation.
   When filing an application for certification, the employer may request a
   variance from the separate sleeping unit requirement to allow for a second
   herder to join the operation on a provisional basis. However, the employer
   must explain to the satisfaction of the reviewing SWA why it is impractical to
   set up a second unit, and must clearly outline the period of time (not to
   exceed seven calendar days) the second herder will occupy the same unit.
   The second herder must provide his/her individual sleeping bag or bed roll. If
   this is impractical, the employer must supply a sleeping bag or bed roll.

13. Fire, Safety, and First Aid

   a) All units in which people sleep or eat shall be constructed and maintained
      according to applicable state or local fire and safety law;
   b) No flammable or volatile liquid or materials shall be stored in or next to a
      rooms used for living purposes, except for those needed for current
      household use;
   c) Mobile housing units for range use must have a second exit means of
      escape. The second egress must be a window which can be easily
      opened, a hutch or other provision. It must be demonstrated that the
      worker would be able to crawl through the second egress without
      difficulty;

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       d) 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 fireproofed; and
       e) Adequate fire extinguishers in good working condition and first aid kits
          shall be provided in the mobile housing.

H. SWA Housing Inspections. The SWA uses the standards outlined under
   Section G of this TEGL for the purpose of conducting inspections of fixed-site
   and mobile housing units at least once every three years. With respect to self-
   certification of housing, the employer must submit with the H-2A application a
   signed statement assuring that the housing/lodging is available, sufficient to
   accommodate the number of workers being requested, and meets all applicable
   DOL standards.

   SWAs must inspect at least one-third of such self-certified housing once a year,
   and develop a schedule of inspections which insures that each employer’s
   housing is inspected at least once every three years. These inspections may be
   performed either before or after a request is submitted for H-2A foreign workers.
   Before referring a worker who is entitled to such housing, the SWA must ensure
   that the housing is available and has been, or will be, inspected in accordance
   with the three-year schedule. For employer-provided housing, if either fixed-site
   housing or mobile units owned or controlled by the employer cannot be inspected
   in accordance with the three-year schedule, or if such housing, when it is
   inspected, does not meet the applicable standards within the prescribed time
   frame, certification of the employer’s H-2A request will be denied in full or in part,
   as warranted. In all circumstances, if the SWA determines that an employer's
   housing does not meet DOL standards, the NPC may require additional
   inspections as needed.

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