Wednesday, October 21, 2015

Western Range Operations Get Labor Department Approval to Continue to Import Foreign Temporary (H-2A) Workers Skilled in Managing Herding and Guarding Dogs

Employment issues arise occasionally among those who train and use dogs for professional purposes.  The most common example in my experience concerns the pay of law enforcement personnel who care for dogs trained in narcotics and explosives detection.  Compensation issues particularly arise when the dogs live with the officers as members of their families. Some departments regard providing compensation for such activities as prohibitively expensive, or at least a factor to consider in deciding whether to implement or discontinue a detection dog program.

One work environment where the use of trained dogs is not going to decline because of compensation levels for their handlers concerns temporary foreign non-immigrant (H-2A) workers who are brought into the U.S. to work as shepherds.  These workers, who are found on large ranching operations primarily in the western United States, will continue to be brought into the country, primarily from Peru, because of efforts made by segments of the livestock industry to assure that the Department of Labor recognizes that cutting off the importation of shepherds as temporary employees could end large-scale sheep and wool production in much of the country. 

Temporary Employment for Non-Immigrants in Herding Occupations

On October 16, the Department of Labor issued final regulations regarding the temporary or seasonal employment of agricultural workers under the H-2A program (Temporary Agricultural Employment of H-2A Foreign Workers in the Herding and Production of Livestock on the Range in the United States, RIN 1205-AB70, 80 Fed. Reg. 62958, October 16, 2015). The regulations establish standards and procedures for employers to hire foreign temporary agricultural workers for jobs in herding and production of livestock on the range.  “Range” is specifically defined:

The range is any area located away from the ranch headquarters used by the employer. The following factors are indicative of the range: it involves land that is uncultivated; it involves wide expanses of land, such as thousands of acres; it is located in a remote, isolated area; and typically range housing is required so that the herder can be in constant attendance to the herd. No one factor is controlling and the totality of the circumstances is considered in determining what should be considered range. The range does not include feedlots, corrals, or any area where the stock involved would be near ranch headquarters. 20 CFR 655.201

One example of ranch work “closely and directly related” to agricultural production involves “feeding and caring for the dogs that the workers use on the range to assist with herding or guarding the flock.”  20 CFR 655.201.  The regulations only mention dogs in one other context, stating that on the range temporary workers may be required to use non-potable water for laundry and bathing if the water is clean and safe for such purposes, but if runoff water is used to water the herd, dogs, or horses, precautionary measures must be taken to prevent contamination if the laundry or bathing water might be collected from areas where animals excrete.  20 CFR 655.235(b)(2).  More specifically, under 20 CFR 655.235(b)(3), the “water provided for use by the workers may not be used to water dogs, horses, or the herd.” 

There is no other mention of dogs in the regulatory text, though there are a number of explanatory references in the preamble.  What is perhaps most interesting about the regulatory release is that when proposed rules were published in the Federal Register only months before on April 15 (80 Fed. Reg. 20300), there was no mention of dogs in either the preamble or the text of the proposed rules.  The fact that dogs receive attention now is due entirely to comments received by the Department after issuance of the proposal.  Comments were originally due by May 15 (only one month from publication of the proposal in the Federal Register), but this was extended because of the number of comments that were being submitted, to June 1, 2015.  DOL got 511 comments in all, 505 of which it published on the regulations.gov website, with 39 of these referring to dogs (some because domestic dogs can be predators of sheep, but mostly because of guarding and herding functions that might be performed on the range when the dogs are deployed with temporary workers). 

(The H-2A program goes back to legislation President Reagan signed, the Immigration Reform and Control Act of 1986. Regulations were issued under the Act, but as to herding occupations the Department of Labor relied on two guidance letters concerning (1) employers engaged in sheepherding and goatherding occupations (Training and Employment Guidance Letter No. 32-10), and (2) open range production of livestock (Training and Employment Guidance Letter No. 15-06).  Attachment A to TEGL 32-10 provided that sheepherders and goatherders may “herd flocks and round up strays using trained dogs.”)

Peruvians Dominate Labor Market for Shepherds

Mountain Plains Agricultural Service, in trenchant comments, makes it clear that domestic labor cannot supply the needs of range operations: 

Dating back to World War II, sheep producers found it first difficult and later impossible to find United States workers able and willing to perform the difficult work of “range” sheepherding. In recent years, the number of U.S. born sheepherders has essentially dropped to zero. For example, in 2012, Western Range’s members sought to hire nearly 1,000 sheepherders. Out of that number, only 22 U.S. workers even applied, and only 2 met the qualifications and were hired.... One was not interested in the job and the other was hired but quit before completing his contract.

This commenter estimates that “[r]oughly 40% of all sheep in the U.S. and beef cows in the Western United States are herded by H-2A workers.”  Comments submitted by Julie Stepanek Shiflett, the Mountain Plains Agricultural Service, the Western Range Association, and the American Sheep Industry Association, refer to the cost of bringing in temporary workers from other countries:

Sheep ranchers face costs that other agricultural employers hiring H2-A workers do not face. The sheep rancher must incur transport costs to hire workers with unique talents from countries as far away as Peru. Second, the sheep rancher must incur the costs to transport food to often distant and remote areas where herders work and live. The sheep rancher must also maintain housing in remote areas of our country, also incurring a significant transport cost.

Peruvians are commonly employed as temporary range workers.  David Kelly, in a 2004 article in the Los Angeles Times, wrote that “ranchers across the West have come to rely almost entirely on Peruvians … to tend their sheep.  The rugged South Americans have a rich herding tradition, are used to harsh weather and, more important, are willing to work for low wages in one of the nation’s least known but most demanding occupations.”  A 2004 article by Amyjo Brown of the Associated Press explains that the same work in Peru would pay about $300 per month, and the U.S. income level allowed one worker to send his three children to school in Peru.

A 2013 posting on the website of the University of California at Davis cites other press reports indicating that once in the U.S., some H-2A workers leave their jobs for longer contracts and better pay.  “The Western Range Association said that about 10 percent of the 900 H-2A shepherds that it brought into the US did not complete their contracts.”  The number of positions certified by the Department of Labor to the Western Range Association was 1,333 in the most recently posted annual report (for 2013) of the Office of Foreign Labor Certification. 

The website of the U.S. Embassy in Peru has a webpage devoted to “trabajadores agricolas temporales (H-2A),” specifically mentioning that applicants may be able to work as shepherds (pastores de ovejas) .  The webpage includes directions on how to file an application (Formulario I-129, Petici├│n de un trabajador no imigrante) and contains links to other relevant documents.  Statistics posted by the Office of Foreign Labor Certification indicate that the five top states for importing shepherds are Utah, Colorado, Wyoming, Nevada, and Idaho.

Life of the Shepherd on the Open Range

A good many of the 39 comments the Department of Labor received regarding dogs are specifically cited by the name of the commenter in the preamble to the final regulations, a practice I wish other agencies would consider.  (The Treasury Department, in contrast, goes to great lengths to obfuscate the sources of comments referred to in preambles to tax regulations; I realize this is sour grapes on my part as a former commenter on some Treasury proposals.)  Some commenters said that without dogs, the losses due to predation would be so great as to put a ranch out of business.  Ken Hamilton of the Wyoming Farm Bureau Federation stated that 13,600 ewes and lambs in Wyoming by predators in 2013.  Predators mentioned by this commenter include domestic dogs.  Terrell Brock of Mountain Plains Ag Service noted that the shepherds had to keep the herd and the guard dogs away from trouble with the animals of neighbors. 

Some commenters provided a description of how the employees work with guard and herding dogs.  Billie Siddoway of Driggs, Idaho, describes the use of dogs as follows:

The employee takes his dogs and horses with him out on the range. That employee will be responsible for tending the herd, keeping the sheep together, protecting the sheep from predators, and providing feed and water to the sheep. The work may involve transporting water or feed by truck to and from the base ranch. When the employee is not working with the sheep, he may work with his dogs and horses, prepare meals, launder clothing, read books or magazines, watch movies on portable electronic devices, talk on the phone, write letters, or engage in other personal activities. Once lambing is complete, another employee may join him so that there are two employees with each herd. When this happens, the employees may divide their duties so that one primarily moves the sheep and the other cares for the horses and dogs and prepares meals. During this spring grazing period, the employees move the sheep from the base ranch toward the summer range – a distance of over 100 miles.

***

In the fall, employees herd sheep down from the mountains. This generally occurs in mid-September. Employees assist in erecting a temporary sorting corral at the base of the mountain. The employees herd the sheep into the corral where market lambs are sorted from the rest of the herd. The market lambs are loaded into trucks and shipped to market. (The trucks are not operated by H-2A workers.) The employees herd the remaining ewes and replacement lambs to fall grazing areas. The employees once again take up residence in their mobile sheep camps and move the camps from one range to the next. The employees keep their guard dogs, herding dogs, and riding horses.

***

A key component of herding on our ranch is the protection of sheep from predators. Predators include wolves, bears, mountain lions, and coyotes. Employees may deter predators with guard dogs, light, noise, and motion. Fences are not an effective deterrent to predators. The term “protecting” should be added to the definition of herding.

***

[W]e typically provide our employees on the range with a riding horse, saddles, blankets, tack, pack horses, pack supplies, herd dogs, guard dogs, a gun, gloves, raingear, horseshoe equipment, axes, saws, hammers, nails, rope, a sleeping bag, blankets, a pillow, soap, shampoo, deodorant, detergent and mobile telephones. They may also have access to water delivery trucks and other vehicles. At the holidays, we provide clothing, which may include socks, underwear, shirts, sweaters, and winter gear.

Siddoway’s suggestion that “protecting” should be included in the definition of herding was not done, though the word does appear in the definition of “production of livestock” in 20 CFR 655.201.

Felippo Pelizzi, Landscape with Animals, 1859
The Cunningham Sheep Company of Pendleton, Oregon, commented that “well-trained Border Collies and large-breed guardian dogs … watch over the sheep when the herder returns to the living quarters during the middle of the day and night.”  John Peavey of the Flat Top Sheep Co. notes that extreme dedication is sometimes demonstrated by the dogs. 

Ours are border collies and are dedicated to caring for sheep. We have had dogs stay with trapped sheep for 24 hours. Waiting without food, water or companionship for someone to return and help get the animals freed and back on water and pasture. These dogs are very special. It takes many years and countless generations to imprint these instincts. In a collapsing industry as the flocks disappear.  What's to happen to these very smart dogs. Over the years I have seen neighbors sell out and try to find a home for the border collies. This is often difficult and some have to be euthanized. Something of incredible intrinsic value is lost forever.

This highlights an uncomfortable fact about ranch life.  A dog that ceases to be useful may become an expense that a marginal operation can no longer afford. 

Most comments concerning guarding and herding dogs did so in the context of sheep or goat herding,  but Vermillion Ranch and Midland Livestock mentioned using herding dogs for keeping cow-calf pairs together and moving them to areas where there is sufficient forage and water.  Dogs are also used “to keep range cattle in designated grazing areas in accordance with federal grazing permits.”

Conclusion

The regulations are effective November 16, 2015.  There were many issues that drew comments on the proposed regulations, particularly the wage levels for H-2A workers, which led to calls for action from many organizations and involved Congressmen and Senators in western states. 

I am not competent to judge the arguments regarding the economic impact that might have resulted had the list of responsibilities for which foreign workers may be brought into the U.S. to perform not been expanded from the April proposal.  It is apparent from the comments that the industry is, in many instances, quite marginal, and other forces will continue to drive sheep and wool production overseas.  My father would have been depressed had he lived to see this (though I am sure it had begun, to a degree, before his death in 1998).  Sheep and Wool Science was one of his earliest books, and he completed his doctoral thesis on some aspects of wool science.  Still, the industry such as it is will continue for the time being, apparently thanks in large part to many men from Peru. 

The painting by Felippo Pelizzi (1818-1899) hangs in a hallway in the Pinacoteca Ambrosiana in Milan.  I could not take a photograph under the museum’s rules so this is the best depiction I could find.  It was apparent to me standing before it that two of the sheep are curious to know what the dog, clearly their leader, is sniffing.  The museum catalogue (The Pinacoteca Ambrosiana, English translation by Simon Turner, De Agostini Libri, 2013) does not state where it was painted but says that mountain scenes with sheep were a common topic for the painter. 

Thanks to Sarah Bell and Gene Papet for comments on an earlier draft, and to Sarah Bell for additional source material.