Temporary Agricultural Employment of H-2A Nonimmigrants in the United States

Federal RegisterJul 26, 2019

Ask Donna

What actually matters in this document.

Text

DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Parts 653 and 655

Wage and Hour Division

29 CFR Part 501

[DOL Docket No. ETA-2019-0007]

RIN 1205-AB89

Temporary Agricultural Employment of H-2A Nonimmigrants in the United States

AGENCY:

Employment and Training Administration and Wage and Hour Division, Department of Labor.

ACTION:

Proposed rule; request for comments.

SUMMARY:

The Department of Labor (Department or DOL) proposes to amend its regulations regarding the certification of temporary employment of nonimmigrant workers employed in temporary or seasonal agricultural employment and the enforcement of the contractual obligations applicable to employers of such nonimmigrant workers. This notice of proposed rulemaking (NPRM or proposed rule) streamlines the process by which the Department reviews employers' applications for temporary agricultural labor certifications to use in petitioning the Department of Homeland Security (DHS) to employ a nonimmigrant worker in H-2A status. Amendments to the current regulations focus on modernizing the H-2A program and eliminating inefficiencies. The Department also proposes to amend the regulations for enforcement of contractual obligations for temporary foreign agricultural workers and the Wagner-Peyser Act regulations to provide consistency with revisions to H-2A program regulations governing the temporary agricultural labor certification process.

DATES:

Interested persons are invited to submit written comments on the proposed rule on or before September 24, 2019.

ADDRESSES:

You may submit comments, identified by Regulatory Information Number (RIN) 1205-AB89, by any one of the following methods:

Electronic Comments:

Comments may be sent via

http://www.regulations.gov,

a Federal E-Government website that allows the public to find, review, and submit comments on documents that agencies have published in the

Federal Register

and that are open for comment. Simply type in `1205-AB89' (in quotes) in the Comment or Submission search box, click Go, and follow the instructions for submitting comments.

Mail:

Address written submissions to (including disk and CD-ROM submissions) to Adele Gagliardi, Administrator, Office of Policy Development and Research, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue NW, Room N-5641, Washington, DC 20210.

Instructions:

Please submit only one copy of your comments by only one method. All submissions must include the agency's name and the RIN 1205-AB89. Please be advised that comments received will become a matter of public record and will be posted without change to

http://www.regulations.gov,

including any personal information provided. Comments that are mailed must be received by the date indicated for consideration.

Docket:

For access to the docket to read background documents or comments, go to the Federal e-Rulemaking Portal at

http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

For further information regarding 20 CFR part 653, contact Thomas M. Dowd, Deputy Assistant Secretary, Employment and Training Administration, Department of Labor, Box #12-200, 200 Constitution Avenue NW, Washington, DC 20210, telephone: (202) 513-7350 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone numbers above via TTY/TDD by calling the toll-free Federal Information Relay Service at 1 (877) 889-5627.

For further information regarding 20 CFR part 655, contact Thomas M. Dowd, Deputy Assistant Secretary, Employment and Training Administration, Department of Labor, Box #12-200, 200 Constitution Avenue NW, Washington, DC 20210, telephone: (202) 513-7350 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone numbers above via TTY/TDD by calling the toll-free Federal Information Relay Service at 1 (877) 889-5627.

For further information regarding 29 CFR part 501, contact Amy DeBisschop, Acting Director of the Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, Department of Labor, Room S-3502, 200 Constitution Avenue NW, Washington, DC 20210, telephone: (202) 693-0578 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone number above via TTY/TDD by calling the toll-free Federal Information Relay Service at 1 (877) 889-5627.

SUPPLEMENTARY INFORMATION:

I. Revisions to 20 CFR Part 655, Subpart B

A. Statutory Framework

The H-2A nonimmigrant worker visa program enables United States agricultural employers to employ foreign workers on a temporary basis to perform temporary or seasonal agricultural labor or services where the Secretary of Labor (Secretary) certifies that (1) there are not sufficient U.S. workers who are able, willing, and qualified, and who will be available at the time and place needed to perform the labor or services involved in the petition; and (2) the employment of the aliens in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed.

See

section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act (INA or the Act), as amended by the Immigration Reform and Control Act of 1986 (IRCA), 8 U.S.C. 1101(a)(15)(H)(ii)(a); section 218(a)(1) of the INA, 8 U.S.C. 1188(a)(1). The Secretary has delegated his authority to issue temporary agricultural labor certifications to the Assistant Secretary, Employment and Training Administration (ETA), who in turn has delegated that authority to ETA's Office of Foreign Labor Certification (OFLC). Secretary's Order 06-2010 (Oct. 20, 2010). In addition, the Secretary has delegated to the Department's Wage and Hour Division (WHD) the responsibility under section 218(g)(2) of the INA, 8 U.S.C. 1188(g)(2), to assure employer compliance with the terms and conditions of employment under the H-2A program. Secretary's Order 01-2014 (Dec. 19, 2014).

B. Current Regulatory Framework

Since 1987, the Department has operated the H-2A temporary labor certification program under regulations promulgated pursuant to the INA. The Department's current regulations governing the H-2A program were published in 2010.

The standards and procedures applicable to the certification and employment of workers under the H-2A program are found in 20 CFR part 655 and 29 CFR part 501. In addition, the Department has issued special procedures for the

employment of foreign workers in the herding and production of livestock on the range as well as animal shearing, commercial beekeeping, and custom combining occupations.

The Department incorporated the provisions for employment of workers in the herding and production of livestock on the range into the regulation, with modifications, in 2015. Those provisions are now codified at §§ 655.200 through 655.235.

Final Rule,

Temporary Agricultural Employment of H-2A Aliens in the United States,

75 FR 6884 (Feb. 12, 2010) (2010 Final Rule).

See

TEGL, No. 17-06, Change 1,

Special Procedures: Labor Certification Process for Employers in the Itinerant Animal Shearing Industry under the H-2A Program

(June 14, 2011), accessed at

https://wdr.doleta.gov/directives/corr_doc.cfm?docn=3041;

TEGL, No. 33-10,

Special Procedures: Labor Certification Process for Itinerant Commercial Beekeeping Employers in the H-2A Program

(June 14, 2011), accessed at

https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=3043;

TEGL, No. 16-06, Change 1,

Special Procedures: Labor Certification Process for Multi-State Custom Combine Owners/Operators under the H-2A Program

(June 14, 2011), accessed at

https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=3040.

C. Need for New Rulemaking

It is the policy of the Department to increase protections for workers and vigorously enforce all laws within its jurisdiction governing the administration and enforcement of nonimmigrant visa programs. This includes the coordination of the administration and enforcement activities of ETA, WHD, and the Office of the Solicitor in the promotion of the hiring of U.S. workers and the safeguarding of working conditions in the United States. In addition, these agencies make criminal referrals to the Department's Office of Inspector General to combat visa-related fraud schemes.

See

News Release, U.S. Secretary of Labor Protects Americans, Directs Agencies to Aggressively Confront Visa Program Fraud and Abuse (June 6, 2017),

https://www.dol.gov/newsroom/releases/opa/opa20170606.

The proposed rule furthers the goals of Executive Order (E.O.) 13788, Buy American and Hire American.

See

82 FR 18837 (Apr. 21, 2017). The E.O. articulates the executive branch policy to “rigorously enforce and administer” the laws governing entry of nonimmigrant workers into the United States “[i]n order to create higher wages and employment rates for workers in the United States, and to protect their economic interests.”

Id.

sec. 2(b). It directs federal agencies, including the Department, to protect U.S. workers by proposing new rules and issuing new guidance to prevent fraud and abuse in nonimmigrant visa programs.

Id.

sec. 5.

The Department proposes to update its H-2A regulations to ensure that employers can access legal agricultural labor, without undue cost or administrative burden, while maintaining the program's strong protections for the U.S. workforce. The changes proposed in this NPRM would enhance WHD's enforcement capabilities, thereby removing workforce instability that hinders the growth and productivity of our nation's farms, while allowing for aggressive enforcement against program fraud and abuse that undermine the interests of U.S. workers, in accordance with E.O. 13771, Reducing Regulation and Controlling Regulatory Costs. Below is an overview of major proposed changes, followed by a section-by-section discussion of all proposed changes.

1. Mandatory Electronic Filing and Electronic Signatures

a. Mandatory Electronic Filing

The Department proposes to require electronic filing (e-filing) of

Applications for Temporary Employment Certification

and job orders for most employers and, if applicable, their authorized representatives. E-filing will be required for the Form ETA-9142A and appropriate appendices; the Form ETA-790/790A and appropriate addenda; and all applicable documentation required by this subpart to secure a temporary agricultural labor certification from the Department, including the surety bonds required for H-2A Labor Contractors (H-2ALCs). In addition, the Office of Management and Budget's (OMB) approved forms will require employers and, if applicable, their authorized representatives to designate a valid email address for sending and receiving official correspondence concerning the processing of these e-filings by the State Workforce Agency (SWA) and National Processing Center (NPC). The requirement to submit electronic

Applications for Temporary Employment Certification

and job orders would not apply in situations where the employer is unable or limited in its ability to use or access electronic forms as result of a disability or lacks access to e-filing.

The lack of a computer may or may not constitute lack of access to e-filing under the proposed regulation. It depends on the circumstances presented by the employer at the time of filing.

This proposal is intended to maximize end-to-end electronic processing of

Applications for Temporary Employment Certification

and job orders, which is an important technological objective of the Department. Although e-filing of applications using OFLC's iCERT Visa Portal System (iCERT System) is not currently mandated, in the Department's experience, employers prefer to use e-filing to request temporary agricultural labor certification in the H-2A program. Based on temporary agricultural labor certification applications processed during fiscal years (FYs) 2016 and 2017, more than 81 percent of employer H-2A applications were submitted electronically to the NPC for processing using the iCERT System. When compared to paper-filed applications, preparing H-2A applications and uploading supporting documentation through the iCERT System resulted in more complete submissions, better quality entries on form fields, and more streamlined processing using email as the primary form of communication with employers and, if applicable, their authorized representatives.

Further, the Department's experience indicates that only a handful of H-2A employers did not provide an email address on their H-2A applications.

Based on an analysis of 18,775 temporary labor certification records processed during FY 2016 and 2017, approximately 66 percent of H-2A applications mailed to the NPC were issued a Notice of Deficiency (NOD), while approximately 47 percent of H-2A applications filed electronically were issued a NOD.

The Department has determined that mandating e-filing will reduce costs and burdens for most employers and for the Department, reduce the frequency of delays related to filing applications, improve the quality of information collected, and promote administrative efficiency and accountability. For employers and their authorized representatives, the Department's proposal to require e-filing would improve the customer experience by permitting more prompt adjudication of applications and reducing paperwork burdens and mailing costs. E-filing permits automatic notification that an application is incomplete or obviously inaccurate and provides employers with an immediate opportunity to correct the errors or upload the missing documentation. This approach reduces processing delays and costs for employers who would otherwise need to pay for expedited mail or private courier services to submit corrected applications.

Paper-based submissions are more costly for the Department to process than electronic submissions because they require manual data entry of information contained in the required documents and manual uploading of scanned copies of the documents into the iCERT System's electronic case documents repository. As noted in a 2012 Government Accountability Office

(GAO) report on the H-2A program, paper-based submissions can result in misplaced or lost documentation, unnecessary communication delays between employers and the Government, and missed opportunities to quickly resolve minor deficiencies in the application process.

Electronic submissions, on the other hand, do not require manual data entry by DOL and can be instantaneously categorized and assigned for review by the NPC. If an

Application for Temporary Employment Certification

filed electronically requires amendments or other corrections, often those amendments and corrections are automatically entered into the iCERT System. Furthermore, electronic submissions are more likely to include all necessary documentation and information because the Department can require validation of the form entries and supporting documentation prior to its submission.

See

GAO-12-706, H-2A Visa Program: Modernization and Improved Guidance Could Reduce Employer Application Burden (2012), U.S. Government Accountability Office.

The Department acknowledges that there may be opportunity costs associated with transitioning to a new way of filing and costs associated with changing familiar processes and learning new systems. The Department believes that the efficiencies gained in processing by the Department from an increase in electronic filing will outweigh these costs. The Department invites comment on this analysis.

Consistent with its adoption of mandatory e-filing, the Department plans to expand the capabilities of the iCERT System to permit the electronic execution and delivery of surety bonds. As explained more fully in § 655.132, accepting electronic surety bonds would further streamline the application process and reduce unnecessary delays, while preserving the Department's ability to enforce such bonds.

The Department anticipates that requiring e-filing will not require a change of practice for the vast majority of employers. Based on FY2019 data, approximately 94.1 percent of H-2A applications were filed electronically. Almost all of the remaining 5.9 percent of H-2A applications filed by mail also disclosed valid email addresses on the application form, thereby suggesting that employers and, if applicable, their authorized attorneys and agents have access to the internet and are likely capable of filing electronically. Employers without means to file electronically represent a small percentage of all filers, and the Department anticipates the very few employers without access to e-filing will continue to decrease with the growth of information technology and access to the internet in rural areas. However, the Department acknowledges that a small number of employers may be unable to take advantage of the more efficient e-filing process. Therefore, the proposal permits these employers to file using a paper-based process if they lack adequate access to e-filing. In addition, the proposal establishes a process for individuals with disabilities to request an accommodation to allow these employers to use or access forms and communications from the Department.

The Department seeks comments on its proposal to require e-filing. For example, the Department would like to know if there are members of the regulated community, aside from those already identified in the proposal, who would be significantly burdened if the Department requires e-filing. The Department also seeks comments on e-filing methodology, such as the convenience or inconvenience of e-filing and other advantages or disadvantages of the e-filing process compared to other filing processes.

b. Acceptance of Electronic Signatures

The Department proposes to promote greater efficiencies in the application process and establish parity between paper and electronic documents by expanding the ability of employers, agents, and attorneys to use electronic methods to comply with signature requirements for the H-2A program. As a matter of longstanding policy, the Department considers an original signature to be legally-binding evidence of the intention of a person with regard to a document, record, or transaction. Since the implementation of an e-filing option in December 2012, the Department also has considered a signature valid where the employer's original signature on a document retained in the employer's file is photocopied, scanned, or similarly reproduced for electronic transmission to the Department, whether at the time of filing or during the course of processing an

Application for Temporary Employment Certification.

Although acceptance of electronic (scanned) copies of original signatures on documents has generated efficiencies in the application process, modern technologies and evolving business practices are rendering the distinction between original paper and electronic signatures nearly obsolete, and the Department and employers can achieve even greater efficiencies using and accepting electronic signature methods. For instance, the use of electronic signature methods is necessary for the Department to implement its proposal to accept electronic surety bonds.

Under this proposed rule, the Department would permit an employer, agent, or attorney to sign or certify a document required under this subpart using a valid electronic signature method. This proposal is consistent with the principles of two Federal statutes that govern an agency's implementation of electronic document and signature requirements. First, the Government Paperwork Elimination Act (GPEA), Public Law 105.277, Title XVII (Secs. 1701-1710), 112 Stat. 2681-749 (Oct. 21, 1998), 44 U.S.C. 3504 note, requires Federal agencies to allow individuals or entities that deal with the agencies, when practicable, the option to submit information or transact with the agencies electronically and to maintain records electronically. The GPEA also specifically states that electronic records and their related electronic signatures are not to be denied legal effect, validity, or enforceability merely because they are in electronic form, and encourages Federal Government use of a range of electronic signature alternatives.

See

sections 1704, 1707 of the GPEA. Second, the Electronic Signatures in Global and National Commerce (E-SIGN) Act, Public Law 106-229, 114 Stat. 464 (June 30, 2000), 15 U.S.C. 7001

et seq.,

generally provides that electronic documents have the same legal effect as their hard copy counterparts.

The GPEA and E-SIGN Act adopt a “functional equivalence approach” to electronic signature requirements where the purposes and functions of the traditional paper-based requirements for a signature must be considered, and how those purposes and functions can be fulfilled in an electronic context. The functional equivalence approach rejects the precept that Federal agency requirements impose on users of electronic signatures more stringent standards of security than required for handwritten or other forms of signatures in a paper-based environment.

Consistent with the GPEA, the Department proposes to accept an electronic signature on H-2A applications as long as it (1) identifies and authenticates a particular person as the source of the electronic communication; and (2) indicates such person's approval of the information contained in the electronic communication.

In addition, OMB

guidelines state that a valid and enforceable electronic signature would require satisfying the following signing requirements: (1) The signer must use an acceptable electronic form of signature; (2) the electronic form of signature must be executed or adopted by the signer with the intent to sign the electronic record; (3) the electronic form of signature must be attached to or associated with the electronic record being signed; (4) there must be a means to identify and authenticate a particular person as the signer; and (5) there must be a means to preserve the integrity of the signed record.

The Department will rely on best practices for electronic signature safety, such as these five signing requirements. Consistent with the GPEA and E-SIGN Act, the Department proposes to adopt a technology “neutral” policy with respect to the requirements for electronic signature. That is, the employer, agent, or attorney can apply an electronic signature required on a document using any available technology that can meet the five signing requirements.

Section 1710(1) of the GPEA. The definition of electronic signature in the E-SIGN Act essentially is equivalent to the definition in the GPEA. The

E-SIGN Act defines an electronic signature as “an electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record.” 15 U.S.C. 7006(5).

Federal Chief Information Council, Use of Electronic Signatures in Federal Organization Transactions, Version 1.0 (Jan. 25, 2013).

The Department concludes that these standards for electronic signature are reasonable and accepted by Federal agencies. Promoting the use of electronic signatures would enable employers, agents, and attorneys to reduce printing, paper, and storage costs. For employers that need to retain and refer to multiple applications for temporary agricultural labor certification, the time and costs savings can be considerable. For the Department, implementing electronic signatures would help reduce operational costs and improve processing efficiency, including through the acceptance of electronic surety bonds.

2. Revisions to the Adverse Effect Wage Rate and Prevailing Wage Methodologies

The Department also proposes to adjust the methodology used to establish the required wage rate for the H-2A program. Section 218(a)(1)(B) of the INA, 8 U.S.C. 1188(a)(1)(B), provides that an H-2A worker is only admissible if the Secretary determines that “the employment of the alien in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed.” In 20 CFR 655.120(a), the Department currently meets this statutory requirement, in part, by requiring an employer to offer, advertise in its recruitment, and pay a wage that is the highest of the adverse effect wage rate (AEWR), the prevailing wage, the agreed-upon collective bargaining wage, the Federal minimum wage, or the State minimum wage. The Department proposes to maintain this wage structure with only minor modifications.

Within this structure, the Department proposes to establish separate AEWRs by agricultural occupation to better protect against adverse effect on the wages of similarly employed workers in the United States. In addition, updates to the prevailing wage methodology would set more practical standards that would allow the Department to establish reliable and accurate prevailing wage rates for workers and employers.

The Department currently sets the AEWR for all H-2A job opportunities at the annual average hourly gross wage for field and livestock workers (combined) for the state or region from the Farm Labor Survey (FLS) conducted by the U.S. Department of Agriculture's (USDA) National Agricultural Statistics Service (NASS). Using this methodology, the Department is currently able to establish an AEWR for every State except for Alaska, which is not covered by the FLS.

The Department proposes to set the AEWR for a particular agricultural occupation at the annual average hourly gross wage for that agricultural occupation in the State or region reported by the FLS when the FLS is able to report such a wage. If the FLS does not report a wage for an agricultural occupation in a State or region, the Department proposes to set the AEWR at the statewide annual average hourly wage for the standard occupational classification (SOC) from the Occupational Employment Statistics (OES) survey conducted by the Department's Bureau of Labor Statistics (BLS). This change to an occupation-based wage is intended to produce more accurate AEWRs than under the current practice of establishing a single rate for all agricultural workers in a state or region. The proposal reflects the Department's concern that the current AEWR methodology may have an adverse effect on the wages of workers in higher-paid agricultural occupations, such as supervisors of farmworkers and construction laborers on farms, whose wages may be inappropriately lowered by an AEWR established from the wages of field and livestock workers (combined). This is because the category of field and livestock workers (combined) from the FLS does not include workers who USDA classifies as supervisors; “other workers,” such as agricultural inspectors, animal breeders, and pesticide handlers and sprayers; or contract and custom workers. In addition, the use of generalized data for agricultural occupations within the field and livestock (combined) classification could produce a wage rate that is not sufficiently tailored to the wage necessary to protect against adverse effect for those occupations because that category aggregates the wages of workers performing significantly different job duties, such as agricultural equipment operators and crop laborers.

In addition, the Department proposes to modernize the current methodology used to conduct prevailing wage surveys, which applies to both H-2A and other job orders that use the Wagner-Peyser Act agricultural recruitment system. ETA Handbook 385 (Handbook 385 or the Handbook),

which pre-dates the creation of the H-2A program and has not been updated since 1981, currently sets the methodology used to establish prevailing wage rates for all agricultural job orders. The Handbook sets standards, including a requirement for in-person interviews, which are inconsistent with available resources at the state and federal levels. Due to the difficulty of implementing these resource-intensive standards, the SWAs are often required to report “no finding” from prevailing wage surveys; therefore, the surveys are both costly and fail to meet the aim of producing reliable prevailing wage rates. Accordingly, the Department proposes to update the prevailing wage standards to allow the SWAs and other state agencies to conduct surveys using more practical standards and establish reliable and accurate prevailing wage rates for workers and employers.

See

ETA Handbook No. 385 (Aug. 1981),

available at https://www.foreignlaborcert.doleta.gov/pdf/et_385_wage_finding_process.pdf.

3. Incorporation of Certain Training and Employment Guidance Letters Into the H-2A Regulatory Structure

Similar to the Department's approach to incorporate the standards and procedures for sheep herders, goat herders, and the range production of livestock into regulations promulgated in 2015—and following the decision of the United States Court of Appeals for the District of Columbia in

Mendoza

Perez,

754 F.3d 1002 (D.C. Cir. 2014), explained below—the Department now

proposes to incorporate into the H-2A regulations, with some modifications, the standards and procedures related to animal shearing, commercial beekeeping, and custom combining in this NPRM. These standards and procedures are currently found in

Temporary and Employment Guidance Letters

(TEGL). The proposed standards and procedures, if adopted, would be incorporated at 20 CFR part 655 subpart B, 655.300 through 655.304.

4. The Definition of Agriculture

The Department proposes to expand the definition of “agriculture” under the H-2A program to include reforestation and pine straw activities. As further discussed below, although temporary foreign workers engaged in reforestation and pine straw activities are currently admitted under the H-2B program, these workers share many of the same characteristics as traditional agricultural crews.

5. The 30-Day Rule

The Department proposes to replace the 50 percent rule with a 30-day rule requiring employers to provide employment to any qualified, eligible U.S. worker who applies for the job opportunity until 30 calendar days from the employer's first date of need on the certified

Application for Temporary Employment Certification,

and a longer recruitment period for those employers who choose to stagger the entry of H-2A workers into the United States, as explained below. Under the current regulation, an employer granted temporary agricultural labor certification must continue to provide employment to any qualified, eligible U.S. worker who applies until 50 percent of the period of the work contract has elapsed. The obligation to hire additional workers mid-way through a season is disruptive to agricultural operations and makes it difficult for agricultural employers to be certain they will have a steady, stable, properly trained, and fully coordinated workforce. Since the implementation of the current regulation, the Department has collected a significant amount of data that shows that a very low number of U.S. workers apply for the job opportunity within 30 days after the start date of work, and even fewer after that.

Section 218(c)(3)(B)(iii) of the INA, 8 U.S.C. 1188(c)(3)(B)(iii), tasked the Department with determining whether agricultural employers should be required by regulation to hire U.S. workers after H-2A workers have already departed for the place of employment. These provisions suggest that, in making this determination, the Department should weigh the “benefits to United States workers and costs to employers.” Based on available data, it appears that the costs of the rule to employers outweigh any benefits the rule may provide to U.S. workers. Replacing the 50 percent rule with a rule requiring employers to hire qualified, eligible U.S. worker applicants for a period of 30 days after the employer's first date of need will balance the needs of workers and employers. Requiring employers to hire workers 30 days into the contract period, while still disruptive to agricultural operations, shortens the period during which such disruptions may occur and restores some stability to employers that depend on the H-2A program. Providing U.S. workers the ability to apply for these job opportunities 30 days into the contract period ensures that U.S. workers still have access to these jobs after the start of the contract period during the period of time they are most likely to apply.

6. Staggered Entry

The Department proposes to permit the staggered entry of H-2A workers into the United States. Under this proposal, any employer that receives a temporary agricultural labor certification and an approved H-2A Petition may bring nonimmigrant workers into the United States at any time up to 120 days after the first date of need identified on the certified

Application for Temporary Employment Certification

without filing another H-2A Petition. If an employer chooses to stagger the entry of its workers, it must continue to accept referrals of U.S. workers and hire those who are qualified and eligible through the period of staggering or the first 30 days after the first date of need identified on the certified

Application for Temporary Employment Certification,

whichever is longer. This proposal will provide employers with the flexibility to accommodate changing weather and production conditions that are inherent to agricultural work. It will also reduce the need for employers to file multiple

Applications for Temporary Employment Certification

for same occupational classification in which the only difference is the expected start date of work, thus improving efficiencies for both employers and the Department.

II. Discussion of Proposed Revisions to 20 CFR Part 655, Subpart B; 20 CFR 653.501(c)(2)(i); and 29 CFR Part 501

A. Introductory Sections

1. Section 655.100, Scope and Purpose of Subpart B

The proposed revisions to this section clarify the statutory authority for the H-2A temporary agricultural labor certification process, and the scope of the Department's role in receiving, reviewing, and adjudicating applications for temporary agricultural labor certification, and upholding the integrity of

Applications for Temporary Employment Certification.

These revisions also clarify the Department's authority to establish standards and obligations with respect to the terms and conditions of the temporary agricultural labor certification with which H-2A employers must comply, as well as the rights and obligations of H-2A workers and workers in corresponding employment.

2. Section 655.101, Authority of the Agencies, Offices, and Divisions of the Department of Labor; and 29 CFR 501.1, Purpose and Scope

The revisions to this section clarify the delegated authority of, and division of responsibilities between, ETA and WHD under the H-2A program. This section addresses the delegated authority of OFLC, the office within ETA that exercises the Secretary's responsibility for determining the availability of qualified U.S. workers to perform the temporary agricultural labor or services, and whether the employment of the H-2A workers will adversely affect the wages and working conditions of workers in the United States similarly employed. This provision also discusses the authority delegated to WHD, the agency responsible for investigation and enforcement of the terms and conditions of H-2A temporary agricultural labor certifications. Finally, this provision reminds program users of each agency's concurrent authority to impose a debarment remedy when appropriate under ETA regulations at 20 CFR 655.182 or under WHD regulations at 29 CFR 501.20.

3. Section 655.102, Transition Procedures

a. Proposal To Rescind the Provision That Allows for the Creation of Special Procedures

Special procedures in the H-2A program were based upon a determination that variations from the normal labor certification processes

were necessary to permit the temporary employment of foreign workers in specific industries or occupations when able, willing, and qualified U.S. workers were not available and the employment of foreign workers would not adversely affect the wages or working conditions of workers in the United States similarly employed. The H-2A regulations have, since their creation, provided authority for the Department to “establish, continue, revise, or revoke special procedures for processing certain H-2A applications.” 20 CFR 655.102.

Mendoza

Perez,

754 F.3d 1002, 1022 (D.C. Cir. 2014), the D.C. Circuit concluded that 20 CFR 655.102 was “a grant of unconstrained and undefined authority [, and the] purpose of the [Administrative Procedure Act (APA)] would be disserved if an agency with a broad statutory command . . . could avoid notice-and-comment rulemaking simply by promulgating a comparably broad regulation . . . and then invoking its power to interpret the statute and regulation in binding the public to a strict and specific set of obligations.” Accordingly, the court in

Mendoza

specifically held that the special procedures pertaining to sheep, goat, and cattle herding issued under § 655.102 were subject to the APA's notice and comment requirements because they possess all the hallmarks of a legislative rule and could not be issued through sub-regulatory guidance. 754 F.3d at 1024 (“The [special procedures] are necessarily legislative rules because they `effect [ ] a [substantive] change in existing law or policy,' and `effectively amend[ ] a prior legislative rule.' ”) (citations omitted).

In light of

Mendoza,

the Department proposes to rescind from the H-2A regulations the general provision that allows for the creation of special procedures that establish variations for processing certain

Applications for Temporary Employment Certification.

The Department proposes, in this NPRM, procedures for handling applications for each of the occupations that currently have special procedures under this authority: Animal shearing, commercial beekeeping, and custom combining. The Department also proposes procedures for handling applications involving reforestation, which, as discussed in detail below, the Department proposes to include within the H-2A definition of agriculture activities.

b. Proposal To Add a Provision Providing Procedures for Implementing Changes Created by a Final Rule

The Department proposes to rename § 655.102, “Transition procedures,” and add a transition period in order to provide an orderly and seamless transition for implementing changes created by these proposed regulatory revisions, if adopted in a final rule. Generally, the Department processes all applications in accordance with the rules in effect on the date the

Application for Temporary Employment Certification

is submitted. However, based on the Department's program experience, a transition period will help provide employers and other stakeholders with time to understand and comply with regulatory revisions affecting the assurances and obligations of the H-2A program to obtain and employ workers under a temporary agricultural labor certification. Similarly, a transition period will allow the Department to implement necessary changes to program operations, application forms, technology systems, and to provide training and technical assistance to OFLC, SWAs, employers, and other stakeholders in order to familiarize them with changes required by this proposed rule.

Accordingly, the Department proposes that any application submitted by an employer prior to the effective date of a final rule must meet regulatory requirements and will be processed by the NPC in accordance with the 2010 Final Rule. The Department also proposes to establish a transition period that will apply to any application for which the first date of need for H-2A workers is no earlier than the effective date of a final rule and not later than the date that is 90 calendar days after the effective date of a final rule. Specifically, an employer submitting an application on or after the effective date of a final rule, where the first date of need for H-2A workers is not later than 90 calendar days after the effective date of a final rule, will continue to meet regulatory requirements and will be processed by the NPC in accordance with the current regulation. Thus, the Department proposes to establish a 90-day transition period in which employers are allowed to continue filing applications and receive temporary agricultural labor certifications under the regulatory requirements set forth in the current regulation. However, all applications submitted by employers on or after the effective date of a final rule, where the first date of need for H-2A workers is later than 90 calendar days after the effective date of a final rule, will be expected to fully comply with all of the requirements of a final rule. The Department invites comments on the length of the transition period, including impact and costs associated with a transition period longer or shorter than 90 days.

4. Section 655.103, Overview of This Subpart and Definition of Terms; 20 CFR 653.501(c)(2)(i) of the Wagner Peyser Act Regulations; and 29 CFR 501.3, Definitions

a. Paragraph (b), Definitions; and 20 CFR 653.501(c)(2)(i)

i. Adverse Effect Wage Rate

The current regulation provides that the AEWR is set at the annual weighted average hourly wage for field and livestock workers (combined) based on the USDA's FLS. To be consistent with the Department's proposal to adjust the current AEWR methodology, the Department proposes conforming changes to the definition of AEWR in this section. The Department discusses the proposed changes to the AEWR methodology in the preamble to § 655.120.

ii. Administrator, OFLC Administrator, WHD Administrator, and Wage and Hour Division

The current regulation defines the OFLC Administrator as the primary official of the OFLC or the OFLC Administrator's designee. The Department proposes to add an equivalent definition of “WHD Administrator” to clarify that the OFLC and WHD Administrators have unique roles in the H-2A temporary agricultural labor certification process. Additionally, the Department proposes to add a definition of “Administrator” that cross references the definitions of OFLC Administrator and WHD Administrator so that interested parties may be able to locate these definitions more easily. Finally, the Department proposes to add a definition of “Wage and Hour Division” to provide a clear definition of a term used throughout the current and proposed regulations.

iii. Area of Intended Employment

The Department proposes a minor amendment to the definition of “area of intended employment” that replaces the terms “place of the job opportunity” and “worksite” with the term “place(s) of employment,” consistent with the proposed inclusion and definition of “place(s) of employment” in this section. Based on the factual circumstances of each application, the Certifying Officer (CO) will continue using the term “area of intended employment” to assess whether each place of employment is within normal commuting distance from the first place of employment or, if designated, the centralized “pick-up” point (

e.g.,

worker housing) to every other place of employment identified in the application and job order. The Department maintains that the recruitment of U.S. workers is most effective when the work performed under the job order is advertised to workers residing in the local or regional area and enables them to return to their permanent places of residence on a daily basis rather than traveling long distances to reach the places of employment. Longer than normal commuting times, transportation issues, geographic barriers, or the need to live away from home are all factors that can discourage U.S. workers from accepting a temporary agricultural job opportunity, making it challenging for the Department to accurately assess whether there are sufficient U.S. workers who are able, willing, and qualified to perform the labor or services involved in the application.

However, the Department acknowledges that the absence of a clear and objective standard for normal commuting distance in the definition of area of intended employment makes it difficult for employers to understand and predict how the Department will review the geographic scope of their job opportunities. Accordingly, the Department invites comments on whether it should further revise the definition of area of intended employment. Specifically, the Department is interested in comments focused on whether there are objective factors, commuting or labor market area designation systems, or other comprehensive commuting studies and data that can be used to more effectively determine normal commuting distances for the purpose of the Department's implementation of the H-2A program. The Department is also interested in comments on whether it should continue making fact-based determinations on a case-by-case basis, or whether it should impose a more uniform standard for all employers, such as maximum commuting distance or time above which will be considered an unreasonable commuting distance or time in all cases. Comments submitted under this proposed rule should address the advantages and disadvantages of each suggested alternative, and how implementation of the alternative will ensure the integrity of the labor market test and provide greater clarity to employers with respect to what constitutes a normal commuting distance to the places of employment identified in their applications and job orders.

iv. Average AEWR

The Department proposes to define a new term “average adverse effect wage rate” to complement proposed changes to § 655.132. As discussed more fully later in this preamble, the Department proposes to change the H-2A Labor Contractor (H-2ALC) surety bond requirement such that the required bond amounts adjust annually based on changes to a nationwide average AEWR. The Department will calculate and publish the average AEWR annually when it calculates and publishes AEWRs in accordance with § 655.120(b).

The average AEWR will be calculated as a simple average of the published AEWRs applicable to the SOC 45-2092 (Farmworkers and Laborers, Crop, Nursery, and Greenhouse). This classification was chosen to benchmark the required bond amounts because the majority of workers employed by H-2ALCs perform work in this classification.

The Department published the 2018 AEWRs for non-range occupations in Notice,

Labor Certification Process for the Temporary Employment of Aliens in Agriculture in the United States: 2018 Adverse Effect Wage Rates for Non-Range Occupations,

82 FR 60628 (Dec. 21, 2017).

v. Employer and Joint Employment

Section 218 of the INA generally recognizes that growers, agricultural associations, and H-2A labor contractors that file applications are employers or joint employers.

In conformity with the statute as well as the Department's current policy and practice, the Department proposes to clarify the definitions of employer and joint employment with respect to the H-2A program to include those entities the statute recognizes as employers or joint employers. First, the Department proposes to add language to the definition of joint employment in the H-2A program that clarifies that an agricultural association that files an application as a joint employer is, at all times, a joint employer of all H-2A workers sponsored under the application and, if applicable, of corresponding workers. Second, the Department proposes to clarify the definition of joint employment to include an employer-member of an agricultural association that is filing as a joint employer, but only during the period in which the member employs H-2A workers sponsored under the association's joint employer application. Third, the Department proposes a slight change to the joint employment language in the current regulation to more expressly codify that the common law of agency determines joint employer status under the statute. Fourth, the Department proposes to add language to the definition of joint employment with respect to the H-2A program that would clarify that growers who file the joint employer application proposed in § 655.131(b) are joint employers, at all times, with respect to the H-2A workers sponsored under the application and, if applicable, any corresponding workers. Fifth, in addition to the proposed changes to the definition of joint employment, the Department proposes to add language to the definition of employer to clarify that a person who files an application other than as an agent is an employer. Sixth, the Department proposes to add language to the definition of employer to clarify that a person on whose behalf an application is filed is an employer. These proposed revisions reflect the Department's longstanding administrative and enforcement practice that is already familiar to employers.

See

8 U.S.C. 1188(c)(2) (“The employer shall be notified in writing within seven days of the date of filing if the application does not meet the [relevant] standards . . . .”); 8 U.S.C. 1188(c)(3)(A)(i) (“The Secretary of Labor shall make . . . the certification described in subsection (a)(1) if . . . the employer has complied with the criteria for certification . . . .”); 8 U.S.C. 1188(d)(2) (“If an association is a joint or sole employer of temporary agricultural workers . . . [H-2A] workers may be transferred among [employer]-members”).

Controlling judicial and administrative decisions provide that to the extent a federal statute does not define the term employer, the common law of agency governs whether an entity is an employer.

Accordingly, the proposal continues to use the common law of agency to define the terms employer and joint employment for associations and growers that have not filed applications. Thus, for example, under the Department's current and continuing enforcement policy—with which employers are already familiar—if an agricultural association files as a joint employer, the association's employer-members are only joint employers with the association when they are jointly employing the H-2A or corresponding worker under the common law of agency.

See Nationwide Mutual Insurance

Darden,

503 U.S. 318, 322-24 (1992);

Garcia-Celestino

Ruiz Harvesting,

843 F.3d 1276, 1288 (11th Cir. 2016);

Admin.

Seasonal Ag. Services, Inc.,

2016 WL 5887688, at *6 (ARB, Sept. 30, 2016). The focus of the common law standard is the “hiring entity's `right to control the manner and means by which the product is accomplished.' ”

Ruiz Harvesting,

843 F.3d at 1292-93 (quoting

Darden,

503 U.S. at 323). Application of the standard typically entails consideration of a variety of factors.

See Ruiz Harvesting,

843 F.3d at 1293 (citing

Darden,

503 U.S. at 323-24).

The Department additionally notes that the current H-2A program definitions of employer and joint

employment, as well as those the Department proposes herein, are different from the definitions of “employer,” “employee,” “employ” in the Fair Labor Standards Act, 29 U.S.C. 201

et seq.

(FLSA) and the definition of “employ” in the Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. 1801

et seq.

(MSPA). Thus, the statutory definitions in the FLSA and MSPA that determine the existence of an employment relationship or joint employer status neither apply nor are relevant to the determination of whether an entity is an H-2A employer or joint employer.

Employer-Member Responsibility for Violations Committed Under a Joint Employer Application Filed by an Agricultural Association

Consistent with existing practice, when an agricultural association files a joint employer application, an employer-member of that association is an employer of the H-2A workers during the time when those workers perform work or services for the member. When only one employer-member is employing the H-2A workers at the time of a program violation, only that employer-member and its agricultural association are economically responsible for program violations.

Joint Employer Applications Under Proposed § 655.131(b)

Proposed § 655.131(b) generally codifies the Department's longstanding practice with regard to joint employer applications. Each grower party to a § 655.131(b) joint employer application will be jointly liable for compliance with all H-2A program requirements. Thus, for example, if employer C and employer D file a joint employer application under proposed § 655.131(b) and employer C fails to pay the H-2A workers the required wage, employer D will be jointly liable for employer C's violations. This codification of ongoing administrative and enforcement policy towards employers that have filed as joint employers under the program is designed to maintain consistency with the Department's well-known practices that are already familiar to employers.

The Department's approach to joint employment under § 655.131(b)—which aims to accommodate small growers that do not have full time work for their H-2A employees—is implied by the statute. The statute specifically contemplates that filers (other than agents) are employers and only expressly permits an entity (

i.e.,

an agricultural association) to transfer H-2A workers when the entity agrees to retain program responsibility with respect to the workers it transfers.

Therefore, the Department must require entities that jointly apply for H-2A workers, who they intend to transfer among themselves, to retain program responsibility for the transferred workers and, if applicable, any corresponding workers.

See

8 U.S.C. 1188(d)(2).

This proposed approach provides a flexible application system that harmonizes with the statutory language. Growers who prefer not to assume the shared liability under the proposed joint employer application may file through an agricultural association acting as a joint or sole employer. In addition to conformity with the statute, the Department's proposed approach is also consistent with judicial authority.

Martinez-Bautista

D&S Produce,

447 F. Supp. 2d 954, 960-62 (E.D. Ark. 2006) (ruling entities that jointly applied to employ H-2A workers are joint employers of the workers and rejecting application of agricultural association liability principles when the joint employers had not filed through an association).

Department's Approach to Imposing Liability Among Culpable Joint Employers

The Department will continue to apply its longstanding policy with respect to imposing liability among culpable joint employers. This policy includes consideration of the factors at 29 CFR 501.19(b) when the Department assesses civil money penalties. The Department applies these factors to joint employers on a case-by-case basis. For example, if the Department determines an agricultural association achieved no financial gain from an employer-member's failure to pay the required wage to H-2A or corresponding workers, but that the employer-member achieved significant financial gain, the civil money penalty, if any, applicable to the association would likely be less than that applicable to the employer-member for this violation.

Proposal To Move Certain Requirements in the Definition of Employer

The current definition of employer in the H-2A program requires an employer to have a place of business in the United States and a means of contact for employment as well as a Federal Employer Identification Number (FEIN). The Department proposes to move these requirements to §§ 655.121(a)(1) and 655.130(a). The proposal will require a prospective employer to include its FEIN, its place of business in the United States and a means of contact for employment in both its job order submission to the NPC, and its

Application for Temporary Employment Certification.

vi. First Date of Need and Period of Employment

The Department proposes to define the term “first date of need” as the first date on which the employer anticipates requiring the temporary agricultural labor or services for which it seeks a temporary agricultural labor certification. This is the date that appears on the employer's job order and

Application for Temporary Employment Certification

as the start date of work for the job opportunity and will be used in recruitment and for calculating program requirements (

e.g.,

the positive recruitment period under § 655.158). By including the term “anticipated,” the Department's proposed definition would provide a limited degree of flexibility for the actual start date of work for some or all of the temporary workers hired, which may vary due to such factors as travel delays or crop conditions at the time work is expected to begin. Provided that the employer complies with all obligations to workers (

e.g.,

providing housing and subsistence at no cost to workers as set forth in § 655.145(b)), the employer's actual start date of work may occur within 14 calendar days after the anticipated first date of need listed on the temporary agricultural labor certification. Additionally, the Department proposes to define the term “period of employment” as the time during which the employer requires the temporary agricultural labor or services for which it seeks a temporary agricultural labor certification, as indicated by the first date of need and the last date of need provided on the employer's job order and

Application for Temporary Employment Certification.

vii. Prevailing Wage

The current H-2A regulation defines “prevailing wage” as “[w]age established pursuant to 20 CFR 653.501(d)(4),” which is the Wagner-Peyser Act regulation that covers clearance of both H-2A and non-H-2A agricultural job orders. Due to regulatory revisions to part 653 under the Workforce Innovation and Opportunity Act, § 653.501(d)(4) no longer addresses prevailing wages but rather discusses the referral of workers.

While § 653.501(c)(2)(i) contains the requirement that the SWA must ensure that job orders provide that the employer has offered not less than the

higher of the prevailing wage rate or applicable Federal or State minimum wage, nothing in part 653 addresses how that prevailing wage is established.

See

Final Rule,

Workforce Innovation and Opportunity Act,

81 FR 56071, 56346-48 (Aug. 19, 2016) (amending § 653.501).

As discussed in detail below, the Department proposes to modernize the longstanding sub-regulatory guidance that it uses to establish prevailing wages and replace the existing methodology with a new methodology, as set forth in proposed regulatory text in 20 CFR 655.120 and discussed in the preamble to that section. Accordingly, the Department proposes to conform changes to the regulatory definition of prevailing wage in § 655.103 to cross reference that new proposed methodology at § 655.120(c). The Department proposes to use the same methodology to establish the prevailing wage for both H-2A and non-H-2A agricultural job orders. As a result, the Department proposes to make a corresponding change to the Wagner-Peyser Act regulation at 20 CFR 653.501(c)(2)(i) to define “prevailing wage” for the agricultural recruitment system in the same manner as the Department proposes to define “prevailing wage” for the H-2A program in 20 CFR 655.103(b).

viii. Temporary Agricultural Labor Certification

The Department also proposes revisions to the definition of “temporary agricultural labor certification.” Under the proposal, the definition clarifies that the certification made by OFLC is made based on the information contained in the

Application for Temporary Employment Certification,

the job order, and all supporting documentation submitted to the Department in the course of processing the application and job order. Under the current regulation, the definition does not make it clear that the Department's determination is based on all of these documents, though OFLC can and does consider that information in processing H-2A applications. The proposed revision would codify the Department's long-standing practice to base the certification determination on the information contained in those documents, demonstrating compliance with regulatory requirements.

ix. Additional definitions

The Department proposes to add definitions of other terms for clarity: Act, applicant,

Application for Temporary Employment Certification,

Board of Alien Labor Certification Appeals (BALCA), Chief ALJ, Department of Homeland Security, Employment and Training Administration, H-2A Petition, Metropolitan Statistical Area, piece rate, place of employment, Secretary of Labor, Secretary of Homeland Security, and U.S. Citizenship and Immigration Services.

b. Paragraph (c), Definition of Agricultural Labor or Services

The Department proposes to expand the regulatory definition of agricultural labor or services pursuant to section 101(a)(15)(H)(ii)(a) of the INA, 8 U.S.C. 1101(a)(15)(H)(ii)(a), to include reforestation and pine straw activities, which have similar fundamental characteristics to occupations currently defined as agricultural labor or services by statute or by the Secretary. When considering the Department's enforcement experience and reconsidering comments on past proposed rules, the Department has determined that reforestation and pine straw activities are more appropriately included in the H-2A program than in the H-2B program. In view of the changes that have taken place since the last proposal to include these activities in the H-2A program, it is appropriate to again seek comment on this issue. Although the Department cannot immediately anticipate the full impact of shifting these specific activities to the H-2A program, it notes that “Forest & Conservation Workers” have been the second leading occupation in DOL's certification of H-2B temporary labor certifications, with upwards of 11,000 certified positions annually in each of the last two fiscal years (FY17 and FY18). However, it is unlikely that all of these certified positions would have been filled with foreign H-2B workers due to the H-2B visa cap.

The proposed rule defines reforestation activities as predominantly manual forestry operations associated with developing, maintaining, or protecting forested areas including, but not limited to, planting tree seedlings in specified patterns using manual tools, and felling, pruning, pre-commercial thinning, and removing trees and brush from forested areas. This definition encompasses tasks that are normally associated with reforestation work and the cultivation of trees or other forestry products, regardless of whether the result of such cultivation is timber or a forested area for conservation purposes. Reforestation activities may include some forest fire prevention or suppression duties such as constructing fire breaks or performing prescribed burning tasks when such duties are in connection with and incidental to other reforestation activities. Forest fire protection or suppression duties are reforestation activities only when incidental to and performed as part of tree or forest product cultivation. For example, reforestation crews engaged in thinning to accelerate growth of immature trees may also construct a fire break, and reforestation crews engaged in planting may perform a prescribed burn prior to planting seedlings. This definition does not include regular and routine work of a forest firefighting crew and performance of job duties such as rescuing fire victims, administering first aid, locating fires, or monitoring environmental conditions for fire risk.

The proposed rule also states that reforestation activities do not include vegetation management activities in and around utility, highway, railroad, or other rights-of-way. As defined here, reforestation activities exclude vegetation management activities that are not associated with the cultivation of trees or other forestry products for timber or conservation purposes.

This includes, but is not limited to, right-of-way vegetation management activities such as the removal of vegetation that may interfere with utility lines or lines-of-sight, herbicide application, brush clearing, mowing, cutting, and tree trimming around roads, railroads, transmission lines, and other rights-of-way. Consequently, employers seeking temporary foreign workers for occupations involving these activities will have to file under the H-2B program and meet all applicable program requirements.

The definition of reforestation activities in the proposed rule excludes right-of-way vegetation management because this work does not involve the handling or planting of trees or other forestry products as an agricultural or horticultural commodity. Although right-of-way vegetation management involves similar activities as performed in reforestation (

i.e.,

brush clearing and tree trimming), the result of these activities is the destruction of vegetation, not cultivation. Right-of-way vegetation management therefore is more akin to landscaping, which is generally recognized as a non-agricultural industry and would be inappropriate to include within the scope of the H-2A program. The Department has also previously opined that right-of-way vegetation management does not constitute agricultural employment as defined by the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), thereby further distinguishing this industry from reforestation activities as defined here, which do constitute MSPA agricultural employment.

See

WHD Opinion Letter, June 11, 2002.

The proposed rule defines pine straw activities as “[o]perations associated with clearing the ground of underlying vegetation, pine cones, and debris; and raking, lifting, gathering, harvesting, baling, grading, and loading of pine straw for transport from pine forests, woodlands, pine stands, or plantations.”

As required by the INA, the definition of agricultural labor or services encompasses certain statutory

definitions,

as well as occupations defined as such by the Secretary in regulations. Prior to the 2008 Final Rule,

the Secretary did not use his authority to expand the scope of agricultural labor or services beyond those activities that the statute required to be included, none of which normally included reforestation or pine straw activities. The 2008 Final Rule expanded the definition of agricultural labor or services to include logging employment,

which the current regulation maintained and further clarified.

See

2010 Final Rule, 75 FR 6884, 6981. Although reforestation and pine straw activities are generally recognized as sub-industries of forestry, they do not generally meet the definition of logging employment and therefore were excluded from the definition of agricultural labor or services.

Specifically, section 101(a)(15)(H)(ii)(a) of the INA, 8 U.S.C. 1101(a)(15)(H)(ii)(a), identifies that, in addition to industries defined as such by the Secretary, the definition of agricultural labor or services includes “agricultural labor defined in section 3121(g) of the Internal Revenue Code of 1986, agriculture as defined in section 3(f) of the Fair Labor Standards Act of 1938, as amended (FLSA), 29 U.S.C. 203(f), and the pressing of apples for cider on a farm.”

See

Final Rule,

Temporary Agricultural Employment of H-2A Aliens in the United States; Modernizing the Labor Certification Process and Enforcement,

73 FR 77110, 77212 (Dec. 18, 2008) (2008 Final Rule).

See

Final Rule,

Temporary Agricultural Employment of H-2A Aliens in the United States; Modernizing the Labor Certification Process and Enforcement,

73 FR 77110, 77212 (Dec. 18, 2008) (2008 Final Rule).

Consequently, nonimmigrant workers engaged in reforestation and pine straw activities as defined in the proposed rule historically have been and are currently admitted under the H-2B program. However, these activities, as defined in the proposed rule, share fundamental similarities with traditional agricultural industries. Specifically, both reforestation and pine straw activities can involve the handling or planting of agricultural and horticultural commodities in their unmanufactured state and include tasks that are substantially similar to traditional agriculture, such as planting, weed control, herbicide application, and other unskilled tasks related to preparing the site and cultivating the soil.

See

2008 Final Rule, 73 FR 77110, 77118. Additionally, the working conditions have similar characteristics to those encountered in agricultural industries; reforestation activities are commonly performed by migrant crews and overseen by labor contractors, occur in remote locations, and are frequently paid on a piece rate basis.

Due to these similarities, work in both the reforestation and pine straw industries, as defined in this proposed rule, often meets the definition of agricultural employment under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA)

and of agricultural employers under the Occupational Safety and Health (OSH) Act's field sanitation standards.

For further analysis of the similarities between reforestation activities and traditional agricultural crews, see Proposed Rule,

Temporary Agricultural Employment of H-2A Aliens in the United States,

74 FR 45906, 45910-11 (Sept. 4, 2009) (2009 NPRM).

See Morante-Navarro

T & Y Pine Straw, Inc.,

350 F.3d 1163, 1170-72 (11th Cir. 2003);

Bresgal

Brock,

843 F.2d 1163, 1171-72 (9th Cir. 1987);

Davis Forestry Corp.

Smith,

707 F.2d 1325, 1328 n.3 (11th Cir. 1983).

In past rulemakings, these fundamental similarities prompted the Department to consider similar proposals regarding the inclusion of reforestation and pine straw activities within the scope of the H-2A program. In the 2008 NPRM, the Department sought comments regarding other industries for possible inclusion in the definition of agricultural labor and services.

In response, some representatives from the reforestation industry suggested that reforestation activities be included. In the 2008 Final Rule, the Department acknowledged the validity of these comments, but wanted input from a more representative sample of the affected industry.

In the 2009 NPRM, the Department proposed the inclusion of reforestation and pine straw activities within the definition of agricultural labor or services. 74 FR 45906, 45910-11. The Department, however, removed this provision in the 2010 Final Rule in response to comments that opposed the inclusion of reforestation. Only one comment specifically addressed pine straw activities. 75 FR 6884, 6889.

See

Proposed Rule,

Temporary Agricultural Employment of H-2A Aliens in the United States; Modernizing the Labor Certification Process and Enforcement,

73 FR 8538, 8555 (Feb. 13, 2008) (2008 NPRM).

“The comments from the reforestation industry, while thoughtful, represented the input of only two individual employers and a single employer association who do not necessarily provide a representative sample of the entire reforestation industry. The department is reluctant to overturn the regulatory practices of several decades and impose the significant obligations of an H-2A employer without significant input from that industry. While the Department is willing to further explore whether to include the reforestation industry in the definition of agriculture, it does not believe a decision to do so is warranted at this time.” 2008 Final Rule, 73 FR 77110, 77118.

The Department, however, believes that many of the comments received in response to the 2009 NPRM are no longer applicable in the current regulatory environment. Specifically, some commenters expressed concern about the additional costs and regulatory burdens that would be imposed by participation in the H-2A program instead of the H-2B program. 2010 Final Rule, 75 FR 6884, 6889. However, this is no longer the case as the protections that currently apply to H-2A workers are generally comparable to the protections afforded to H-2B workers in the reforestation and pine straw industries.

For example, the employer's obligation to pay or reimburse the worker for inbound and outbound transportation to and from the place of employment is similar under both H-2A and H-2B programs.

Likewise, among other similarities, both programs include similar recordkeeping and disclosure requirements, and require the employer to provide to the worker, without charge or deposit charge, all tools, supplies, and equipment required to perform the duties assigned.

See

Interim Final Rule,

Temporary Non-Agricultural Employment of H-2B Aliens in the United States,

80 FR 24041 (Apr. 29, 2015).

See

20 CFR 655.122(h)(1) and (2) for H-2A program requirements and 20 CFR 655.20(j)(1)(i) and (ii) for H-2B program requirements regarding inbound and outbound transportation.

Compare

20 CFR 655.122 and 20 CFR 655.20.

There are certain important differences, however, between the programs. For example, while an itinerant H-2B employer must provide housing at no cost to the workers (as is required of all H-2A employers), the H-2A program further requires that all employer-provided housing be inspected and certified, and that rental and/or public accommodations meet certain local, State, or Federal standards.

See

20 CFR 655.122(d). In addition, the H-2A corresponding employment and three-fourths guarantee requirements differ slightly from these same requirements under the H-2B program.

Moreover, the time period during which an employer must recruit and hire U.S. workers differs between the H-2A and the H-2B programs.

Similarly, employers in the reforestation and pine straw industries may qualify as H-2ALCs as defined in § 655.103 and, therefore, would be subject to the requirements found in § 655.132, including the requirement to

obtain a surety bond.

Reforestation and pine straw employers would be required to become familiar, and comply, with these differences in program requirements, among others, to ensure compliance with the H-2A program under the proposed rule. Despite these differences, the Department believes that transitioning these industries from the H-2B to the H-2A program should not represent a significant burden for employers, given the overall similarities between the programs and that (as discussed above) work in both the reforestation and pine straw industries, as defined in the proposed rule, often meets the definition of agricultural employment under the MSPA.

See

20 CFR 655.103 and 655.122(i) for H-2A program requirements and 20 CFR 655.5 and 655.20(f) for H-2B program requirements.

See

20 CFR 655.135(d) for H-2A program requirements and 20 CFR 655.40(c) for H-2B program requirements.

Additional filing requirements for H-2ALCs include a detailed itinerary of worksites, a copy of the MSPA Farm Labor Contractor Certificate of Registration (if required), copies of fully executed work contracts with each fixed-site agricultural business, and specific details and proof pertaining to worker housing and transportation.

See

20 CFR 655.132.

c. Paragraph (d), Definition of a Temporary or Seasonal Nature

The Department seeks comment on the possibility of moving the adjudication of an employer's temporary or seasonal need either exclusively to DHS or exclusively to DOL. It is an administration goal to eliminate duplication wherever feasible and this potential change may or may not streamline the adjudications of temporary or seasonal need for employers. Section 101(a)(15)(H)(ii)(a) of the INA, 8 U.S.C. 1101(a)(15)(H)(ii)(a), requires that only “agricultural labor or services . . . of a temporary or seasonal nature” may be performed under the H-2A visa category. Currently, the Department evaluates an employer's temporary or seasonal need in the first instance, using the standards set forth in § 655.103(d), which provides that employment is of a seasonal nature where it is tied to a certain time of year by an event or pattern, such as a short annual growing cycle or a specific aspect of a longer cycle, and requires labor levels far above those necessary for ongoing operations. Employment is of a temporary nature where the employer's need to fill the position with a temporary worker will, except in extraordinary circumstances, last no longer than 1 year.

DHS regulations provide that the Department's finding that employment is of a temporary or seasonal nature as “normally sufficient” for the purpose of an H-2A Petition, but also state that notwithstanding this finding, DHS adjudicators will not find employment to be temporary or seasonal in certain situations, such as “where an application for permanent labor certification has been filed for the same alien, or for another alien to be employed in the same position, by the same employer or by its parent, subsidiary or affiliate,” or “where there is substantial evidence that the employment is not temporary or seasonal.” 8 CFR 214.2(h)(5)(iv)(B). In making the latter determination, DHS uses the same definitions of temporary and seasonal as the Department.

Compare

20 CFR 655.103(d)

with

8 CFR 214.2(h)(5)(iv)(A).

Under the current process, the Department and DHS use separate and distinct experience to adjudicate temporary or seasonal need in the H-2A program. The Department has developed expertise and a process to which H-2A employers have become accustomed. DHS has historically adjudicated this need as part of its review of an H-2A visa petition, and it may have access to independent documentation unavailable to the Department that allows it to assess whether an employer has a temporary or seasonal need.

The Department contemplates that if either the Department or DHS became the sole arbiter of temporary or seasonal need for all H-2A employers, the Department and DHS would take actions, including delegation of authorities as the final arbiter of temporary or seasonal need and amendment of regulations, as needed, to effectuate this change. Accordingly, the Department seeks comment on whether there are benefits or concerns if either the Department exclusively or DHS exclusively became the sole arbiter of temporary or seasonal need.

B. Prefiling Procedures

1. Section 655.120, Offered Wage Rate

Section 218(a)(1) of the INA, 8 U.S.C. 1188(a)(1), provides that an H-2A worker is admissible only if the Secretary determines that “there are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services involved in the petition, and the employment of the alien in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed.” In 20 CFR 655.120(a), the Department currently meets this statutory requirement, in part, by requiring an employer to offer, advertise in its recruitment, and pay a wage that is the highest of the AEWR, the prevailing wage, the agreed-upon collective bargaining wage, the Federal minimum wage, or the State minimum wage. As discussed below, the Department proposes to maintain this wage-setting structure with only minor revisions and proposes to modify the methodologies by which the Department establishes the AEWRs and prevailing wages.

Specifically, the Department proposes to establish AEWRs for each agricultural occupation, as identified by the FLS and the OES survey, so that each AEWR is based on data more specific to the agricultural occupation of workers in the United States similarly employed and, as a result, better protects against adverse effect on the wages of workers in the United States similarly employed. In addition, the Department proposes to modernize the methodology used by the SWAs to conduct prevailing wage surveys. Finally, the proposed rule sets requirements for updates to wage rates during the work contract and for wage assignments and appeals of those assignments. Currently DOL funds the NASS Farm Labor Survey. USDA is committed to this survey and including $5 million in the President's budget for its modification and expansion to collect more granular data. This expansion will assist in providing the SOC level data DOL is seeking to best capture wage rates from farmerworkers across the country.

The Department currently sets the AEWR at the gross hourly rate for field and livestock workers (combined) from the FLS conducted by the USDA's NASS for each State or region. This produces a single AEWR for all agricultural workers in a given State or region, so that supervisors, agricultural inspectors, graders and sorters of animal products, agricultural equipment operators, construction laborers, and crop laborers are all assigned the same AEWR.

The Department is concerned that the current AEWR methodology may have an adverse effect on the wages of workers in higher-paid agricultural occupations, such as construction laborers and supervisors of farmworkers on farms or ranches, whose wages may be inappropriately lowered by an AEWR established from the wages of field and livestock workers (combined) because this is an occupational category from the FLS that does not include construction laborers or supervisors of farmworkers, among other occupations. In addition, the use of generalized data for other agricultural occupations could produce a wage rate that is not sufficiently tailored to the wage necessary to protect against adverse effect on workers in the United States similarly employed.

Accordingly, the Department proposes to revise its methodology so that the AEWR for a particular agricultural occupation will be based on the annual average hourly gross wage for that agricultural occupation in the State or region reported by the FLS when the FLS is able to report such a wage.

If the FLS does not report a wage for an agricultural occupation in a State or region, the Department proposes to set the AEWR at the statewide annual average hourly wage for the SOC from the OES survey conducted by BLS. If both the FLS cannot produce an annual average hourly gross wage for that agricultural occupation in the State or region and the OES cannot produce a statewide annual average hourly wage for the SOC, then the Department proposes to set the AEWR based on the national wage for the occupational classification from these sources.

This change to an occupation-based wage is intended to produce more tailored AEWRs that better protect against adverse effect on workers in the United States similarly employed than the Department's current regulation.

The Department proposes to remove the word “weighted” from the description of the FLS wage rate from the current regulation. This proposed change has no substantive effect. Both the OES and FLS apply weights in determining the average wage in accordance with accepted statistical principals, and the Department's other regulations which refer to OES-based wage rates do not use the term weighted. Therefore, for consistency, the Department proposes to remove the word “weighted” from the H-2A regulation governing the AEWR methodology. The Department also proposes to add the term “gross” after the term “hourly” in describing the wage rate from the FLS because, as discussed further below, USDA is considering making changes to its survey instrument to produce a wage that excludes certain types of incentive pay to report a “base” wage separate from the currently reported gross hourly wage. If the Department elects to use this new base wage as a source for the AEWR, the Department would first engage in notice-and-comment rulemaking to adopt that change, consistent with APA requirements. Until that time, the Department proposes to continue to use the “gross” hourly wage reported, consistent with the current regulation.

Using a national wage when a State wage cannot be produced is consistent with the OES reporting methodology.

The Department also proposes to modernize the methodology used by the SWAs to conduct prevailing wage surveys, which applies to both H-2A and other job orders that use the Wagner-Peyser Act agricultural recruitment system. The Department currently relies on Handbook 385, which pre-dates the creation of the H-2A program and was last updated in 1981, to set the standards that govern the prevailing wage surveys that the SWAs conduct to establish prevailing wage rates for all agricultural job orders. Many of these survey standards, such as a requirement for in-person interviews, are inconsistent with modern survey methods and the level of appropriated funding at the State and Federal levels. Due to the difficulty of implementing these resource-intensive standards, the SWAs are often required to report “no finding” from the prevailing wage surveys that they conduct. As a result, the current survey standards are not only resource-intensive but also fail to meet the Department's aim of producing reliable prevailing wage rates. Accordingly, the Department proposes to modernize the prevailing wage standards as set out in proposed § 655.120(c) to: (1) Establish reliable and accurate prevailing wage rates for employers and workers; and (2) allow the SWAs and other State agencies to conduct surveys using standards that are more realistic.

a. The Department's Proposal Maintains the Requirement That the Offered Wage Rate Must Be the Highest of Applicable Wage Sources

The Department proposes to continue to protect against adverse effect on the wages of workers in the United States similarly employed by maintaining the current requirement in § 655.120(a) that an employer must offer, advertise in its recruitment, and pay a wage that is the highest of the AEWR, the prevailing wage, the agreed-upon collective bargaining wage, the Federal minimum wage, or the State minimum wage, unless a special procedure wage rate applies, with only three minor changes.

First, the Department proposes to remove the exception in the current regulation for separate wage rates set by “special procedures” (

i.e.,

sub-regulatory variances from the regulation). The Department proposes to remove this exception because the only occupation that has a different wage rate structure is the herding and production of livestock on the range, and the wage methodology for that occupation is governed by § 655.211 and is no longer set through a sub-regulatory “special procedure.” In addition, as discussed above, the Department proposes to remove the authority in § 655.102 to establish, continue, revise, or revoke special procedures for H-2A occupations. Accordingly, the Department proposes to replace the reference to “special procedures” in the current regulation with a reference to the regulatory provisions covering workers primarily engaged in herding and production of livestock on the range as the only exception from the wage methodology set forth in this proposed rule.

Second, the Department proposes to remove the current reference to “the prevailing hourly wage or piece rate in 20 CFR 655.120(a) and (b).”

Instead, the Department proposes to refer only to the “prevailing wage” or “prevailing wage rate,” except where a given provision specifically applies only to prevailing piece rates. The Department proposes this change because the Department has issued prevailing wage rates that are not in the form of an hourly or piece rate wage, including monthly prevailing wage rates.

The Department also proposes to make corresponding changes throughout the regulation.

Third, the Department proposes to clarify that the requirement to offer and pay the prevailing wage applies only “if the OFLC Administrator has approved a prevailing wage survey for the applicable crop activity or agricultural activity meeting the requirements of paragraph (c)” of § 655.120.

This revision is intended to clarify that the Department is not obligated to establish a prevailing wage separate from the AEWR for every occupation and agricultural activity in every State. As discussed further below, the Department meets its obligation to protect against adverse effect on workers in the United States similarly employed primarily by requiring employers to offer, advertise, and pay the AEWR, which under the current wage methodology is the required wage rate in approximately 92 percent of H-2A applications based on a review of OFLC certification data. In addition, as the Department has previously acknowledged, the AEWR is actually a type of prevailing wage rate because it is the wage rate that is determined from a survey of actual wages paid by employers. Accordingly, the Department is already establishing a prevailing wage in the form of the AEWRs for all agricultural occupations. 2008 Final Rule, 73 FR 77110, 77167.

The Department also proposes a corresponding change to 20 CFR 655.122(l).

Nevertheless, the Department recognizes that State-conducted prevailing wage rates can serve as an important additional protection for U.S. workers in crop activities and agricultural activities with piece rates or, in rare instances, higher hourly rates of pay. Accordingly, the Department proposes to make the changes discussed below to modernize the prevailing wage methodology and empower States to produce a greater number of reliable prevailing wage surveys results. However, the Department proposes this new text to clarify that the Department is not required to issue prevailing wage rates for all crop activities and

agricultural activities in every State as such a requirement is both inconsistent with available Federal and State resources and unnecessary to prevent adverse effect. If finalized as proposed, the Department will work with the States through their annual grant plans to focus prevailing wage surveys on those crop activities and agricultural activities where prevailing wage surveys are most useful to protect the wages of U.S. workers, including for activities for which employers commonly pay based on a piece rate and when State agencies know based on past experience that prevailing wage surveys commonly result in hourly wages higher than the AEWR. The Department invites comments on other circumstances in which prevailing wage rates can be most useful as a tool to protect the wages of U.S. workers.

b. The Department Proposes To Base the AEWR on Occupation-Specific Data That Better Reflects the Wages of Workers in the United States Similarly Employed

The Department is retaining the requirement in the current regulation that employers in the H-2A program offer, advertise, and pay at least the AEWR if it is the highest applicable wage. Section 218(a)(1)(B) of the INA, 8 U.S.C. 1188(a)(1)(B), provides that DHS cannot approve an H-2A Petition unless the Department certifies that “the employment of the alien in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed.” Requiring employers to pay the AEWR when it is the highest applicable wage is the primary way the Department meets its statutory obligation to certify no adverse effect on workers in the United States similarly employed.

As the Department has explained in previous regulations, the AEWR “reflects a longstanding concern that there is a potential for the entry of foreign workers to depress the wages and working conditions of domestic agricultural workers.” 2010 Final Rule, 75 FR 6884, 6891. The use of an AEWR, separate from a State-conduced prevailing wage for a particular crop activity or agricultural activity, “is most relevant in cases in which the local prevailing wage is lower than the wage considered over a larger geographic area (within which the movement of domestic labor is feasible) or over a broader occupation/crop/activity definition (within which reasonably ready transfer of skills is feasible).”

Id.

at 6892-6893.

The H-2A program is unique among the temporary nonimmigrant programs administered by the Department because the H-2A program is not subject to a statutory cap. Consequently, concerns about wage depression from the importation of foreign workers are particularly acute because access to an unlimited number of foreign workers in a particular labor market and crop activity or agricultural activity could cause the prevailing wage of workers in the United States similarly employed to stagnate. In this context, the AEWR acts as “a prevailing wage concept defined over a broader geographic or occupational field.” 2010 Final Rule, 75 FR 6884, 6892. In other words, because the AEWR is generally based on data collected in a multi-State agricultural region and an occupation broader than a particular crop activity or agricultural activity, while the prevailing wage is commonly determined based on a particular crop activity or agricultural activity at the State or sub-State level, the AEWR protects against localized wage depression that might occur in prevailing wage rates. For these reasons, the Department proposes to continue to use an AEWR in the H-2A program and to require employers to offer, advertise, and pay at least the AEWR if it is the highest applicable wage.

i. The Department Proposes To Continue to the Use the FLS To Establish the AEWR in Most Geographic Areas for Most H-2A Workers

The Department proposes to use the FLS conducted by USDA's NASS to set the AEWR for the overwhelming majority of H-2A workers. The FLS is the Department's preferred wage source for establishing the AEWR because it is the only comprehensive wage survey that collects data from farm and ranch employers. The Department proposes to use the OES survey conducted by BLS to set the AEWR only for occupations and locations where the Department cannot establish an AEWR based on the FLS because the FLS does not report a wage. Because the OES survey is a reliable and comprehensive wage survey and is widely used in the Department's other foreign labor certification programs, the OES survey provides useful data for setting the AEWR in the limited circumstances where the FLS may not report a wage. The use of the FLS survey, and the OES survey as needed, will allow the Department to establish AEWRs based on occupational classification rather than based on all field and livestock workers (combined) and will better protect against adverse effects on similarly employed U.S. workers, as discussed below.

As the Department has stated in prior rulemakings, the FLS and the OES survey are the two “leading candidates” that the Department could use to establish the AEWR. 2009 NPRM, 74 FR 45906, 45912. The Department has always used the FLS to set the H-2A AEWR, with the exception of a brief period under the 2008 Final Rule. Currently, the Department uses the average gross hourly wage rate for the category field and livestock workers (combined) from the FLS as the AEWR for each State in the multi-State or single-State crop region to which the State belongs.

By contrast, under the 2008 Final Rule, the Department set the AEWR based on the OES survey. Under that rule, the Department set the AEWR using the SOC taxonomy and set a different AEWR for each SOC and localized area of intended employment. The Department used four wage levels intended to reflect education and experience under the 2008 Final Rule.

The FLS uses the following methodology: NASS collects wage and employment data for four reference weeks, one each quarter, from all farms with $1,000 or more in annual sales revenue for all in all States except for Alaska. The total sample of the FLS is approximately 10,000 to 13,000 farms and ranches, and data is reported for the United States as a whole and for each of 15 multi-State labor regions and the 3 single States of Florida, California, and Hawaii.

Guide to NASS Surveys: Farm Labor,

available at https://www.nass.usda.gov/Surveys/Guide_to_NASS_Surveys/Farm_Labor/index.php

(last modified May 4, 2018).

The USDA regions are as follows:

Table 1—USDA Regions

Appalachian I

Virginia and North Carolina.

Appalachian II

Kentucky, Tennessee, and West Virginia.

Cornbelt I

Illinois, Indiana, and Ohio.

Cornbelt II

Iowa and Missouri.

Delta

Arkansas, Louisiana, and Mississippi.

Lake

Michigan, Minnesota, and Wisconsin.

Mountain I

Idaho, Montana, and Wyoming.

Mountain II

Colorado, Utah, and Nevada.

Mountain III

Arizona and New Mexico.

Northeast I

Connecticut, Maine, Massachusetts, New Hampshire, New York, Rhode Island, and Vermont.

Northeast II

Delaware, Maryland, New Jersey, and Pennsylvania.

Northern Plains

Kansas, Nebraska, North Dakota, and South Dakota.

Pacific

Oregon and Washington.

Southeast

Alabama, Georgia, and South Carolina.

Southern Plains

Oklahoma and Texas.

Appendix A, Table 1 shows the AEWRs by region or State established by the Department for 2016 to 2018 based on FLS data for field and livestock workers (combined) under the current regulation.

Most data for the FLS is collected by mail and computer-assisted phone interviews, with personal interviews used for some large operations and those with special handling arrangements. NASS reports FLS data semiannually based on four quarterly reference weeks; in November, NASS reports annual data. In California, NASS collects data in cooperation with the California Employment Development Department and reports the data monthly. The FLS generally has a response rate of greater than 50 percent. The FLS reports hourly wage rates based on employers' reports of gross wages paid and total hours worked for all hired workers during the survey reference week for each quarter it conducts the survey.

Since 2014, the FLS has collected data by SOC—the same taxonomy that is used for the OES survey. It does not currently report wage data by SOC. Instead, the FLS aggregates and reports data in the major FLS occupational categories of field workers, livestock workers, field and livestock workers (combined), and all hired workers. In collaboration with the Department and the OMB, USDA established and implemented a crosswalk from the major FLS categories to the SOC categories.

Within the major FLS field worker category is the SOC category Farmworkers and Laborers, Crop, Nursery and Greenhouse (SOC 45-2092). Within the FLS livestock worker category is the SOC category Farmworkers, Farm, Ranch, and Aquacultural Animals (SOC 45-2093). Agricultural Equipment Operators (SOC 45-2091), Packers and Packagers, Hand (SOC 53-7064), Graders and Sorters, Agricultural Products (SOC 45-2041), and All Other Field Workers and All Other Livestock Workers (SOC 45-2099) are assigned to either the livestock worker or field worker major category of the FLS depending upon the agricultural product. Although the FLS collects data on the wages of supervisors, the FLS has not been able to report a statistically valid wage result for the major FLS category of supervisors. As a result, the wages of supervisors are currently only reported in the all hired workers category and are not included in the field and livestock workers (combined) category that the Department uses to establish the AEWR. Included within the major FLS category of supervisors are Farmers, Ranchers, and Other Agricultural Managers (SOC 11-9013); and First Line Supervisors of Farm Workers (SOC 45-1011). Finally, the FLS collects data on “other workers.” The FLS has not been able to report a statistically valid wage result for this FLS category, and, as a result, wages for “other workers” are reported only in the all hired workers category and are not included in the wages reported in the field and livestock workers (combined) category. Included in the “other workers” category are Agricultural Inspectors (SOC 45-2011), Animal Breeders (45-2021), Pest Control Workers (37-2021), and any other agricultural worker not fitting into the categories above, including mechanics, shop workers, truck drivers, accountants, bookkeepers, and office workers who fall within a variety of SOCs and have a wide variety of job duties. Contract and custom workers are excluded from the FLS sample population.

See

Crosswalk from the National Agricultural Statistics Service (NASS) Farm Labor Survey (FLS) Occupations to the 2010 Standard Occupational Classification (SOC) System,

available at https://www.nass.usda.gov/Surveys/Guide_to_NASS_Surveys/Farm_Labor/Farm-Labor-Survey-(FLS)-to-SOC-Crosswalk.pdf.

The OES survey is among the largest ongoing statistical survey programs of the Federal Government and produces wage estimates for over 800 occupations. It is used as the primary wage source for all of the nonimmigrant and immigrant prevailing wage determinations issued by the Department, except for those in the H-2A program. The OES program surveys approximately 200,000 establishments every 6 months and over a 3-year period collects the full sample of 1.2 million establishments, accounting for approximately 57 percent of employment in the United States.

Every 6 months, the oldest data from the 3-year cycle is removed from the sample, and new data is added. The wages reported in the older data are adjusted by the ECI, which is a BLS index that measures the change in labor costs for businesses. The OES survey is primarily conducted by mail, with follow up by phone to non-respondents or if needed to clarify data.

The OES average

hourly wage reported includes all straight-time, gross pay, exclusive of premium pay, but including piece rate pay.

See

OES Frequently Asked Questions, available at

https://www.bls.gov/oes/oes_ques.htm.

Id.

The OES uses the term “mean.” However, for purposes of this regulation the Department uses the term “average” because the two terms are synonymous, and the Department has traditionally used the term “average” in setting the AEWR from the FLS.

The primary advantage of using a wage derived from the FLS is that the FLS surveys farm and ranch employers. The OES survey, on the other hand, surveys establishments that support farm production. While establishments

that support farm production participate in the H-2A program, they constitute a minority of agricultural labor or services, and so data reported by these establishments is generally useful for purposes of calculating the AEWR applicable to an agricultural occupation only in the limited circumstances where FLS data is unavailable for the occupation.

Another positive feature of the FLS is that the statewide and regional wages issued provide protection against wage depression that is most likely to occur in particular local areas where there is a significant influx of foreign workers. The OES survey also produces statewide wage rates in addition to wage rates based on metropolitan statistical areas (MSAs).

Similarly, both the FLS and the OES surveys report a wage that covers activities above a crop activity level, which, as discussed above, is where wage depression from an influx of foreign workers could be most acute.

Indeed, BLS refers the public to USDA and NASS for statistics on U.S. agriculture employment and wages.

See

OES Frequently Asked Questions,

https://www.bls.gov/oes/oes_ques.htm.

The Department uses MSA-based wage estimates from the OES survey to set prevailing wage rates for the H-2B program and used OES MSA-based wage rates to set AEWRs under the 2008 H-2A Rule.

The Department favors the FLS as a source for the AEWR, and the Department proposes to use an occupation-based wage from that survey due to concerns that the current AEWR based solely on the field and livestock worker (combined) wage aggregates data at a level that combines wages of agricultural occupations that are dissimilar and that this may have the effect of inappropriately raising wages for lower-paid agricultural jobs while depressing wages in higher-paid occupations. For example, a worker performing construction labor on a farm under the H-2A program in Ohio must currently be paid at least the AEWR of $12.93 per hour because the worker's wage is determined based on the field and livestock (combined) wage, which contains many dissimilar jobs, including agricultural equipment operators; graders and sorters of agricultural products; hand packers and packagers of agricultural products; and farmworkers who tend to farm, ranch, and aquacultural animals, as well as farmworkers who perform manual labor to harvest crop, nursery, and greenhouse products. This is the case even though the FLS sample does not include workers who perform contract work, and workers performing construction labor on farms are likely to be employed as contract workers. In contrast, if the same construction worker performed identical job duties at a location other than a farm and, therefore, fell under the H-2B program, the required prevailing wage rate based on the OES SOC would be approximately $20.27 per hour.

This aspect of the current methodology appears to cause an adverse effect on the wages of workers in the United States similarly employed, contrary to the Department's statutory mandate.

This is the current statewide OES wage for the category of Construction Laborer, SOC 47-2061, in Ohio. Under the H-2B program, a local wage for that occupation would be used if available. As discussed below, the Department proposes to use the statewide OES mean hourly wage to establish the AEWR if the FLS cannot report a wage for the occupational classification in a given State or region.

An AEWR based on an occupational classification that accounts for significantly different job duties but remains broader than a particular crop activity or agricultural activity in a local area may better protect U.S. workers.

Accordingly, the Department proposes to amend its current AEWR methodology to issue an occupation-specific AEWR. The Department proposes to establish the AEWR using the FLS where the FLS reports a statewide or regional annual average gross hourly wage result for a particular agricultural occupation.

For example, an AEWR under this proposal would be established for SOC 45-2092 (Farmworkers and Laborers, Crop, Nursery, and Greenhouse), while particular crop activities within that category might include the hand harvesting of strawberries or onion packing shed duties.

Based on data collected by NASS from 2015 to 2017, the Department expects it will be able to establish AEWRs for most States and regions in SOCs 45-2092 (Farmworkers and Laborers, Crop, Nursery, and Greenhouse) and 45-2093 (Farmworkers, Farm, Ranch, and Aquacultural Animals). These occupations would represent approximately 89 percent of workers in the H-2A program if Forest and Conservation Workers (SOC 45-4011) are added to the H-2A program as proposed, and so the FLS will continue to be the basis for the AEWRs covering the vast majority of H-2A workers. In addition, the Department anticipates that it will be able to use the FLS to establish AEWRs for some States and regions for SOCs 45-2041 (Graders and Sorters, Agricultural Products), 45-2091 (Agricultural Equipment Operators), 45-2099 (Agricultural Workers, All Other),

53-7064 (Packers and Packagers, Hand), 11-9013 (Farmers, Ranchers and Other Agricultural Managers), and 45-1011 (First Line Supervisors of Farm Workers) based on NASS data. The FLS will never be able to report a statewide or regional wage for Alaska because the survey is not conducted there.

The Department would not use the “all other” category from the FLS to set a wage if a more specific SOC applies. For example, under this proposal, the AEWRs for Forest and Conservation Workers (SOC 45-4011), Logging Workers (SOC 45-4020), and Construction Laborers (SOC 47-2061) would all be based on those specific SOCs, not the “all other” category.

In a circumstance where the FLS cannot produce a wage for the occupational classification, the Department proposes to establish the AEWRs for all SOCs and States or regions at the statewide average hourly wage for that occupation using data from the OES survey, as discussed below, unless such a wage is not reported by BLS. Under this methodology, the OES statewide average hourly wage would also be used to establish the AEWR if USDA ceased to conduct the FLS for budgetary or other reasons.

To the extent the FLS may not consistently report data in each SOC for a State or region, the wage source used to establish the AEWR may vary from year to year, which could result in a much higher degree of variation in the AEWR applicable to an occupation from year to year than exists under the current methodology. The Department requests comments on whether there are alternate methods or sources that it should use to set the AEWR in the event that the FLS does not produce a wage in an SOC and State or region, including, but not limited to: (1) Whether the Department should use the separate field worker and livestock worker classifications from the FLS to set AEWRs for workers in occupations included in those classifications if a wage based on the SOC from the FLS is not available; (2) whether the Department should index past wage rates for a given SOC using the Consumer Price Index (CPI) or Employment Cost Index (ECI) if a wage cannot be reported for an SOC in a State or region in a given year based on the FLS but a wage was available in a previous year; (3) whether the Department should use the FLS national wage rate to set the AEWR for an SOC if the FLS cannot produce a wage at the State or regional level; and (4) whether the Department should consider any other methodology that would promote consistency and reliability in wage rates from year to year.

As an alternative, the Department invites comments on whether to set AEWRs based on the current FLS occupational classifications of field

workers and livestock workers for each State or region. Under this alternative, any occupational classifications not surveyed by NASS under either the field worker or livestock worker category would be assigned an AEWR based on the OES SOC. The disadvantage of this alternative is that it produces an AEWR at a broader occupational level than the SOC taxonomy. As a result, this option would provide a single AEWR covering a broader group of occupations, such as Graders and Sorters, Agricultural Products (SOC 45-2041) and Agricultural Equipment Operators (SOC 45-2091), in which workers perform dissimilar job duties. In contrast, the advantage of this alternative is that the FLS is currently able to produce a statewide or regional wage for both the field worker and livestock worker categories in every year, except in Alaska. As a result, this alternative would significantly reduce the likelihood that wage sources will change from year to year. For the same reasons, this methodology would also likely result in the Department using the FLS to set wages more often if the Department were to adopt a methodology that set AEWRs based on the SOC. As discussed above, the Department generally prefers to establish AEWRs based on the FLS rather than the OES survey because the FLS surveys farmers and ranchers, whereas the OES surveys establishments that support farm production, as discussed below.

In proposing to continue use of the FLS to set the AEWR for most H-2A workers, the Department notes that it does not have direct control over the FLS, and that USDA could elect to terminate the survey at some point. Indeed, USDA did briefly terminate the survey in 2007 due to budget constraints. The Department has addressed such a possibility in this proposal by providing that the OES statewide average hourly wage for the SOC will be used if the FLS does not produce an annual gross hourly wage for the occupational classification for a State or region.

The Department understands that USDA may make future adjustments to the FLS methodology, including that USDA may exclude certain types of incentive pay so that a base wage can be separately reported from the hourly wage rate. However, even after these modifications are complete, USDA also plans to continue to release data using its current methods. Under this proposed rule, the Department would continue to use USDA's existing methodology to set AEWRs based on SOC codes as discussed above. If the Department decides to later adjust the AEWR calculation based on methodological changes by USDA, the Department will provide the public with notice and the opportunity to provide comment before adopting any changes.

ii. If the OES Produces a Statewide Average Hourly Wage for the SOC, the Department Proposes To Use That Wage To Set the AEWR for Any Occupation Classification Where the FLS Does Not Report a Wage for the Occupational Classification and State or Region

The OES survey can be very useful in limited circumstances where the FLS cannot produce statistically reliable data for an occupation and state or region, and the OES survey is able to do so. The Department expects that the OES will be particularly useful in those occupations that constitute a small percentage of agricultural labor or services and a larger subset of non-agricultural labor or services (

e.g.,

construction workers), or where work is generally not performed on farms, so wages are not generally sampled by the FLS (

e.g.,

logging occupations). For these types of occupations, the FLS cannot produce a wage for the applicable SOCs. Similarly, the OES will be useful for the proposed addition of forest and conservation workers to the H-2A program. Like logging, forest and conservation work is not generally performed on farms or ranches, so it is generally excluded from the FLS, and the FLS cannot produce a wage for the applicable SOC. Accordingly, in the Department's view, the OES survey provides the most accurate source for determining the AEWR for these occupations. Indeed, because the OES survey is the primary wage source in the H-2B program, employers bringing in forest and conservation workers for temporary work are already required to pay at least an average hourly wage based on the OES survey.

Accordingly, the Department proposes to use the statewide OES average hourly wage for the SOC where the FLS cannot produce a wage for the agricultural occupation and State or region. In the H-2B program, the Department generally establishes prevailing wages based on the OES survey for the SOC in a metropolitan or non-metropolitan area. For the H-2A program, however, the Department proposes to use a statewide wage both to more closely align with the geographic areas from the FLS and to protect against wage depression from a large influx of nonimmigrant workers that is most likely to occur at the local level. As explained in prior rulemakings, the concern about localized wage depression is more pronounced in the H-2A program than in the H-2B program due to both the vulnerable nature of agricultural workers and the fact that the H-2A program is not subject to a statutory cap, which allows an unlimited number of nonimmigrant workers to enter a given local area.

See, e.g.,

2010 Final Rule, 75 FR 6884, 6895.

When the OES survey is used to establish the AEWR, the Department proposes to use the average hourly wage for the SOC, which is the methodology used under the H-2B program.

The average is proposed rather than the four-tiered wage level structure that the Department used to set the AEWR under the 2008 H-2A Final Rule. As explained in the preamble to the Department's current H-2A regulation: “OES wage levels are not determined by surveying the actual skill level of workers, but rather by applying an arithmetic formula. These are arbitrary percent cut-offs of the distribution of earnings within the occupations. Therefore, the associated occupational skill levels are not well defined, and H-2A wage differences [imposed by a four tier system] do not accurately reflect meaningful differences in skills or job complexity.” 2010 Final Rule, 75 FR 6884, 6900. As the Department further noted, “[m]ost of the occupations and activities relevant to the H-2A program involve skills that are readily learned in a very short time on the job, skills peak quickly, rather than increasing with long-term experience.”

Id.

To the extent that there are some agricultural activities that require a higher amount of expertise than others, such as agricultural inspectors or animal breeders, such differences are accounted for in the Department's proposal to issue AEWRs at the occupational classification level without regard to artificial “tiers.”

The H-2B regulation uses the term “mean” rather than “average,” but the meaning is the same.

In proposing to use the OES survey to establish the AEWR for a small percentage of H-2A workers, the Department acknowledges that the Department concluded in the 2010 Final Rule that use of the OES survey under the 2008 Final Rule depressed the wages of workers in the United States similarly employed. That finding does not apply to the current proposal for three primary reasons.

First, the Department proposes to use the OES survey only when the FLS cannot produce a wage for an occupation at the State or regional level. As discussed above, using the generalized field and livestock workers

(combined) wage from the FLS to establish the AEWR may have a depressive effect on wages of workers in the United States similarly employed for some agricultural occupations. As a result, if the FLS cannot produce a State or regional wage for an agricultural occupation, it is the Department's preliminary view, for the reasons discussed above, that the statewide OES survey provides a more accurate and appropriate source for the AEWR. Second, much of the wage reduction under the 2008 Final Rule was due to the fact that the 2008 Final Rule used a four-tiered wage level system, in contrast to this NPRM's proposal to use the average. As the Department has noted, under the 2008 Final Rule, “73 percent of applicants for H-2A workers specified the lowest available skill level—corresponding to the wage earned by the lowest paid 16 percent of observations in the OES data. Only 8 percent of applicants specified a skill level that translated into a wage above the OES median.” 2010 Final Rule, 75 FR 6884, 6898. Third, the use of the statewide wage rather than the wage at the metropolitan or non-metropolitan area is intended to prevent the OES wage from reflecting any wage depression in a particular local geographic area. Accordingly, the proposal to use the OES survey in this manner does not raise the same concerns as the 2008 Final Rule did.

The Department recognizes that the proposed methodology results in some AEWR increases and some AEWR decreases depending upon geographic location and agricultural occupation. Because any wage reductions are the result of the use more accurate occupational data, the reductions are consistent with the Department's obligation to protect against adverse effect on workers in the United States similarly employed. The use of more accurate occupational data means that lower AEWRs that better reflect the wage needed to protect against adverse effect for those agricultural occupations are generally offset by higher AEWRs in other occupations.

Appendix A, Table 2 provides average hourly wages by SOC and State under the proposed rule. The estimates in Appendix A, Table 2 are based on historic data.

iii. The Department Proposes To Use National Occupational Data If Neither the OES Survey Nor the FLS Reports a State or Regional Wage for the Occupation

In the rare event that both the FLS does not report an annual average hourly gross wage for the occupational classification in the State or region and the OES survey does not report a statewide annual average hourly wage for the SOC, the Department proposes to use national data for the occupation to set the wage for that geographic area. If both wage sources report a national wage rate for the occupational classification, the Department proposes to set the AEWR at the national annual average hourly gross wage for the occupational classification from the FLS because, for the reasons discussed above, the Department generally prefers to use the FLS, which is based on wages paid by farmers and ranchers. If the FLS does not report a national wage for the occupation, the Department proposes to use the national average hourly OES wage for that SOC and geographic area.

iv. The Department Requests Comments on All Aspects of Its Proposed Methodology for Establishing the AEWR

The Department invites comments on all aspects of the proposed AEWR methodology. In particular, the Department is interested in comments on the use of the FLS and OES survey, the conditions under which each survey should be used to establish the AEWR, and the proposal to depart from relying on the field and livestock workers (combined) wage from the FLS to instead establish AEWRs based on occupational classifications. The Department also invites comments on any alternate wage sources the Department might use to establish the AEWRs in the H-2A program.

c. The Department Proposes To Modernize the Methodology Used To Establish the Prevailing Wage Rate

i. The Current Prevailing Wage Methodology is Outdated and Does Not Meet the Policy Goal of Producing Reliable Prevailing Wage Rates

Current 20 CFR 655.120(a) requires that an employer seeking a temporary agricultural labor certification to employ an H-2A worker must offer, advertise in its recruitment, and pay a wage that is at least the highest of the AEWR, the prevailing wage, the agreed-upon collective bargaining wage, the Federal minimum wage, or the State minimum wage.

In addition, the Wagner-Peyser regulation at 20 CFR 653.501(c)(2)(i) requires the SWA to ensure for all agricultural job orders, H-2A and non-H-2A, that “wages . . . offered are not less than the prevailing wages . . . among similarly employed farmworkers in the area of intended employment or the applicable Federal or State minimum wage, whichever is higher.” Currently, the SWAs are required to conduct prevailing wage surveys using standards set forth in Handbook 385, which pre-dates the creation of the H-2A program and has not been updated since 1981. The Handbook is used for both H-2A and non-H-2A agricultural job orders. Notable aspects of the guidance are discussed below.

Under the current regulations and survey methodology, the AEWR most often sets the minimum hourly requirement.

Handbook 385 requires the SWAs to conduct prevailing wage surveys to determine the wage rates paid to domestic workers. Handbook 385 at I-116. These surveys are conducted based on “crop activity,” with “crop activity” defined as follows:

the job actually being performed in a specific crop at time of survey. A single job title, such as `harvest', may apply to the entire crop activity. On the other hand, different stages of the harvest, such as `cotton, 1st pick, 2nd pick, and strip', may be involved; or, a different use of the commodity such as `tomatoes, fresh' or `tomatoes, canning.' In such cases, the important consideration is whether the work is different. . . . For the purposes of this report, each operation or job related to a specific crop activity for which a separate wage rate is paid should be identified and listed separately.

Handbook 385 at I-113. In addition, the Handbook establishes separate prevailing wage rates for in-State workers, interstate workers, and all workers. Handbook 385 at I-118. Generally, job orders placed in the interstate clearance system are required to use the highest of these three rates. Handbook 385 at I-118.

Among the guidelines provided, the Handbook lists sample sizes that the SWA “should” follow, which vary depending upon the number of workers. Handbook 385 at I-114. The Handbook provides that for some crops with a small number of domestic workers, samples of the wages of all workers in the crop activity should be conducted, as follows:

Table 2—Sample Sizes From Handbook 385

Number of workers in the crop activity in area

Sample size

(percent of workers)

100-349

100

350-499

500-799

800-999

1000-1249

1250-1599

1600-2099

2100-2999

3000 or more

Handbook 385 at I-114. The Handbook does not provide any further information on whether the sample size guidelines are intended to be mandatory in all circumstances and, if the standards are not intended to be mandatory in all circumstances, what factors the Department must consider in determining whether to issue a prevailing wage if the sample size guidelines are not met. The Handbook further suggests that the State should conduct at least 1 survey per season in each of the following circumstances: (1) At least 100 workers were employed in the crop activity in the previous season or are expected to be employed in the current season; (2) regardless of the number of workers employed, foreign workers were employed in the previous season, or employers have requested or may be expected to request foreign workers in the current season, regardless of the number of workers involved; (3) the crop activity has an unusually complex wage structure; or (4) the crop or crop activity has been designated by the ETA national office as a major crop or crop activity. Handbook 385 at I-115. In addition, the Handbook recommends that surveys should normally be completed within 3 days. Handbook 385 at I-115.

The Handbook provides that prevailing wages are produced based on a “40 percent rule” and a “51 percent rule.” Handbook 385 at I-116-17. Under the 40 percent rule, a single rate or schedule that “accounts for the wages paid to 40 percent or more of the domestic seasonal workers in a single crop activity is the prevailing rate.” Handbook 385 at I-116. There are additional special rules if there is more than one rate or schedule accounting for 40 percent of the domestic seasonal workers. Handbook 385 at I-116. If no single rate or schedule accounts for 40 percent or more of the domestic workers, the prevailing rate is set at the 51 percentile. Handbook 385 at I-117. If there is more than one unit of payment, the SWA is instructed to determine which unit of payment is prevailing and base the prevailing wage finding on that unit of payment. Handbook 385 at I-117.

Most burdensome, the Handbook methodology requires in-person interviews to conduct the prevailing wage survey. Specifically, the wage survey must include “a substantial number of personal employer interviews,” which can only be supplemented by telephone or mail contacts “to a limited extent.” Handbook 385 at I-116. Further, the Handbook requires that 10 percent of the workers included in the sample for the wage survey must be interviewed and suggests that the worker sample “should be drawn from workers of as many as possible of the employers interviewed.” Handbook 385 at I-116. Neither the FLS nor the OES survey requires in-person interviews of employers as the primary collection method. Both the FLS and OES survey rely solely on employer-reported data and do not canvass workers directly.

The methodology in the Handbook 385 is outdated and needs to be modernized in a manner that produces reliable and accurate prevailing wage rates, while still being manageable given the limited available resources at the State and Federal levels. The Handbook methodology dates from 1981, before the creation of the modern H-2A program. Before the IRCA, the Department established AEWRs in only 14 “traditional user” States, leaving the prevailing wage and Federal and State minimum wages as the only wage protections available in other states.

See

1989 Final Rule, 54 FR 28037, 28038. After the passage of the IRCA, the Department dramatically expanded the use of the AEWR as a wage protection in the H-2A program in 49 States (excluding Alaska) and first began using the FLS to set the AEWR.

See id.

In contrast, no updates were made to the Handbook 385 after the passage of the IRCA or at any time since. Requirements in the Handbook, such as the requirement for in-person interviews, are now unrealistic given current SWA limitations. Due to the continued use of these standards, the SWAs are often required to report that the State cannot produce a finding for a given crop activity or agricultural activity because the completed survey cannot meet methodological standards. Accordingly, the current wage methodology both wastes State and Federal resources and fails to produce reliable and accurate prevailing wage rates for employers and workers.

For all of these reasons, the Department proposes to make changes to modernize the prevailing wage methodology. The proposal is intended to meet the Department's goals of establishing requirements that allow the SWAs and other State agencies to conduct surveys using standards that are realistic in a modern budget environment, while also establishing reliable and accurate prevailing wage rates for employers and workers. By modernizing the prevailing wage survey standards, the Department hopes to focus States on producing surveys in the circumstances in which the surveys can be most useful for protecting the wages of U.S. workers, and hopes to encourage a greater number of reliable prevailing wage survey results. The proposal recognizes that under the proposed wage methodology, which requires the offered wage rate to be set at the highest of all applicable wage rates, prevailing wage determinations will continue to be relevant only to a small percentage of job orders.

ii. The Department Proposes To Modernize the Methodology Used To Establish the Prevailing Wage Rate

For the reasons discussed above, the Department proposes to modernize the standards in Handbook 385 and replace the existing prevailing wage methodology with a new methodology at § 655.120(c) under which the Department would establish prevailing wages for crop activities or agricultural activities. The Department proposes to use the term “crop activity or agricultural activity” rather than the term “crop activity” from Handbook 385 because prevailing wage rates may exist for a single agricultural activity conducted across multiple agricultural commodities. Establishing wage rates by both crop activities and agricultural activities is consistent with the Department's current policy. For example, the Department's existing sub-regulatory guidance covering custom combine workers explains that prevailing wage rates for custom combine operators are established in accordance with Handbook 385.

This is because custom combine operators may be engaged in an agricultural activity, such as operating harvesting equipment, with a single wage structure across multiple crops.

See

TEGL 16-06, Change 1,

Special Procedures: Labor Certification Process for Multi-State Custom Combine Owners/Operators under the H-2A Program,

Attachment A at p. 1, available at

https://wdr.doleta.gov/directives/attach/TEGL/TEGL16-06-Ch1.pdf

(last updated June 14, 2011). As discussed further in the preamble related to proposed §§ 655.300 through 655.304, the Department proposes to codify in regulations the existing sub-regulatory guidance for certain H-2A itinerant occupations, including guidance applicable to custom combine operators.

Under the new proposed methodology, the OFLC Administrator would establish a prevailing wage for a given crop activity or agricultural activity only if all of the requirements in proposed § 655.120(c)(1) are met. Requiring that all surveys meet statistical standards is necessary to establish reliable and accurate prevailing wage rates for employers and workers. The Department proposes the following standards: (1) The SWA must submit a standardized form providing the methodology of the survey, which must be independently conducted by

the SWA or another state entity; (2) the survey must cover a distinct work task or tasks performed in a single crop activity or agricultural activity; (3) the survey must be based on either a random sample or a survey of all employers in the geographic area surveyed who employ workers in the crop activity or agricultural activity; (4) the survey must be limited to the wages of U.S. workers; (5) a single unit of pay must be used to compensate at least 50 percent of the U.S. workers included in the survey; (6) the survey must report an average wage; (7) the survey must cover an appropriate geographic area based on several factors; and (8) the survey must report the wages of at least 30 U.S. workers and 5 employers and the wages paid by a single employer must represent no more than 25 percent of the sampled wages included in the survey. In addition to these methodological standards, the Department proposes to establish a validity period of prevailing wage surveys.

First, the Department proposes to maintain the current requirement that the SWA submit a Form ETA-232 providing the methodology for the survey. If finalized as proposed, the Department would update the Form ETA-232 to align with the new proposed prevailing wage methodology. While the SWA would continue to submit the Form ETA-232 to OFLC, the Department proposes to allow the survey to be independently conducted by State entities other than the SWA, including any State agency, State college, or State university.

The Department proposes to broaden the universe of State entities that may conduct a prevailing wage survey because the SWAs have limited capacity to conduct surveys given other legal requirements, including the statutory requirement to conduct housing inspections. However, some other State agencies, State colleges, or State universities may have resources and expertise to conduct reliable prevailing wage surveys for the H-2A program. The Department proposes to broaden the categories of State entities that may conduct prevailing wage surveys to encourage more prevailing wage surveys to be conducted by reliable sources, independent of employer or worker influence. Under this proposal, a State entity other than the SWA could choose to conduct a prevailing wage survey using State resources without any foreign labor certification program funding, or the SWA could elect to wholly or partially fund a survey conducted by another State entity using funds provided by the Department for foreign labor certification programs. However, the Department proposes to continue to require the SWA to submit the Form ETA-232 for any prevailing wage survey, even if the survey was conducted by another State entity, to provide a single avenue through which States submit surveys, and so it is clear that all surveys sent to the Department are submitted on behalf of the State as a whole. The SWA is the appropriate entity to submit any survey to the Department because the SWA receives grant funding from the Department for the H-2A program. Without this requirement, the Department is concerned that more than one agency in a State might conduct a survey for the same crop activity or agricultural activity, which would require the Department to adjudicate conflicting prevailing wage surveys. The Department requests comments on alternate methods of dealing with the issue of possible conflicting surveys. The Department also requests comments on whether there are additional neutral sources of prevailing wage information that the Department should use in the H-2A program.

The H-2B regulation generally uses the OES average wage for the SOC to set the prevailing wage rate and allows employers to submit non-OES wage surveys as an alternative to the OES only if the survey is independently conducted and issued by a State, including any State Agency, State college or State university; where the OES does not provide data in the geographic area; or if the OES does not accurately represent the relevant job classification. 20 CFR 655.10.

Second, the Department proposes that the survey must cover a distinct work task or tasks performed in a single crop activity or agricultural activity. The concept of distinct work tasks is continued from the Handbook 385, which provides:

Some crop activities involve a number of separate and distinct operations. Thus, in harvesting tomatoes, some workers

pick

the tomatoes and place them in containers while others

load the

containers into trucks or other conveyances. Separate wage rates are usually paid for individual operations or combinations of operations. For the purposes of this report, each operation or job related to a specific crop activity for which a separate wage rate is paid should be identified and listed separately.

Handbook 385 at I-113 (emphasis in original). The distinct task requirement means that even within a single crop, distinct work tasks that are compensated differently (

e.g.,

picking and packing) would be required to be surveyed in a manner that produces separate wage results.

Third, the Department proposes that the survey must be based on either a random sample or a survey of all employers in the surveyed geographic area who employ workers in the crop activity or agricultural activity. This requirement is based on general statistical principals and is consistent with the recommendation in Handbook 385, which provides: “[w]ithout regard to whether employers do or do not utilize the facilities of the Job Service, the wage survey sample should include workers of small, medium and large employers of domestic workers from all sectors of the area being surveyed, and should be selected by probability sampling methods.” Handbook 385 at I-114. Probability and random sampling are synonymous, and random sampling includes both simple random sample and stratified random sample methods. The Department proposes to maintain this existing requirement to conduct a random/probability sample and clarify that random sampling (or surveying the entire universe) is a requirement, not a recommendation. The requirement that a prevailing wage survey be established based on a sampling of the entire universe or a random sample is also consistent with the H-2B prevailing wage regulation at § 655.10, as well as current H-2B prevailing wage guidance interpreting the H-2B appropriations riders.

To make a reasonable, good faith effort to contact all employers in the surveyed geographic area who employ workers in the crop activity or agricultural activity, the surveyor might send the survey through the mail or other appropriate means to all employers in the geographic area and then follow up by telephone with all non-respondents.

See Effects of the 2016 Department of Labor Appropriations Act

(Dec. 29, 2015) at p. 4,

available at https://www.foreignlaborcert.doleta.gov/pdf/H-2B_Prevailing_Wage_FAQs_DOL_Appropriations_Act.pdf.

Fourth, to protect against possible adverse effect on the wages of workers in the United States similarly employed, the Department proposes to limit the survey to the wages of U.S. workers. This limitation applies to both determining the universe of workers' wages to be sampled and the universe of workers' wages reported. Limiting the survey to U.S. workers is consistent with the Department's current policy and reflects the Department's longstanding concern that including the wages of non-U.S. workers may depress wages.

The Department recognizes that in the H-2B program, prevailing wage surveys must be conducted

without regard to the immigration status of the workers whose wages are included in the survey. However, the Department proposes to continue to require prevailing wage surveys in H-2A to include only the wages of U.S. workers due to concerns that the presence of the wages of undocumented workers in the sample may depress the wages of workers in the United States similarly employed are particularly acute in agriculture, because nearly half of farmworkers lack work authorization.

The Department invites comments on this policy, including whether the Department should instead adopt the H-2B standard.

The Handbook 385 uses the terms “domestic workers” and “U.S. workers” in describing the sample to be conducted, and the current Form ETA-232 similarly limits the survey to U.S. workers.

According to the most recent U.S. Department of Labor's National Agricultural Workers Survey, between October 1, 2012, and September 30, 2014, 47 percent of farmworkers in the United States lacked work authorization. Findings from the National Agricultural Workers Survey (NAWS) 2013-2014: A Demographic and Employment Profile of United States Farmworkers, Research Report No. 12 (Dec. 2016), pp. 4-5,

available at https://www.doleta.gov/naws/pages/research/docs/NAWS_Research_Report_12.pdf.

Fifth, the Department proposes that a prevailing wage be issued only if a single unit of pay is used to compensate at least 50 percent of the U.S. workers included in the survey. For example, an hourly prevailing wage rate would only be issued if at least 50 percent of the U.S. workers included in the survey are paid by the hour (and the survey also meets all other requirements provided in the proposed rule). For a wage rate based on a piece rate to be issued under this proposal, at least 50 percent of the U.S. workers whose wages are included in the survey must be both paid by the piece and also must be paid based on the same unit of measurement (

e.g.,

bushel, bin, etc.). This is similar to the requirement in the Handbook 385 that if a survey includes more than one unit of payment, a prevailing wage rate is issued based on the unit of pay that represents the largest number of workers. Handbook 385 at I-117. The Department proposes this requirement both to verify that the rate structure reflected in the survey is actually prevailing and to provide that the wages included in the survey can be averaged, as discussed in the next paragraph of the preamble, because it would not be possible to average wages using different units of measurement.

Sixth, the Department proposes that a prevailing wage survey must report an average wage for the unit of pay that represents at least 50 percent of the wages of U.S. workers included in the survey. This proposal departs from the requirement in Handbook 385 to use a “40 percent rule” and a “51 percent rule,” discussed above. The Department proposes to use an average wage to establish the prevailing wage because it is consistent with both how the Department proposes to set the AEWR under the FLS and OES methodologies and with the current H-2B wage methodology for prevailing wage rates. The Department invites comments on this methodology as well as possible alternatives, including whether the “40 percent rule” and a “51 percent rule” from the Handbook should be maintained or whether the Department should instead establish the prevailing wage at the median wage based on the unit of pay.

Seventh, the Department proposes that a prevailing wage survey must cover an appropriate geographic area based on available resources, the size of the agricultural population covered by the survey, and any different wage structures in the crop activity or agricultural activity within the State. With this proposal, the Department intends to codify existing practice whereby the Department receives prevailing wage surveys based on State, sub-state, and—in the case of logging activities in Maine, New Hampshire, and Vermont—regional geographic areas based on the factors listed above. The Department requests comments on whether any other factors should be considered in determining the appropriate geographic area for prevailing wage surveys.

Eighth, and most significantly, the Department proposes to replace the statistical guidelines from Handbook 385 with standards that are more effective in producing a prevailing wage and more appropriate to a modern budget environment. As discussed above, existing standards often result in “no finding” from a prevailing wage survey; therefore, the current standards are both a waste of government resources and fail to meet the goal of producing reliable and accurate prevailing wage rates. The Department is also concerned that employers may be incentivized not to respond to a survey under the existing methodology because the OFLC Administrator does not issue a prevailing wage if the sample is too small. As a result, requiring smaller sample sizes than those suggested in Handbook 385 may actually increase survey response rates because employers may be more likely to respond to a survey if it is more likely that the OFLC Administrator will issue a prevailing wage than under the current methodology.

The Department proposes that the survey must report the wages of at least 30 U.S. workers and 5 employers and that the wages paid by a single employer must represent no more than 25 percent of the sampled wages included in the survey. The 30-worker standard is consistent with the requirements for H-2B prevailing wage rates as well as minimum reporting numbers for the OES.

See

20 CFR 655.10(f)(4)(ii) (employer-provided surveys for the H-2B program must include wage data from at least 30 workers and three employers);