Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States

Federal RegisterFeb 28, 2023

Ask Donna

What actually matters in this document.

Text

DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

[DOL Docket No. ETA-2021-0006]

RIN 1205-AC05

Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States

AGENCY:

Employment and Training Administration, Department of Labor.

ACTION:

Final rule.

SUMMARY:

The Department of Labor (Department or DOL) is amending its regulations governing the certification of agricultural labor or services to be performed by temporary foreign workers in H-2A nonimmigrant status (H-2A workers). Specifically, the Department is revising the methodology by which it determines the hourly Adverse Effect Wage Rates (AEWRs) for non-range occupations (

i.e.,

all occupations other than herding and production of livestock on the range) using a combination of wage data reported by the U.S. Department of Agriculture's (USDA) Farm Labor Reports (better known as the Farm Labor Survey, or FLS), and the Department's Bureau of Labor Statistics (BLS) Occupational Employment and Wage Statistics (OEWS) survey, formerly the Occupational Employment Statistics (OES) survey prior to March 31, 2021. For the vast majority of H-2A job opportunities represented by the six Standard Occupational Classification (SOC) codes comprising the field and livestock worker (combined) wages reported by USDA, the Department will continue to rely on the FLS to establish the AEWRs where a wage is reported by the FLS. For all other SOC codes, the Department will use the OEWS survey to establish the AEWRs for each SOC code. Additionally, in circumstances in which the FLS does not report a wage for the field and livestock workers (combined) occupational group in a particular State or region, the Department will use the OEWS survey to determine the AEWR for that occupational group. These regulatory changes are consistent with the Secretary of Labor's (Secretary) statutory responsibility to certify that the employment of H-2A workers will not adversely affect the wages and working conditions of workers in the United States similarly employed. The Department believes this methodology strikes a reasonable balance between the statute's competing goals of providing employers with an adequate supply of legal agricultural labor and protecting the wages and working conditions of workers in the United States similarly employed.

DATES:

This final rule is effective on March 30, 2023.

FOR FURTHER INFORMATION CONTACT:

Brian Pasternak, Administrator, Office of Foreign Labor Certification, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue NW, Room N-5311, Washington, DC 20210, telephone: (202) 693-8200 (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.

SUPPLEMENTARY INFORMATION:

Preamble Table of Contents

I. Background

A. Legal Authority

B. Purpose for the Regulatory Action

C. Recent Rulemaking

D. Implementation of This Final Rule

II. Summary of Proposed Changes to the AEWR Methodology and the Changes Adopted in This Final Rule

A. General Overview of Comments

B. Definition of AEWR

C. AEWR Methodology

D. Out-of-Scope Comments on the Proposed Rule

III. Administrative Information

A. Executive Order 12866: Regulatory Planning and Review; and Executive Order 13563: Improving Regulation and Regulatory Review

B. Regulatory Flexibility Analysis and Small Business Regulatory Enforcement Fairness Act and Executive Order 13272: Proper Consideration of Small Entities in Agency Rulemaking

Table of Acronyms and Abbreviations

AEWR Adverse Effect Wage Rate

ALS Agricultural Labor Survey

ARIMA Autoregressive integrated moving average

ASB Agricultural Statistics Board

BLS Bureau of Labor Statistics

CFR Code of Federal Regulations

CO Certifying Officer

CPS Current Population Survey

CY calendar year

DOL U.S. Department of Labor

DWL deadweight loss

E.O. Executive Order

ECI Employment Cost Index

ETA Employment and Training Administration

FLR Farm Labor Report

FLS Farm Labor Survey

FY Fiscal Year

GVW Gross Vehicle Weight

H-2ALC H-2A Labor Contractor

INA Immigration and Nationality Act

IRCA Immigration Reform and Control Act of 1986

NAICS North American Industry Classification System

NASS National Agricultural Statistics Service

NPC National Processing Center

NPRM Notice of Proposed Rulemaking

O*NET Occupational Information Network

OES Occupational Employment Statistics

OEWS Occupational Employment and Wage Statistics

OFLC Office of Foreign Labor Certification

OIRA Office of Information and Regulatory Affairs

OMB Office of Management and Budget

Pub. L. Public Law

RFA Regulatory Flexibility Act of 1980

RIA Regulatory impact analysis

SBA Small Business Administration

SOC Standard Occupational Classification

Stat. U.S. Statutes at Large

SWA State Workforce Agency

U.S. United States

U.S.C. United States Code

USCIS U.S. Citizenship and Immigration Service

USDA U.S. Department of Agriculture

WHD Wage and Hour Division

I. Background

A. Legal Authority

The Immigration and Nationality Act (INA), as amended by the Immigration Reform and Control Act of 1986 (IRCA), establishes an “H-2A” nonimmigrant visa classification for a worker “having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform agricultural labor or services . . . of a temporary or seasonal nature.” 8 U.S.C. 1101(a)(15)(H)(ii)(a);

see also

8 U.S.C. 1184(c)(1), 1188.

Among other things, a prospective H-2A employer must first apply to the Secretary for a certification that (1) 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 (2) the employment of the H-2A workers in such services or labor will not adversely affect the wages and working conditions of workers in the United States similarly employed. 8 U.S.C. 1188(a)(1). The INA prohibits the Secretary from issuing this certification—known as a “temporary agricultural labor certification”—unless both of the above-referenced conditions are met and none of the conditions in 8 U.S.C. 1188(b) apply concerning strikes or lock-outs, labor certification program debarments, workers'

compensation assurances, and positive recruitment.

For ease of reference, sections of the INA are referred to by their corresponding section in the United States Code.

The Secretary has delegated the 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).

In addition, the Secretary has delegated to the Administrator, Wage and Hour Division (WHD), the responsibility under section 218(g)(2) of the INA, 8 U.S.C. 1188(g)(2), to ensure employer compliance with the terms and conditions of employment under the H-2A program.

Since 1987, the Department has operated the H-2A temporary agricultural labor certification program under regulations it promulgated pursuant to the INA. The standards and procedures applicable to the certification and employment of workers under the H-2A program are found in 20 CFR part 655, subpart B, and 29 CFR part 501.

See

Secretary's Order 06-2010 (Oct. 20, 2010), 75 FR 66268 (Oct. 27, 2010); 20 CFR 655.101.

See

Secretary's Order 01-2014 (Dec. 19, 2014), 79 FR 77527 (Dec. 24, 2014).

When creating the H-2A visa classification, Congress charged the Department with, among other things, regulating the employment of nonimmigrant foreign workers in agriculture to guard against adverse impact on the wages of agricultural workers in the United States similarly employed.

See

8 U.S.C. 1188(a)(1)(B). Congress, however, did not “define adverse effect and left it in the Department's discretion how to ensure that the [employment] of farmworkers met the statutory requirements.”

Thus, the Department has discretion to determine the methodological approach that best allows it to meet its statutory mandate.

The INA “requires that the Department serve the interests of both farmworkers and growers—which are often in tension. That is why Congress left it to [the Department's] judgment and expertise to strike the balance.”

AFL-CIO, et al.

Dole,

923 F.2d 182, 184 (D.C. Cir. 1991).

United Farmworkers

Solis,

697 F. Supp. 2d 5, 8-11 (D.D.C. 2010).

Dole,

923 F.2d ad 187.

The AEWR is one of the primary ways the Department meets its statutory obligation to certify that the employment of H-2A workers will not have an adverse effect on the wages of agricultural workers in the United States similarly employed, while ensuring that employers can access legal agricultural labor. There is no statutory requirement that the Department determine the AEWR at the highest conceivable point, nor at the lowest, so long as it serves its purpose to guard against adverse impact on the wages of agricultural workers in the United States similarly employed.

The Department also considers factors relating to the sound administration of the H-2A program in deciding how to determine the AEWR.

See

68 FR 11,460, 11,464 (Apr. 9, 1987) (“[T]he labor certification program is not the appropriate means to escalate agricultural earnings above the adverse effect level or to set an `attractive wage.'”).

B. Purpose for the Regulatory Action

The Department has determined this rulemaking is necessary to ensure that the employment of H-2A foreign workers will not have an adverse effect on the wages of agricultural workers in the United States similarly employed. As discussed in the notice of proposed rulemaking (NPRM) published on December 1, 2021, concerns about the employment of foreign workers adversely affecting the wages of agricultural workers in the United States similarly employed are heightened in the H-2A program because the program involves an especially vulnerable population.

Setting the AEWR and requiring employers who desire to employ H-2A foreign workers to offer, advertise, and pay at least the AEWR when it is the highest applicable wage is one of the primary regulatory controls the Department uses to meet its statutory obligation to certify that the employment of H-2A foreign workers will not have an adverse effect on the wages of agricultural workers in the United States similarly employed.

The AEWR's role in the Department's administration of the H-2A program is distinct from and complementary to local prevailing wage findings, which are specific to a particular crop or agricultural activity. In the absence of a local prevailing wage finding, or where there is a local prevailing wage finding but that finding is lower than the prevailing wage of workers performing similar work within an occupational classification and broader geographic area (

e.g.,

statewide or regional), the AEWR establishes a wage floor that serves to prevent localized wage stagnation or depression relative to the wages of workers similarly employed in areas and occupations in which employers desire to employ H-2A workers.

See

Proposed Rule,

Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States,

86 FR 68174, 68176 (Dec. 1, 2021) (2021 AEWR NPRM).

An employer seeking H-2A workers is required to offer, advertise in its recruitment, and agree to pay a wage that is at least equal to the AEWR, the prevailing hourly wage rate, the prevailing piece rate, the agreed-upon collective bargaining rate, or the Federal or State minimum wage rate, in effect at the time work is performed, whichever is highest, and pay at least that rate to workers for every hour or portion thereof worked during a pay period. 20 CFR 655.120(a), 655.121(l).

The Department has expressed concerns with the current methodology used to determine the AEWR in the H-2A program, which was set forth in the 2010 Final Rule,

and has engaged in rulemaking activities to address its concerns.

As discussed below regarding recent rulemaking and related litigation, the Department determined that the 2010 Final Rule AEWR methodology does not adequately prevent adverse effect on the wages of agricultural workers in the United States similarly employed in two principal ways. First, the 2010 Final Rule AEWR methodology uses Farm Labor Survey (FLS) wage data for field and livestock workers (combined) to determine a single AEWR for all non-range H-2A job opportunities in each State or region, including job opportunities in Standard Occupational Classification (SOC) codes that the FLS does not include in the field and livestock worker (combined) data collection (

e.g.,

supervisors, construction, logging, tractor-trailer truck drivers). Not only is an AEWR determined under this methodology not reflective of the wages of workers performing similar work in those SOC codes, but the SOC codes not included in FLS field and livestock worker (combined) data collection generally account for more specialized or higher paid job opportunities. As a result, an AEWR determined using FLS field and livestock worker (combined) data does not adequately guard against adverse effect on the wages of agricultural workers similarly employed in the United States in these SOC codes. Second, the 2010 Final Rule AEWR methodology does not enable the Department to determine an AEWR for all geographic areas in which employers may seek to employ H-2A workers (

e.g.,

Alaska or Puerto Rico) due to FLS' data collection methodology and procedures.

Although the Department

requires consideration of several wage sources other than the AEWR (

e.g.,

local prevailing wage finding, State or Federal minimum wages) to determine the minimum wage rate an employer must offer, advertise in its recruitment, and pay covered workers, not all of those wage sources are available or applicable to H-2A applications in all circumstances (

e.g.,

a CBA or a local prevailing wage finding). Regardless of the availability or applicability of other wage sources, the AEWR currently serves as a primary wage source to protect against adverse effect relative to the wages of workers similarly employed in occupations and geographic areas included in FLS data collection. However, workers in geographic areas not included in FLS data collection procedures do not have an AEWR's protection against adverse effect.

Final Rule,

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

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

See, e.g.,

Proposed Rule,

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

84 FR 36168, 36171 (July 26, 2019) (2019 NPRM); 2020 AEWR Final Rule,

Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States,

85 FR 70445, 70447-70465 (Nov. 5, 2020) (2020 AEWR Final Rule).

USDA's National Agricultural Statistics Service (NASS) publishes

Farm Labor Methodology and Quality Measures,

a document that describes the methodology and quality measures used for the

FLS. Most recently updated on May 25, 2022, this document may be accessed at

https://www.nass.usda.gov/Publications/Methodology_and_Data_Quality/Farm_Labor/05_2022/fmlaqm22.pdf

To address these concerns, this rule revises the methodology by which the Department determines the hourly AEWRs for non-range occupations (

i.e.,

all occupations other than herding and production of livestock on the range).

Using a combination of wage data reported by the USDA FLS and the Department's BLS OEWS survey, the methodology adopted in this final rule enables the Department to establish appropriate AEWRs in all geographic areas and for all SOC codes in which employers may seek to employ H-2A workers, which the Department considers a reasonable approach that strikes an appropriate balance under the INA, as discussed below.

Range occupations are subject to a minimum monthly AEWR, as set forth in 20 CFR 655.211(c).

C. Recent Rulemaking

As part of the comprehensive H-2A program notice of proposed rulemaking published on July 26, 2019 (2019 NPRM), the Department proposed to adjust the methodology used to establish the AEWRs in the H-2A program.

That approach would have provided occupation-specific statewide hourly AEWRs for non-range occupations using data reported by FLS for the SOC code in the State or region,

if available, or data reported by the OES (now OEWS) survey for the SOC code in the State, if FLS data in the State or region was not available. At the time, the Department explained that establishing AEWRs based on data more specific to the agricultural services or labor being performed under the SOC system would better protect against adverse effect on the wages of agricultural workers in the United States similarly employed. For example, the Department expressed concern that the AEWR methodology under the 2010 Final Rule could have had an adverse effect on the wages of workers in higher paid agricultural SOC codes, such as supervisors of farmworkers and construction laborers, whose wages may have been inappropriately lowered by use of a single hourly AEWR based on the wage data collected for the six SOC codes covering field and livestock workers (combined).

See

84 FR 36168, 36171.

For more information about the states and regions in the FLS survey, you may visit the following web page:

https://www.nass.usda.gov/Surveys/Guide_to_NASS_Surveys/Farm_Labor/#:~:text=The%20Farm%20Labor%20Survey%20provides%20the%20basis%20for,turn%2C%20provide%20the%20basis%20for%20annual%20average%20estimates

See

84 FR 36168, 36180-36185.

The Department received thousands of comments on the proposed changes to the methodology for setting the AEWRs in the 2019 NPRM. The commenters represented a wide range of stakeholders interested in the H-2A program, and their comments were both in support of and in opposition to the proposed changes to establish occupation-specific hourly AEWRs for non-range occupations.

A detailed discussion of the public comments as well as further background on the 2019 NPRM, specifically related to the hourly AEWR determinations, was included in the Department's 2020 AEWR Final Rule and will not be restated here.

See

85 FR 70445, 70447-70465 (Nov. 5, 2020). The public comments are accessible in the public docket in

regulations.gov

. See

https://www.regulations.gov/document/ETA-2019-0007-0002.

As the Department worked on drafting a comprehensive H-2A program final rule, USDA publicly announced, on September 30, 2020, its intent to cancel the planned October 2020 data collection and November 2020 publication of the Agricultural Labor Survey (ALS) and Farm Labor Reports (better known as the FLS).

The USDA's announcement created uncertainty regarding the annual average hourly gross wage rates for the six SOC codes covering field and livestock workers (combined) within the FLS that were necessary for the Department to establish and publish the hourly AEWRs for the next calendar year (CY) period on or before December 31, 2020, under the existing 2010 Final Rule methodology. To ensure AEWRs for each State were published before the end of CY 2020, the Department published the 2020 AEWR Final Rule on November 5, 2020, with an effective date of December 21, 2020.

In revising the AEWR methodology in the 2020 AEWR Final Rule, the Department acknowledged that USDA had suspended FLS data collection on at least two prior occasions, and that the USDA decision to cancel both the October data collection and the related November 2020 report was the subject of ongoing litigation.

In addition, the Department took into account the public comments received in response to the proposal to revise the AEWR methodology in the 2019 NRPM.

Notice of Revision to the Agricultural Labor Survey and Farm Labor Reports by Suspending Data Collection for October 2020,

85 FR 61719 (Sept. 30, 2020); USDA NASS,

Guide to NASS Surveys: Farm Labor Survey,

https://www.nass.usda.gov/Surveys/Guide_to_NASS_Surveys/Farm_Labor

(last modified Dec. 10, 2020);

see also

USDA NASS,

USDA NASS to Suspend the October Agricultural Labor Survey

(Sept. 30, 2020),

https://www.nass.usda.gov/Newsroom/Notices/2020/09-30-2020.php

The Department's 2020 H-2A AEWR Final Rule revised the methodology by which the Department determines the hourly AEWR for non-range agricultural occupations, including the corresponding definition of the AEWR. The 2020 H-2A AEWR Final Rule addressed only that aspect of the 2019 NPRM, while the Department's Final Rule,

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

87 FR 61660 (Oct. 12, 2022) (2022 Final Rule) addressed the remaining aspects of the 2019 NPRM.

85 FR 70445, 70446.

The 2020 AEWR Final Rule set the 2021 AEWR for the six SOC codes covering field and livestock workers (combined) at the 2020 AEWR rates, which were based on results from FLS wage data published in November 2019, and provided for those AEWRs to adjust annually, starting at the beginning of CY 2023, using the BLS Employment Cost Index (ECI), Wages and Salaries. For all other SOC codes, and for geographic areas not included in the FLS, the 2020 AEWR Final Rule set the 2021 AEWR at the statewide annual average hourly gross wage for the SOC code reported by the OEWS survey or, where a statewide average hourly gross wage is not reported, the national average hourly gross wage for the SOC code reported by the OEWS survey, to be adjusted annually based on the OEWS survey.

Litigation challenging USDA's cancellation of the October data collection and November publication of the FLS followed USDA's September 30, 2020, announcement. On October 28, 2020, in

United Farm Workers, et al.

Perdue, et al.,

No. 20-cv-01452 (E.D. Cal. filed Oct. 13, 2020), the court preliminarily enjoined USDA from giving effect to its decision to cancel the October 2020 FLS data collection and cancel its November 2020 publication of the FLS.

The USDA National

Agricultural Statistics Service (NASS) therefore proceeded with its data collection, and the USDA published the FLS report on February 11, 2021.

Meanwhile, the Department's 2020 AEWR Final Rule was challenged in

United Farm Workers, et al.

Dep't of Labor, et al.,

No. 20-cv-01690 (E.D. Cal. filed Nov. 30, 2020). On December 23, 2020—two days after that rule went into effect—the court issued an order preliminarily enjoining the Department from further implementing it.

Additionally, the court issued a supplemental order on January 12, 2021, requiring the Department to publish the AEWRs for 2021 in the

Federal Register

on or before February 25, 2021, using the methodology set forth in the 2010 Final Rule, and to make those AEWRs effective upon their publication.

Pursuant to the court's January 12, 2021, supplemental order, the Department published the 2021 AEWRs using the 2010 Final Rule methodology on February 23, 2021, with an immediate effective date.

United Farm Workers,

2020 WL 6318432 (E.D. Cal. Oct. 28, 2020);

see also United Farm Workers

Perdue,

2020 WL 6939021 (E.D. Cal. Nov. 25, 2020) (denying USDA's motion to modify or dissolve the injunction).

See

USDA, Farm Labor Report (Feb. 11, 2021),

https://downloads.usda.library.cornell.edu/usda-esmis/files/x920fw89s/f7624565c/9k420769j/fmla0221.pdf; see also Notice of Reinstatement of the Agricultural Labor Survey Previously Scheduled for October 2020,

85 FR 79463 (Dec. 10, 2020).

United Farm Workers, et al.

U.S. Dep't of Labor, et al.,

509 F. Supp. 3d 1225 (E.D. Cal. 2020).

Supplemental Order Regarding Preliminary Injunctive Relief,

United Farm Workers, et al.

U.S. Dep't of Labor, et al.,

No. 20-cv-1690 (E.D. Cal. Jan. 12, 2021), ECF No. 39.

See Labor Certification Process for the Temporary Employment of Aliens in Agriculture in the United States: 2021 Adverse Effect Wage Rates for Non-Range Occupations,

86 FR 10996 (Feb. 23, 2021).

In its order preliminarily enjoining the Department from further implementing its 2020 AEWR Final Rule, the court recognized that the Department has broad discretion in determining the methodology for setting the AEWR so long as the Department's approach is sufficiently explained.

However, the court concluded that the plaintiffs were likely to succeed on their claims that the Department failed to justify freezing wages for two years, and failed to properly analyze the economic impact of the 2020 Final AEWR Rule on farmers.

27 28

In addition, the court found that, although the Department recognized “the importance of the AEWR reflecting the market rate” throughout the 2020 AEWR Final Rule,

the plaintiffs were likely to succeed on their claim that the Department failed to adequately explain its departure from its longstanding use of the FLS—which plaintiffs had asserted better reflected such market rates—to determine AEWRs for the field and livestock workers (combined) category.

United Farm Workers, et al.

U.S. Dep't of Labor, et al.,

509 F. Supp. 3d 1225, 1241 n.5 (E.D. Cal. 2020).

Id.

at 1241-42.

Id.

at 1243-45.

Id.

at 1241 (internal quotation and citation omitted).

Id.

at 1247-48.

In its decision granting plaintiffs' motion for summary judgment, the court adopted its rationale from its decision granting the requested preliminary injunction in holding that the 2020 Final Rule (1) did not protect against adverse effect as required by the INA, (2) did not adequately explain the 2-year wage freeze, and (3) failed to properly analyze the economic impact of the rule.

Accordingly, the court vacated the 2020 Final AEWR Rule, and remanded to the Department for further rulemaking consistent with the court's opinion.

United Farm Workers, et al.

U.S. Dep't of Labor, et al.,

No. 20-cv-01690-DAD-BAK, 2022 WL 1004855, at *6-7 (E.D. Cal. April 4, 2022).

Id.

D. Implementation of This Final Rule

Any job order submitted to the OFLC National Processing Center (NPC) in connection with an

Application for Temporary Employment Certification

for H-2A workers and before the effective date of this final rule will be processed using the 2010 Final Rule methodology, under which the AEWR for all non-range H-2A job opportunities is equal to the annual average hourly gross wage rate for field and livestock workers (combined) in the State or region as reported by FLS.

In addition, if an updated AEWR is published by the OFLC Administrator in the

Federal Register

during the work contract period for a temporary agricultural labor certification processed using the 2010 Final Rule methodology, and the updated AEWR is higher than the highest of the previous AEWR, the prevailing wage, the agreed-upon collective bargaining wage, or the Federal or State minimum wage in effect at the time the work is performed, the employer must pay at least the updated AEWR upon the effective date published in the

Federal Register

, as required by 20 CFR 655.120.

Although a job order filed before the effective date of this rule is not subject to the AEWR methodology of this rule, it may be subject to the same AEWR as a job order for field and livestock workers filed on or after the effective date of this rule because an AEWR determined under the 2010 Final Rule's AEWR methodology is the same as an FLS-based AEWR determined under paragraph (b)(1)(i)(A) of this final rule.

See

20 CFR 655.120(c) of the 2010 Final Rule (providing for AEWR adjustments “at least once each calendar year”).

The methodology established by this final rule will apply to any job orders for non-range job opportunities submitted to the NPC in connection with an

Application for Temporary Employment Certification

for H-2A, as set forth in 20 CFR 655.121, on or after the effective date of this final rule, including job orders filed concurrently with an

Application for Temporary Employment Certification

to the NPC for emergency situations under 20 CFR 655.134. In order for employers to understand their wage obligations upon the effective date of this final rule, the Department is listing the statewide AEWRs applicable to the field and livestock workers (combined) category pursuant to 20 CFR 655.120(b)(1)(i) of this final rule below and providing the URL that provides a search tool enabling interested parties to search by State and SOC code for the AEWR applicable to all other non-range job opportunities pursuant to 20 CFR 655.120(b)(1)(ii) of this final rule. In addition, the Department will post the AEWR applicable to each SOC code and geographic area contemporaneously with the publication of this final rule in the

Federal Register

on the OFLC website at

https://www.dol.gov/agencies/eta/foreign-labor/

. Employers will therefore have 30 days from the date of the publication of this final rule to understand their new wage obligations before they go into effect.

Table—Hourly AEWRS Determined Under § 655.120

(b)(1)(i)

Effective on or After March 30, 2023

Alabama

$13.67

Alaska

17.21

Arizona

15.62

Arkansas

13.67

California

18.65

Colorado

16.34

Connecticut

16.95

Delaware

16.55

District of Columbia

20.33

Florida

14.33

Georgia

13.67

Guam

10.40

Hawaii

17.25

Idaho

15.68

Illinois

17.17

Indiana

17.17

Iowa

17.54

Kansas

17.33

Kentucky

14.26

Louisiana

13.67

Maine

16.95

Maryland

16.55

Massachusetts

16.95

Michigan

17.34

Minnesota

17.34

Mississippi

13.67

Missouri

17.54

Montana

15.68

Nebraska

17.33

Nevada

16.34

New Hampshire

16.95

New Jersey

16.55

New Mexico

15.62

New York

16.95

North Carolina

14.91

North Dakota

17.33

Ohio

17.17

Oklahoma

14.87

Oregon

17.97

Pennsylvania

16.55

Puerto Rico

9.17

Rhode Island

16.95

South Carolina

13.67

South Dakota

17.33

Tennessee

14.26

Texas

14.87

Utah

16.34

Vermont

16.95

Virgin Islands

13.24

Virginia

14.91

Washington

17.97

West Virginia

14.26

Wisconsin

17.34

Wyoming

15.68

Hourly AEWRs determined under § 655.120(b)(1)(ii) effective on or after March 30, 2023 are available for each SOC code and geographic area using the search tool or searchable spreadsheet that may be accessed here:

https://flag.dol.gov/.

When the OFLC Administrator publishes subsequent updates to the AEWRs in the

Federal Register

, as required by 20 CFR 655.120(b)(2) of this final rule, the adjusted AEWRs will be effective on the date specified in the

Federal Register

notice.

As of the effective date of an AEWR adjustment, the updated AEWR applies to both H-2A applications in process (

e.g.,

filed, but no final determination made; or those with a final determination, but under appeal), and certified H-2A applications that remain in effect.

If the AEWR is adjusted during a work contract period, the employer must reassess its wage obligation(s) under 20 CFR 655.122(l). If the new AEWR applicable to the employer's certified job opportunity is higher than the highest of the previous AEWR, the current prevailing hourly wage rate, the current prevailing piece rate, the current agreed-upon collective bargaining wage, the current Federal minimum wage rate, or the current State minimum wage rate, the employer must pay that adjusted AEWR upon the effective date of the new rate.

See

20 CFR 655.120(b)(3). For a job order subject to the 2022 Final Rule, if the adjusted AEWR is lower than the rate guaranteed on the job order, the employer must continue to pay at least the rate guaranteed on the job order.

See

20 CFR 655.120(b)(4).

See

20 CFR 655.120(b)(3) of the 2022 Final Rule, 87 FR at 61796 (providing that “the employer must pay at least the updated AEWR upon the effective date of the updated AEWR published in the

Federal Register

”).

See

20 CFR 655.120(a) (requiring the employer to “offer, advertise in its recruitment, and pay a wage that is at least the highest of” the applicable wage sources) and 20 CFR 655.120(b)(3) and 655.122(l) (requiring the employer to increase a worker's pay due to an AEWR adjustment after certification, if applicable).

II. Summary of Proposed Changes to the AEWR Methodology and the Changes Adopted in This Final Rule

On December 1, 2021, the Department issued the 2021 AEWR NPRM announcing its intent to amend the regulations governing the methodology by which it determines the hourly AEWRs for non-range H-2A occupations (

i.e.,

all H-2A occupations other than herding and production of livestock on the range).

See

86 FR 68174 (Dec. 1, 2021). Specifically, the Department proposed to use a single FLS-based AEWR for most agricultural work performed in a given State (

i.e.,

work performed in the “field and livestock workers (combined) occupational group” reported by FLS). Only in the event FLS did not report a wage finding for the field and livestock workers (combined) occupational group (

e.g.,

in Alaska, where FLS does not survey) would the OEWS serve as a wage source for setting the single statewide AEWR applicable to H-2A job opportunities for field and livestock workers (combined) in that State or region, or equivalent district or territory. For each SOC code not included in the field and livestock workers (combined) occupational group reported by FLS, the Department proposed to use SOC-specific OEWS-based AEWRs in each State or equivalent district or territory. Additionally, for agricultural labor or services to be performed by H-2A workers that cannot be encompassed within a single SOC code, the Department proposed to determine the AEWR using the SOC code assigned to the employer's job opportunity with the highest applicable AEWR.

In addition, the Department proposed to continue to adjust the AEWRs for each State or region at least once in each calendar year. The Department explained that because the FLS is released in or around November and the OEWS is released in or around June, the Department intended to update the AEWRs through two separate annual announcements in the

Federal Register

. One

Federal Register

notice would announce annual adjustments to the AEWRs based on the FLS, effective on or about January 1, and a second

Federal Register

notice would announce annual adjustments to the AEWRs based on the OEWS survey, effective on or about July 1.

Finally, the Department proposed to revise the definition of AEWR. The proposed definition clarified that the Department uses a different methodology to establish AEWRs for range occupations (

i.e.,

job opportunities processed under the Department's herding and production of livestock regulations at 20 CFR 655.200 through 655.235) than it uses to establish AEWRs for non-range occupations. The Department explained that a different methodology is required to establish the national monthly AEWR for range occupations due to the nature of range occupations (

i.e.,

occupational requirements for workers to be on call 24 hours per day, 7 days a week, to perform herding and production of livestock duties on the range).

The Department invited interested parties to submit written comments on all aspects of this proposal. Because the 2020 AEWR Final Rule had been preliminarily enjoined before the NPRM for this Final Rule was published, there was uncertainty as to whether the 2020 AEWR Final Rule would be vacated prior to the issuance of this Final Rule. The Department therefore sought comment on all aspects of the NPRM for this Final Rule that mirrored provisions in the 2020 AEWR Final Rule. In addition, the Department requested comments on use of the FLS and OEWS surveys and the conditions under which each survey should be used to establish the AEWR. For example, the Department sought comments on the continued use of a single statewide hourly AEWR for the field and livestock worker (combined) category, rather than statewide AEWRs for each SOC code within the FLS field and livestock workers (combined) category. In addition, the Department requested comments on use of the OEWS survey to establish the AEWR for the field and livestock workers (combined) category in the absence of the FLS or where the FLS does not report a wage finding for these SOC codes in a particular State or region or equivalent district or territory, and also sought comments on use of the OEWS to establish AEWRs for all job opportunities that do not fall within the

FLS field and livestock workers (combined) occupational group.

The Department specifically stated that it was not considering eliminating the AEWR or changing the AEWR's role in determinations of an employer's required minimum wage rate in the H-2A program, for reasons explained at length in prior rulemakings, including in the 2020 AEWR Final Rule and 2010 Final Rule.

The comment period closed on January 31, 2022.

A. General Overview of Comments

The Department received a total of 92 public comments in docket number ETA-2021-0006 in response to the 2021 AEWR NPRM prior to the comment submission deadline. The commenters represented a range of stakeholders from the public, private, and not-for-profit sectors. The Department received comments from a geographically diverse cross-section of stakeholders. These commenters included workers' rights advocacy organizations, farm owners, trade associations for agricultural products and services, not-for-profit organizations interested in agricultural issues, and other organizations with an interest in farming, ranching, and other agricultural activities. Public sector commenters included State agencies, while private sector commenters included business owners, employer representatives, workers' rights advocacy groups, public policy organizations, and trade associations interested in agricultural and immigration-related issues. The Department recognizes and appreciates the value of comments, ideas, and suggestions from all those who commented on the proposal, and this final rule was developed after review and consideration of all public comments timely received in response to the 2021 AEWR NPRM.

Among the comments received, the Department received 16 requests for an extension of the comment period for the 2021 AEWR NPRM.

While the Department appreciates the issues raised concerning the public's opportunity to examine the rule and comment, the Department decided not to extend the comment period and posted its response in the rule's electronic docket (ETA-2021-0006-0046) for public viewing. In that response, the Department explained that the proposed changes would have an economic impact on the regulated community, and the 60-day comment period provided was consistent with the comment periods provided in rules on similar subject matter that were more comprehensive and complex. For example, the Department published the 2019 NPRM, which proposed comprehensive revisions to the entire H-2A regulatory framework, including revisions to the AEWR methodology that were more complex than those proposed in the 2021 AEWR NPRM. The 2019 NPRM received extensive public review and comments within the 60-day comment period even though the Department declined at that time to extend the comment period.

The Department also received an

ex parte

communication during the comment period seeking clarification on one of the regulatory alternatives mentioned in the NPRM. The Department responded to the communication and posted the correspondence (ETA-2021-0006-0013) on the public docket associated with this rulemaking.

Most commenters specifically addressed one or more of the Department's proposed changes to the methodology used to determine the AEWR in the H-2A program, such as the Department's proposed use of FLS and OEWS as the wage sources for setting AEWRs and conditions under which each source would be used to determine the AEWR for a particular job opportunity. These comments are discussed in the subject-by-subject analysis below.

Some commenters expressed support or opposition, generally, regarding the Department's rulemaking efforts to modify the AEWR methodology, regarding the AEWR, itself, or regarding the Department's balancing of employer and worker interests. For example, a variety of commenters asserted that there is no reason to change the methodology, or objected to the proposed changes by themselves without balancing them with other program changes or addressing the undocumented workforce. Some commenters expressed a preference for the current methodology (

i.e.,

the 2010 Final Rule methodology) if the only alternative is the proposed 2020 AEWR Final Rule methodology. Comments from employers, trade associations, a law firm, and a government agency objected to both the 2010 AEWR methodology and the AEWR methodology proposed in the 2021 AEWR NPRM. In general, these commenters asserted that both the 2010 and 2021 (proposed) AEWR methodologies were disconnected from agricultural industry realities, such as labor shortages despite wage increases; the impact of labor and program costs on agricultural operations' viability and competitiveness in interstate and international markets; whether employers are able to absorb labor costs; and the impact of such costs on job availability, downstream industry, and food cost and supply.

Other commenters expressed general concern about increases in required wage rates or asserted that the AEWR is too high, comparing it to the minimum wage rate or to general wage trends in the U.S. economy, using the ECI for comparison. Some commenters objected to the Department setting a wage floor, rather than permitting the employer to offer a wage based on work performance or experience, knowledge, loyalty, and contribution to the employer's operation. In contrast, a nonprofit public policy advocacy organization observed that farmworkers are not receiving unusually high wages or wages that are increasing at an unreasonable rate; rather, its review of wage data indicated that farmworkers are among the lowest-paid workers in the United States—lower than other comparable low-paid workers—and the rate of farmworker wage changes over time has been reasonable and consistent with labor market trends, with the impact on farmers offset by rising productivity and/or output prices.

Although the Department is sensitive to the commenters' general concerns, the Department notes the purpose of this rulemaking effort is to establish an AEWR methodology that guards against potential wage depression among similarly employed workers in areas where employers hire H-2A workers in accordance with H-2A program requirements. As stated above, the AEWR is a longstanding regulatory mechanism the Department uses to certify that the employment of H-2A workers will not adversely affect the wages of agricultural workers in the United States similarly employed. In addition, the Department's effort to improve the AEWR methodology through rulemaking is one part of the Department's larger efforts to update and improve the H-2A program within the scope of the Department's authority. Throughout the course of several rulemakings, the Department has articulated reasons for changing the AEWR methodology, including geographic limitations of the FLS survey and the need to address potential adverse effect on the wages of similarly employed workers in occupations outside the field and livestock workers (combined) occupations. The Department responds to specific comments about the proposed changes adopted by this final rule in the subject-by-subject analysis in Section II.B. Before beginning the subject-by-subject analysis, however, the Department here clarifies three significant

misconceptions about the 2021 AEWR NPRM reflected in the comments.

First, one commenter objected to the Department's inclusion of any aspect of the 2020 AEWR Final Rule, noting that the rule was enjoined in Federal court. As discussed above, although the Federal court's decision determined that specific aspects of the methodology adopted in the 2020 AEWR Final Rule were inconsistent with the Department's mandate to ensure employment of foreign workers does not adversely affect the wages and working conditions of workers in the United States similarly employed, the Department reevaluated the 2020 AEWR Final Rule's provisions, in conjunction with the Federal court's findings, and proposed only aspects of the 2020 AEWR Final Rule that are consistent with the Department's objectives and the court's opinion. The Department solicited public comment on the specific aspects of the 2020 AEWR Final Rule the Department proposed to retain, and these comments are addressed in subject-by-subject analysis in Section II.B.

Second, some commenters misunderstood, or requested clarification regarding, the Department's statement in the 2021 AEWR NPRM that the proposed AEWR methodology would not change labor costs or wage requirements for the “vast majority” of H-2A job opportunities. The Department appreciates the opportunity to clarify. The Department proposed to retain the 2010 Final Rule AEWR methodology for field and livestock workers (combined) job opportunities, whenever the FLS reports the average hourly gross wage rate for field and livestock workers (combined) in a State or region. Apart from three instances in the past three decades in which USDA suspended the survey, which are discussed above, the FLS has consistently collected and reported wage data for field and livestock workers (combined) in 49 States. Thus, the Department's proposal would not change the methodology by which the AEWRs are established for field and livestock workers (combined) job opportunities in most of the United States. In addition, the FLS field and livestock workers (combined) category reports aggregate wage data covering six SOC titles and codes: Farmworkers and Laborers, Crop, Nursery and Greenhouse Workers (45-2092); Farmworkers, Farm, Ranch, and Aquacultural Animals (45-2093); Agricultural Equipment Operators (45-2091); Packers and Packagers, Hand (53-7064); Graders and Sorters, Agricultural Products (45-2041); and All Other Agricultural Workers (45-2099). Based on the Department's program estimates, 98 percent of H-2A job opportunities are classified within these six SOC titles and codes.

The Department acknowledges that some of the job opportunities within that 98 percent may involve some work that cannot be classified solely within the field and livestock workers (combined) occupational group and, instead, constitutes a combination of job duties covering multiple SOC codes subject to different AEWRs under the proposed methodology. However, as clarified in the subject-by-subject analysis in Section II.B, the Department anticipates the AEWRs established for the vast majority of H-2A job opportunities will not change under this final rule, and will impact H-2A wage requirements only for: (1) the small percentage of job opportunities that cannot be encompassed within the six SOC codes and titles in the FLS field and livestock workers (combined) reporting category, and (2) the small number of field and livestock workers (combined) job opportunities in States or regions, or equivalent districts or territories, for which the FLS does not report a wage (

e.g.,

Alaska and Puerto Rico).

Based on a review of H-2A applications certified during the 5-year period of October 1, 2017, through September 1, 2022, OFLC certified 76,547 H-2A applications covering 1,484,699 worker positions across all SOCs. Of the total worker positions certified, 1,459,792 (98.3%) worker positions were certified in the following six SOCs comprising the field and livestock workers (combined) category that the FLS reports: 3,056 worker positions as Graders and Sorters, Agricultural Products (45-2041); 86,157 worker positions as Agricultural Equipment Operators (45-2091); 1,302,604 worker positions as Farmworkers and Laborers, Crop, Nursery and Greenhouse (45-2092); 58,741 worker positions as Farmworkers, Farm, Ranch, and Aquacultural Animals (45-2093); 437 worker positions as Packers and Packagers, Hand (53-7064); and 8,797 worker positions as Agricultural Workers, All Other (45-2099). See

https://www.dol.gov/agencies/eta/foreign-labor/performance

(accessed September 12, 2022).

Third, comments reflecting employers' interests asserted a variety of objections to the Department continuing to require employers to adjust wage offers and rates of pay due to annual AEWR adjustments. An employer and a trade association expressed concern with wage increases after growers calculate payroll and receive loans for their production year or crop loan cycle, while a law firm expressed concern with wage increases after agricultural construction companies negotiate multiyear contracts with growers. An agent stated that AEWR adjustments appeared to require wage increases after the State Workforce Agency (SWA) has accepted a job order. Trade associations and employers objected to wage increases due to AEWR adjustments as infringing on negotiated employment contract terms. The Department appreciates the opportunity to clarify that wage requirement adjustments based on annual AEWR adjustments are not new for employers who choose to use the H-2A program. The 2010 H-2A Final Rule specified the employer's obligation to pay the wage rate “in effect at the time work is performed,” which required wage offer and payroll adjustments if the Department provided notice of an updated AEWR or prevailing wage determination higher than an employer's current wage offer or pay rate.

In the 2022 Final Rule, the Department clarified and codified in 20 CFR 655.120(b)(3) and 655.120(c)(3) an employer's wage adjustment obligation in the event of an AEWR or prevailing wage determination update.

See

75 FR at 6901.

The Department appreciates all of the comments received, which reflect the importance and complexity of the Department's objective—to strike a reasonable balance between the statute's competing goals of providing employers with an adequate supply of legal agricultural labor and protecting the wages and working conditions of workers in the United States similarly employed—and its responsibility to certify H-2A employment only where the Department determines such employment will not adversely affect the wages of workers in the United States similarly employed. The Department proposed changes to the AEWR methodology in the 2021 AEWR NPRM after reflection on recent rulemaking, related litigation, and the need to strengthen wage protections. Having now considered the public comments received on the proposed methodology, the Department continues to believe that the changes proposed in the 2021 NPRM best strike the balance between the statute's competing goals of providing employers with an adequate supply of legal agricultural labor and protecting the wages of workers in the United States similarly employed. Accordingly, the Department is adopting the methodology proposed in the 2021 AEWR NPRM without change.

B. Definition of AEWR

The Department proposed to define AEWR as “[t]he wage rate published by the OFLC Administrator in the

Federal Register

for non-range occupations as set forth in § 655.120(b) and range occupations as set forth in § 655.211(c),” mirroring the definition in the 2020 AEWR Final Rule.

One commenter opposed the use of any part of the 2020 AEWR Final Rule,

including the definition of AEWR, because of the litigation history in Federal court. The commentor misinterpreted the impact of the litigation, as the court's decision vacating the 2020 rule was unrelated to the definition of AEWR, and the court's vacatur of the 2020 rule does not prevent the Department from proposing and subsequently adopting the same definition of AEWR in this rulemaking. The Department has reevaluated the definition of AEWR and determined that the definition adopted in the 2020 AEWR Final Rule and proposed in the 2021 AEWR NPRM remains consistent with the Department's objectives.

The same commenter suggested that the Department, instead, continue to use the AEWR definition provided in the 2010 Final Rule, and wait for the FLS to adjust its methodology, an endeavor the commentor asserted is underway. The Department declines to adopt this suggestion, as the 2010 Final Rule definition

is inconsistent with the methodology adopted in this final rule. In addition, the 2010 Final Rule definition failed to account for the distinct AEWR methodology applicable to H-2A range occupations, implemented in 2015.

See

75 FR 6883, 6960 (defining AEWR as “[t]he annual weighted average hourly wage for field and livestock workers (combined) in the States or regions as published annually by the USDA based on its quarterly wage survey”).

C. AEWR Methodology

1. Wage Sources Used To Determine the AEWR

The Department proposed a contingency approach to calculate the AEWR in which the FLS is the primary data source for the overwhelming majority of workers with backup wage sources for each occupational classification grouping based on availability of wage source data. The Department recognizes that having contingencies in place when data are not available is a practical necessity in certain circumstances to determine an AEWR. Thus, the Department proposed to implement secondary and, in some instances, tertiary safeguards to determine the AEWR when data is not available using the primary wage source in a particular State or region.

For the field and livestock workers (combined) occupational group within a given State or region, or equivalent district or territory, the Department proposed to determine the AEWR using, as its primary wage source, the annual average combined hourly gross wage from the USDA's NASS quarterly FLS for the State or region. Hourly wage rates are calculated based on employers' reports of total wages paid and total hours worked for all hired workers during the survey reference week each quarter. In the event FLS data is not available to calculate the AEWR for field and livestock workers in a particular State or region, or equivalent district or territory, the Department proposed to determine the AEWR using, as its secondary wage source, the OEWS statewide annual average hourly gross wage for the field and livestock workers (combined) category. In the event that neither the FLS nor the OEWS report a wage for the field and livestock workers (combined) category for a State, or equivalent district or territory, the Department proposed to determine the AEWR for the field and livestock workers (combined) category using, as its tertiary wage source, the OEWS national annual average hourly gross wage for the field and livestock workers (combined) category.

For all SOC codes other than the six covering field and livestock workers (combined), the Department proposed to determine the AEWR using, as its primary wage source, the statewide annual average hourly gross wage for the SOC code for the State, or equivalent district or territory, as reported by the OEWS survey. In the event the OEWS survey does not report a statewide annual average hourly gross wage for the SOC code, the Department proposed to determine the AEWR for that State, or equivalent district or territory, using as its secondary wage source, the national annual average hourly gross wage for the SOC code, as reported by the OEWS survey. After considering public comments discussed in detail below, the Department has adopted these proposals without change.

a. The Department Will Use the FLS To Establish the AEWR for Field and Livestock Worker Job Opportunities in the Vast Majority of Cases

The Department received some comments in support of its proposal to continue using the FLS to determine the AEWR for H-2A job opportunities for field and livestock workers. Several comments noted that the FLS provides the most accurate and reliable source of wage data to represent the field and livestock workers (combined) category. A trade association stated that the FLS is the only wage survey that collects data directly from farm and ranch employers. Additional comments in support of using the FLS over other data sources noted that the FLS most accurately captures seasonal peaks in farmworker wages by measuring wages quarterly (January, April, July, and October), and provides the most up-to-date data on worker wages by using only single-year data. One of these commenters asserted that the Department's current proposal is not too burdensome or expensive to use and it provides consistency for employers and workers because—in most cases—the AEWR methodology proposed is the same methodology the Department has used for more than three decades.

The Department also received numerous comments opposing its proposal to continue using the FLS to determine the AEWR for H-2A applications for job opportunities in the field and livestock workers (combined) occupational group for various reasons. Several commenters asserted that the Department's use of the FLS to determine the AEWR is arbitrary and capricious and does not meet the Department's statutory obligations. A trade association stated that the proposal is “likely to cost exponentially more than what the Department estimates to the users of the H-2A program and will most certainly drive some to shutter operations.” Other commenters also expressed concern that using the FLS to determine the AEWR in the H-2A program would lead to curtailed operations, more automated processes, or closing farms. These commenters suggested that using the FLS would result in diminished job opportunities and an inadequate labor supply. Many of these commenters provided alternative suggestions, such as setting a static wage rate of 115 percent of the Federal or State minimum wage, or adopting the Canadian model of farmworker wage setting (without providing any information regarding that model), which are addressed in the discussion of alternative methodology suggestions in this preamble, below.

In response to commenters' concerns that the use of the FLS to determine the AEWR for H-2A job opportunities in the field and livestock workers (combined) occupational group will result in operational and labor supply issues for employers who choose to participate in the H-2A program, the Department reiterates that, with the exception of brief periods, it has used FLS data to establish the AEWR for such field and livestock job opportunities since 1987. While the Department is sensitive to the concerns raised, continuing to use FLS data will not introduce new operational or labor supply issues. In carrying out its statutory responsibility under the INA, the Department seeks to balance employers' and workers' interests by, among other things, using the best available actual wage data for workers in the United States similarly employed

(when available) to determine the AEWR.

As discussed in the legal authority section above (Section I.A), the Department has discretion to determine the methodological approach that best allows it to meet its statutory mandate.

The Department continues to believe the FLS is the best available wage source for establishing AEWRs covering the vast majority of H-2A job opportunities (

i.e.,

the field and livestock workers (combined) category), whenever such data is available. The FLS is the most comprehensive survey of wages paid by farmers and ranchers.

The data collected in the FLS allows the Department to establish AEWRs using the most current wage rates, which protects workers in the United States similarly employed against adverse effects on their wages resulting from the employment of foreign workers willing to work for less.

See AFL-CIO

Dole,

923 F.2d 182, 187 (D.C. Cir. 1991);

AFL-CIO

Brock,

835 F.2d 912, 915 (D.C. Cir. 1987).

85 FR 70445, 70458 (Nov. 5, 2020) (AEWR 2020 Final Rule); 75 FR 6883, 6898-6899 (Mar. 15, 2010) (AEWR 2010 Final Rule).

In addition, the Department considers the broad geographic scope of the survey an advantage of the FLS. The FLS consistently collects sufficient data to generate a wage finding for the field and livestock workers (combined) category in each State or region surveyed, making it a reliable source of wage data year-to-year. As explained in the 2021 AEWR NPRM, the geographic scope of the FLS, covering California, Florida, and Hawaii, and 15 multi-State groupings for other States, and the statewide and regional wages issued “provide[s] protection against wage depression that is most likely to occur in particular local areas where there is a significant influx of foreign workers.”

The broad geographic scope of the FLS is also “consistent with both the nature of agricultural employment and the statutory intent of the H-2A program,” reflecting the migratory pattern of many workers providing agricultural labor or services across wide areas, and Congress's recognition of “this unique characteristic of the agricultural labor market with its statutory requirement that employers recruit for labor in multi-State regions as part of their labor market before receiving a labor certification . . . .”

The Department continues to believe that use of FLS data serves to prevent adverse effect on the wages of farmworkers in the United States by establishing a prevailing wage defined over a broader geographic area and over a broader occupational span (

i.e.,

the six SOC codes covering all field and livestock workers (combined), rather than a narrow crop or job description).

For similar reasons, the Department explained that the FLS-based AEWR may serve “to mobilize domestic farm labor in neighboring counties and States to enter the subject labor market over the longer term and obviate the need to rely on . . . foreign labor on an ongoing basis.”

86 FR 68174, 68180 (Dec. 1, 2021).

75 FR 6883, 6899 (Mar. 15, 2010).

Id.

Several commenters expressed concerns related to the accuracy, reliability, and future availability of FLS data. One of these commenters suggested that the Department's use of the FLS is “inconsistent, difficult to measure, and should be discontinued” as a wage source to calculate the AEWR, without clearly explaining its characterization of the FLS as “inconsistent” and “difficult to measure.” In addition, this commenter asserted the FLS “artificially inflates the reported wage” both by not differentiating between the U.S. workforce and H-2A workforce—thereby creating an echo chamber of rising wages—and by including incentive pay such as piece rate, bonuses, and overtime. Noting that the FLS is used for various purposes other than determining AEWRs, two commenters suggested the Department should “ensure it only uses the data that applies to its use . . .”. Another commenter suggested the Department should coordinate with the USDA to ensure that FLS data is accurate and does not result in creation of an artificial wage rate. To the extent the commenters suggested the Department change the FLS' methodology, those comments are beyond the scope of the present rule, as well as beyond the Department's authority. Regarding the comments directed toward the Department's continued reliance on the FLS to determine the AEWR and the value of the FLS for that purpose, the Department responds in this section.

The USDA has conducted the FLS since 1910, and has developed extensive expertise analyzing, measuring, and assessing the accuracy and reliability of its annual wage estimates.

USDA NASS publishes FLS data semiannually in May and November in the Farm Labor Report (FLR).

The May report includes employment and wage estimates based on January and April reference weeks, and the November report includes estimates based on July and October reference weeks. In each case, the reference week is the Sunday to Saturday period that includes the 12th day of the month. The November report also provides annual data based on quarterly estimates. The Department uses the annual data from the November report to determine AEWRs.

86 FR 40802 (July 29, 2021).

See

USDA NASS,

Surveys: Farm Labor, https://www.nass.usda.gov/Surveys/Guide_to_NASS_Surveys/Farm_Labor/

The scope, purpose, and statistical methodology for each FLR is extensively outlined in NASS's “Methodologies and Quality Measures Report,” which is published concurrently with each FLR publication. In the “Methodologies and Quality Measures Report,” the NASS states that “the employment and wage estimates published support USDA and DOL programs” and inform other “government agencies, educational institutions, farm organizations, and private sector employers of farm labor.”

Each FLR contains specific information about the types and purposes of the statistical methods used for analysis of the data collected in that round of the FLS. Additionally, each FLR outlines the quality metrics for that round of the FLS, including the sample size, response rate and outliers, calibration for survey nonresponses, and coefficient of variation for each survey. For the final step in the survey process, NASS convenes farm labor experts from its Agricultural Statistics Board (ASB), a panel of senior statisticians and program specialists, to perform a national review, reconcile the State-level evaluations to regional and national estimates, and prepare the official findings for release.

Farm Labor Methodology and Quality Measures (May 2022),

USDA, National Agricultural Statistics Service (May 25, 2022)

https://www.nass.usda.gov/Publications/Methodology_and_Data_Quality/Farm_Labor/05_2022/fmlaqm22.pdf

at 1.

Some commenters stated that FLS data should not be used to determine AEWRs because average gross wage data is a byproduct of the survey instrument, and “the survey is intended to identify the number of workers employed in the U.S.” One commenter stated, “the U.S. Department of Agriculture has indicated that using the FLS as a means to manufacture a wage rate is a misuse of its survey,” based on a footnote citation to a “Letter from Secretary Perdue.” This commenter's assertion and the reference to a letter from former Secretary of Agriculture Sonny Perdue were echoed by several other commenters. The Department notes that; however, no commenter included a letter or statement from former Secretary Perdue and the Department has not identified such a statement in its research. In any event, even if such a

statement had been made, it would not affect the Department's decision to utilize the FLS, particularly in light of other statements that contradict any such statement. For example, a 2019 Memorandum of Understanding (MOU) between USDA and the Department explicitly acknowledged the Department's “continued and recurring bona fide need for the information provided by the [FLS], which will allow [DOL] to produce the official AEWRs.”

In enjoining the Department of Agriculture from suspending the 2020 FLS, a Federal district court cited this MOU, observing that “USDA has recognized that FLS data is used . . . `by farm worker organizations to help set wage rates and negotiate labor contracts as well as determine the need for additional workers.' ”

Subsequently, the Department of Agriculture issued a court-ordered notice of reinstatement of the Agricultural Labor Survey.

United Farm Workers

Perdue,

No. 1:20-cv-01452-DAD-JLT, 17-18 (E.D. Cal. Oct. 28, 2020) (citing USDA-DOL MOU at 2-6).

United Farm Workers

Perdue,

No. 1:20-cv-01452-DAD-JLT, 17-18 (E.D. Cal. Oct. 28, 2020) (citing USDA-DOL MOU at 2-6 and 83 FR at 50632).

85 FR 79463 (December 10, 2020).

Additionally, NASS itself recognizes on its website that “the employment and wage estimates published in the Farm Labor report are used by Federal, State, and local government agencies; educational institutions; farm organizations; and private sector employers of farm labor.”

One of the listed current uses of FLS data includes the Department's use of the “annual weighted average hourly wage rate for field and livestock workers combined” to set the AEWR in the administration of the H-2A program.

As the Department explains at length below and in prior rulemakings, “only the FLS directly surveys farmers and ranchers and the FLS is recognized by the BLS as the authoritative source for data on agricultural wages.”

As the Department has noted, BLS refers the public to USDA and NASS for statistics on U.S. agriculture employment and wages.

Therefore, the Department disagrees with the assertions made by these commenters.

https://www.nass.usda.gov/Surveys/Guide_to_NASS_Surveys/Farm_Labor/

84 FR 36168, 36243 (Jul. 26, 2019);

see also

75 FR 6884, 6891 (Feb. 12, 2010) (“By computing an AEWR to approximate the equilibrium wages that would result absent an influx of temporary foreign workers, the AEWR serves to put incumbent farm workers in the position they would have been in but for the H-2A program. In this sense, the AEWR avoids adverse effects . . .”);

Overdevest Nurseries

Walsh,

2 F.4th 977, 984 (D.C. Cir. 2021) (finding reasonable the Department's definition of “corresponding employer” based on prospective view of adverse effect,

i.e.,

intended to prevent future adverse effect).

In contrast, a nonprofit public policy advocacy organization and a workers' rights advocacy organization suggested the Department should use the wage sources that results in the highest wage rate, whether determined by either the FLS or OEWS, regardless of the SOC code or geographic level of specificity (

e.g.,

the Department should consider State, regional, and national FLS data; and local, State, and national OEWS data, when determining the AEWR). Similarly, two commenters urged the Department to require the employer to pay the FLS-based AEWR to workers performing duties outside the six SOC codes covering field and livestock workers (combined) category, such as construction labor and first-line supervisor, if this wage is higher than the OEWS-based AEWR for the SOC code(s).

The Department declines to adopt the use of the ECI or other broad indices to determine the AEWR, even if the use of such indices would provide greater wage continuity and predictability from year-to-year. Unlike the FLS and OEWS, which provide actual wage data in the States and regions where these workers are employed, the ECI provides a general measure of changes in the cost of labor across the private sector in the United States, but does not provide actual wage data for agricultural workers in particular geographic areas. In addition, the FLS—the Department's preferred wage source for establishing the AEWR for the field and livestock workers (combined) category—is again available, eliminating the Department's primary impetus for having elected to use the ECI to adjust AEWRs in future years under the since-vacated 2020 AEWR Final Rule. Where the FLS is not available, the Department believes that the OEWS survey is better suited to determining the AEWR for H-2A applications involving non-range job opportunities, and a better substitute to use to determine the AEWR when the FLS is not available than using the ECI for adjusting AEWRs, because the OEWS survey provides actual wage data specifically tailored to geographic areas and non-range occupations common in the H-2A program.

As the FLS and OEWS surveys both consistently report wage data annually, the Department declines to adopt an indexing mechanism, like the ECI, to determine the AEWR.

Since 2015, the Department has adjusted the AEWR applied to H-2A range occupations using the ECI. The nature of range occupations—located in remote areas, with non-traditional work schedules that generally require workers to be on call 24 hours per day, 7 days per week—required the Department to adopt a different AEWR methodology for range occupations than non-range occupations.

See

80 FR 62958, 62986 (Oct. 16, 2015). The Department explained at length the reasoning for using a base minimum wage adjusted by the ECI for these occupations, rather than the FLS or OEWS.

See

80 FR at 62991-62992.

The Department also declines to adopt a methodology that would set the AEWR at a predetermined minimum wage, such as the State minimum wage, or some version of an enhanced local, State, or Federal minimum wage. Such predetermined wages would be untethered from data on wages employers pay to workers in the United States similarly employed. As explained in prior rulemakings, the Department establishes the AEWR for non-range job opportunities based on actual wages paid by agricultural employers to workers in the United States similarly employed. Establishing an AEWR for all H-2A job opportunities, based on either the Federal minimum wage or the applicable local or State minimum wage, would not meet that purpose, and would instead immediately and dramatically reduce the wages of many H-2A and similarly employed workers in the United States

and not be responsive to actual increases or decreases in wages paid in SOC codes common in the H-2A program. As the Department noted “a single national AEWR applicable to all agricultural jobs in all geographic locations would prove to be below market rates in some areas and above market rates in other areas, resulting in all of the associated adverse effects” discussed above.

For example, the AEWR in Nebraska in 2022 was $16.47 per hour. Using the Nebraska State minimum wage of $9.00 per hour in 2022, or 115 percent of the Federal minimum wage (

i.e.,

$10.35 per hour) would significantly reduce the wages of H-2A workers and workers in the United States similarly employed.

73 FR 8537, 8550 (Feb. 13, 2008).

For similar reasons, the Department declines to impose an arbitrary cap on wage increases. As discussed above, the AEWR is based on surveys of actual wages paid or projected to be paid to workers in the United States similarly employed, and changes in the AEWR reflect changes in wages employers pay to these workers. Commenters did not provide a reasoned economic basis to impose an arbitrary cap on H-2A wages, and imposition of such a cap would produce wage stagnation, most significantly in years when the wages of agricultural workers are rising faster due to strong economic and labor market conditions. As with the other methods suggested by commenters, this disconnection between actual wages paid and a capped AEWR is contrary to the Department's statutory mandate.

The Department also declines to implement the workers' rights advocacy organization commenters' proposals to require employers to pay the highest of all wage sources in the proposed methodology, regardless of the applicable SOC code or geographic scope. As noted above and in prior rulemaking, the FLS is a “superior wage source. . .” for field and livestock worker job opportunities for many reasons, including the comparatively broad geographic scope and the fact that “only the FLS directly surveys farmers and ranchers and the FLS is recognized by the BLS as the authoritative source for data on agricultural wages.”

The workers' rights advocacy commenters did not state that the higher wage would be a more accurate wage, nor did they allege deficiencies in the FLS for particular States or regions or for specific field and livestock worker job opportunities. Because the FLS is the most accurate and best available wage information source for field and livestock workers, the Department has limited use of the OEWS to circumstances in which the FLS is not available to determine the AEWR for the field and livestock workers (combined) category and for those SOC codes not adequately surveyed or represented by the FLS. Requiring payment of the highest wage rate among all available

sources at all levels of geographic specificity, regardless of the applicable SOC code(s), would, in many cases, require an employer to pay an enhanced wage untethered to the best available information on the actual wages paid to similarly employed workers. This result would not only unreasonably increase the labor costs of H-2A employers in those cases, but could reduce agricultural job opportunities and place unnecessary upward pressure on wages in order for employers to attract a sufficient number of available workers. The Department believes this approach does not reasonably “balance the competing goals of the statute—providing an adequate labor supply and protecting the jobs of domestic workers.”

84 FR 36168, 36183-36184, 36243 (July 26, 2019).

Am. Fed'n. of Labor & Cong. of Indus. Organizations (AFL-CIO)

Dole,

923 F.2d 182, 187 (D.C. Cir. 1991).

The proposed system of multiple potential wage sources for all H-2A job opportunities also would result in an exceedingly complex and confusing set of minimum wages. The use of sub-state level OEWS wages, for example, would introduce significant complexities in establishing the offered wage. Agricultural associations filing master applications that cover members and worksites across two States or other job opportunities involving work across multiple States according to a planned itinerary would have to keep pace with many dozens of different local wage sources and the potential adjustments to each of those during the course of a work contract period. The wage payment, recordkeeping, and compliance burden associated with that kind of AEWR methodology would be substantial and unjustifiable.

In addition to the comments discussed above, the Department received some comments requesting specific changes to aspects of existing wage data sources or the Department's use of them. One commenter objected to the Department's use of the mean wage rate to calculate the AEWR and suggested that the Department calculate the AEWR using the median wage rate, which the commenter asserted would produce a more representative wage because it would prevent “outliers” on both the low and high end of the wage distribution from unduly influencing the AEWR. In addition, the commenter suggested the Department consider only guaranteed hourly rates, not piece or incentive pay, when determining the AEWR to “avoid a skewed wage floor.” The commenter noted that the USDA considered modifying the FLS to capture only base pay data, but “reverted back to reporting the gross rate of pay” due to “funding limitations . . .” The commenter also suggested the Department consider data on wages paid to H-2A workers and corresponding workers when determining the AEWR in areas where “more than ten percent of the agricultural workforce is composed of H-2A workers . . .” The commenter asserted that in these areas, an AEWR based only on wages paid to U.S. workers would lead to disproportionate annual wage increases because non-H-2A employers set their wages above the AEWR each year to ensure retention of their U.S. workers.

Another commenter suggested the Department adopt a two-tiered wage system under which employers would pay the OEWS rate to U.S. workers performing duties like construction labor but would pay foreign workers performing the same or similar duties the AEWR based on FLS data for the field and livestock workers (combined) category. The commenter acknowledged this would provide employers an incentive to hire foreign workers over U.S. workers, but suggested the Department could counter this incentive by “imposing additional penalties and scrutiny on U.S. employers [for] failing to hire domestic labor . . .”

As noted in prior rulemakings, the Department believes use of the mean wage best meets the Department's obligation to protect workers in the United States similarly employed against the adverse effects on their wages that could be caused by the employment of foreign workers.

The Department has a long-standing practice of using the average or mean wage to determine the AEWR in the H-2A program, and it uses the mean wage within the OEWS wage distributions to determine prevailing wages for other employment-based visa programs. The Department declines to use the median because it does not represent the most predominant wage across a distribution, but instead represents only a midpoint. The mean provides equal weight to the wage rate received by each worker in the SOC code across the wage spectrum and represents the average wage paid to workers to perform jobs in the SOC codes.

Setting the AEWR below the mean in the relatively less skilled agricultural SOC codes that predominate in the H-2A program may have a depressive effect on the wages of workers in the United States similarly employed. Use of the mean is also consistent with the Department's determination of prevailing wages for other foreign worker programs.

See

80 FR 24146, 24159-24160 (Apr. 29, 2015);

see also

78 FR 24047, 24058 (Apr. 24, 2013).

See

80 FR 24146, 24159 (Apr. 29, 2015).

The Department also declines to exclude piece rate or incentive pay from FLS data or to request that USDA modify the FLS so that it reports a base pay that excludes piece rate and incentive pay. Comments suggesting the Department modify or seek modification of FLS methodology are beyond the scope of this rulemaking. As noted in prior rulemaking, the Department does not have control over the FLS, and the FLS is not conducted exclusively for the purpose of setting the AEWR. Similarly, the OEWS survey is not produced exclusively for temporary agricultural labor certification purposes, and it collects wage data for straight-time, gross pay, exclusive of premium pay, which includes incentive-based pay and production bonuses, for example. Moreover, as some agricultural jobs guarantee only the State or Federal minimum wage and otherwise pay based on a piece rate, advertising an hourly wage that does not include “incentive pay” is not a reasonable “base rate” for H-2A employers to advertise to U.S. workers.

With regard to the comment suggesting the wages of H-2A workers be “considered” when determining the AEWR using the FLS, the Department notes that FLS collects wage data for all workers, which necessarily includes wage data for H-2A workers. It is appropriate to base the AEWR on actual wages paid to all similarly employed workers since the AEWR, as the wage necessary to ensure the employment of foreign workers does not adversely affect the wages of workers similarly employed in the United States, should be based on market conditions. To the extent the commenter may be suggesting a methodological change to wage data collection through the FLS, the suggestion is beyond the scope of this rulemaking.

Finally, the Department declines to adopt a two-tiered system by which employers' wage obligations to U.S. workers are determined using an OEWS-based, SOC-specific wage rate, while their wage obligations to foreign workers are determined using the FLS without regard to the applicable SOC code. To do so would create a wage system that advantages H-2A employers over non-H-2A employers, bases skilled H-2A worker wages on wage data that does not cover similarly employed workers in the SOC code (

e.g.,

construction), and provides a disincentive to the hiring of U.S. workers that is contrary to the INA and cannot be justified through increased

enforcement or scrutiny of program users and the labor market test.

Having considered the concerns of commenters, including both employers and workers' rights advocacy organizations, the Department has determined that adoption of the methodology proposed in the NPRM will best allow the Department to fulfill its statutory mandate and balance the competing goals of the statute. The methodology in this final rule uses the OEWS to provide appropriate wage increases for many highly skilled workers in positions like construction labor and first-line supervisors, and will better protect the wages of workers in States or regions where the FLS does not provide wage data. The methodology continues to base the AEWR for the field and livestock workers (combined) category on the FLS, the most accurate and reliable source of wage information for most agricultural job opportunities in the H-2A program. Finally, the Department notes that prevailing wages for particular geographic areas and agricultural activities, determined using State-conducted prevailing wage surveys, will continue to serve as an important protection for workers in crop and agricultural activities that offer piece rate pay or higher hourly rates of pay than the AEWR.

See

84 FR 36168, 36179-36180 (July 26, 2019) (discussing the purpose and interaction of the AEWR and PWD and changes the Department recently proposed to modernize the PWD process and “empower States to produce a greater number of reliable prevailing wage survey results.”).

2. The Department Will Publish FLS-Based AEWRs and OEWS-Based AEWRs Coinciding With Those Surveys' Publication Schedules

The Department proposed to continue to require the OFLC Administrator to publish an AEWR update as a notice in the

Federal Register

at least once in each calendar year, on a date to be determined by the OFLC Administrator. The Department explained in the NPRM that the OFLC Administrator would apply this annual notification requirement to each of the AEWRs to be determined under the proposed methodology. Therefore, the OFLC Administrator would publish an announcement in the

Federal Register

to update the AEWRs based on the FLS, effective on or about January 1, and a separate announcement in the

Federal Register

to update the AEWRs based on the OEWS survey, effective on or about July 1.

See

86 FR 68174, 68184 (Dec. 1, 2021). After considering the comments on this proposal, addressed in detail below, the Department adopts the proposal with technical conforming edits to 20 CFR 655.120(b)(2).

Technical changes to 20 CFR 655.120(b)(2) were necessary because of the vacatur of the 2020 AEWR Final Rule and the publication of the 2022 Final Rule. The 2022 Final Rule reinstated the 2010 Final Rule's AEWR methodology and therefore reinstated the 2010 Final Rule's language regarding OFLC's publication of the AEWRs,

i.e.,

referring to publication of the AEWRs “for each State.” 87 FR 61660, 61796 (Oct. 12, 2022); 75 FR 6884, 6962 (Feb. 12, 2010). The new methodology adopted in this AEWR Final Rule renders the reference to “each State” inapt, and therefore section 655.120(b)(2) in this rule refers simply to “each AEWR.”

Two workers' rights advocacy organizations expressed support for the Department's proposal to issue new AEWRs at two points in the year based on the separate release schedules of FLS and OEWS survey data. These commenters viewed the proposal as a method of ensuring that the AEWR reflects real-time changes to wages in the labor market. In addition, these commenters stated the approach would provide clarity and predictability to both employers and workers.

Comments from trade associations, an employer, and an agent opposed the proposal to use two different AEWR adjustment cycles, one for FLS-based AEWRs and one for OEWS-based AEWRs. These commenters expressed concern that the two cycles of AEWR adjustment could create conflict among employees and add complexity and confusion for employers. For example, two trade associations observed that the different AEWR adjustment cycles could result in some employees receiving a mid-season wage increase, while other employees, whose work is subject to the other AEWR adjustment cycle, would not. One of the same trade associations and a third trade association asserted that separate publications of the AEWRs, particularly with the OEWS-based AEWR adjustment occurring during the growing season, would cause budget, planning, and contracting challenges for farmers who use the H-2A program.

The Department appreciates the opportunity to clarify that the incidence of H-2A job opportunities that are assigned multiple SOC codes and subject to two different AEWR adjustment cycles is expected to be rare, and that the vast majority of H-2A job opportunities will continue to be subject only to FLS-based AEWR adjustment, effective on or about January 1. Based on program experience, discussed above, and the Department's approach to evaluating the SOC code(s) applicable to an employer's job opportunity, discussed below, the Department estimates that approximately 98 percent of H-2A job opportunities will experience no change in assigned SOC code, wage source, or AEWR adjustment cycle under this final rule. The OFLC Administrator will continue to announce the FLS-based AEWR adjustment—which potentially impacts all job opportunities classified in the field and livestock workers (combined) occupational group located in the 49 States covered by the FLS—with an effective date on or about January 1. For those job opportunities classified in the field and livestock workers (combined) occupational group that are not located in the 49 States covered in the FLS (

e.g.,

job opportunities in Alaska), the methodology adopted in this final rule will establish a single statewide AEWR, adjusted annually based on the OEWS survey wage data release, with an effective date on or about July 1. Similarly, an H-2A job opportunity classified with an SOC code outside the six SOC codes within the field and livestock workers (combined) category will be subject only to a single AEWR adjustment cycle, as the final rule will establish a single statewide AEWR for each SOC code outside the field and livestock workers (combined) category, adjusted annually based on the OEWS survey wage data release, with an effective date on or about July 1. Both annual AEWR adjustment notices will potentially impact an employer's wage obligation to workers under a temporary agricultural employment certification only in the rare circumstances in which a job opportunity requires workers under the job order or work contract to perform not only field and livestock workers (combined) category duties (

e.g.,

grading and sorting produce), but also duties from another SOC code (

e.g.,

transporting produce to storage or market using a heavy tractor trailer, transporting workers using vans) for which the OEWS-based AEWR may be higher. Also, where an employer files multiple H-2A applications, each for distinct job opportunities within the employer's agricultural operation, the employer's wage obligation to the workers hired under one certified application may be potentially impacted by one AEWR adjustment notice (

e.g.,

the FLS-based AEWR adjustment in January), and its wage obligation to the workers hired under the other certified application may be potentially impacted by another AEWR adjustment notice (

e.g.,

the OEWS-based AEWR adjustment in July). For example, if an employer submits an H-2A application for workers to grade and sort produce and a separate H-2A application for a first-line supervisor, the employer's

wage obligation for worker(s) engaged in grading and sorting produce would potentially be impacted by the FLS-based AEWR adjustment notice in January, and its wage obligation for the worker(s) engaged in first-line supervisory duties would potentially be impacted by the OEWS-based AEWR adjustment notice in July. Although some employers may be required to evaluate and implement payroll adjustments corresponding with both AEWR adjustment cycles, the Department anticipates the incidence of a single temporary agricultural employment certification being subject to both AEWR adjustment notices to be rare, primarily given the prevalence of H-2A job opportunities encompassed within the field and livestock workers (combined) category. In addition, the Department considers the likelihood of confusion or disruption among workers subject to different temporary agricultural employment certifications to be low.

Some employers and a trade association suggested the Department revise the proposed rule to limit the potential for change in the AEWR from year-to-year, such as by implementing an annual cap on AEWR adjustment increases. Two of these commenters expressed concern that unmoderated year-to-year AEWR increases could outpace wage growth in local economies, may not reflect current conditions in the agricultural economy, and would not allow the program to function properly. The Department understands the importance of stability and predictability for both growers and workers, but declines to adopt the commenters' suggestion to cap annual AEWR increases. As explained in the previous section, the AEWR serves its purpose best when it reflects actual wages paid to similarly employed workers from year to year.

3. AEWR Bifurcation and Disaggregation of SOC Codes

The Department proposed to bifurcate the determination of AEWRs for the field and livestock workers (combined) category, a group of six SOCs, from the determination of AEWRs for work performed in any other SOC codes that qualify for the H-2A program. For H-2A job opportunities represented by the six SOC codes comprising the field and livestock workers (combined) category that the FLS reports—which comprise approximately 98 percent of H-2A job opportunities—the Department proposed to continue to determine a single statewide AEWR, as proposed in paragraph (b)(1)(i). For any non-range occupations other than the six field and livestock workers (combined) SOC codes, the Department proposed to determine a distinct statewide AEWR for each SOC code (

i.e.,

disaggregate the AEWR by SOC code), as proposed in paragraph (b)(1)(ii). After considering comments, discussed in detail below, the Department adopts these proposals without change.

A variety of commenters, including workers' rights advocacy organizations, trade associations, a nonprofit public policy advocacy organization, and an employer, supported the proposed bifurcation. The consensus among commenters who supported the proposal was that a single statewide AEWR for the field and livestock workers (combined) category provides some stability and consistency for employers and workers.

Among commenters who expressed concern about the proposal to bifurcate AEWR determinations, a trade association opposed bifurcation as “arbitrary and capricious,” asserting that the Department did not substantiate the premise that continuing to use a single statewide AEWR for all workers in the H-2A program may adversely affect wages of workers who perform the duties of SOC codes outside the field and livestock workers (combined) category. Conversely, a workers' rights advocacy organization suggested the Department use occupation-specific AEWRs for all job opportunities, unless the Department would exclude SOC code 45-2091 (Agricultural Equipment Operators) and aquaculture work

from paragraph (b)(1)(i) (field and livestock workers (combined) category). This commenter asserted that agricultural equipment operator and aquaculture work is differently skilled and higher paying than the other work in the field and livestock workers (combined) category, making an AEWR determined using field and livestock workers (combined) category wage data inaccurate for this work. In contrast, another trade association asserted that the Department should expand the group of SOC codes subject to paragraph (b)(1)(i) to include SOC code 53-3032 (Heavy and Tractor-Trailer Truck Drivers), alleging that such job opportunities involve skills that are readily learned in a short period of time and do not increase with long-term experience. Similarly, several other commenters, including trade associations and employers, advocated expanding the SOC codes subject to the single statewide AEWR determination under paragraph (b)(1)(ii) to include SOC code 53-3032 (Heavy and Tractor-Trailer Truck Drivers) as well as, for example, SOC code 45-1011 (First-Line Supervisors of Farming, Fishing, and Forestry Workers) and SOC code 47-2061 (Construction Laborers),

asserting that field and livestock workers generally perform a variety of duties, some of which are included within one (or more) of these SOC codes.

Aquaculture is not a distinct SOC code within the SOC system. Rather, aquaculture tasks are encompassed in SOC code 45-2093 (Farmworkers, Farm, Ranch, and Aquacultural Animals).

The commenters did not identify the occupations by SOC codes, although one capitalized the titles of the three occupations highlighted, which correspond to the SOC codes noted.

Some commenters expressed concern regarding the potential impact of the proposal on employers whose H-2A job opportunities involve tasks not encompassed within the field and livestock workers (combined) category SOC codes, which would be subject to the AEWR determinations under paragraph (b)(1)(ii). Commenters, including trade associations, a government agency, a State government, and an employer, commented that the proposed methodology would have a greater impact on smaller operations, where a worker is more likely to be required to perform a wider variety of duties, than on a larger operation, which may be more likely to have specialized positions. A trade organization asserted that the proposals would price one part of the industry—presumably those hiring workers to perform duties outside the field and livestock workers (combined) occupational group—out of existence.

The Department declines to expand or contract the group of six SOC codes for which the Department will use the FLS to establish a single statewide AEWR, where available. The Department's objective in this rulemaking is to establish an administratively efficient method for producing AEWRs sufficiently tailored to protect workers in the United States similarly employed. By using the same group of six SOC codes as the FLS uses to report its single wage finding for its field and livestock workers (combined) category, the Department satisfies its objective of basing AEWR determinations on actual wage data for workers in the United States similarly employed, when such data is available. In addition, the broad, overlapping nature of tasks listed in the Occupational Information Network (O*NET) for the six field and livestock workers (combined) SOC codes is consistent with comments above providing anecdotal accounts of common tasks performed in agricultural

operations and the variety of duties employers may require of field and livestock workers during a typical workday or intermittently during the period of employment. Establishing a single statewide AEWR for this group of six SOC codes provides a reasonable amount of flexibility with respect to the type of duties a field and livestock worker may perform without added recordkeeping, administrative burden, or uncertainty regarding wage obligations. While the Department finds a single statewide AEWR for this group of SOC codes to be appropriate, applying that AEWR to other SOC codes would not satisfy the Department's objective to strikes a reasonable balance between the statute's competing goals of providing employers with an adequate supply of legal agricultural labor and protecting the wages and working conditions of workers in the United States similarly employed. For other SOC codes, such an approach would not use actual wage data for workers similarly employed to determine the AEWR. Both employers and workers benefit from a clear process to ensure that work is correctly compensated.

Although the Department's experience indicates that the duties in most H-2A job opportunities fall within the field and livestock workers (combined) category, subject to the single statewide AEWR determination under paragraph (b)(1)(i), the Department recognizes that some H-2A job opportunities may include duties that fall both within and outside of that category. For example, some employers may submit H-2A applications for job opportunities that require workers to perform a variety of duties (

e.g.,

general crop tasks encompassed in SOC code 45-2092 (Farmworkers and Laborers, Crop, Nursery, and Greenhouse) and construction work encompassed in,

e.g.,

SOC code 47-2061 (Construction Laborers)). For these types of mixed job opportunities, discussed in Section II.C.4, the Department believes that using the AEWR for the higher paid SOC code is necessary to prevent adverse effects on the wages of workers in the United States similarly employed resulting from inaccurate SOC code assignment.

Given the significance of the SOC code in determining the applicable AEWR under the proposed rule, some commenters expressed concern or requested clarification regarding the SWA and Certifying Officer's evaluation of an employer's H-2A job opportunity to determine its occupational classification (

i.e.,

SOC code). Commenters expressed concern that SOC code determination would create processing delays and inefficiency, rather than simplifying the process for ensuring that workers are correctly compensated. Several trade associations anticipated that employers would file additional applications for each distinct SOC code, and that SWAs and the Department would therefore be required to process those additional applications, increasing the administrative burden. One of the trade associations and an agent expressed concern about uncertainty for employers who may not be able to anticipate the AEWR to be applied to their H-2A job orders. Comments expressed concern that it could be difficult and would be an administrative burden for the Department to determine SOC codes, that the Department's SOC code determinations would be based on infrequently performed tasks, and that, as a result, wage obligations could dramatically increase. Some commenters asserted the proposals would be unworkable because tracking a worker's time performing tasks subject to different pay rates would increase administrative burden, with one employer additionally expressing concern about increased compliance liability.

The Department shares the commenters' interest in methodological clarity, processing efficiency, and accurate determinations; and straightforward application of wage obligations during the employment period. The Department accounted for these interests in its proposal to apply a single statewide AEWR to all job opportunities within one of the six field and livestock workers (combined) SOC codes. As a group, the six field and livestock workers (combined) SOC codes encompass the tasks required in approximately 98 percent of H-2A job opportunities. Each of the six SOC codes encompasses a broad variety of tasks, some of which overlap (

i.e.,

the same or similar duties are included in more than one of the six SOC codes). Although an employer may not be certain whether the SWA and Certifying Officer (CO) will assign SOC code 45-2092 (Farmworkers and Laborers, Crop, Nursery, and Greenhouse) or SOC code 45-2091 (Agricultural Equipment Operators) to a particular job opportunity, for example, the same statewide AEWR would apply to that job opportunity under either SOC code. All job opportunities that require workers to perform tasks fully encompassed in any one or more of the field and livestock workers (combined) SOC codes will be subject to the same statewide AEWR. Using this approach will provide a reasonable level of flexibility in a worker's agricultural duties and predictability in employer wage obligations, while ensuring that the wages of workers in the United States similarly employed are not adversely affected. This approach also provides continuity, a reasonable level of predictability, and wage protections to workers who may perform work encompassed within multiple SOC codes included in the field and livestock workers (combined) category, whether during a workday or a work contract period.

The Department reiterates that it has discretion to determine the methodological approach that it believes best allows it to meet its statutory mandate to ensure that the employment of H-2A foreign workers does not adversely affect the wages of workers in the United States similarly employed. In exercising that discretion, the Department considered issues relating to the sound administration of the H-2A program, such as uniformity in process and predictability in AEWR determinations, protecting workers, and providing efficient temporary agricultural labor certification determinations to employers, among other factors. In the Department's policy judgment, the benefits of a more tailored AEWR, based on actual wage data for similarly employed workers, outweigh the added complexity of the proposed methodology because it ensures work that is not encompassed within the six SOC codes applicable to the field and livestock workers (combined) category will be more accurate and better reflect market conditions for workers in those occupational classifications. In addition, the Department is not required to set the AEWR at the highest or lowest conceivable point. The Department is exercising its broad discretion in this rulemaking to revise the AEWR methodology in a way that more accurately yields an appropriate wage determination reflective of wages paid to workers in the United States similarly employed for each H-2A job opportunity. The Department has determined the AEWR methodology that best protects such workers and supports sound administration of the H-2A program is the bifurcated methodology in this final rule, under which the Department will continue to issue a single, statewide AEWR for job opportunities in the field and livestock workers (combined) category using the FLS, when available, and will issue an SOC-specific statewide AEWR based on the OEWS survey for all other non-range

job opportunities. The Department adopts the proposal in this final rule.

4. For Job Opportunities Involving a Combination of SOC Codes, the Highest AEWR for the Assigned SOC Codes Governs the Employer's Wage Obligation

The Department's H-2A regulations governing an H-2A employer's wage obligations at 20 CFR 655.120(a), 655.120(c)(3), and 655.122(l) refer to “the AEWR” in the singular. Similarly, 20 CFR 655.120(b)(3) refers to “the updated AEWR” in the singular. The Department recognizes that the AEWR methodology proposed in this rulemaking could result in more than one AEWR determination applicable to an employer's H-2A job opportunity; an employer's H-2A job opportunity may require skills and duties that are encompassed within more than one SOC code and the assigned SOC codes may be subject to different AEWR determinations. For example, if an employer chooses to file a single H-2A application requiring workers to perform a variety of duties covering multiple SOC codes, the H-2A job opportunity may be assigned one SOC code that is subject to the AEWR determined under paragraph (b)(1)(i) (

e.g.,

SOC code 45-2092 (Farmworkers and Laborers, Crop, Nursery, and Greenhouse)) and another SOC code subject to an AEWR determined under paragraph (b)(1)(ii) (

e.g.,

SOC code 45-1011 (First-Line Supervisors of Farming, Fishing, and Forestry Workers)), or an employer's H-2A job opportunity may be assigned more than one SOC code subject to more than one AEWR determined under paragraph (b)(1)(ii) (

e.g.,

SOC code 45-1011 (First-Line Supervisors of Farming, Fishing, and Forestry Workers) and SOC code 47-2061 (Construction Laborers)). To address potential confusion, and for conformity, the Department proposed paragraph (b)(5). Under proposed paragraph (b)(5), if an employer's H-2A job opportunity were assigned more than one SOC code, and the SOC codes assigned are subject to different AEWR determinations, the highest of the applicable AEWR determinations would be “the AEWR” and “the updated AEWR” for purposes of the employer's H-2A program wage obligations.

That is, the highest of the AEWRs applicable to the H-2A job opportunity would be “the AEWR” in 20 CFR 655.120(c)(3) and 655.122(l) and “the updated AEWR” in 20 CFR 655.120(b)(3), which is then compared to the other wage sources (

e.g.,

a prevailing wage determination or State minimum wage) in 20 CFR 655.120(a). The highest wage rate applicable to the H-2A job opportunity among those in 20 CFR 655.120(a) is the employer's minimum H-2A wage obligation. After considering public comments and providing clarification and examples of the provision's application to H-2A job opportunities, the Department adopts the proposal.

The proposal in the 2021 AEWR NPRM is consistent with the Department's proposal in the 2019 AEWR NPRM, which was adopted in the now-vacated 2020 AEWR Final Rule.

A trade association commented that the Department's proposal in paragraph (b)(5) is unnecessary because employers already voluntarily offer wages higher than the AEWR for job opportunities that require workers to perform the duties of multiple SOC codes due to market pressure. Although the Department recognizes that some employers offer and pay wages higher than the wage floor established through the AEWR, the Department continues to view paragraph (b)(5) as an important clarification regarding the AEWR determination to be used to evaluate an employer's wage obligations in the H-2A program and an essential component of the Department's responsibility to prevent adverse effect on the wages of workers in the United States.

While H-2A job opportunity assessment and SOC code assignment, discussed in more detail below, is both consistent with long standing practice in the H-2A program and OFLC's practice across the employment-based visa programs it administers (

e.g.,

H-2B and H-1B), the proposed AEWR methodology introduced the potential for an employer's H-2A job opportunity to have more than one applicable AEWR determination. Paragraph (b)(5) was intended to address the rare situation in which an employer chooses to file a single H-2A application requiring workers to perform a variety of duties covering multiple SOC codes by using an approach consistent with prevailing wage determinations in other employment-based programs OFLC administers (

e.g.,

H-2B and H-1B). Similarly, under paragraph (b)(5), the CO will use the highest AEWR among those applicable to the SOC codes assigned an employer's H-2A job opportunity as “the AEWR” used to evaluate the employer's wage obligations under 20 CFR 655.120(a), 655.120(b)(3), 655.120(c)(3), and 655.122(l). As previously discussed, SOC codes not included in the field and livestock worker (combined) data collection generally account for more specialized, higher paid job opportunities (

e.g.,

construction labor, logging workers, heavy truck and tractor-trailer drivers, first-line supervisors). However, in some cases, an SOC code not included in the field and livestock workers (combined) data collection may have a lower statewide OEWS survey result than the FLS survey result for field and livestock workers (combined) category. Where an employer's job opportunity involves a variety of duties, some of which are consistent with higher paid SOC codes in the State, territory, or equivalent area, the Department would not satisfy its statutory obligation if it were to establish the required wage floor for H-2A employers at a lower rate than the AEWR applicable to workers in the United States who perform work in the higher paid SOC code. An AEWR determined using the lower-paid SOC code does not adequately guard against adverse effect on the wages of workers in the United States similarly employed. In contrast to anecdotal concerns expressed in comments about a wage requirement based on duties performed for a minimal amount of time, which are discussed below, the Department generally finds that duties requiring particular skills are typically assigned to a subset of an employer's workforce—those workers who have qualifications or experience related to the duties—and, as a result, the amount of time spent performing those duties is not minimal. In addition, determining the AEWR applicable to an employer's job opportunity using the highest of the AEWRs applicable to all duties to be performed provides predictability, consistency, and administrative efficiency with regard to H-2A program wage requirements, which benefits both employers and workers.

Among comments that addressed this proposal, many expressed concern regarding how employers would adjust their operations (

e.g.,

division of labor, number of jobs offered, types of jobs offered) due to the perceived impact of paragraph (b)(5). Commenters asserted that the proposal would result in higher wage obligations for employers who include a variety of duties in the H-2A job order, which the employer considers to be routine farm work, but which the Department views as a combination of SOC codes subject to a higher AEWR determination. Commenters asserted that employers would have to reorganize operations in order to offer single-SOC code job opportunities in their H-2A applications, which would result in more H-2A applications per employer and operational disruptions, such as less flexibility in work assignments, more recordkeeping and

worker oversight, and confusion or conflict among workers paid at different rates. In addition, these commenters asserted that some employers would have to hire more workers to perform the more limited spectrum of duties of each SOC-specific H-2A application, potentially for short periods, and some employers may not be able to offer a full-time job opportunity to perform only those duties. Another trade association asserted that employers would reduce operations or otherwise reduce job opportunities due to the impact of the AEWR methodology proposed. Expressing concern with burden and cost associated with filing H-2A applications, a State government, an employer association and its members, a trade association, and an agent asked the Department to clarify whether employers will be required to file multiple applications for different SOC codes and urged the Department to permit an employer to include several SOC codes in one job order.

The AEWR methodology adopted in this final rule does not dictate how many H-2A applications an employer may choose to file, the duties included in each H-2A application filed, or whether an employer chooses to address its labor needs through the H-2A program or through options other than the H-2A program. Rather, it provides a minimum wage rate threshold that an employer must offer and pay a worker for performing the H-2A job opportunity, including those H-2A job opportunities that require a worker to perform a combination of tasks that cannot reasonably be classified within a single SOC code. The Department understands that the AEWR determination applicable to an H-2A job opportunity—and the employer's resulting H-2A wage obligation—and the costs or benefits associated with filing multiple single-SOC code-specific H-2A applications or filing one H-2A application for a job opportunity encompassing a combination of duties from multiple SOC codes, subject to paragraph (b)(5), may be factors employers weigh when making business decisions regarding their agricultural operations. However, the Department maintains that the final rule does not require employers to file additional SOC-specific H-2A applications for job opportunities that require performing job duties encompassed by a combination of SOC codes. Employers may determine whether it is more cost effective—or beneficial to their business operation in other ways—to file one H-2A application for a job opportunity encompassing duties of more than one SOC code; to file more than one H-2A application, each focused on the duties of a single SOC code; or, to find avenues other than H-2A to address particular duties that are not regularly required, such as driving a semi tractor-trailer truck to market when crops are harvested. In any event, the Department has determined that requiring the payment of the highest applicable AEWR is necessary to protect against adverse effect, as discussed above.