# Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2023-03756 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** February 28, 2023 - **Citation:** 88 FR 12760 ## 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. 1 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. 1 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). 2 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. 3 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. 2 See Secretary's Order 06-2010 (Oct. 20, 2010), 75 FR 66268 (Oct. 27, 2010); 20 CFR 655.101. 3 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.” 4 Thus, the Department has discretion to determine the methodological approach that best allows it to meet its statutory mandate. 5 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.” 6 4 AFL-CIO, et al. v. Dole, 923 F.2d 182, 184 (D.C. Cir. 1991). 5 United Farmworkers v. Solis, 697 F. Supp. 2d 5, 8-11 (D.D.C. 2010). 6 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. 7 The Department also considers factors relating to the sound administration of the H-2A program in deciding how to determine the AEWR. 7 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. 8 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. 9 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. 8 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). 9 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, 10 and has engaged in rulemaking activities to address its concerns. 11 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. 12 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. 10 Final Rule, Temporary Agricultural Employment of H-2A Aliens in the United States, 75 FR 6884 (Feb. 12, 2010) (2010 Final Rule). 11 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). 12 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). 13 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. 13 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. 14 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, 15 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). 16 14 See 84 FR 36168, 36171. 15 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 . 16 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. 17 17 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). 18 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. 19 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. 20 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. 18 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 . 19 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. 20 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. v. 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. 21 The USDA National Agricultural Statistics Service (NASS) therefore proceeded with its data collection, and the USDA published the FLS report on February 11, 2021. 22 Meanwhile, the Department's 2020 AEWR Final Rule was challenged in United Farm Workers, et al. v. 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. 23 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. 24 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. 25 21 United Farm Workers, 2020 WL 6318432 (E.D. Cal. Oct. 28, 2020); see also United Farm Workers v. Perdue, 2020 WL 6939021 (E.D. Cal. Nov. 25, 2020) (denying USDA's motion to modify or dissolve the injunction). 22 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). 23 United Farm Workers, et al. v. U.S. Dep't of Labor, et al., 509 F. Supp. 3d 1225 (E.D. Cal. 2020). 24 Supplemental Order Regarding Preliminary Injunctive Relief, United Farm Workers, et al. v. U.S. Dep't of Labor, et al., No. 20-cv-1690 (E.D. Cal. Jan. 12, 2021), ECF No. 39. 25 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. 26 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, 29 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. 30 26 United Farm Workers, et al. v. U.S. Dep't of Labor, et al., 509 F. Supp. 3d 1225, 1241 n.5 (E.D. Cal. 2020). 27 Id. at 1241-42. 28 Id. at 1243-45. 29 Id. at 1241 (internal quotation and citation omitted). 30 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. 31 Accordingly, the court vacated the 2020 Final AEWR Rule, and remanded to the Department for further rulemaking consistent with the court's opinion. 32 31 United Farm Workers, et al. v. 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). 32 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. 33 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. 34 33 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. 34 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. 35 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. 36 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). 35 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 ”). 36 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. 37 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. 37 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. 38 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). 38 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. 39 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. 39 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 40 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. 40 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. 41 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. 42 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. 41 See AFL-CIO v. Dole, 923 F.2d 182, 187 (D.C. Cir. 1991); AFL-CIO v. Brock, 835 F.2d 912, 915 (D.C. Cir. 1987). 42 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.” 43 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 . . . .” 44 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). 45 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.” 46 43 86 FR 68174, 68180 (Dec. 1, 2021). 44 75 FR 6883, 6899 (Mar. 15, 2010). 45 Id. 46 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. 47 USDA NASS publishes FLS data semiannually in May and November in the Farm Labor Report (FLR). 48 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. 47 86 FR 40802 (July 29, 2021). 48 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.” 49 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. 49 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.” 50 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.' ” 51 Subsequently, the Department of Agriculture issued a court-ordered notice of reinstatement of the Agricultural Labor Survey. 52 50 United Farm Workers v. Perdue, No. 1:20-cv-01452-DAD-JLT, 17-18 (E.D. Cal. Oct. 28, 2020) (citing USDA-DOL MOU at 2-6). 51 United Farm Workers v. 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). 52 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.” 53 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. 54 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.” 55 As the Department has noted, BLS refers the public to USDA and NASS for statistics on U.S. agriculture employment and wages. 56 Therefore, the Department disagrees with the assertions made by these commenters. 53 https://www.nass.usda.gov/Surveys/Guide_to_NASS_Surveys/Farm_Labor/ . 54 https://www.nass.usda.gov/Surveys/Guide_to_NASS_Surveys/Farm_Labor/ . 55 84 FR 36168, 36243 (Jul. 26, 2019); See also 85 FR 70445, 70473 (Nov. 5, 2020). 56 84 FR at 36182 (citing OEWS Frequently Asked Questions, https://www.bls.gov/oes/oes_ques.htm, which states, “[f]or statistics on the U.S. agricultural sector, please visit the United States Department of Agriculture's National Agricultural Statistics Service program website.”). Other commenters noted that the Department decided against using the FLS to determine the AEWR for range occupations, noting that “the Department determined utilization of the FLS would harm herding operations by causing them to downsize or close altogether.” The Department, however, issued separate regulations governing the employment and wages of foreign workers in jobs related to the herding or production of livestock on the range ( i.e., range occupations) in 2015, 57 in recognition of the unique nature of such occupations, which made it necessary to use a different AEWR methodology. 58 Such occupations are located in remote areas, and have nontraditional work schedules that generally require workers to be on call 24 hours per day, 7 days per week. Additionally, even prior to the 2015 Herder Final Rule, the Department generally relied on wage surveys, historically conducted by the SWAs, for range occupations. The nature of these occupations and scarcity of U.S. workers employed in such occupations made it difficult to conduct statistically valid wage surveys for these occupations, and the lack of adequate survey data ultimately resulted in 20 years of wage stagnation for workers in these range occupations. Due to the unique nature of the occupations, challenges in producing valid wage surveys, and the inadequacy of wages produced by these circumstances, the Department established a new methodology to determine a monthly AEWR for all range occupations. 59 In contrast, non-range occupations do not present these unique circumstances that rendered use of the FLS for range occupations inadequate. Additionally, as discussed below, the Department declines to adopt an AEWR methodology that incorporates a broad index like the ECI as it did in the 2015 Herder Final Rule. 57 2015 H-2A Herder Final Rule, 80 FR 62958. The Department recently rescinded § 655.215(b)(2) in a separate rulemaking. Final Rule, Adjudication of Temporary and Seasonal Need for Herding and Production of Livestock on the Range Applications Under the H-2A Program, 86 FR 71373 (Dec. 16, 2021) (2021 H-2A Herder Final Rule). 58 See 20 CFR 655.210(g) and 655.211(a). 59 The Federal minimum wage serves as the basis for an initial national monthly wage rate (calculated based on a 48-hour workweek), and beginning in 2017, the Department adjusts the AEWR annually based on the ECI for wages and salaries. See 20 CFR 655.211(c). b. The Department Will Use OEWS Data for Field and Livestock Workers (Combined) Only if FLS Data Is Not Available As set forth above, the Department's preference is to use the FLS, whenever possible, to determine the AEWR for all job opportunities that fall within the FLS field and livestock workers (combined) category. The Department recognizes, however, that there may be instances in which the FLS is unavailable to determine the AEWR for some or all such workers. In such circumstances, the Department believes that it is appropriate to determine the AEWR using the next best alternative data source ( i.e., the OEWS), as discussed below. In the event the FLS cannot report the annual average hourly gross wage for the field and livestock workers (combined) category in a particular geographic area ( e.g., in Alaska, which is not covered in FLS data) or in the unanticipated circumstance that the FLS survey becomes unavailable ( e.g., suspension of the survey), the Department proposed to use the OEWS to determine a statewide AEWR for the field and livestock workers (combined) category. The Department also proposed a tertiary safeguard if neither the FLS nor the OEWS survey reports a statewide annual average hourly gross wage for the field and livestock workers (combined) category in a particular State, or equivalent district or territory. In these instances, the Department proposed to use the OEWS survey's national annual average hourly gross wage for the field and livestock workers (combined) category to determine the AEWR in that State. After consideration of comments, discussed below, the Department adopts this proposal without change. The Department received several comments opposed to use of the OEWS as a wage source to establish the AEWR for the field and livestock workers (combined) category, when the FLS is not available to do so. Some of these commenters generally opposed use of the OEWS to establish the AEWR or set a wage floor for primarily agricultural operations, while others expressed concern that use of the OEWS in these cases may disconnect the AEWR from actual market wages paid to workers employed on farms because the OEWS does not survey farms and ranches. The Department appreciates the concerns of the commenters, but maintains that the OEWS is the best available alternative source of wage data to use to determine the AEWR for the field and livestock worker (combined) category if the FLS is not available. Aside from the FLS, the OEWS survey is the only comprehensive and statistically valid source of wage data for agricultural occupations and geographic areas common in the H-2A program. The OEWS is also the wage source most consistent with the SOC-based wage collection of the FLS. Within the agricultural sector of the U.S. economy, the OEWS survey collects employment and hourly gross wage data from farm labor contractors that support fixed-site agricultural employers. Although the OEWS survey does not collect data from such fixed-site agricultural employers, the farm labor contractors surveyed by OEWS employ workers to provide agricultural labor or services similar to that of workers employed by fixed-site agricultural employers. In addition, farm labor contractors participate in the H-2A program and represent an increasing share of the H-2A worker positions certified by the Department. 60 Data reported by these types of employers, therefore, represent the best information available for purposes of establishing the AEWRs when FLS data is unavailable. BLS has the capability of providing a single annual average hourly gross wage for the six SOC codes that comprise the field and livestock workers (combined) category that mirrors the FLS, at both the statewide and national levels, based on the OEWS survey data. 61 The Department will make these OEWS-based AEWRs, both at the statewide and national levels, accessible to the public online. 60 For example, the proportion of all H-2A worker positions certified by DOL for employment in non-range occupations with employers qualifying as H-2A Labor Contractors ( i.e., farm labor contractors) has increased significantly from 33.1 percent in FY 2016 (54,787 positions out of 165,741 positions) to 42.6 percent in FY 2021 (135,314 positions out of 317,619 total positions) and 43.1 percent through August FY 2022 (151,439 positions out of 351,268 total positions). 61 An overview of the OEWS survey methodology is available at https://www.bls.gov/oes/current/oes_tec.htm . An explanation of the survey standards and estimation procedures is available at https://www.bls.gov/opub/hom/oews/pdf/oews.pdf . One commenter suggested alternative AEWR determination methods would be unnecessary because, the commenter predicted, the FLS will always be available. On the contrary, there have been, currently are, and likely will be future instances where FLS data is unavailable to establish an AEWR for at least some workers. For example, FLS data has not been and currently is not available for AEWR determinations in certain locations such as Alaska and Puerto Rico. Additionally, the FLS may become unavailable in the future for reasons that cannot be anticipated. As previously noted, the Department does not have control over the FLS; the USDA does, and it could elect to suspend or even terminate the survey at some point in the future—as it has three times previously. In 2007 62 and 2011, 63 the USDA did not conduct the survey due to budget constraints. In 2020, the USDA announced its intention to suspend data collection for the October 2020 survey, 64 but was ultimately forced to conduct the survey by a federal court. Thus, in order to ensure the Department's ability to determine AEWRs in any circumstances in which the FLS is, or becomes, unavailable, the Department has identified the OEWS as its alternative source of wage data for the reasons discussed in the proposed rule and here. 62 Notice of Intent to Suspend the Agricultural Labor Survey and Farm Labor Reports, 72 FR 5675 (Feb. 7, 2007). 63 Notice of Intent to Suspend the Agricultural Labor Survey and Farm Labor Reports, 76 FR 28730 (May 18, 2011). 64 85 FR 61719. c. The Department Will Use the OEWS Survey To Establish SOC-Specific AEWRs for All Other Job Opportunities For H-2A job opportunities that do not fall within the FLS field and livestock workers (combined) category, the Department proposed to use the OEWS survey to determine SOC-specific AEWRs. Under this methodology, the AEWR for all non-range SOC codes outside the field and livestock workers (combined) category would be the statewide annual average hourly gross wage for the SOC code, as reported by the OEWS survey. If the OEWS survey does not report a statewide annual average hourly gross wage for the SOC code, the AEWR for that State would be the national annual average hourly gross wage for the SOC code, as reported by the OEWS survey. In this final rule, the Department is adopting the OEWS-based, SOC-specific AEWR methodology for these job opportunities for the reasons explained below and in the 2020 AEWR Final Rule (which was vacated on other grounds). 65 65 85 FR 70445, 70453, 70458-70459. The Department received several comments in support of using an OEWS-based AEWR determination for SOC codes outside of field and livestock workers (combined) category, as well as several comments in support of not using the FLS for SOC codes other than field and livestock workers. For example, two workers' rights advocacy organizations noted the FLS does not “adequately or consistently survey” farm employers about positions beyond the six field and livestock SOC codes, and many of the SOC codes outside the six field and livestock SOC codes are more often filled as contract positions than hired positions; thus, for positions outside the six field and livestock SOC codes, the advantages of FLS wage findings no longer apply. One of these two workers' rights organizations emphasized that the multisector reach of the OEWS survey does a better job of accurately reflecting market wage rates for positions such as truck drivers and construction workers whose work inherently includes work both in and outside the agricultural sector. The Department agrees with these commenters for the reasons outlined below. As the Department stated in the NPRM, the OEWS survey is a reliable and comprehensive wage survey that consistently produces annual average hourly gross wages for nearly all SOC codes other than the six codes covering the field and livestock workers (combined) occupational category and is, therefore, a better wage source for those other SOC codes. The OEWS survey, which began collecting occupational employment and wage data from employer establishments in 1996, is among the largest ongoing statistical survey programs of the Federal government, producing wage estimates for more than 800 SOC codes, and is used as the primary wage source for prevailing wage determinations in the H-2B temporary non-agricultural labor certification program, and other nonimmigrant and immigrant programs. 66 The OEWS program surveys approximately 200,000 establishments every 6 months and over a 3-year period collects the full sample of 1.2 million establishments, accounting for approximately 57 percent of employers in the United States. 67 Every 6 months, the oldest data from the previous 3-year cycle is removed and new data is added. The wages previously reported are adjusted by the ECI, which is a BLS index that measures the change in labor costs for businesses. The OEWS survey is conducted primarily by mail, with telephone follow-ups to nonrespondents, or, if needed, to clarify written responses. 68 The OEWS average 69 hourly gross wage reported includes all gross pay, exclusive of premium pay, but including piece rate pay. 66 See, e.g., 20 CFR 655.731(a)(2)(ii)(A) (H-1B program, for specialty (professional) workers) and 20 CFR 656.40(b)(2) (Permanent Labor Certification program, for permanent employment of foreign workers). 67 See BLS, Occupational Employment and Wage Statistics Frequently Asked Questions, https://www.bls.gov/oes/oes_ques.htm (last modified Aug. 13, 2021). 68 Id. 69 The OEWS uses the term “mean.” However, for purposes of this regulation the Department uses the term “average” because the two terms are synonymous, and the Department has traditionally used the term “average” in setting the AEWR from the FLS. While the FLS is the most accurate and comprehensive wage source to determine the AEWRs for the field and livestock workers (combined) occupational group, the OEWS survey is a more accurate data source for other SOC codes common in agricultural operations, such as supervisors, that the FLS does not adequately or consistently survey, as noted above and in response to comments discussed below. In addition, the OEWS survey includes SOC codes that are more often contracted-for services ( e.g., construction supporting farm production) than farmer-employed positions, which makes the OEWS data collection from farm labor contractors a more direct, relevant data source for determining AEWRs for these SOC codes than the FLS. The Department received several comments opposing the proposed use of the OEWS as a wage source because the OEWS does not survey fixed-site agricultural employers directly. For that reason, some commenters asserted that using the OEWS survey as a wage source would not reflect the intricacies of the agricultural industry and would further remove the wages paid using this wage source from actual market wages in agriculture. For example, a trade association and an employer alleged that the use of OEWS-based AEWRs for SOC codes outside the six field and livestock workers (combined) category would force employers to pay workers what the commenters considered to be “private sector rates” for certain positions, such as truck drivers, farm managers, and farm mechanics. These commenters also shared the perspective that the skill sets needed for each of these positions is “materially different” in the agricultural versus non-agricultural sectors, primarily based on factors such as the location, scale, or commodity involved, rather than the qualifications or requirements of the work to be performed, a perspective the Department disagrees with and addresses further in Section II.C.4, below. Another employer stated that “wages based on surveys outside of agriculture will skew labor costs out of our ability to pay.” Similarly, an agent asserted that if the Department classifies a job opportunity using an inappropriate SOC code, the Department's OEWS-based methodology would “widen the gap . . . in the direction of higher AEWRs than market conditions dictate.” 70 The Department is not persuaded for the reasons discussed below. 70 Other commenters also addressed the potential for SOC code assignments that employers may view as inaccurate, including assignment of more than one SOC code to an employer's job opportunity; these comments are addressed in the Department's discussion of job opportunity evaluation and SOC code assignment in Sections II.C.3 and II.C.4, below. As noted in the 2020 AEWR Final Rule (vacated on other grounds) and the NPRM, the OEWS is more accurate than the FLS for SOC codes, such as supervisors, that the FLS does not adequately or consistently survey, and positions that are more often employed by farm labor contractors ( e.g., construction supporting farm production) than by fixed-site agricultural employers; therefore, use of the OEWS will better protect against adverse effects for those SOC codes. In contrast, an AEWR based solely on the field and livestock worker (combined) category wage may have the effect of depressing wages in these other, typically higher-paid SOC codes because the FLS field and livestock worker (combined) category does not reflect the wages in these SOC codes as accurately as the OEWS survey does. This aspect of the methodology under the 2010 Final Rule did not adequately prevent adverse effects on the wages of such workers in the United States similarly employed, contrary to the Department's statutory mandate, as discussed above. In addition, whereas in 2010 H-2A Labor Contractors (H-2ALCs) comprised a much smaller percentage of participants in the H-2A program, H-2ALC participation has grown in recent years, which supports using OEWS wage data collected from farm labor contractors who employ workers to perform duties not covered by the six field and livestock workers (combined) category SOC codes, as an appropriate source of actual market wages in agriculture to determine the AEWR for these SOC codes. 71 71 For example, based on a review of OFLC H-2A certification data covering 2010 through 2019, the USDA Economic Research Service (ERS) reported that H-2ALCs (also known as Farm Labor Contractors (FLC)) have become the dominant employer type in the vegetable and melon sector—among the most labor-intensive agricultural sectors in the United States. Specifically, USDA ERS noted that “the number of certifications obtained by both individual employers and FLCs increased every year between 2011 and 2019; however, the number of certifications obtained by FLCs increased faster, which led contractors to overtake individual employers in 2016. The share of certifications obtained by FLCs steadily increased from 17 percent in 2011 to its maximum of 57 percent in 2018, decreasing slightly to 53 percent in both share and number in 2019.” See USDA, Examining the Growth in Seasonal Agricultural H-2A Labor (August 2021), Economic Information Bulletin No. (EIB-226), https://www.ers.usda.gov/webdocs/publications/102015/eib-226.pdf?v=8349.1 (accessed September 12, 2022). More recently and based on a review of H-2A applications covering all agricultural sectors certified by OFLC during the most recent 3 fiscal years covering October 1, 2019, through September 1, 2022, the proportion of H-2A worker positions certified for employers operating as H-2ALCs increased from 36 percent in FY 2020 to more than 43 percent in FY 2022. In FY 2020, of the 275,430 worker positions certified nationally, 99,505 (or 36.1 percent) were issued to H-2ALCs. From October 1, 2021, through September 1, 2022, for FY 2022, of the 352,103 worker positions certified nationally, 151,706 (or 43.1 percent) were issued to employers operating as H-2ALCs. See https://www.dol.gov/agencies/eta/foreign-labor/performance (accessed September 12, 2022). The Department understands the common concern of several employers and trade associations that OEWS-based AEWRs would, in some cases, result in wage increases compared to the FLS-based AEWR applicable under the 2010 Final Rule AEWR methodology. For example, a trade association compared average wages for the three SOC codes covering Construction Laborers, Bus Drivers, and Light Truck Drivers, based on the 2020 OEWS and the 2021 FLS, which showed that the 2020 OEWS for each occupation resulted in a higher AEWR than when using the 2021 FLS for field and livestock workers (combined). Based on its independent research, which is a topic the Department addresses in the Administrative Information section below (Section III), another trade association expressed concern that OEWS-based AEWRs would be significantly higher than the national average 2010 H-2A Final Rule FLS-based AEWR. These comments reflect the Department's concerns about the continued use of FLS-based AEWRs for SOC codes outside the field and livestock workers (combined) category not adequately addressing the Department's statutory mandate regarding all H-2A job opportunities, concerns that resulted in this rulemaking. In addition, some commenters appeared to believe, without providing supporting evidence, that using the OEWS survey would always produce SOC-specific AEWRs higher than the FLS rate for the field and livestock workers (combined) category, which, if true, would bolster the Department's concerns regarding adverse effect of the 2010 AEWR methodology and the need for rulemaking. As previously stated, the Department has discretion to determine the methodological approach that best allows it to meet its statutory mandate. 72 The Department remains cognizant of the fact that the “clear congressional intent was to make the H-2A program usable, not to make U.S. producers non-competitive” and that “[u]nreasonably high AEWRs could endanger the total U.S. domestic agribusiness, because the international competitive position of U.S. agriculture is quite fragile.” 73 However, the Department is not required to set the AEWR at the highest conceivable point, nor at the lowest, so long as it serves its purpose, and the Department may also consider factors relating to the sound administration of the H-2A program in deciding how to set the AEWR. The approach adopted in this final rule is reasonable and strikes an appropriate balance under the INA. The Department recognizes that the revised methodology may result in some AEWR increases in those SOC codes for which the Department will use the OEWS survey, depending upon geographic location and the specific SOC code. These changes, however, would be the result of the Department's use of more accurate occupational data that better reflect the actual wage paid, and thus better protect against adverse effect. In the Department's policy judgement, any incremental burden placed on employers is outweighed by the benefits attendant to better protection against adverse effect on the wages of workers in the United States similarly employed. 72 2020 AEWR final rule at 70450, 2021 AEWR NPRM at 68176, and Section I.A above, which cite AFL-CIO, et al. v. Dole, 923 F.2d 182, 184 (D.C. Cir. 1991) (Congress 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.”); United Farmworkers v. Solis, 697 F. Supp. 2d 5, 8-11 (D.D.C. 2010) (the Department has discretion to determine the methodological approach that best allows it to meet its statutory mandate). 73 54 FR 28037, 28046 (July 5, 1989). With regards to commenter concerns about variation in OEWS-based AEWRs from year to year, the OEWS-based AEWRs generally would experience lower rates of change per year than the FLS AEWR variations to which employers are accustomed to adjusting. While the FLS calculates annual findings from quarterly estimates of data collected during a single year, “each set of OE[W]S estimates is calculated from six panels of survey data collected over three years,” an approach that moderates year-to-year fluctuation. However, as the AEWR methodology adopted in this final rule bases AEWR adjustments on changes in wages actually paid to similarly employed workers from year to year, annual variation in the AEWRs—both FLS-based AEWRs and OEWS-based AEWRs—are normal and provide the best available information on changing market conditions. Several commenters were concerned that by factoring in wages in both non- metropolitan areas and metropolitan areas (where they assume wages are higher because of a higher cost of living), the use of a statewide OEWS wage would mean that employers in non-metropolitan areas would be required to pay inflated wages. Another commenter expressed a similar concern with respect to statewide or national AEWRs generally. Two additional commenters justified support for using OEWS wage data, rather than the FLS, for SOC codes outside of field and livestock workers (combined) category by noting that the OEWS produces available data at the local level, while the FLS does not capture data at this level of precision. While the OEWS can provide data at a smaller geographic level than statewide, such as by Metropolitan and Non-Metropolitan Statistical Areas, the Department is adopting the proposal to use statewide OEWS data to better protect against localized wage depression. As explained in prior rulemakings, the Department is concerned about localized wage depression in the H-2A program, particularly because of the economic vulnerability of agricultural workers and the fact that the H-2A program is not subject to a statutory cap, which allows an unlimited number of nonimmigrant workers to enter a given local area. 74 Thus, a statewide wage, which includes a broad variety of geographic areas, is more likely to protect against wage depression from a large influx of nonimmigrant agricultural workers that is most likely to occur at the local level. 75 In the Department's policy judgment, even if the commenter's assumptions were accurate ( e.g., that agricultural wage rates in metropolitan areas are higher than those in non-metropolitan areas; that metropolitan and non-metropolitan areas house distinct labor markets), protecting a vulnerable workforce from wage depression outweighs potential concerns regarding potential upward pressure on wages that may occur because of the inclusion of metropolitan areas. For these reasons, the Department believes it is important to use the statewide OEWS wage where one exists for the particular SOC code. In the limited circumstances in which there is no statewide wage, use of the national annual average gross hourly wage reported for the particular SOC code will ensure an AEWR determination can be made each year for each SOC code outside of the field and livestock workers (combined) category. 74 See, e.g., 75 FR 6883, 6895. 75 Id. at 6899 (The Department “consistently has set statewide AEWRs rather than substate [ ] AEWRs because of the absence of data from which to measure wage depression at the local level” and use of surveys reporting data at a broader geographic level “immunizes the survey from the effects of any localized wage depression that might exist.”) d. The Department's Decision Not To Use ECI-Adjusted AEWRs or Other Methodologies Suggested in Comments The Department received comments from employers, trade associations, agents, and workers' rights advocacy organizations suggesting alternative methods of determining the AEWR, including use of the ECI; use of the wage source that produces the highest wage, regardless of geographical or occupational scope; use of the median wage rate, instead of the mean; implementation of a two-tiered wage system permitting employers to pay foreign workers less; and imposition of caps on AEWR growth. As discussed below, the Department declines to adopt the suggested alternatives because none of them provides an administratively feasible method of allowing the Department to carry out its statutory mandate of ensuring that the employment of foreign workers will not adversely affect the wages of workers in the United States similarly employed. Several commenters suggested the Department reconsider use of a broad index like the ECI instead of using the FLS to determine the AEWR, and some specifically asserted these indices are less likely to be suspended than the FLS, and more likely to produce consistent, moderate wage increases. Such indices, the commenters asserted, would avoid wage stagnation among agricultural workers and “provide wage stability [that] is critically important to the viability of the H-2A program.” Three of these commenters also urged the Department to cap AEWR increases by setting a “percentage-change `floor' and `ceiling' to further limit uncertainty.” Some commenters suggested the Department should determine the AEWR based on “one of the myriads of models passed in the U.S. House of Representatives,” such as setting the AEWR at 115 percent of Federal or State minimum wage, or by using other similar models. As in prior rulemakings, some commenters also asserted that the Department should or must determine the existence of adverse effect in particular areas or occupations before issuing any AEWR determination. For example, one commenter noted recent efforts to address truck driver labor shortages in the United States and asserted the Department “should provide additional analysis to determine if there is an adverse effect on U.S. workers given these current dynamics.” However, as the Department and courts have long explained, the INA does not require DOL to prove or rely on the existence of past adverse effect but instead is focused on prevent[ing] future adverse effect.” 76 Further, the AEWR is one of the primary regulatory controls to prevent—not compensate for—adverse effects. 76 54 FR 28,037, 28,046-47 (Jul. 5, 1989); 75 FR 6884, 6895 (Feb. 12, 2010) (reiterating justification for protection against future adverse effect in 1989 rule); 73 FR 77110, 77167 (Dec. 18, 2008) (noting the D.C. Circuit observed there is no “statutory requirement to adjust for past wage depression”); 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 v. 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. 77 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. 77 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 78 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. 79 78 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. 79 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.” 80 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.” 81 80 84 FR 36168, 36183-36184, 36243 (July 26, 2019). 81 Am. Fed'n. of Labor & Cong. of Indus. Organizations (AFL-CIO) v. 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. 82 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. 83 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. 82 See 80 FR 24146, 24159-24160 (Apr. 29, 2015); see also 78 FR 24047, 24058 (Apr. 24, 2013). 83 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. 84 84 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). 85 85 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2023-03756. Public record. Not legal advice.