# 86 FR 68174: Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States

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URL: https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2021-25803

## Section

- **Citation:** 86 FR 68174
- **Heading:** Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States
- **Jurisdiction:** Federal
- **Kind:** Regulations
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** Federal Register / Vol. 86 / 86 FR 68174

## Text

DEPARTMENT OF LABOR Employment and Training Administration 20 CFR Part 655 [DOL Docket No. ETA-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:
Notice of proposed rulemaking.

SUMMARY:
The Department of Labor (Department or DOL) is proposing to amend 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 proposes to revise the methodology by which it determines the hourly Adverse Effect Wage Rates 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 Survey (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 six occupations comprising the field and livestock worker (combined) wages reported by USDA, the proposed regulations will rely on the FLS to establish the AEWRs for these occupations in accordance with the methodology used by the Department for nearly all of the last 30 years. For all other occupations and to address circumstances in which the FLS does not report wage data for the field and livestock worker occupations, the Department proposes to use the OEWS survey to establish the AEWRs for each occupation. These proposed regulations 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 field and livestock worker occupations, the Department proposes to use the OEWS survey to establish the AEWRs for each occupation. These proposed regulations 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 the proposed methodology will strike a reasonable balance between the statute's competing goals of providing employers with an adequate legal supply of agricultural labor and protecting the wages and working conditions of workers in the United States similarly employed.

DATES:
Interested persons are invited to submit written comments on the proposed rule on or before January 31, 2022.

ADDRESSES:
You may submit comments electronically by the following method:
Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions on the website for submitting comments.
Instructions: Include the agency's name and docket number ETA-2021-0006 in your comments. All comments received will become a matter of public record and will be posted without change to https://www.regulations.gov . Please do not include any personally identifiable or confidential business information you do not want publicly disclosed.
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:

I. Background
A
ng 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:

I. Background
A. Statutory and Regulatory Framework
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 temporary or a 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 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
wn as a “temporary 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 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
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).
Since 1987, the Department has operated the H-2A temporary labor certification program under regulations 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.
An employer seeking H-2A workers generally initiates the temporary labor certification process by filing an H-2A Agricultural Clearance Order, Form ETA-790/790A (job order), with the State Workforce Agency (SWA) in the area where it seeks to employ H-2A workers. 4 In preparing the job order and to comply with its wage obligations under 20 CFR 655.122(l), the employer is required to offer, advertise in its recruitment, and pay a wage that is the highest of the AEWR, the prevailing wage, the agreed-upon collective bargaining wage, the Federal minimum wage, or the State minimum wage. 5
4 20 CFR 655.121.
5 20 CFR 655.120(a)
t seeks to employ H-2A workers. 4 In preparing the job order and to comply with its wage obligations under 20 CFR 655.122(l), the employer is required to offer, advertise in its recruitment, and pay a wage that is the highest of the AEWR, the prevailing wage, the agreed-upon collective bargaining wage, the Federal minimum wage, or the State minimum wage. 5
4 20 CFR 655.121.
5 20 CFR 655.120(a).
With the exception of brief periods under the 2008 Final Rule 6 and 2020 AEWR Final Rule, 7 discussed in more detail below, the Department has established an AEWR using FLS data for each State in the multistate or single-State crop region to which the State belongs since 1987. 8 Currently, pursuant to the 2010 Final Rule, 9 the AEWR for each State or region is published annually as a single average hourly gross wage that is set using the field and livestock workers (combined) data from the FLS, which is conducted by the USDA's National Agricultural 10 The current methodology produces a single AEWR for all agricultural workers in a given State or region, without regard to occupational classification, and no AEWR in geographic areas not surveyed by NASS ( e.g. , Alaska). At the time of submitting the job order, the employer must agree to pay at least 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 that rate to workers for every hour or portion thereof worked during a pay period. 11
6 Final Rule, Temporary Agricultural Employment of H-2A Aliens in the United States; Modernizing the Labor Certification Process and Enforcement , 73 FR 77110 (Dec. 18, 2008) (2008 Final Rule).
7 As discussed in subsequent sections of this preamble, a federal court in United Farm Workers v. Dept of Labor , No. 20-cv-01690 (E.D. Cal. Dec
ry hour or portion thereof worked during a pay period. 11
6 Final Rule, Temporary Agricultural Employment of H-2A Aliens in the United States; Modernizing the Labor Certification Process and Enforcement , 73 FR 77110 (Dec. 18, 2008) (2008 Final Rule).
7 As discussed in subsequent sections of this preamble, a federal court in United Farm Workers v. Dept of Labor , No. 20-cv-01690 (E.D. Cal. Dec. 23, 2020), enjoined the Department from further implementing the 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 (Nov. 5, 2020) (2020 AEWR Final Rule) two days after its effective date of December 21, 2020.
8 The FLS collects data for workers directly hired by U.S. farms and ranches in each of 15 multistate labor regions, and the single-State regions of California, Florida, and Hawaii. The FLS does not collect data in other locations, for example, Alaska and Puerto Rico, where an employer may seek to employ H-2A workers.
9 As discussed more fully below, the Department has utilized the methodology set forth in the 2010 Final Rule since March 15, 2010, except for the two-day period of December 21-22, 2020.
10 Final Rule, Temporary Agricultural Employment of H-2A Aliens in the United States , 75 FR 6883 (Feb. 12, 2010) (2010 Final Rule); Interim Final Rule, Labor Certification Process for the Temporary Employment of Aliens in Agriculture and Logging in the United States , 52 FR 20496 (Jun. 1, 1987) (1987 IFR).
11 20 CFR 655.120(l).
B. The Role of AEWRs in the H-2A Program
As explained in prior rulemakings, requiring employers to pay the AEWR when it is the highest applicable wage is the primary way the Department meets its statutory obligation to certify no adverse effect on workers in the United States similarly employed
re and Logging in the United States , 52 FR 20496 (Jun. 1, 1987) (1987 IFR).
11 20 CFR 655.120(l).
B. The Role of AEWRs in the H-2A Program
As explained in prior rulemakings, requiring employers to pay the AEWR when it is the highest applicable wage is the primary way the Department meets its statutory obligation to certify no adverse effect on workers in the United States similarly employed. The AEWR is the rate that the Department has determined is necessary to ensure 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. Specifically, the AEWR is intended to guard against the potential for the entry of H-2A foreign workers to adversely affect the wages and working conditions of agricultural workers in the United States similarly employed. As the Department noted shortly after the creation of the modern H-2A program, a “basic Congressional premise for temporary foreign worker programs . . . is that the unregulated use of [nonimmigrant foreign workers] in agriculture would have an adverse impact on the wages of U.S. workers, absent protection.” 12 The potential for the employment of foreign workers to adversely affect the wages of U.S. workers is heightened in the H-2A program because the H-2A program is not subject to a statutory cap on the number of foreign workers who may be admitted to work in agricultural jobs. Consequently, concerns about wage depression from the employment of foreign workers are particularly acute because employers” access to a potentially unlimited number of foreign workers in a particular labor market and crop activity or agricultural activity could cause the prevailing wage of workers in the United States similarly employed to stagnate or decrease
itted to work in agricultural jobs. Consequently, concerns about wage depression from the employment of foreign workers are particularly acute because employers” access to a potentially unlimited number of foreign workers in a particular labor market and crop activity or agricultural activity could cause the prevailing wage of workers in the United States similarly employed to stagnate or decrease. The Department continues to believe that the use of an AEWR is necessary in order to effectuate its statutory mandate of protecting agricultural workers in the United States similarly employed from the possibility of adverse effects on their wages and working conditions.
12 Interim Final Rule, Labor Certification Process for the Temporary Employment of Aliens in Agriculture and Logging in the United States , 52 FR 20496, 20505 (Jun. 1, 1987).
Addressing the potential adverse effect that the employment of temporary foreign workers may have on the wages of agricultural workers in the United States similarly employed is particularly important because U.S. agricultural workers are, in many cases, especially susceptible to adverse effects caused by the employment of temporary foreign workers. As discussed in prior rulemakings, the Department continues to hold the view that “U.S. agricultural workers need protection from potential adverse effects of the use of foreign temporary workers, because they generally comprise an especially vulnerable population . .
tural workers are, in many cases, especially susceptible to adverse effects caused by the employment of temporary foreign workers. As discussed in prior rulemakings, the Department continues to hold the view that “U.S. agricultural workers need protection from potential adverse effects of the use of foreign temporary workers, because they generally comprise an especially vulnerable population . . . with few alternatives in the non-farm labor market.” 13 As a result, “their ability to negotiate wages and working conditions with farm operators or agriculture service employers is quite limited.” 14 The AEWR provides “a floor below which wages cannot be negotiated, thereby strengthening the ability of this particularly vulnerable labor force to negotiate over wages with growers who are in a stronger economic and financial position in contractual negotiations for employment.” 15
13 Proposed Rule, Temporary Agricultural Employment of H-2A Aliens in the United States , 74 FR 45905, 45911 (Sep. 4, 2009).
14 Id.
15 Id.
The use of an AEWR, separate from a prevailing wage for a particular crop or agricultural activity, “is most relevant in cases in which the local prevailing wage is lower than the wage considered over a larger geographic area (within which the movement of domestic labor is feasible) or over a broader occupation/crop/activity definition (within which reasonably ready transfer of skills is feasible).” 16 The AEWR acts as “a prevailing wage concept defined over a broader geographic or occupational field.” 17 The AEWR is generally based on data collected in a multistate agricultural region and an occupation broader than a particular crop activity or agricultural activity, while the prevailing wage is commonly determined based on a particular crop activity or agricultural activity at the State or sub-State level. Therefore, the AEWR protects against localized wage depression that might occur in prevailing wage rates
enerally based on data collected in a multistate agricultural region and an occupation broader than a particular crop activity or agricultural activity, while the prevailing wage is commonly determined based on a particular crop activity or agricultural activity at the State or sub-State level. Therefore, the AEWR protects against localized wage depression that might occur in prevailing wage rates. The AEWR is complemented by the prevailing wage determination process, which serves a related, but distinct purpose. The prevailing wage, as determined under current Departmental guidance, provides an additional safeguard against wage depression that could arise in the performance of specific crop or agricultural activities within a regional or local geographic area.
16 75 FR 6883, 6892-6893.
17 Id. at 6893.
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.” 18 Thus, the Department has discretion to determine the methodological approach that best allows it to meet its statutory mandate. 19 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.” 20 There is no statutory requirement that the Department set the AEWR at the highest conceivable point, nor at the lowest, so long as it serves its purpose. The Department may also consider factors relating to the sound administration of the H-2A program in deciding how to set the AEWR. For the reasons discussed below, the Department is proposing an approach that is reasonable and strikes an appropriate balance under the INA.
18 AFL-CIO, et al. v. Dole , 923 F.2d 182, 184 (D.C. Cir. 1991).
19 United Farmworkers v. Solis , 697 F. Supp. 2d 5, 8-11 (D.D.C. 2010).
20 Dole , 923 F.2d at 187.
C
ing to the sound administration of the H-2A program in deciding how to set the AEWR. For the reasons discussed below, the Department is proposing an approach that is reasonable and strikes an appropriate balance under the INA.
18 AFL-CIO, et al. v. Dole , 923 F.2d 182, 184 (D.C. Cir. 1991).
19 United Farmworkers v. Solis , 697 F. Supp. 2d 5, 8-11 (D.D.C. 2010).
20 Dole , 923 F.2d at 187.
C. Recent Rulemaking
As part of a comprehensive H-2A program notice of proposed rulemaking (2019 NPRM) published on July 26, 2019, the Department proposed to adjust the methodology used to establish the AEWRs in the H-2A program. That approach would have provided occupation-specific hourly AEWRs for non-range occupations 21 ( i.e., all occupations other than herding and production of livestock on the range) in each State using data reported by FLS for the occupation, if available, or data reported by the OES (now OEWS) survey for the occupation in the State, 22 The Department explained that establishing AEWRs based on data more specific to the agricultural services or labor being performed under the Standard Occupational Classification (SOC) system would better protect against adverse effect on the wages of workers in the United States similarly employed. For example, the Department expressed concern that the AEWR methodology under the 2010 Final Rule may have an adverse effect on the wages of workers in higher paid non-range occupations, such as supervisors of farmworkers and construction laborers, whose wages may be inappropriately lowered by use of a single hourly AEWR based on the wages collected for occupations covering field and livestock workers. 23
21 Range occupations are subject to a monthly AEWR, as set forth in 20 CFR 655.211(c).
22 See Proposed Rule, Temporary Agricultural Employment of H-2A Nonimmigrants in the United States, 84 FR 36168, 36171 (July 26, 2019) (2019 NPRM).
23 Id. at 36180-36185
ppropriately lowered by use of a single hourly AEWR based on the wages collected for occupations covering field and livestock workers. 23
21 Range occupations are subject to a monthly AEWR, as set forth in 20 CFR 655.211(c).
22 See Proposed Rule, Temporary Agricultural Employment of H-2A Nonimmigrants in the United States, 84 FR 36168, 36171 (July 26, 2019) (2019 NPRM).
23 Id. at 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 the Department received comments both in support of and in opposition to the proposed changes to establish occupation-specific hourly AEWRs for non-range occupations. A detailed discussion of the public comments as well as further background on the 2019 NPRM, specifically related to the hourly AEWR determinations, is available in the Department's 2020 AEWR Final Rule and will not be restated here. 24
24 See 85 FR 70445, 70447-70465.
On September 30, 2020, USDA publicly announced its intent to cancel the planned October data collection and November publication of the Agricultural Labor Survey (ALS) and Farm Labor reports (better known as the FLS). 25 The 2020 AEWR Final Rule revised the AEWR methodology to account for public comments received on the 2019 NPRM proposals and the USDA announcement that NASS did not plan to release its November 2020 report containing the annual gross hourly wage rates for field and livestock workers (combined), which was necessary for the Department to establish and publish the hourly AEWRs for the next calendar year period on or before December 31, 2020, under the existing 2010 Final Rule methodology
ived on the 2019 NPRM proposals and the USDA announcement that NASS did not plan to release its November 2020 report containing the annual gross hourly wage rates for field and livestock workers (combined), which was necessary for the Department to establish and publish the hourly AEWRs for the next calendar year period on or before December 31, 2020, under the existing 2010 Final Rule methodology. 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 the USDA decision to cancel the October data collection and release of the report planned for November 2020 was the subject of ongoing litigation. 26 Given the uncertainty regarding the future of the FLS and to ensure AEWRs for each State were published before the end of calendar year 2020, the Department published the 2020 AEWR Final Rule on November 5, 2020, with an effective date of December 21, 2020.
25 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.
26 85 FR 70445, 70446.
The 2020 AEWR Final Rule set the 2021 AEWR for field and livestock worker occupations at the 2020 AEWR rates, which were based on results from the FLS wage survey published in November 2019, and provided for those AEWRs to adjust annually, starting at the beginning of calendar year 2023, using the BLS Economic Cost Index (ECI), Wages and Salaries
ces/2020/09-30-2020.php.
26 85 FR 70445, 70446.
The 2020 AEWR Final Rule set the 2021 AEWR for field and livestock worker occupations at the 2020 AEWR rates, which were based on results from the FLS wage survey published in November 2019, and provided for those AEWRs to adjust annually, starting at the beginning of calendar year 2023, using the BLS Economic Cost Index (ECI), Wages and Salaries. For all other occupations, 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 occupation reported by the OEWS survey or, where a statewide average hourly gross wage is not reported, the national average hourly gross wage for the occupation reported by the OEWS survey, to be adjusted annually based on the OEWS survey.
D. Need for New Rulemaking
On October 28, 2020, the U.S. District Court for the Eastern District of California in United Farm Workers, et al. v. Perdue, et al., No. 20-cv-01452 (E.D. Cal. filed Oct. 13, 2020), preliminarily enjoined USDA from giving effect to its decision to suspend the October 2020 FLS data collection and cancel its November 2020 publication of the FLS. 27 Additionally, on December 23, 2020, in United Farm Workers v. Dep't of Labor, No. 20-cv-01690 (E.D. Cal. filed Nov. 30, 2020), the same court issued an order enjoining the Department from further implementing the 2020 AEWR Final Rule. 28 On January 12, 2021, the court issued a supplemental order 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. 29 After NASS completed its data collection, USDA published the FLS report on February 11, 2021. 30 Shortly thereafter, the Department published the 2021 AEWRs on February 23, 2021, with an immediate effective date, pursuant to the court's January 12, 2021 supplemental order. 31
27 United Farm Workers v
y set forth in the 2010 Final Rule, and to make those AEWRs effective upon their publication. 29 After NASS completed its data collection, USDA published the FLS report on February 11, 2021. 30 Shortly thereafter, the Department published the 2021 AEWRs on February 23, 2021, with an immediate effective date, pursuant to the court's January 12, 2021 supplemental order. 31
27 United Farm Workers v. Perdue, 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 inunction).
28 Order Granting Plaintiffs” Motion for a Preliminary Injunction, United Farm Workers, et al. v. U.S. Dep't of Labor, et al., No. 20-cv-1690 (E.D. Cal.), ECF No. 37.
29 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.
30 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).
31 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 the litigation challenging the Department's 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. 32 However, the court ultimately granted the plaintiffs” Motion for Preliminary Injunction, concluding that the plaintiffs were likely to succeed on their claim that the Department failed to justify freezing wages for two years prior to indexing wages using the ECI
s broad discretion in determining the methodology for setting the AEWR so long as the Department's approach is sufficiently explained. 32 However, the court ultimately granted the plaintiffs” Motion for Preliminary Injunction, concluding that the plaintiffs were likely to succeed on their claim that the Department failed to justify freezing wages for two years prior to indexing wages using the ECI. 33 According to the court, while the Department recognized “the importance of the AEWR reflecting the market rate” throughout the 2020 AEWR Final Rule, 34 it failed to adequately explain a departure from its longstanding use of the FLS to set AEWRs for field and livestock workers “to ensure that U.S. ‘workers receive the greatest potential protection from adverse effects on their wages and working conditions, including the adverse effect of being denied access to the opportunity to earn a higher equilibrium wage that would have resulted as the market (perhaps slowly) adjusted in the absence of the 35 The court rejected the Department's explanation that the new AEWR methodology, as applied to the field and livestock workers, was justified, at least in part, by continued uncertainty about the long-term availability of the FLS, as demonstrated by USDA's decision to suspend the October 2020 data collection. The court determined “the USDA's FLS Suspension Notice should not factor into this equation, at least with regard to setting the 2021 AEWRs, because the [court] enjoined that decision and [new] FLS data should therefore be available in a timely fashion.” 36 Accordingly, the court ruled that “[d]espite claiming that it concluded ‘on balance’ that use of the FLS was ‘not appropriate in this context,’ the [Department] has not in fact addressed the impact that freezing” wages would have on field and livestock workers. 37
32 Order Granting Plaintiffs” Motion for a Preliminary Injunction, United Farm Workers, et al. v. U.S. Dep't of Labor, et al., No. 20-cv-1690 (E.D. Cal.), ECF No. 37 at 17 n.5.
33 Id. at 17.
34 Id
uded ‘on balance’ that use of the FLS was ‘not appropriate in this context,’ the [Department] has not in fact addressed the impact that freezing” wages would have on field and livestock workers. 37
32 Order Granting Plaintiffs” Motion for a Preliminary Injunction, United Farm Workers, et al. v. U.S. Dep't of Labor, et al., No. 20-cv-1690 (E.D. Cal.), ECF No. 37 at 17 n.5.
33 Id. at 17.
34 Id.
35 Id. at 18 (quoting 85 FR 70445, 70453) (“However, the closest that the Final Rule gets to addressing the intentional departure from accurate market wages is its statement that ‘even if more recent, 2020 FLS wage data were available, relying on it to set 2021 AEWR[s] would only serve to perpetuate the very wage volatility that the Department seeks to ameliorate through this rule.' ”).
36 Id.
37 Id. (internal citations omitted).
As the court noted, the Department has previously stated that the FLS “is the only annually available data source that actually uses information sourced directly from [farm employers],” and its “broader geographic scope makes the FLS more consistent with both the nature of agricultural employment and the statutory intent of the H-2A program.” 38 Given that USDA has resumed FLS data collection, 39 and plans to release the next annual data in November 2021, 40 and given the Department's longstanding reliance on the FLS to establish the AEWR, the Department has decided it is appropriate to reassess its decision to no longer rely on annual FLS data for the vast majority of H-2A job opportunities.
38 Id. at *4.
39 USDA NASS, Farm Labor report, https://usda.library.cornell.edu/concern/publications/x920fw89s?locale=en (last modified May 26, 2021 ).
40 Id
d given the Department's longstanding reliance on the FLS to establish the AEWR, the Department has decided it is appropriate to reassess its decision to no longer rely on annual FLS data for the vast majority of H-2A job opportunities.
38 Id. at *4.
39 USDA NASS, Farm Labor report, https://usda.library.cornell.edu/concern/publications/x920fw89s?locale=en (last modified May 26, 2021 ).
40 Id.
Additionally, while the 2020 AEWR Final Rule would have led to higher wages for certain higher skilled workers, the rule also acknowledged that the revised methodology “may result in the AEWRs for field workers and livestock workers being set at slightly lower levels in future years than would be the case under the [2010 Rule's] methodology.” 41 The court's order found that, given the Department's statutory mandate to prevent adverse effects, it was likely that plaintiffs would succeed on their claim that the 2020 AEWR Final Rule failed to provide adequate justification for a methodology that could lead to lower wages for field and livestock workers than the wages that would have be produced under the 2010 methodology. 42 Although nominal wages for field and livestock were expected not to decline under the 2020 methodology, the Department acknowledged that the 2021 AEWRs, set pursuant to the 2010 methodology and the FLS published in February 2021, will result in higher wages for the majority of H-2A workers in 2021. Consistent with the court's decision, the Department believes adjustment of the methodology used to establish the required wage rate for the H-2A program will better enable the Department to meet its statutory obligation regarding adverse effect.
41 Id. at *14.
42 Id. at *14-15, 18
ogy and the FLS published in February 2021, will result in higher wages for the majority of H-2A workers in 2021. Consistent with the court's decision, the Department believes adjustment of the methodology used to establish the required wage rate for the H-2A program will better enable the Department to meet its statutory obligation regarding adverse effect.
41 Id. at *14.
42 Id. at *14-15, 18.
The Department has also reviewed the policy underlying the 2020 AEWR Final Rule in light of its statutory mandate, and has determined that two major aspects of the 2020 AEWR Final Rule do not adequately protect against adverse impact: (1) The imposition of a 2-year wage freeze for field and livestock workers at a wage level based on the FLS survey published in November 2019, and (2) the use of the BLS ECI, Wages and Salaries, to annually adjust AEWRs for field and livestock workers annually thereafter. These policy decisions represent a significant departure from how minimum or prevailing wage determinations are issued to employers in other employment-based visa programs administered by the Department, and from how the Department has established the AEWR in the H-2A program for more than 30 years. The Department considers actual, current wage data to be the best source of information for determining prevailing wages, when an appropriate data source is available, and has consistently relied upon such information in determining minimum or prevailing wages in the other employment-based visa programs it administers. Using a methodology other than actual, current wage data increases the likelihood of permitting employers to pay wages that are not reflective of market wages, which undermines the Department's mandate to prevent an adverse effect on the wages of workers in the United States similarly employed.
However, as discussed above, the Department remains concerned that the use of a single AEWR for all workers in the H-2A program may adversely affect wages in certain occupations
lihood of permitting employers to pay wages that are not reflective of market wages, which undermines the Department's mandate to prevent an adverse effect on the wages of workers in the United States similarly employed.
However, as discussed above, the Department remains concerned that the use of a single AEWR for all workers in the H-2A program may adversely affect wages in certain occupations. Therefore, the Department proposes utilizing the bifurcated approach set forth in the 2020 rule that set a single AEWR based on the FLS for the vast majority of job opportunities used by employers in the H-2A program—occupational classifications for field workers and livestock workers—while shifting AEWR determinations to the OEWS survey for all other occupations for which the FLS does not adequately collect or consistently report wage data at a State or regional level ( e.g., truck drivers, farm supervisors and managers, construction workers, and many occupations in contract employment). Because these other, typically higher paid occupations are not reported in the FLS field and livestock workers (combined) category, an OEWS-based AEWR will better protect against adverse effect. Additionally, as AEWR determinations become more occupation specific, the Department also believes it is appropriate to require that employers pay the highest applicable wage if the job opportunity can be classified within more than one occupation to reduce the potential for employers to misclassify workers and establish greater consistency with prevailing wage determinations in the H-2B program.
Accordingly, the Department has determined these policies must be reconsidered and proposes revisions in this notice of proposed rulemaking (NPRM). The Department has determined that the proposals outlined below reflect an approach that allows the Department to meet its statutory mandate to ensure that workers in the United States are provided an adequate level of wage protection in their employment
cordingly, the Department has determined these policies must be reconsidered and proposes revisions in this notice of proposed rulemaking (NPRM). The Department has determined that the proposals outlined below reflect an approach that allows the Department to meet its statutory mandate to ensure that workers in the United States are provided an adequate level of wage protection in their employment. The Department took into account the regulations promulgated in 2010, as well as the significant revision of the AEWR provisions in the 2020 AEWR Final Rule, in order to arrive at the approach described below. The Department believes the methodology described below is reasonable and strikes an appropriate balance under the INA.
II. Proposed Changes to the AEWR Determination Methodology
A. Summary of Proposed Revisions
The Department proposes to use the definition of AEWR found in the 2020 AEWR Final Rule. Because that rule has been preliminarily enjoined, and there is uncertainty as to whether that rule will be vacated prior to the issuance of a final rule, the Department seeks comment on the proposal to define the
The 2010 Final Rule defined the 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 U.S. Department of Agriculture (USDA) based on its quarterly wage survey.” In the 2019 NPRM, to be consistent with the Department's proposal to adjust the AEWR methodology for non-range occupations, the Department proposed to revise the definition of AEWR to include both the FLS and OEWS survey as sources for determining the AEWR and to reference the new AEWR methodology provision at § 655.120(b). The revised definition in the 2020 AEWR Final Rule clarified that the term AEWR applies to both the hourly rate for non-range occupations, as set forth in § 655.120(b), and to the monthly rate for range occupations, as set forth in § 655.211(c)
on of AEWR to include both the FLS and OEWS survey as sources for determining the AEWR and to reference the new AEWR methodology provision at § 655.120(b). The revised definition in the 2020 AEWR Final Rule clarified that the term AEWR applies to both the hourly rate for non-range occupations, as set forth in § 655.120(b), and to the monthly rate for range occupations, as set forth in § 655.211(c). Second, rather than identifying particular data sources, the revised definition stated that the AEWR is the rate that the OFLC Administrator publishes in the Federal Register in accordance with the AEWR-setting methodology and procedural provisions at §§ 655.120(b) and 655.211(c). Finally, the Department made additional nonsubstantive technical revisions to § 655.103(b) in the 2020 AEWR Final Rule for clarity.
In § 655.120(b), for the vast majority of H-2A job opportunities represented by six occupations comprising the field and livestock worker (combined) category within the FLS, the Department proposes to utilize the AEWR methodology set forth in the 2010 Final Rule, which set a single AEWR using the annual average gross hourly wage for field and livestock workers (combined) for the State or region, as determined by the USDA's NASS FLS report, whenever such data is available. For this occupational grouping, the Department proposes to use OEWS wage data in limited circumstances. Specifically, the AEWR would be set using OEWS wage data in circumstances where FLS wage data is unavailable or insufficient to generate a State or regional wage finding. For example, in Alaska and Puerto Rico, where the FLS is not currently conducted and, accordingly, NASS does not report wage data for field and livestock workers (combined), the Department proposes using OEWS wage data to determine the statewide (or statewide equivalent for the District of Columbia and U.S
e FLS wage data is unavailable or insufficient to generate a State or regional wage finding. For example, in Alaska and Puerto Rico, where the FLS is not currently conducted and, accordingly, NASS does not report wage data for field and livestock workers (combined), the Department proposes using OEWS wage data to determine the statewide (or statewide equivalent for the District of Columbia and U.S. territories) 43 AEWR for that combination of field and livestock worker occupations, using statewide data, if available, or nationwide data, if the OEWS survey does not report a statewide annual average gross hourly wage for those occupations. Finally, in the event FLS wage data becomes unavailable for the State or region due to future changes in methodology or the survey's suspension or termination, the Department proposes to immediately use OEWS wage data for this occupational grouping to establish the AEWR.
43 OEWS collects wage date from all fifty states as well as the District of Columbia, Puerto Rico, Guam, and the Virgin Islands. See BLS, Occupational Employment and Wage Statistics Overview, https://www.bls.gov/oes/oes_emp.htm (last modified Mar. 31, 2021) (“The OEWS survey is a federal-state cooperative program between [BLS] and State Workforce Agencies (SWAs). BLS provides the procedures and technical support, draws the sample, and produces the survey materials, while the SWAs collect the data. SWAs from all fifty states, plus the District of Columbia, Puerto Rico, Guam, and the Virgin Islands participate in the survey. Occupational employment and wage rate estimates at the national level are produced by BLS using data from the fifty states and the District of Columbia.”)
ocedures and technical support, draws the sample, and produces the survey materials, while the SWAs collect the data. SWAs from all fifty states, plus the District of Columbia, Puerto Rico, Guam, and the Virgin Islands participate in the survey. Occupational employment and wage rate estimates at the national level are produced by BLS using data from the fifty states and the District of Columbia.”).
For all other occupations, the Department proposes to use the methodology previously set forth in the 2020 AEWR Final Rule, under which the AEWR will be the statewide annual average gross hourly wage for the occupational classification, as reported by the OEWS survey, or the national annual average hourly wage for the occupational classification reported by the OEWS survey, if the OEWS survey does not report a statewide annual average gross hourly wage for the occupation.
As with the 2020 AEWR Final Rule, the Department proposes to require that if the job duties on the H-2A application (including the job order) do not fall within a single occupational classification, and the occupations involved are subject to different AEWRs, the Department will determine the applicable AEWR at the highest AEWR for the applicable occupational classifications.
Also as with the 2020 AEWR Final Rule, the Department proposes to require that the OFLC Administrator publish, at least once in each calendar year, on a date to be determined by the OFLC Administrator, an update to each AEWR via a notice in the Federal Register . The Department will update the AEWRs through two separate announcements in the Federal Register , one for the AEWRs based on the FLS, and a second for the AEWRs based on the OEWS survey, due to the different time periods for release of these two wage surveys
ce in each calendar year, on a date to be determined by the OFLC Administrator, an update to each AEWR via a notice in the Federal Register . The Department will update the AEWRs through two separate announcements in the Federal Register , one for the AEWRs based on the FLS, and a second for the AEWRs based on the OEWS survey, due to the different time periods for release of these two wage surveys. As discussed below, if a job opportunity may be classified within more than one occupational classification or SOC code, making that job opportunity subject to both FLS- and OEWS-based AEWRs, the employer must pay the highest applicable wage as of the effective date of that AEWR.
B. The Department Proposes To Use the FLS To Establish the AEWR for Field and Livestock Worker Job Opportunities in Most Cases
The Department proposes to use the average gross hourly wage rate for the field and livestock workers (combined) category from the FLS for the State or region to determine the AEWR for field and livestock worker job opportunities, when that data is available.
1. Use of a Single Field and Livestock Workers (Combined) Occupational Category
The FLS field and livestock workers (combined) category encompasses the vast majority of temporary agricultural job opportunities offered in the H-2A program. According to NASS, wage data reported for this category includes workers who “plant, tend, pack, and harvest field crops, fruits, vegetables, nursery and greenhouse crops, or other crops” or “tend livestock, milk cows, or care for poultry,” including those who “operate farm machinery while engaged in these activities.” 44 The FLS field and livestock worker category reports aggregate wage data covering the following Standard Occupational Classification (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, Agricultura
field and livestock worker category reports aggregate wage data covering the following Standard Occupational Classification (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). Depending on the agricultural product reported by the employer, wage data collected under the All Other Agricultural Workers occupational classification are assigned to either the livestock worker or field worker major category of the FLS.
44 USDA NASS, Crosswalk from the National Agricultural Statistics Services (NASS) Farm Labor Survey Occupations to the 2018 Standard Occupational Classification System, https://www.nass.usda.gov/Surveys/Guide_to_NASS_Surveys/Farm_Labor/farm-labor-soc-crosswalk (last visited Aug. 19, 2021).
Determining AEWRs using a single gross hourly wage for this group of occupations, rather than occupation-specific AEWRs for each occupation encompassed in the field and livestock worker (combined) category, is consistent with the Department's conclusion in the 2010 Final Rule that 45 It also is consistent with the approach taken in the 2020 AEWR Final Rule in response to the significant number of comments 46 opposing the Department's proposal in the 2019 NPRM to use an occupation-specific AEWR for occupations in this category, using the FLS where available, and using the OEWS survey where the FLS does not report a wage for the occupation in the State or region. 47 In the 2020 AEWR Final Rule, the Department retained use of the FLS field and livestock workers (combined) category to determine the AEWR applicable to all field and livestock worker job opportunities in each State, rather than occupation-specific AEWRs for occupations encompassed by the FLS field and livestock workers (combined) category.
45 75 FR 6883, 6899-6900
tion in the State or region. 47 In the 2020 AEWR Final Rule, the Department retained use of the FLS field and livestock workers (combined) category to determine the AEWR applicable to all field and livestock worker job opportunities in each State, rather than occupation-specific AEWRs for occupations encompassed by the FLS field and livestock workers (combined) category.
45 75 FR 6883, 6899-6900.
46 See 85 FR 70445, 70451-70458 (Addressing comments that occupation-specific field and livestock worker wages would reduce wages in common occupations, increase complexity and unpredictability, increase employer recordkeeping burdens and the Department's administrative burden, and create artificial boundaries between similar occupations.).
47 The Department explained in that NPRM that it could use the FLS to establish an occupation-specific AEWR for many States and regions for SOCs 45-2092 (Farmworkers and Laborers, Crop, Nursery, and Greenhouse) and 45-2093 (Farmworkers, Farm, Ranch, and Aquacultural Animals), but an FLS-based AEWR could only be established in some States and regions for several other occupations, including SOCs 45-2041 (Graders and Sorters, Agricultural Products), 45-2091 (Agricultural Equipment Operators), 45-2099 (Agricultural Workers, All Other), 53-7064 (Packers and Packagers, Hand), 11-9013 (Farmers, Ranchers and Other Agricultural Managers), and 45-1011 (First-Line Supervisors of Farm Workers) based on NASS data. 84 FR at 36182.
The Department proposes to continue using a single gross hourly AEWR applicable to all H-2A job opportunities covered by the occupations in the field and livestock category (combined) in each State, because this approach strikes a reasonable balance between the interests of employers and workers and ensures employment of foreign workers in the vast majority of H-2A job opportunities will not adversely affect agricultural workers in the United States similarly employed
licable to all H-2A job opportunities covered by the occupations in the field and livestock category (combined) in each State, because this approach strikes a reasonable balance between the interests of employers and workers and ensures employment of foreign workers in the vast majority of H-2A job opportunities will not adversely affect agricultural workers in the United States similarly employed. Continuing to use this approach will provide continuity and a reasonable level of predictability and flexibility for employers using the H-2A program while reducing the complexities and business impacts associated with greater occupation-specific determinations, including combination of occupation determinations, on the AEWR applicable to an employer's job opportunity in the vast majority of cases. This approach also provides continuity and a reasonable level of predictability and protection to workers who may move between the occupations in the field and livestock category (combined). In addition, as each of the field and livestock occupations encompass a broad variety of duties, resulting in areas of overlap between the occupations, a worker's duties within a single workday may fall under multiple field and livestock occupations. The proposed approach helps both employers and workers by simplifying the process each uses to ensure that work is correctly compensated. Use of a single AEWR in each State applicable to this occupational grouping will minimize recordkeeping burdens, especially in cases where workers are needed to perform a variety of field and livestock duties, as employers will be required to pay such workers the same wage rate for all of those duties.
2. Use of FLS Data for Field and Livestock Workers (Combined)
The Department proposes to use the FLS field and livestock worker (combined) wage data as the primary source for determining the AEWRs for this grouping of six occupations for several reasons
perform a variety of field and livestock duties, as employers will be required to pay such workers the same wage rate for all of those duties.
2. Use of FLS Data for Field and Livestock Workers (Combined)
The Department proposes to use the FLS field and livestock worker (combined) wage data as the primary source for determining the AEWRs for this grouping of six occupations for several reasons. As noted in prior rulemaking, the FLS is the best available information for determining the AEWRs because it is the only wage survey that collects data from farm and ranch employers. 48 Since 1987, the Department primarily has established an AEWR using the FLS for each State in the multistate or single-State crop region to which the State belongs. 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, whenever such data is available.
48 See, e.g., 84 FR 36168, 36180-36182. USDA NASS provides additional information about the procedures used to collect, analyze, estimate, and disseminate the Farm Labor Survey at https://www.nass.usda.gov/Publications/Methodology_and_Data_Quality/Farm_Labor .
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 field and livestock workers (combined) in each State or region surveyed, making it a reliable source of wage data year to year
Survey at https://www.nass.usda.gov/Publications/Methodology_and_Data_Quality/Farm_Labor .
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 field and livestock workers (combined) in each State or region surveyed, making it a reliable source of wage data year to year. As explained in the 2019 NPRM, the geographic scope of the FLS, covering California, Florida, and Hawaii, and 15 multistate 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.” 49 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 employment of many farmworkers over a large region and Congress's recognition of “this unique characteristic of the agricultural labor market with its statutory requirement that employers recruit for labor in multistate regions as part of their labor market before receiving a labor certification . . . .” 50 As the Department noted in the 2010 Final Rule, “[b]y providing a prevailing wage defined over a broader geographic area and over a broader occupational span (all field and livestock workers, rather than a narrow crop or job description), use of the FLS provides a check on the expansion of [the employment of] foreign labor . . . to prevent undermining job opportunities and wages for domestic farm workers” and “reflects the view that farm labor is mobile across relatively wide areas.” 51 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 . .
to prevent undermining job opportunities and wages for domestic farm workers” and “reflects the view that farm labor is mobile across relatively wide areas.” 51 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.” 52
49 84 FR 36168, 36182.
50 75 FR 6883, 6899.
51 Id.
52 Id.
3. Use of OEWS Data for Field and Livestock Workers (Combined)
The Department proposes using the OEWS wage data to determine a statewide AEWR for field and livestock workers in the event the FLS cannot report wages to establish a statewide AEWR for the field and livestock workers (combined) category. By using the FLS report as the sole source for establishing AEWRs under the 2010 final rule's methodology, the Department cannot establish an AEWR in all geographic locations where employers may seek to employ H-2A workers ( e.g., Alaska or Puerto Rico) due to limitations in the FLS's methodology and estimation procedures. In addition, as it has previously noted, the 53 as noted above, and in 2007 54 and 2011 55 due to budget constraints. Thus, in order to ensure continuity in establishing statewide AEWRs, to address situations where the FLS does not currently report a wage, 56 to protect against the possibility of a future decision by USDA to suspend or discontinue collection of the FLS, and other potential circumstances in which FLS wage data may not be available to set an AEWR for the State or region at least once annually, the Department proposes to use a second source of occupational wage data—the OEWS survey—to determine the statewide AEWRs for this grouping of occupations in circumstances where FLS does not report a State or regional wage finding or is otherwise not available.
53 85 FR 61719.
54 Notice of Intent to Suspend the Agricultural Labor Survey and Farm Labor Reports, 72 FR 5675 (Feb. 7, 2007)
nually, the Department proposes to use a second source of occupational wage data—the OEWS survey—to determine the statewide AEWRs for this grouping of occupations in circumstances where FLS does not report a State or regional wage finding or is otherwise not available.
53 85 FR 61719.
54 Notice of Intent to Suspend the Agricultural Labor Survey and Farm Labor Reports, 72 FR 5675 (Feb. 7, 2007).
55 Notice of Intent to Suspend the Agricultural Labor Survey and Farm Labor Reports, 76 FR 28730 (May 18, 2011).
56 This situation is rare. The Department's H-2A disclosure data for FY 2020 includes two applications submitted for job opportunities in Alaska and two for job opportunities in Puerto Rico, while disclosure data for FY 2019 includes three for job opportunities in Alaska and one in Puerto Rico.
Although the Department generally prefers to establish AEWRs based on the FLS for this group of occupations for the reasons discussed above, the OEWS survey would become the best available source of wage data to establish AEWRs for field and livestock workers (combined) if the FLS is not available. OEWS survey data is the only other comprehensive and statistically valid set of wage data collected from employers engaged in agricultural activities, tailored to geographic areas and occupations common in the H-2A program, and is most consistent with the occupation-based wage collection of the FLS. Within the agricultural sector of the U.S. economy, the OEWS survey collects employment and gross hourly wage data from employer establishments that support farm production activities. Although they do not represent fixed-site farms and ranches, these establishments employ workers engaged in similar agricultural labor or services as those workers who are directly employed by farms and ranches
FLS. Within the agricultural sector of the U.S. economy, the OEWS survey collects employment and gross hourly wage data from employer establishments that support farm production activities. Although they do not represent fixed-site farms and ranches, these establishments employ workers engaged in similar agricultural labor or services as those workers who are directly employed by farms and ranches. In addition, these types of employer establishments ( i.e., farm labor contractors) participate in the H-2A program and represent an increasing share of the worker positions certified by the Department on H-2A applications in this grouping of occupations, 57 so data reported by these types of establishments represents the best information available for purposes of establishing the AEWRs where FLS data is unavailable for the occupation. BLS has the capability of providing a single annual average gross hourly wage for field and livestock workers (combined), in this grouping of occupations that mirrors the FLS, at the statewide level based on the OEWS survey data, which the Department will make accessible to the public online. Specifically, BLS can leverage its existing survey standards and estimation procedures to compute statewide and national average gross hourly wages across this grouping of occupations based on employer establishments across industries. 58
57 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 42.3 percent in FY 2020 (116,472 positions out of 275,430 total positions).
58 An overview of the OEWS survey methodology is available at https://www.bls.gov/oes/current/oes_tec.htm . A more detailed explanation of the survey standards and estimation procedures is available at https://www.bls.gov/opub/hom/oews/pdf/oews.pdf
m 33.1 percent in FY 2016 (54,787 positions out of 165,741 positions) to 42.3 percent in FY 2020 (116,472 positions out of 275,430 total positions).
58 An overview of the OEWS survey methodology is available at https://www.bls.gov/oes/current/oes_tec.htm . A more detailed explanation of the survey standards and estimation procedures is available at https://www.bls.gov/opub/hom/oews/pdf/oews.pdf .
Finally, to further address potential data gaps, the Department proposes that in the event neither the FLS nor the OEWS survey report a statewide annual average hourly gross wage for field and livestock workers (combined) in a particular State, the District of Columbia, or U.S. Territory, the AEWR will be the national annual average hourly gross wage for field and livestock workers (combined) in that State (or equivalent district/territory), as reported by the OEWS survey. Given the anticipated scenarios in which such a data gap may occur, the Department does not propose to use the FLS's national data to establish the AEWR for field and livestock workers (combined) in the event a statewide annual average hourly gross wage for those workers in a particular State is unavailable. Whenever the FLS has published, it consistently reports annual average hourly gross wage findings for field and livestock workers (combined) in 15 multistate and three single-State regions, covering 49 States. The Department anticipates that a national rate would be needed for field and livestock workers (combined) in these 49 States only in the unexpected event the FLS is broadly not available ( e.g., due to suspension or termination of the entire survey). In addition, as discussed above, the FLS does not survey Alaska and other geographic areas in which employers may seek to employ H-2A workers. As a result, the FLS’ national wage findings do not include wage data for workers in these geographic areas, whereas the OEWS survey consistently reports wage data for these geographic areas
le ( e.g., due to suspension or termination of the entire survey). In addition, as discussed above, the FLS does not survey Alaska and other geographic areas in which employers may seek to employ H-2A workers. As a result, the FLS’ national wage findings do not include wage data for workers in these geographic areas, whereas the OEWS survey consistently reports wage data for these geographic areas. For these reasons, the Department proposes to use the OEWS survey's national annual average hourly gross wage for field and livestock workers (combined) as the AEWR, if neither the FLS nor the OEWS survey report a statewide annual average hourly gross wage for field and livestock workers (combined) in a particular State.
B. The Department Proposes To Use the OEWS Survey To Establish Occupation-Specific AEWRs for All Other Job Opportunities
For job opportunities that do not fall within the FLS field and livestock workers (combined) category, the Department proposes adopting the OEWS-based, occupation-specific AEWR methodology explained in the 2020 AEWR Final Rule. Under this methodology, the AEWR for all occupations other than field and livestock workers will be the statewide annual average hourly wage for the occupational classification, as reported by the OEWS survey. If the OEWS survey does not report a statewide annual average hourly wage for the SOC, the AEWR for that State will be the national annual average hourly wage for the SOC, as reported by the OEWS survey.
The Department is proposing to utilize the OEWS-based methodology for these occupations for the reasons explained below and in the 2020 AEWR Final Rule. 59 In part, while the FLS is the most accurate and comprehensive wage source to determine the AEWRs for field and livestock workers, as noted above, the OEWS survey is a more accurate data source for other agricultural occupations, such as supervisors, that the FLS does not adequately or consistently survey
logy for these occupations for the reasons explained below and in the 2020 AEWR Final Rule. 59 In part, while the FLS is the most accurate and comprehensive wage source to determine the AEWRs for field and livestock workers, as noted above, the OEWS survey is a more accurate data source for other agricultural occupations, such as supervisors, that the FLS does not adequately or consistently survey. In addition, the OEWS survey includes occupations that are more often contracted-for services than farmer-employed ( e.g., construction, equipment operators supporting farm production), which makes the OEWS data collection from farm labor contractors a better data source for determining AEWRs and protecting against adverse effect for these occupations.
59 85 FR 70445, 70453, 70458-70459.
Since 2014, the FLS has collected data by SOC—the same taxonomy that is 60 Although the FLS collects data on the wages of supervisors, the FLS has not been able to report a statistically valid wage result for the major FLS category of supervisors. 61 As a result, the wages of supervisors are currently only reported in the “all hired workers” category and are not included in the “field and livestock workers (combined)” category that the Department uses to establish the AEWR. The FLS also collects data on “other workers,” 62 though the FLS has not been able to report a statistically valid wage result for this FLS category, and, as a result, wages for “other workers” are reported only in the “all hired workers” category and are not included in the wages reported in the “field and livestock workers (combined)” category
gory that the Department uses to establish the AEWR. The FLS also collects data on “other workers,” 62 though the FLS has not been able to report a statistically valid wage result for this FLS category, and, as a result, wages for “other workers” are reported only in the “all hired workers” category and are not included in the wages reported in the “field and livestock workers (combined)” category. Because the FLS does not consistently report data in all States or regions for each SOC outside of the field and livestock workers category, use of the FLS to determine wages for these occupations would require frequent use of the OEWS survey or another wage source, varying sources from year to year, and resulting in a much higher degree of year-to-year variability in the AEWR than if the OEWS survey is used at the outset for job opportunities not included in the field and livestock workers (combined) category, and this lack of variability will provide greater year-over-year certainty to both workers and employers.
60 See Crosswalk from the National Agricultural Statistics Service (NASS) Farm Labor Survey (FLS) Occupations to the 2018 Standard Occupational Classification (SOC) System, available at https://www.nass.usda.gov/Surveys/Guide_to_NASS_Surveys/Farm_Labor/farm-labor-soc-crosswalk (last visited Aug. 19, 2021).
61 Included within the major FLS category of supervisors are Farmers, Ranchers, and Other Agricultural Managers (SOC 11-9013); and First-Line Supervisors of Farm Workers (SOC 45-1011).
62 Included in the “other workers” category are Agricultural Inspectors (SOC 45-2011), Animal Breeders (45-2021), Pest Control Workers (37-2021), and any other agricultural worker not fitting into the categories above, including mechanics, shop workers, truck drivers, accountants, bookkeepers, and office workers who fall within a variety of SOCs and have a wide variety of job duties. Contract and custom workers are excluded from the FLS sample population
al Inspectors (SOC 45-2011), Animal Breeders (45-2021), Pest Control Workers (37-2021), and any other agricultural worker not fitting into the categories above, including mechanics, shop workers, truck drivers, accountants, bookkeepers, and office workers who fall within a variety of SOCs and have a wide variety of job duties. Contract and custom workers are excluded from the FLS sample population.
The OEWS survey is a reliable and comprehensive wage survey that consistently produces annual average wages for nearly all SOC outside of the field and livestock workers occupational category. The OEWS survey is among the largest ongoing statistical survey programs of the Federal Government, producing wage estimates for over 800 occupations, and it is used as the primary wage source for prevailing wage determinations in the H-2B temporary non-agricultural labor certification program, as well as other nonimmigrant and immigrant programs. 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 employment in the United States. 63 Every 6 months, the oldest data from the 3-year cycle is removed from the sample, and new data is added. The wages reported in the older data are adjusted by the ECI, which is a BLS index that measures the change in labor costs for businesses. The OEWS survey is primarily conducted by mail, with follow up by phone to nonrespondents or if needed to clarify data. 64 The OEWS average 65 hourly wage reported includes all straight-time, gross pay, exclusive of premium pay, but including piece rate pay.
63 See BLS, Occupational Employment and Wage Statistics Frequently Asked Questions, https://www.bls.gov/oes/oes_ques.htm (last modified Aug. 13, 2021).
64 Id
rimarily conducted by mail, with follow up by phone to nonrespondents or if needed to clarify data. 64 The OEWS average 65 hourly wage reported includes all straight-time, gross pay, exclusive of premium pay, but including piece rate pay.
63 See BLS, Occupational Employment and Wage Statistics Frequently Asked Questions, https://www.bls.gov/oes/oes_ques.htm (last modified Aug. 13, 2021).
64 Id.
65 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.
Similarly to state or regional FLS-based AEWRs for field and livestock workers, the use of an OEWS-based statewide AEWR addresses the Department's concern that the potential for localized wage depression is more pronounced in the H-2A program than in the H-2B program due to both the economic position 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. 66 Thus, a statewide wage is more likely to protect against wage depression from a large influx of nonimmigrant workers that is most likely to occur at the local level. In the limited circumstances in which there is no statewide wage, use of the national annual average hourly wage reported for the particular SOC will ensure an AEWR determination can be made each year without the need for any adjustment method. In addition, and as with the FLS, the OEWS survey also reports a wage that covers activities above a crop activity level, which, as discussed above, is where wage depression from an influx of foreign workers could be most acute.
66 See, e.g., 75 FR 6883, 6895
y wage reported for the particular SOC will ensure an AEWR determination can be made each year without the need for any adjustment method. In addition, and as with the FLS, the OEWS survey also reports a wage that covers activities above a crop activity level, which, as discussed above, is where wage depression from an influx of foreign workers could be most acute.
66 See, e.g., 75 FR 6883, 6895.
Shifting AEWR determinations to the OEWS survey for those occupations for which the FLS does not report statistically reliable wage data at a State or regional level also addresses the Department's concern that use of the combined field and livestock worker FLS data to determine the AEWR for all occupations may have an adverse effect on the wages of workers in higher paid agricultural occupations, including truck drivers, farm supervisors and managers, construction workers, and many occupations primarily in contract employment, because OEWS data will provide an occupation-specific wage that does not include data for lower wage occupations and because OEWS data includes farm labor contractor wage data. For example, a worker performing construction labor on a farm under the H-2A program in Ohio must currently be paid at least the AEWR of $15.31 per hour because the worker's wage is determined based on the field and livestock workers (combined) wage, which reflects neither wages paid to agricultural workers engaged in duties typically performed by a construction worker nor wages of workers who perform contract work, which an agricultural construction laborer in the H-2A program is likely to perform. In contrast, if the same construction worker performed identical job duties at a location other than a farm and, therefore, fell under the H-2B program, the required prevailing wage rate based on OEWS data would be approximately $22.73 per hour. 67 This same variance is seen across other non-field and livestock occupations for which H-2A workers are used
r in the H-2A program is likely to perform. In contrast, if the same construction worker performed identical job duties at a location other than a farm and, therefore, fell under the H-2B program, the required prevailing wage rate based on OEWS data would be approximately $22.73 per hour. 67 This same variance is seen across other non-field and livestock occupations for which H-2A workers are used. For example, the OEWS mean wage in Ohio for first-line supervisors (SOC 45-1011) in 2020 was $27.83, in contrast to the AEWR of $15.31. Given the disparity in wages between the FLS and OEWS survey for these occupations, using the FLS to establish the AEWR for non-field and livestock occupations may cause an adverse effect on the wages of workers in the United States similarly employed, contrary to the Department's statutory mandate. An OEWS-based AEWR based on an occupational classification that accounts for significantly different job duties, but remains broader than a particular crop activity or agricultural
67 This is the current statewide OEWS wage for the category of Construction Laborer, SOC 47-2061, in Ohio. Under the H-2B program, a local wage for that occupation would be used if available.
C. The Department Proposes To Assign the Highest AEWR for All SOCs Applicable to Job Opportunities Covering Multiple SOCs
The Department proposes to require that employers pay the highest applicable wage if the job opportunity can be classified within more than one occupation, when those occupations are subject to different AEWRs, as proposed in the 2019 NPRM and adopted in the 2020 AEWR Final Rule.
This requirement would address scenarios in which the combination of duties an employer requires involves different AEWRs. The Department best protects against adverse effect by setting the AEWR applicable to the job opportunity at the highest of the applicable AEWRs
tion, when those occupations are subject to different AEWRs, as proposed in the 2019 NPRM and adopted in the 2020 AEWR Final Rule.
This requirement would address scenarios in which the combination of duties an employer requires involves different AEWRs. The Department best protects against adverse effect by setting the AEWR applicable to the job opportunity at the highest of the applicable AEWRs. Under this proposal, if the job duties on the H-2A application (including the job order) do not fall within the field and livestock worker (combined) occupational grouping, the Department will determine the applicable AEWR based on the highest AEWR for all applicable occupational classifications. In the event an employer's job opportunity requires the performance of duties encompassed by two or more distinct occupational classifications subject to different AEWRs ( e.g., a field and livestock worker (combined) occupation and an SOC occupation not encompassed in the field and livestock worker (combined) occupational group, or two SOC occupations both of which are not encompassed in the field and livestock worker (combined) occupational group), the Department will assign the highest AEWR among all applicable occupational classifications to reduce the potential for job misclassification by the employer and effectuate the purpose of the AEWR ( i.e., prevent adverse effect to the wages of workers in the United States similarly employed).
The proposal, discussed above, to determine a single statewide AEWR for all job opportunities in the field and livestock workers (combined) occupational grouping will minimize use of this provision because a job opportunity involving a combination of occupations that are all encompassed within the field and livestock workers (combined) will be subject to a single AEWR, regardless of which of the particular SOCs applicable to the field and livestock workers (combined) occupational category may be involved
d livestock workers (combined) occupational grouping will minimize use of this provision because a job opportunity involving a combination of occupations that are all encompassed within the field and livestock workers (combined) will be subject to a single AEWR, regardless of which of the particular SOCs applicable to the field and livestock workers (combined) occupational category may be involved. For example, a job opportunity involving duties properly classified under SOC 45-2091 (Agricultural Equipment Operators) and duties properly classified under SOC 45-2093 (Farmworkers, Farm, Ranch, and Aquacultural Animals) would be subject only to the field and livestock workers (combined) AEWR and the provision regarding combination of occupations with different AEWRs would not be relevant, as a single AEWR applies to the job opportunity.
Under this proposal, the SWA will continue to review job orders—and SOCs therein—in the first instance and determine the appropriate SOC code for the job opportunity when it reviews an employer's job order for compliance with 20 CFR part 653, subpart F, and 20 CFR part 655, subpart B. The SWA will enter the SOC code assigned to the employer's job opportunity in Section I, Items 4 and 5, of the Form ETA-790, Agricultural Clearance Order. After the employer files its H-2A Application for Temporary Employment Certification, the OFLC Certifying Officer (CO) will review the employer's application and job order, including SOC coding. The CO may determine a different SOC coding is necessary, for example, based on additional information received during processing. The CO evaluates each job opportunity on a case-by-case basis, considering the totality of the information in an H-2A application and job order, to determine the appropriate SOC code. In making a determination, the CO compares the duties of the employer's job opportunity with SOC definitions and tasks that are listed in the Department's Occupational Information Network (O*NET)
d during processing. The CO evaluates each job opportunity on a case-by-case basis, considering the totality of the information in an H-2A application and job order, to determine the appropriate SOC code. In making a determination, the CO compares the duties of the employer's job opportunity with SOC definitions and tasks that are listed in the Department's Occupational Information Network (O*NET). Where similar tasks appear in more than one SOC code ( e.g., driving or maintenance and repair of farm equipment), the CO considers other factual information in the employer's application and job order. For example, for job opportunities involving driving duties, the CO will look at factors such as the type of equipment involved ( e.g., pickup trucks, custom combine machinery, or semi tractor-trailer trucks; makes and models of machines to be used), the location where the work will be performed ( e.g., on a farm or off), and the qualifications and requirements for the job opportunity in order to determine the most appropriate SOC code to assign to the employer's job opportunity.
Generally, a job opportunity corresponds with a single SOC code if all of the duties fall within a single occupation and the qualifications, requirements, and other factors are consistent with that occupation. For example, a job opportunity for workers to solely perform hand harvesting activities would match with a single occupation, SOC code 45-2092 (Farmworkers and Laborers, Crop, Nursery, and Greenhouse), absent factors indicating other SOCs ( e.g., a required machinery repair certification). In the event the job opportunity cannot be classified within a single SOC, the CO will assign a combination of occupations—more than one SOC code—to the employer's job opportunity
esting activities would match with a single occupation, SOC code 45-2092 (Farmworkers and Laborers, Crop, Nursery, and Greenhouse), absent factors indicating other SOCs ( e.g., a required machinery repair certification). In the event the job opportunity cannot be classified within a single SOC, the CO will assign a combination of occupations—more than one SOC code—to the employer's job opportunity. As noted above, the Department anticipates that the majority of H-2A job opportunities will be classifiable in one of the SOC occupations associated with the FLS field workers and livestock workers (combined) category, or a combination of those SOCs, since the H-2A program requires that job opportunities constitute agricultural labor or services, as defined by the Fair Labor Standards Act and Internal Revenue Code. Jobs classified within one of these codes or a combination of these codes will receive the AEWR applicable to field and livestock workers (combined). If different AEWRs apply to the SOCs, the CO will use the highest AEWR of the applicable AEWRs.
As explained in the 2020 AEWR Final Rule, a job opportunity involving driving duties may be properly classified under SOC 45-2091 (Agricultural Equipment Operators), SOC 53-3032 (Heavy and Tractor-Trailer Truck Drivers), or a combination of the two, depending on the duties described in the employer's job order. A job opportunity for workers to drive tractors and other mechanized, electrically powered or motor-driven equipment on farms to plant, cultivate, and harvest a crop (including driving tractors in and out of fields carrying bins and driving forklifts to transfer and stack bins of full product onto trailers), which requires 12 months of experience operating such equipment, would be properly classified under SOC 45-2091 and subject to the field and livestock worker (combined) FLS-based AEWR
motor-driven equipment on farms to plant, cultivate, and harvest a crop (including driving tractors in and out of fields carrying bins and driving forklifts to transfer and stack bins of full product onto trailers), which requires 12 months of experience operating such equipment, would be properly classified under SOC 45-2091 and subject to the field and livestock worker (combined) FLS-based AEWR. In contrast, a job opportunity for workers to drive semi tractor-trailer trucks to and from specified destinations within an area of intended employment (including maneuvering trucks into and out of loading and unloading positions as well as driving in both on-road (paved) and off-road conditions), which requires 12 months of experience operating such equipment and a valid Class A CDL or equivalent, would be properly classified under SOC 53-3032 and subject to the OEWS-based, occupation-specific AEWR. In the event an employer seeks
As noted in the 2019 NPRM and 2020 AEWR Final Rule, determining the appropriate occupational classification is an important component of the Department's decision to move to occupation-specific wages for job opportunities not classifiable within the field and livestock (combined) occupational grouping. Use of the highest applicable wage in these cases reduces the potential for employers to misclassify workers than if the Department permitted employers to pay different AEWRs for job duties falling within different occupational classifications on a single Application for Temporary Employment Certification. This proposal also reduces an employer's recordkeeping burdens with respect to wages
ouping. Use of the highest applicable wage in these cases reduces the potential for employers to misclassify workers than if the Department permitted employers to pay different AEWRs for job duties falling within different occupational classifications on a single Application for Temporary Employment Certification. This proposal also reduces an employer's recordkeeping burdens with respect to wages. Under the proposal, for example, employers who currently file a single Application for Temporary Employment Certification covering multiple workers and a wide variety of duties might instead choose to file separate Applications for Temporary Employment Certification and limit the duties of the job opportunities in each Application for Temporary Employment Certification to a single occupational classification. The employer would then pay a separate wage rate based on the duties of each job opportunity included in the separate Applications for Temporary Employment Certification, which reduces the potential for misclassification and lowers recordkeeping burdens, as employers would only need to track the highest wage among distinct occupational classifications, if applicable. This policy is also consistent with the way the Department determines prevailing wage rates for jobs that cover multiple SOCs in other employment-based visa programs.
D. The Department Proposes To Publish FLS-Based AEWRs and OEWS-Based AEWRs Coinciding With Those Surveys' Publication Schedules
As with the 2020 AEWR Rule, the Department proposes to require that the OFLC Administrator publish, at least once in each calendar year, on a date to be determined by the OFLC Administrator, an update to each AEWR as a notice in the Federal Register
ed visa programs.
D. The Department Proposes To Publish FLS-Based AEWRs and OEWS-Based AEWRs Coinciding With Those Surveys' Publication Schedules
As with the 2020 AEWR Rule, the Department proposes to require that the OFLC Administrator publish, at least once in each calendar year, on a date to be determined by the OFLC Administrator, an update to each AEWR as a notice in the Federal Register . The Department proposes to make the updated AEWRs effective through two announcements in the Federal Register , one for the AEWRs based on the FLS ( i.e., effective on or about January 1), and a second for the AEWRs based on the OEWS survey ( i.e., effective on or about July 1), due to the different time periods for release of these two wage surveys.
The Department anticipates that only one of the two AEWR adjustment notifications may impact an employer's wage obligations during the work contract period. Given the Department's proposal to determine the AEWR for the majority of H-2A job opportunities using the field and livestock worker (combined) wage reported by FLS, most H-2A certifications would be subject only to the FLS-based AEWR adjustment in January. Further, due to the seasonal nature of temporary agricultural labor or services, many H-2A employment periods begin and end between FLS-based AEWR adjustments. Only in the circumstance in which a job opportunity constitutes a combination of occupations that involves both an FLS-based AEWR and an OEWS-based AEWR would two AEWR adjustment notices potentially impact an employer's wage obligations.
E. The Department's Decision Not To Use ECI-Adjusted AEWRs
In proposing to annually adjust the AEWRs based on the annual publication of new FLS and OEWS data, the Department is proposing not to use the ECI to adjust AEWRs as the 2020 AEWR Final Rule had done, and is not contemplating use of a similar index for several reasons
djustment notices potentially impact an employer's wage obligations.
E. The Department's Decision Not To Use ECI-Adjusted AEWRs
In proposing to annually adjust the AEWRs based on the annual publication of new FLS and OEWS data, the Department is proposing not to use the ECI to adjust AEWRs as the 2020 AEWR Final Rule had done, and is not contemplating use of a similar index for several reasons. First, the FLS—the Department's preferred wage source for establishing the AEWR for field and livestock workers—is again available, eliminating the Department's primary impetus for electing to use the ECI to adjust AEWRs in future years under the 2020 AEWR Final Rule. Second, the Department proposes to leverage OEWS survey data for this group of occupations instead of using of the ECI, as OEWS data is more consistent with the FLS data category used to set the AEWRs. As noted above, BLS now will provide the Department wage data for field and livestock workers (combined), based on the OEWS survey, to determine the AEWR for these occupations in each State or region where the FLS is not available or does not report wage data for workers in a particular geographic area. In those cases where the FLS is not available, the Department believes that using the OEWS survey rather than the ECI best allows the Department to prevent adverse effect as required under the INA because the OEWS survey provides data more specifically tailored to geographic areas and occupations common in the H-2A program and is more consistent with the FLS. In particular, though the ECI provides a stable measure of annual increases in the wages of private sector workers generally, the ECI does not report the annual change in wages of field and livestock workers specifically, and does not provide wage data for agricultural workers in particular geographic areas. Both the FLS and OEWS survey provide data more specifically tailored to U.S
with the FLS. In particular, though the ECI provides a stable measure of annual increases in the wages of private sector workers generally, the ECI does not report the annual change in wages of field and livestock workers specifically, and does not provide wage data for agricultural workers in particular geographic areas. Both the FLS and OEWS survey provide data more specifically tailored to U.S. agricultural workers and the States and regions where these workers are employed, making these sources more effective in ensuring that the temporary employment of foreign workers in field and livestock job opportunities will not adversely affect the wages of workers in the United States similarly employed. In addition, OEWS data includes wage data from farm labor contractors, who increasingly provide labor or services to growers both in the predominant field and livestock workers (combined) occupational group and in occupations that are less common in the H-2A program.
While the Department remains sensitive to concerns of employers regarding increases in the FLS-based AEWRs, the Department believes, for the reasons discussed above, that the approach proposed in this rulemaking best allows the Department to fulfill its statutory mandate. The concerns about AEWR increases also appear overstated when considering long-term historical trends in agricultural worker wages and the agricultural labor market. Long-term data on growth in the AEWRs shows that with the exception of the AEWRs for Hawaii, Oregon, and Washington, growth in the AEWRs from 2010 through 2019 was lower than growth from 2000 to 2010 and substantially lower in many States. Considering top user States as examples, the total AEWR increase from 2010 through 2019 compared to 2000 through 2010 was lower in four of the five top States. 68
68 3.95% lower in California, 3.07% lower in Florida, 8.34% lower in Georgia, 6.07% lower in North Carolina, and 6.07% higher in Washington, based on an average of annual changes in the AEWR over the past two decades
er in many States. Considering top user States as examples, the total AEWR increase from 2010 through 2019 compared to 2000 through 2010 was lower in four of the five top States. 68
68 3.95% lower in California, 3.07% lower in Florida, 8.34% lower in Georgia, 6.07% lower in North Carolina, and 6.07% higher in Washington, based on an average of annual changes in the AEWR over the past two decades.
Moreover, despite higher-than-average wage increases in some recent years, farmworkers remain among the lowest paid workers in the United States. The USDA Economic Research Service (ERS) recently reported that the gap between farmworker and non-farmworker wages 69 The ERS data also indicates that labor costs as a share of total gross farm income has not risen significantly over the past two decades, with the ERS concluding that “[a]lthough farm wages are rising in nominal and real terms, the impact of these rising costs on farmers” incomes has been offset by rising productivity and/or output prices,” and adding that “labor costs as a share of gross cash income do not show an upward trend for the industry as a whole over the past 20 years.” 70
69 USDA Economic Research Services, Farm Labor, https://www.ers.usda.gov/topics/farm-economy/farm-labor (last modified Aug. 18, 2021).
70 Id. (The ERS found that for all farms, “labor costs (including contract labor, and cash fringe benefit costs) averaged 10.4 percent of gross cash income during 2016-18, compared with 10.7 percent for 1996-98.” At the commodity level, the ERS found that “[l]abor cost shares have fallen slightly over the past 20 years for the more labor-intensive fruit and vegetable sectors . . . .”).
AEWR increases above historical averages in recent years also are consistent with a growing agricultural labor shortage that is evidenced by an exponential increase in use of the H-2A program since 2015, USDA data, and recurrent statements by employers and associations that it is increasingly difficult to find U.S. workers for their job opportunities
ensive fruit and vegetable sectors . . . .”).
AEWR increases above historical averages in recent years also are consistent with a growing agricultural labor shortage that is evidenced by an exponential increase in use of the H-2A program since 2015, USDA data, and recurrent statements by employers and associations that it is increasingly difficult to find U.S. workers for their job opportunities. 71 As the Department has explained in prior rulemaking, basic “economic theory holds that, under conditions of an emerging labor shortage . . . [wage] adjustments would occur over time and the observed wage would increase by an amount sufficient to attract more workers until supply and demand were met in equilibrium.” 72 However, “labor shortages that would normally drive wages up may become distorted by the availability of foreign workers . . . .” 73 The AEWR methodology in the 2010 Final Rule and the similar FLS-based methodology proposed here provide a wage floor distinct from the local prevailing wage and are intended to “comput[e] an AEWR to approximate the equilibrium wage that would result absent an influx of temporary foreign workers . . . serv[ing] to put incumbent farm workers in the position they would have been in but for the H-2A program.” 74
71 See, e.g., Steven Zhaniser et al., Rising Wages Point to a Tighter Farm Labor Market in the United States, Amber Waves (Feb 15, 2019), https://www.ers.usda.gov/amber-waves/2019/february/rising-wages-point-to-a-tighter-farm-labor-market-in-the-united-states (noting that rising real (inflation-adjusted) farm wages in the past four years is a “prominent indicator of a tighter farm labor market” and that “greater employment of nonimmigrant, foreign-born farmworkers through the H-2A” program is another indicator).
72 75 FR 6883, 6891; see also Final Rule, Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program, 80 FR 24146, 24159-24160 (Apr
that rising real (inflation-adjusted) farm wages in the past four years is a “prominent indicator of a tighter farm labor market” and that “greater employment of nonimmigrant, foreign-born farmworkers through the H-2A” program is another indicator).
72 75 FR 6883, 6891; see also Final Rule, Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program, 80 FR 24146, 24159-24160 (Apr. 29, 2015) (noting that “if employers experience a shortage of available workers in a particular region or occupation, compensation should rise as needed to attract workers”).
73 80 FR 24146, 24158-24159.
74 75 FR 6883, 6891.
III. Request for Comments
The Department invites comments on all aspects of the proposed AEWR methodology. Because the 2020 AEWR Final Rule has been preliminarily enjoined, and there is uncertainty as to whether that rule will be vacated prior to the issuance of a final rule, the Department seeks comment on all proposals to mirror provisions found in the 2020 rule. In addition, the Department is interested in comments on the use of the FLS and OEWS survey and the conditions under which each survey should be used to establish the AEWR. For example, the Department is interested in comments on the continued use of a single statewide hourly AEWR for field and livestock worker occupations (combined), rather than occupation-specific statewide AEWRs for each occupation comprising the field and livestock workers (combined) category covered by the FLS. In addition, the Department is interested in comments on use of the OEWS survey to establish the AEWR for field and livestock worker occupations (combined) in the absence of the FLS or where the FLS does not report a wage finding for these occupations in a particular geographic area, as well as the use of the OEWS to establish AEWRs for all job opportunities that do not fall within the FLS field and livestock workers (combined) category
d in comments on use of the OEWS survey to establish the AEWR for field and livestock worker occupations (combined) in the absence of the FLS or where the FLS does not report a wage finding for these occupations in a particular geographic area, as well as the use of the OEWS to establish AEWRs for all job opportunities that do not fall within the FLS field and livestock workers (combined) category. Commenters may address the existence or role of the AEWR, but the Department encourages commenters to focus on the methodology used to determine the AEWR. The Department is 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.
IV. Administrative Information
A. Executive Order 12866: Regulatory Planning and Review; and Executive Order 13563: Improving Regulation and Regulatory Review
Under E.O. 12866, the OMB's Office of Information and Regulatory Affairs (OIRA) determines whether a regulatory action is significant and, therefore, subject to the requirements of the E.O. and review by OMB. 58 FR 51735. Section 3(f) of E.O. 12866 defines a “significant regulatory action” as an action that is likely to result in a rule that: (1) Has an annual effect on the economy of $100 million or more, or adversely affects in a material way a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities (also referred to as economically significant); (2) creates serious inconsistency or otherwise interferes with an action taken or planned by another agency; (3) materially alters the budgetary impacts of entitlement grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) raises novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the E
t); (2) creates serious inconsistency or otherwise interferes with an action taken or planned by another agency; (3) materially alters the budgetary impacts of entitlement grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) raises novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the E.O. Id. OIRA reviewed this proposed rule and has determined that it is a significant—but not economically significant—regulatory action under E.O. 12866.
E.O. 13563 directs agencies to propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs; the regulation is tailored to impose the least burden on society, consistent with achieving the regulatory objectives; and in choosing among alternative regulatory approaches, the agency has selected those approaches that maximize net benefits. E.O. 13563 recognizes that some benefits are difficult to quantify and provides that, where appropriate and permitted by law, agencies may consider and discuss qualitative values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.
Outline of the Analysis
Section VI.A.1 describes the need for the proposed rule, and section VI.A.2 describes the process used to estimate the costs of the rule and the general inputs used, such as wages and number of affected entities. Section VI.A.3 explains how the provisions of the proposed rule will result in quantifiable costs and transfers and presents the calculations the Department used to estimate them. In addition, section
Summary of the Analysis
The Department estimates that the proposed rule will result in costs and transfers. As shown in Exhibit 1, the proposed rule is expected to have an annualized cost of $0.064 million and a total 10-year quantifiable cost of $0.45 million at a discount rate of 7 percent
and transfers and presents the calculations the Department used to estimate them. In addition, section
Summary of the Analysis
The Department estimates that the proposed rule will result in costs and transfers. As shown in Exhibit 1, the proposed rule is expected to have an annualized cost of $0.064 million and a total 10-year quantifiable cost of $0.45 million at a discount rate of 7 percent. 75 The proposed rule is estimated to result in annual transfers from H-2A employers to H-2A employees of $30.17 million and total 10-year transfers of $211.87 million at a discount rate of 7 percent. 76
75 The proposed rule will have an annualized cost of $0.18 million and a total 10-year cost of $1.54 million at a discount rate of 3 percent in 2020 dollars.
76 The proposed rule will have annualized transfer payments from H-2A employers to H-2A employees of $29.80 million and a total 10-year transfer payments of $254.20 million at a discount rate of 3 percent in 2020 dollars.
Exhibit 1—Estimated Monetized Costs and Transfers of the Proposed Rule [2020 $millions] Costs Transfers Undiscounted 10-Year Total $0.45 $295.00 10-Year Total with a Discount Rate of 3% 0.45 254.20 10-Year Total with a Discount Rate of 7% 0.45 211.87 10-Year Average 0.45 29.50 Annualized at a Discount Rate of 3% 0.53 29.80 Annualized with at a Discount Rate of 7% 0.064 30.17 The total cost of the proposed rule is associated with rule familiarization. Transfers are the results of changes to the AEWR methodology and, more specifically, in H-2A job opportunities where the FLS does not adequately collect or consistently report wage data at a State or regional level. See the costs and transfers subsections of section VI.A.3 (Subject-by-Subject Analysis) below for a detailed explanation.
The Department was unable to quantify some costs and benefits of the proposed rule
lts of changes to the AEWR methodology and, more specifically, in H-2A job opportunities where the FLS does not adequately collect or consistently report wage data at a State or regional level. See the costs and transfers subsections of section VI.A.3 (Subject-by-Subject Analysis) below for a detailed explanation.
The Department was unable to quantify some costs and benefits of the proposed rule. The Department describes them qualitatively in section VI.A.3 (Subject-by-Subject Analysis) and seek input from the public to help us to reasonably quantify them in the final rule.
1. Need for Regulation
As discussed above, court-issued injunctions prevented USDA from suspending FLS data collection for calendar year 2020 and prevented the Department from further implementing the 2020 AEWR Final Rule on December 23, 2020, resulting in a return to the 2010 Final Rule AEWR methodology. Under the 2010 Final Rule, the FLS wage data is used to determine the AEWRs for all H-2A job opportunities. However, the Department remains concerned that the use of a single AEWR for all job opportunities in the H-2A program may adversely affect the wages of workers in the United States similarly employed in certain occupations where the FLS does not adequately collect or consistently report wage data at a State or regional level. Therefore, the Department proposes using the bifurcated approach set forth in the 2020 AEWR Final Rule that set a single AEWR based on the FLS for the vast majority of job opportunities used by employers in the H-2A program—six occupational classifications covering field workers and livestock workers—while shifting AEWR determinations to the OEWS survey for all other occupations for which the FLS does not adequately collect or consistently report wage data at a State or regional level ( e.g. , truck drivers, farm supervisors and managers, construction workers, and many occupations in contract employment)
H-2A program—six occupational classifications covering field workers and livestock workers—while shifting AEWR determinations to the OEWS survey for all other occupations for which the FLS does not adequately collect or consistently report wage data at a State or regional level ( e.g. , truck drivers, farm supervisors and managers, construction workers, and many occupations in contract employment). As AEWR determinations become more occupation specific, the Department believes it is appropriate to continue requiring that employers pay the highest applicable wage if the job opportunity can be classified within more than one occupational classification to reduce the potential for employers to misclassify workers and establish greater consistency with prevailing wage determinations in the H-2B program.
The Department has also determined that two major aspects of the 2020 AEWR Final Rule are inconsistent with the Department's statutory mandate to protect the wages of workers in the United States similarly employed against adverse effect: (1) The imposition of a 2-year wage freeze for field and livestock workers at a wage level based on the FLS published in November 2019, and (2) using the BLS ECI solely to adjust AEWRs annually thereafter. Accordingly, the Department has determined these policies must be reconsidered and proposes revisions in this NPRM that better meet the statute's twin goals to ensure that employers can access legal agricultural labor while maintaining an adequate level of wage protection for workers in the United States similarly employed.
2. Analysis Considerations
The Department estimated the costs and transfers of the proposed rule relative to the existing baseline ( i.e., the current practices for complying, at a minimum, with the H-2A program as currently codified at 20 CFR part 655, subpart B)
egal agricultural labor while maintaining an adequate level of wage protection for workers in the United States similarly employed.
2. Analysis Considerations
The Department estimated the costs and transfers of the proposed rule relative to the existing baseline ( i.e., the current practices for complying, at a minimum, with the H-2A program as currently codified at 20 CFR part 655, subpart B). This existing baseline is consistent with the 2010 Final Rule because the 2020 AEWR Final Rule has been preliminarily enjoined by a federal district court, as explained above, and there is uncertainty as to whether the 2020 AEWR Final Rule rule will be vacated prior to the issuance of this final rule.
In accordance with the regulatory analysis guidance articulated in OMB's Circular A-4 and consistent with the Department's practices in previous rulemakings, this regulatory analysis focuses on the likely consequences of the proposed rule ( i.e., costs and transfers that accrue to entities affected). The analysis covers 10 years (from 2022 through 2031) to ensure it captures major costs and transfers that accrue over time. The Department expresses all quantifiable impacts in 2020 dollars and uses discount rates of 3 and 7 percent, pursuant to Circular A-4.
Exhibit 2 presents the number of affected entities that are expected to be impacted by the proposed rule. The average number of affected entities is calculated using OFLC H-2A labor certification data from 2016 through 2020. The Department provides this estimate and uses it to estimate the costs of the proposed rule.
Exhibit 2—Number of Affected Entities by Type [FY 2016-2020 average] Entity type Number Annual Unique H-2A Applicants 8,204 Growth Rate
The Department estimated growth rates for applications processed and certified H-2A workers based on fiscal year (FY) 2012-2020 H-2A program data, presented in Exhibit 3
Department provides this estimate and uses it to estimate the costs of the proposed rule.
Exhibit 2—Number of Affected Entities by Type [FY 2016-2020 average] Entity type Number Annual Unique H-2A Applicants 8,204 Growth Rate
The Department estimated growth rates for applications processed and certified H-2A workers based on fiscal year (FY) 2012-2020 H-2A program data, presented in Exhibit 3.
Exhibit 3—Historical H-2A Program Data Fiscal year Applications certified Workers certified 2012 5,278 85,248 2013 5,706 98,814 2014 6,476 116,689 2015 7,194 139,725 2016 8,297 165,741 2017 9,797 199,924 2018 11,319 242,853 2019 12,626 258,446 2020 13,552 275,430 The geometric growth rate for certified H-2A workers using the program data in Exhibit 3 is calculated as 15.8 percent. This growth rate, applied to the analysis timeframe of 2022 to 2031, would result in more H-2A certified workers than projected employment of workers in the relevant H-2A SOC codes by BLS. 77 Therefore, to estimate realistic growth rates for the analysis, the Department applied an autoregressive integrated moving average (ARIMA) model to the FY 2012-2020 H-2A program data to forecast workers and applications, and estimated geometric growth rates based on the forecasted data. The Department conducted multiple ARIMA models on each set of data and used common goodness of fit measures to determine how well each ARIMA model fit the data. 78 Multiple models yielded indistinctive measures of goodness of fit. Therefore, each model was used to project workers and applications through 2031. Then, a geometric growth rate was calculated using the forecasted data from each model and an average was taken across each model. This resulted in an estimated growth rate of 3.1 percent for H-2A applications and 5.6 percent for H-2A certified workers. The estimated growth rates for applications (3.1 percent) and workers (5.6 percent) were applied to the estimated costs and transfers of the proposed rule to forecast participation in the H-2A program
forecasted data from each model and an average was taken across each model. This resulted in an estimated growth rate of 3.1 percent for H-2A applications and 5.6 percent for H-2A certified workers. The estimated growth rates for applications (3.1 percent) and workers (5.6 percent) were applied to the estimated costs and transfers of the proposed rule to forecast participation in the H-2A program.
77 Comparing BLS 2029 projections for combined agricultural workers with a 15.8 percent growth rate of H-2A workers yields estimated H-2A workers that are about 107 percent greater than BLS 2029 projections. The projected workers for the agricultural sector were obtained from BLS's Occupational Projections and Worker Characteristics, which may be accessed at https://www.bls.gov/emp/tables/occupational-projections-and-characteristics.htm .
78 The Department estimated models with different lags for autoregressive and moving averages, and orders of integration: ARIMA(0,2,0); (0,2,1); (0,2,2); (1,2,1); (1,2,2); (2,2,2). For each model we used the Akaike Information Criteria (AIC) goodness of fit measure.
Estimated Number of Workers and Change in Hours
The Department presents the estimated average number of applicants and the change in burden hours required for rule familiarization in section VI.A.3 (Subject-by-Subject Analysis).
Compensation Rates
In section VI.A.3 (Subject-by-Subject Analysis), the Department presents the costs, including labor, associated with the implementation of the provisions of the proposed rule. Exhibit 4 presents the hourly compensation rates for the occupational categories expected to experience a change in the number of hours necessary to comply with the proposed rule. The Department used the mean hourly wage rate for private sector Human Resources Specialists (SOC code 13-1071). 79 Wage rates are adjusted to reflect total compensation, which includes nonwage factors such as overhead and fringe benefits ( e.g., health and retirement benefits)
ccupational categories expected to experience a change in the number of hours necessary to comply with the proposed rule. The Department used the mean hourly wage rate for private sector Human Resources Specialists (SOC code 13-1071). 79 Wage rates are adjusted to reflect total compensation, which includes nonwage factors such as overhead and fringe benefits ( e.g., health and retirement benefits). We use an overhead rate of 17 percent 80 and a fringe benefits rate based on the ratio of average total compensation to average wages and salaries in 2021. For the private sector employees, we use a fringe benefits rate of 42 percent. 81 We then multiply the loaded wage factor by the wage rate to calculate an hourly compensation rate. The Department used the hourly compensation rates presented in Exhibit 4 throughout this analysis to estimate the labor costs for each provision.
79 BLS, May 2020 National Occupational Employment and Wage Estimates: 13-1071—Human Resources Specialist, https://www.bls.gov/oes/current/oes131071.htm (last modified Mar. 31, 2021).
80 See Cody Rice, U.S. Environmental Protection Agency, Wage Rates for Economic Analyses of the Toxics Release Inventory Program (June 10, 2002), available at https://www.regulations.gov/document?D=EPA-HQ-OPPT-2014-0650-0005 .
81 See Employer Costs for Employee Compensation, https://www.bls.gov/news.release/ecec.toc.htm (last modified Sept. 16, 2021). This shows the ratio of total compensation to wages and salaries for all private industry workers.
Exhibit 4—Compensation Rates [2020 dollars] Position Grade level Base hourly wage rate Loaded wage factor Overhead costs Hourly compensation rate (a) (b) (c) d = a + b + c Private Sector Employees HR Specialist N/A $33.38 $14.02 ($33.38 × 0.42) $5.67 ($33.38 × 0.17) $53.08 3. Subject-by-Subject Analysis
The Department's analysis below covers the rule familiarization costs, unquantifiable costs, transfers, and qualitative benefits of the proposed rule
de level Base hourly wage rate Loaded wage factor Overhead costs Hourly compensation rate (a) (b) (c) d = a + b + c Private Sector Employees HR Specialist N/A $33.38 $14.02 ($33.38 × 0.42) $5.67 ($33.38 × 0.17) $53.08 3. Subject-by-Subject Analysis
The Department's analysis below covers the rule familiarization costs, unquantifiable costs, transfers, and qualitative benefits of the proposed rule. In accordance with Circular A-4, the Department considers transfers as payments from one group to another that do not affect total resources available to society. This proposed rule includes the cost of rule familiarization and transfers associated with the AEWR wage structure from the proposed rule. The Department also described efficiency impacts, payroll and other transition costs, and the distributional impacts that could result from the proposed rule.
Costs
The following section describes the costs of the proposed rule.
Quantifiable Costs
Rule Familiarization
When the proposed rule takes effect, H-2A employers will need to familiarize themselves with the new regulations. Consequently, this will impose a one-time cost in the first year. To estimate the first-year cost of rule familiarization, the Department applied the growth rate of H-2A applications (3.1 percent) to the average number of annual unique H-2A applicants from FY2016 to FY2020 (8,204) to determine the number of unique recurring H-2A applicants impacted in the first year the rule is in effect. The number of unique H-2A applicants (8,459) was multiplied by the estimated amount of time required to review the rule (1 hour). 82 This number was then multiplied by the hourly compensation rate of Human Resources Specialists ($53.08 per hour). This calculation results in a one-time undiscounted cost of $448,973 in the first year after the proposed rule takes effect. In each subsequent year new unique employers (2,199) requesting H-2A certifications will need to review the rule
of time required to review the rule (1 hour). 82 This number was then multiplied by the hourly compensation rate of Human Resources Specialists ($53.08 per hour). This calculation results in a one-time undiscounted cost of $448,973 in the first year after the proposed rule takes effect. In each subsequent year new unique employers (2,199) requesting H-2A certifications will need to review the rule. The growth rate of H-2A applications (3.1 percent) was applied to the number of new unique employer to determine the annual number of new unique H-2A applicants impacted in the remaining years of the analysis. Thi

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2021-25803. Check the current official text before relying on it. Not legal advice.