Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States, 68174-68200 [2021-25803]

Agencies

• Employment and Training Administration
• DEPARTMENT OF LABOR

[Federal Register Volume 86, Number 228 (Wednesday, December 1, 2021)]
[Proposed Rules]
[Pages 68174-68200]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-25803]


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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.

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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

[[Page 68175]]

(AEWRs) for non-range occupations (i.e., all occupations other than 
herding and production of livestock on the range) using a combination 
of wage data reported by the U.S. Department of Agriculture's (USDA) 
Farm Labor 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 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. 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.
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    \1\ For ease of reference, sections of the INA are referred to 
by their corresponding section in the United States Code.
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    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\
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    \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).
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    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\
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    \4\ 20 CFR 655.121.
    \5\ 20 CFR 655.120(a).
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    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

[[Page 68176]]

Statistics Service (NASS).\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\
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    \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).
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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. 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.
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    \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).
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    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 . . . 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\
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    \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.
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    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. 
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.
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    \16\ 75 FR 6883, 6892-6893.
    \17\ Id. at 6893.
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    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.
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    \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.
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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,

[[Page 68177]]

if FLS data was not available.\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\
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    \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.
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    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\
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    \24\ See 85 FR 70445, 70447-70465.
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    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. 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.
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    \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.
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    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\
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    \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).
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    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.\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

[[Page 68178]]

guest workers.' '' \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\
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    \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).
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    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.
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    \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.
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    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.
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    \41\ Id. at *14.
    \42\ Id. at *14-15, 18.
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    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. 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. 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

[[Page 68179]]

AEWR as set forth in the 2020 AEWR Final Rule.
    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 Sec.  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 Sec.  
655.120(b), and to the monthly rate for range occupations, as set forth 
in Sec.  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 
Sec. Sec.  655.120(b) and 655.211(c). Finally, the Department made 
additional nonsubstantive technical revisions to Sec.  655.103(b) in 
the 2020 AEWR Final Rule for clarity.
    In Sec.  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. 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.
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    \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.'').
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    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. 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, 
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.
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    \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

[[Page 68180]]

the skills of many farm laborers are ``adaptable across a relatively 
wide range of crop or livestock activities and occupations'' because 
these activities and occupations ``involve skills that are readily 
learned in a very short time on the job, skills peak quickly, rather 
than increasing with long-term experience, and skills related to one 
crop or activity are readily transferred to other crops or 
activities.'' \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.
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    \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.
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    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. 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. 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. 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 . . . foreign labor on an ongoing basis.'' \52\
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    \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

[[Page 68181]]

Department does not have direct control over the FLS, and USDA could 
elect to terminate the survey at some point in the future. USDA has 
announced its intention to suspend the survey on three occasions, 
including in 2020,\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).
    \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. 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.
---------------------------------------------------------------------------

    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. 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. 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

[[Page 68182]]

used for the OEWS survey. However, it does not currently report wage 
data by SOC. Instead, the FLS aggregates and reports data in four major 
FLS occupational categories: Field workers, livestock workers, field 
and livestock workers (combined), and all hired workers. In 
collaboration with the Department and the OMB, USDA established and 
implemented a crosswalk from the major FLS categories to the SOC 
categories.\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. 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.
---------------------------------------------------------------------------

    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.
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    \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.
---------------------------------------------------------------------------

    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. 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

[[Page 68183]]

activity in a local area, will thus not only provide greater 
predictability but also better protect workers in the United States in 
occupations other than field and livestock occupations.
---------------------------------------------------------------------------

    \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. 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. 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). 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. 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. 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

[[Page 68184]]

workers to both drive tractors and other mechanized, electrically 
powered or motor-driven equipment on farms and semi tractor-trailer 
units, as described above, the employer's job opportunity constitutes a 
combination of SOC 45-2091 and SOC 53-3032, subject to either the field 
and livestock worker (combined) FLS-based AEWR applicable to SOC 45-
2091 or the OEWS-based, occupation-specific AEWR applicable to SOC 53-
3032, whichever is a higher rate per hour.
    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. 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. 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. 
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. 
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.
---------------------------------------------------------------------------

    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

[[Page 68185]]

is ``slowly shrinking, but still substantial,'' noting that the average 
farmworker wage in 1990 ``was just over half the average real wage in 
the nonfarm economy for private-sector nonsupervisory occupations,'' 
but rose to 60% of the non-farmworker wage by 2019, indicating the wage 
gap decreased by less than 10% over three decades.\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.\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. 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. 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.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

[[Page 68186]]

VI.A.3 describes the unquantified costs of the proposed rule, a 
description of qualitative benefits, and presents an analysis of 
distributional impacts of the rule. Section VI.A.4 summarizes the 
estimated first-year and 10-year total and annualized costs and 
transfers of the proposed rule. Finally, section VI.A.5 describes the 
regulatory alternatives that were considered during the development of 
the proposed rule.
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. 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). 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). 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.

[[Page 68187]]

    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.

                 Exhibit 3--Historical H-2A Program Data
------------------------------------------------------------------------
                                           Applications       Workers
               Fiscal year                   certified       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.
---------------------------------------------------------------------------

    \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). 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.

[[Page 68188]]



                                                              Exhibit 4--Compensation Rates
                                                                     [2020 dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                             Hourly
                    Position                       Grade level     Base hourly       Loaded wage factor            Overhead costs         compensation
                                                                    wage rate                                                                 rate
                                                                           (a)                         (b)                        (c)     d = a + b + c
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Private Sector Employees
--------------------------------------------------------------------------------------------------------------------------------------------------------
HR Specialist..................................            N/A          $33.38      $14.02 ($33.38 x 0.42)      $5.67 ($33.38 x 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. 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. This results in an average annual 
undiscounted cost of $140,589 in years 2-10 of the analysis. The one-
time and continuing costs yield a total average annual undiscounted 
cost of $171,428. The annualized cost over the 10-year period is 
$52,633,180,190 and $63,924,192,560 at discount rates of 3 and 7 
percent, respectively.
---------------------------------------------------------------------------

    \82\ This estimate reflects the nature of the proposed rule. As 
a rulemaking to amend parts of an existing regulation, rather than 
to create a new rule, the 1-hour estimate assumes a high number of 
readers familiar with the existing regulation.
---------------------------------------------------------------------------

Unquantifiable Costs
a. Efficiency Impacts
    The proposed wage methodology is designed to achieve the statute's 
twin 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. 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. In the case of 
perfect competition, if the proposed rule results in a wage floor above 
competitive market wages, it will produce some deadweight loss (DWL). 
In the case of market power, if the proposed rule reduces a wage floor 
below competitive market wages, it may produce some DWL if employers 
exercise market power, but otherwise will not. Setting minimum wage 
rates has implications on economic efficiency that are complicated and 
difficult to assess because, in certain combinations of SOC codes and 
geographies, the gross average hourly wage rates used to determine the 
AEWRs annually for each State under this proposed rule may act as a 
wage floor that is above competitive market equilibrium wages for 
certain job opportunities whereas in others imperfect competition may 
suppress domestic labor markets at quantities below the competitive 
market equilibrium.
    These two impacts are dependent on local labor market conditions, 
the nature of the agricultural work to be performed and wage payment 
structure (i.e., fixed hourly pay versus combination of hourly and 
piece-rate pay), the relation of the AEWR to the regional OEWS wage, as 
well as the shape and components (i.e., makeup of nonimmigrant foreign 
and domestic workers) of the combined temporary agricultural employment 
labor supply curve in the local or regional labor market.
    The Department is unable to quantify these efficiency impacts 
because it does not have data on all local labor market conditions for 
all occupations, data on foreign labor supply curves, and how these 
interact with employer demand. The Department seeks public comment on 
the DWL or other labor market inefficiencies resulting from the 
proposed rule. The efficiency impact of the proposed rule is limited 
only to the 2 percent of H-2A workers whose wages the proposed rule 
will affect, while there would be no change to the DWL for the other 98 
percent of H-2A workers.\83\ Therefore, the DWL resulting from the 
proposed rule is likely very small. Because the market equilibrium 
wages for construction workers, supervisors/managers of farmworkers, 
and logging equipment operators are above current baseline AEWRs, the 
proposed rule may create some efficiency gain (or decrease in the DWL) 
for jobs within the 2 percent when it raises the wage floor from the 
current baseline AEWRs toward competitive equilibrium wages if 
employers currently exercise market power to prevent wages from being 
bid up to competitive equilibrium rates. On the

[[Page 68189]]

other hand, there may be instances in which the new wage floor 
(depending on the job and geographic area) could be above the market 
equilibrium wage; this would result in efficiency loss (or increase in 
the DWL). A DWL occurs when a market operates at less than or more than 
the market equilibrium output. The AEWR sets compensation in some cases 
above the equilibrium level and in other cases may set wage levels that 
allow employers with market power to suppress wage rates below the 
competitive equilibrium, resulting in a labor shortage. When the AEWR 
is set above market equilibrium, the higher cost of labor can lead to a 
decrease in the total number of labor hours purchased in the local 
labor market. On the contrary, when the AEWR is set below competitive 
equilibrium and employers have market power, employers may pay below-
competitive-equilibrium wage rates, decreasing the total number of 
worker labor hours purchased in the local labor market. DWL is a 
function of the difference between the compensation the employers are 
willing to pay for the hours lost and the compensation employees are 
willing to take for those hours. In short, DWL is the total loss in 
economic surplus resulting from a ``wedge'' between the employer's 
willingness to pay for, and the employees'' willingness to accept work 
arising from the intervention (in this case the AEWR).
---------------------------------------------------------------------------

    \83\ Under this proposed rule the Department would use the AEWR 
methodology set forth in the 2010 Final Rule (i.e., setting the 
annual AEWRs using the gross average hourly wage rate for field and 
livestock workers (combined)) for the occupations (45-2041, 45-2091, 
45-2092, 45-2093, 53-7064, 45-2099) which comprise 98 percent of H-
2A workers.
---------------------------------------------------------------------------

    The Department is unable to quantify the DWL without data on the 
equilibrium wage arising from each locality and occupational code's 
labor demand and combined immigrant foreign worker and domestic U.S. 
worker labor supply curves. The below paragraphs qualitatively discuss 
changes in the AEWR wages that may result in some DWL. In the analysis 
of wage transfers, only 2 percent of workers would be employed in H-2A 
job opportunities where the AEWR will change under the proposed rule 
from the current baseline. For the 98 percent of workers employed in H-
2A job opportunities under the six occupational classifications 
covering field workers and livestock workers reported by the FLS with 
no change to wages, the proposed rule does not change the DWL and 
existing labor market efficiencies or inefficiencies from the current 
baseline.
    In some cases the baseline AEWR creates a DWL by setting a minimum 
wage above the market equilibrium, because the hourly wage represents 
an annual weighted average across six occupational classifications 
covering a State or multistate region. Under the proposed rule when the 
AEWR is annually adjusted, the DWL may increase when the AEWR covering 
the State or multistate region also increases and remains above market 
equilibrium. Under the proposed rule this may occur for some, but not 
all, occupations covering field and livestock workers where the AEWR is 
determined using the annual weighted statewide gross hourly wage based 
on the OEWS survey. The OEWS survey does not collect wages for fixed-
site farms and ranches but does include data for establishments that 
support farm production activities (i.e., farm labor contractors) and 
are engaged in similar agricultural labor or services. Additionally, 
the types of agricultural establishments included in the OEWS survey, 
such as farm labor contractors, represent an increasing share of 
workers certified by the Department on H-2A applications. The OEWS wage 
for occupations associated with these establishments is unlikely to 
reflect any wage suppression created by nonimmigrant foreign workers'' 
willingness to work at lower wages than domestic U.S. workers. 
Therefore, an AEWR determined for a State based on OEWS wage data may 
be higher than the baseline AEWR that is based on the FLS and market 
equilibrium wage for temporary agricultural employment. Therefore, for 
most SOC code and area combinations, the AEWRs under this proposed rule 
AEWR, set at the OEWS wage, will serve as a wage floor and may create a 
DWL in the labor market, as illustrated by Figure 1.
BILLING CODE 4510-FP-P
[GRAPHIC] [TIFF OMITTED] TP01DE21.000

    When employers have market power in the labor market and the AEWR 
is set below the domestic competitive market equilibrium wage, then 
there may be a DWL in the associated U.S. labor market. In the H-2A 
program there are

[[Page 68190]]

some combinations of occupations and geographic areas where this can 
occur. For example, workers in higher paid occupations and occupations 
that are typically performed off farm yet qualify under the H-2A 
program (e.g., logging operations) have a baseline wage set by the FLS 
that is substantially below the U.S. market equilibrium according to 
OEWS data covering the State. Under the proposed rule the AEWR will be 
increased for these occupations to the State-level OEWS.\84\ In 
addition, workers in occupations that continue to have an AEWR set by 
the FLS, but in areas where FLS data for a given year cannot be 
reported, will have the AEWR set by a weighted average OEWS wage for 
field and livestock worker occupations which may be below market wage 
rates for a specific SOC code and geographic area combination.\85\ In 
these examples, some U.S. employers that do not compete with other 
employers for workers may set wage rates below competitive equilibrium 
at a wage level that balances the revenue gains from an additional 
worker against the cost of raising wages for all employees to attract 
that marginal worker. Some U.S. and foreign workers who would be 
willing to work at competitive equilibrium wages may not be willing to 
work at a lower wage. In these cases, a DWL is produced in the U.S. 
labor market, but under the proposed rule that DWL is reduced because 
of the higher AEWR (see Figure).
---------------------------------------------------------------------------

    \84\ For example, Mobile Heavy Equipment Mechanics, Except 
Engine (49-3042, in ME) has a 2021 AEWR of $14.99 and under the 
proposed rule would have an OEWS wage of $22.85.
    \85\ For example, Agricultural Workers, All Other (45-2099, in 
SOC) has a 2021 AEWR of $11.81. If the FLS data was unavailable it 
would have a weighted average OEWS wage of $14.18 and the OEWS wage 
for that specific occupation is $16.51. Thus, the weighted average 
OEWS wage would be below the actual market wage for that occupation.
[GRAPHIC] [TIFF OMITTED] TP01DE21.001

    When labor markets are competitive, an AEWR set below the U.S.-only 
labor market equilibrium wage rate in absence of foreign labor, but 
above the market equilibrium, with both domestic and foreign labor, 
results in DWL for the United States because it reduces domestic 
employer surplus more than it increases domestic worker surplus. In a 
competitive labor market with no AEWR, there will be no DWL. Figure 3 
illustrates this in a simplified case where domestic and foreign 
agricultural workers are perfect substitutes, and an infinite supply of 
foreign agricultural workers are willing to work at wage rate 
WFOREIGN below the U.S.-worker-only market equilibrium wage 
rate WUS-ONLY. The competitive market equilibrium will equal 
WFOREIGN and domestic employers will hire a combination of 
QEFFICIENT_US domestic workers and 
(QEFFICIENT_TOTAL - QEFFICIENT_US) foreign 
workers. U.S. DWL will be zero because U.S. total surplus (U.S. 
employer surplus + U.S. worker surplus) is maximized.

[[Page 68191]]

[GRAPHIC] [TIFF OMITTED] TP01DE21.002

    Setting an AEWR above the competitive labor market equilibrium wage 
creates a DWL. Working from the same assumptions as Figure 3, Figure 4 
illustrates that setting AEWRBASE above the competitive 
equilibrium wage WFOREIGN reduces the total number of 
workers employers are willing to hire from QEFFICIENT_TOTAL 
to QAEWR_TOTAL. Because employers now hire fewer workers at 
a higher wage rate, domestic employer surplus falls. At the higher 
wage, the number of domestic workers willing and hired to work 
increases from QEFFICIENT_US to QAEWR_US, 
increasing domestic worker surplus. Total surplus falls, generating 
DWL, because the increase in domestic worker surplus is only a fraction 
of the decrease in domestic employer surplus. Figure 4 depicts U.S. DWL 
as the amount that the decrease in domestic employer surplus exceeds 
the increase in domestic worker surplus. Global DWL is smaller than 
this if we consider the welfare impacts to foreign workers from 
increasing their wages. Increasing the AEWR under the proposed rule 
will extend all these impacts; that is, increase DWL, decrease domestic 
employer surplus, and increase domestic worker surplus.

[[Page 68192]]

[GRAPHIC] [TIFF OMITTED] TP01DE21.003

BILLING CODE 4510-FP-C
b. Payroll and Other Transition Costs
    The proposed rule will result in new AEWR wage rates for some SOC 
code and geographic area combinations compared to the baseline. 
Companies employing H-2A workers will need to update payrolls to 
account for the new AEWR wage rates. The Department does not quantify 
this cost and expects it to be de minimis because employers already 
need to update payrolls when AEWR wage rates are released annually. 
Therefore, they already have the capabilities and processes to quickly, 
and at de minimis cost, update payrolls when AEWR wage rates change.
    The proposed rule may also result in other transition costs to some 
employers for recruitment and training if they hire U.S. workers for 
the jobs that are performed by H-2A workers. The Department is not able 
to quantify the transition costs and seeks public input on the 
potential transition expenses such as recruitment and training.
Transfers
    The following section describes the transfers of the proposed rule 
related to the revisions to the wage structure. The Department 
considers transfers as payments from one group to another that do not 
affect total resources available to society. The transfers measured in 
this analysis are wage transfers from U.S. employers to H-2A workers. 
H-2A workers are migrant workers who will spend some of their earnings 
on consumption goods in the U.S. economy but likely send a large 
fraction of their earnings to their home countries.\86\ Therefore, the 
Department considers the wage transfers in the analysis as transfer 
payments within the global economic system.
---------------------------------------------------------------------------

    \86\ Walmsley, Winters, and Ahmed report the remittances to 
labor income for migrants from Mexico (the primary source of H-2A 
workers) at nearly 20%. The ratio ranges from close to 5% for 
migrants from China to close to 70% for migrants from India. These 
remittances can provide substantial financial assistance for migrant 
workers' families in their home countries. Terrie L. Walmsley et 
al., Global Trade Analysis Project, Measuring the Impact of the 
Movement of Labor Using a Model of Bilateral Migration Flows (Nov. 
2007), available at https://www.gtap.agecon.purdue.edu/resources/download/4635.pdf. See also Dilip Ratha, Remittances: Funds for the 
Folks Back Home, International Monetary Fund, https://www.imf.org/external/pubs/ft/fandd/basics/remitt.htm (last updated Feb. 24, 
2020); Daniel Costa & Philip Martin, Economic Policy Institute, 
Temporary Labor Migration Programs (Aug. 1, 2018), available at 
https://www.epi.org/publication/temporary-labor-migration-programs-governance-migrant-worker-rights-and-recommendations-for-the-u-n-global-compact-for-migration/.
---------------------------------------------------------------------------

    Section 218(a)(1) of the INA, 8 U.S.C. 1188(a)(1), provides that an 
H-2A worker is admissible only if the Secretary of Labor determines 
that ``there are not sufficient workers who are able, willing, and 
qualified, and who will be available at the time and place needed, to 
perform the labor or services involved in the petition, and the 
employment of the alien in such labor or services will not adversely 
affect the wages and working conditions of workers in the United States 
similarly employed.'' In 20 CFR 655.120(a), the Department currently 
meets this statutory requirement, in part, by requiring the employer to 
offer, advertise in its recruitment, and pay a wage that is the highest 
of the AEWR, the prevailing wage, the agreed-upon collective bargaining 
wage, the Federal minimum wage, or the State minimum wage. As discussed 
below, the Department's proposed rule maintains this general wage-
setting structure but proposes to modify the methodology by which it 
establishes the AEWRs.
    Currently, pursuant to the 2010 Final Rule, 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 NASS. This methodology 
produces a single AEWR for all agricultural workers in a State or 
region, without regard to occupational classification, and no AEWR in 
geographic areas not surveyed by NASS (e.g., Alaska). As discussed in 
depth in the preamble, the Department is concerned that this 
methodology may have an adverse effect on the wages of

[[Page 68193]]

workers in higher paid agricultural occupations, such as supervisors of 
farmworkers and construction laborers on farms, whose wages may be 
inappropriately lowered by an AEWR established from the wages of the 
FLS field and livestock workers (combined) occupational category, which 
does not include those workers.
    Under this proposed rule the Department would modify the AEWR 
methodology so that it is based on data more specific to the 
agricultural occupation of workers in the United States similarly 
employed. Both the FLS and OEWS survey provide data tailored to U.S. 
agricultural workers and the States and regions where these workers are 
employed, making these sources 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 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.
    As explained above, 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 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 labor demanded from H-2ALCs 
(i.e., farm labor contractors) using the H-2A program for employment in 
non-range occupations has significantly increased in recent years, they 
only represented approximately 16 percent of all certified H-2A 
applications in FY 2020.\87\ Individual employers and agricultural 
associations filing for one or more individual association members, 
which generally hire workers directly for employment, constituted 
approximately 84 percent of all of H-2A applications.\88\ Using the 
FLS, which surveys directly hired agricultural workers, to set AEWRs 
therefore is more accurate and reasonable because, in addition to being 
a comprehensive source of farmworker wage date, it also surveys the 
agricultural employers which make up a significant majority of H-2A 
applications.
---------------------------------------------------------------------------

    \87\ Based on an analysis of H-2A labor certification data for 
FY 2020, the Department issued 12,491 temporary labor certifications 
covering 272,610 worker positions for non-range employment. Of this 
total, the Department certified 2,052 H-2A applications covering 
116,479 worker positions submitted by, or on behalf of, H-2ALCs; 
1,669 H-2A applications covering 34,236 worker positions submitted 
by agricultural associations by, or on behalf of, one of more 
individual association members; and 8,770 H-2A applications covering 
121,895 worker positions submitted by individual employers (i.e., 
fixed-site agricultural businesses). See ETA, Performance Data, 
https://www.dol.gov/agencies/eta/foreign-labor/performance (last 
visited Sept. 29, 2021).
    \88\ Id.
---------------------------------------------------------------------------

    Under this proposed rule the Department would use the AEWR 
methodology set forth in the 2010 Final Rule, i.e., setting the annual 
AEWRs using the gross average hourly wage rate for field and livestock 
workers (combined) in the State or region, as reported by the FLS, when 
that data is available, for the following SOC codes:

 45-2041--Graders and Sorters, Agricultural Products
 45-2091--Agricultural Equipment Operators
 45-2092--Farmworkers and Laborers, Crop, Nursery and 
Greenhouse
 45-2093--Farmworkers, Farm, Ranch, and Aquacultural Animals
 53-7064--Packers and Packagers, Hand
 45-2099--Agricultural Workers, All Other

    If the annual gross average hourly wage in the State or region is 
not reported by the FLS, the Department proposes to set the annual AEWR 
for these occupations (45-2041, 45-2091, 45-2092, 45-2093, 53-7064, 45-
2099) using the statewide gross average hourly wage rate reported by 
the OEWS survey. If the annual statewide gross average hourly wage is 
not reported by the OEWS survey, the Department proposes to set the 
AEWR for these occupations by using the annual national gross average 
hourly wage as reported by the OEWS survey. To produce an equivalent 
AEWR for field and livestock worker job opportunities using the OEWS 
survey under the proposed rule, BLS will compute an annual weighted 
average hourly wage using the establishment data reported for these 
occupations at the State and national level.
    For all other SOC codes the Department proposes to annually set the 
AEWR for agricultural services or labor based on the statewide annual 
average hourly wage reported by the OEWS survey. If the OEWS survey 
does not report a statewide annual average hourly wage for the SOC 
code, the Department proposes to set the AEWR based on the national/
annual average hourly wage reported by the OEWS survey.
    To estimate wage impacts the Department uses FY 2020 through FY 
2021 OFLC certification data. To include the most recent H-2A 
certification data (i.e., FY 2021) the Department simulated Q4 data 
based on FY 2016-2020 data, to produce a full year of certification 
data.\89\ For the most common SOC codes (45-2091; 45-2092; and 45-
2093), the Department calculated the average certification growth rate 
form FY 2016 to FY 2020 by SOC and State, and then determined the 
average annual growth rate. In some cases, due to small numbers of 
certifications in certain States for a specific SOC in each year, the 
growth rates were unreasonably high or low (greater than 80% or less 
than -80% growth). In such cases, the Department applied the national 
growth rate for the applicable SOC. Next, the Department calculated the 
number of certifications that had work in the fourth quarter of 2020 by 
State, and SOC, and applied the applicable growth rate to Q4 to 
estimate FY 2021 quarter 4 certifications. For all other SOC codes, the 
Department took the average of the number of certifications for each 
SOC and State from FY 2016 to FY 2020. The Department also needed to 
estimate the period of need, number of workers per certification, and 
number of hours per certifications. For the three most common SOC 
codes, the Department calculated, by State and SOC code, the number of 
certifications that had work in one or two calendar years, and the 
average number of days that occurred in each year. For all other SOC 
codes, the Department used the national average from FY 2016 to FY 2020 
of the percentage of certifications with work in one or two calendar 
years, and the number of days in each year. For number of workers per 
certifications and number of hours, the average number of workers for 
each SOC code and State from FY 2016 to FY 2020 was applied. Total 
wages were then calculated using the simulated Q4 certifications and 
these estimated FY 2021 Q4 wage impacts were summed with the FY 2021 Q1 
to Q3 wage impacts to create an estimate of total wages for the 
entirety of FY 2021.
---------------------------------------------------------------------------

    \89\ FY 2021 certification data only consists of three quarters 
of data as of the date of analysis for this proposed rule.
---------------------------------------------------------------------------

    To produce a combined field and livestock AEWR using the OEWS, BLS 
provided the Department with the weighted average hourly wage for 45-
2041, 45-2091, 45-2092, 45-2093, 53-7064, 45-2099 occupations at the 
State and national level using the OEWS May 2020 survey. The OEWS May 
2020

[[Page 68194]]

wages are applicable to work occurring between July 1, 2021 and June 
30, 2022. The FY 2020 and FY 2021 certification data includes work 
occurring as early as October of 2019. To determine the appropriate 
weighted average hourly wage for these six occupations between October 
of 2019 and the start of the OEWS May 2020 period, July 1, 2021, the 
Department estimated the weighted average hourly wage for OEWS May 2018 
and OEWS May 2019 datasets. Using public OEWS survey data, the 
Department calculated the average annual percent change for wages in 
these six SOC codes between OEWS May 2018 and OEWS May 2019 and between 
OEWS May 2019 and OEWS May 2020. To determine the weighted average 
hourly wage for the six SOC codes in OEWS May 2019, the Department used 
the percentage growth in the wages to adjust the BLS weighted average 
hourly wage.\90\
---------------------------------------------------------------------------

    \90\ The Department divided the BLS calculated weighed average 
hourly wage rate in OEWS May 2020 by 1+ the average percent change. 
Similarly, the OEWS May 2018 weighted average hourly wage was 
determined by dividing the OEWS May 2019 weighted average hourly 
wage by 1+ the average percent change. The Department completed 
these calculations at the State and national level.
---------------------------------------------------------------------------

    The Department calculated the impact on wages that would occur from 
the implementation of the revised AEWR methodology. For each H-2A 
certification in FY 2020 through FY 2021, the Department calculated 
total wages under the current AEWR baseline, i.e., pursuant to the 2010 
Final Rule, and total wages under the proposed AEWR methodology. Then, 
the Department determined the annual wage impact in calendar year (CY) 
2020 and CY 2021 by subtracting the AEWR baseline wage from the NPRM 
wage. The Department summed the wage impacts in each CY, converted the 
wage impact to 2020 dollars using the Employment Cost Index (ECI) \91\ 
and took the average impact of CY 2020 and CY 2021.\92\ Wage impacts 
for 2022 to 2031 were estimated by applying the H-2A workers growth 
rate (5.6 percent) to account for that fact that the number of H-2A 
workers affected (and the total wage impact) will grow annually at 5.6 
percent. Because the proposed rule wage-setting methodology would not 
retroactively impact workers and OEWS wages in the May 2021 OEWS will 
not be applicable until July of 2022, the wage impact in 2022 is 
divided by 2 to account for the fact that only half the year of wages 
would be impacted.\93\
---------------------------------------------------------------------------

    \91\ BLS, Employment Cost Index Archived News Releases, https://www.bls.gov/bls/news-release/eci.htm (last modified July 30, 2021).
    \92\ While there were working days and therefore wage impacts in 
CY 2019 and CY 2022 in the FY 2020 and FY 2021 certification data, 
the Department did not include wage impacts in CY 2019 and CY 2022 
in the average annual impact calculations because a full CY of work 
is not captured in the FY 2020 and FY 2021 certification data for CY 
2019 and CY 2022.
    \93\ The Department assumes in the economic analysis of the 
proposed rule that the final rule will not become effective until 
the second half of the year 2022.
---------------------------------------------------------------------------

    The Department provides two examples illustrating the above wage 
calculation methodology for H-2A certifications. Exhibits 5 and 6 
illustrate how total wages are calculated for the proposed rule and 
baseline. The Department multiplied the number of certified workers by 
the number of hours worked each day, the number of days in a year that 
the employees worked, and the annual average hourly gross State AEWR 
wage for SOC codes set by the AEWR. In the example provided in Exhibit 
5, for agricultural equipment operators (SOC 45-2092, Farmworkers and 
Laborers, Crop, Nursery, and Greenhouse) the FLS AEWR wage is not 
available in Alaska and Puerto Rico, so the AEWR is set by the weighted 
average OEWS wage. For SOC codes set by the OEWS survey, the annual 
average hourly gross wage from the state-level OEWS-based wage for the 
appropriate SOC code and worksite state is used, or the national OEWS-
based wage is used if the State-level wage is not available.

                                                      Exhibit 5--AEWR Wage Under the Proposed Rule
                                                                     [Example case]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                       NPRM                                      Number    Number
                            -------------------------  Number  of     Basic      of days   of days    Wage      Wage       Total AEWR       Total AEWR
          SOC code                                     certified    number of    worked    worked     2020      2021       wages 2020       wages 2021
                                   Wage source          workers       hours      in 2020   in 2021
                                                              (a)          (b)       (c)       (d)       (e)       (f)    (a*(b/5)*c*e)    (a*(b/5)*d*f)
--------------------------------------------------------------------------------------------------------------------------------------------------------
45-2092....................  FLS AEWR (unavailable);           14           40       152        10    $15.15    $16.78      $257,913.60       $18,793.60
                              weighted average OEWS.
13-1074....................  OEWS...................           10           35       280        50     25.45     29.84       498,820.00       104,440.00
--------------------------------------------------------------------------------------------------------------------------------------------------------

    After the total wages for the proposed rule were determined, the 
wage calculation under the baseline AEWR was calculated. The number of 
workers certified is multiplied by the number of hours worked each day, 
the number of days in a year that the employees worked, and the AEWR 
baseline for the year(s) in which the work occurred (Exhibit 6 provides 
an example of the calculation of the AEWR baseline for the same case as 
in Exhibit 5). In the example provided in Exhibit 6 for SOC code 45-
2092, the AEWR baseline wage is not available, so the baseline wage is 
set by the public OEWS State wage.

                                                         Exhibit 6--AEWR Wage Under the Baseline
                                                                     [Example case]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                 Number    Number
                                                       Number  of     Basic      of days   of days    Wage      Wage       Total AEWR       Total AEWR
          SOC code             Baseline wage source    certified    number of    worked    worked     2020      2021       wages 2020       wages 2021
                                                        workers       hours      in 2020   in 2021
                                                              (a)          (b)       (c)       (d)       (e)       (f)    (a*(b/5)*c*e)    (a*(b/5)*d*f)
--------------------------------------------------------------------------------------------------------------------------------------------------------
45-2092....................  FLS AEWR (unavailable);           14           40       152        10    $15.54    $15.72      $264,552.96       $17,606.40
                              OEWS State.
13-1074....................  FLS AEWR...............           10           35       280        50     14.58     15.37       285,768.00        53,795.00
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 68195]]

    The changes in wages constitute a transfer from H-2A employers to 
H-2A employees for SOC codes set by the OEWS survey. For SOC codes set 
by the FLS AEWR there is no wage impact, unless the worksite location 
is in Alaska or Puerto Rico where no AEWR currently exists because the 
FLS does not collect wage data covering these geographic areas.\94\ To 
account for the growth rate in H-2A workers the total transfers in each 
year are increased annually by the estimated growth rate of H-2A 
workers (5.6 percent).\95\ The results are average annual undiscounted 
transfers of $29.50 million. The total transfer over the 10-year period 
is estimated at $295.00 million undiscounted, or $254.20 million and 
$211.87 million at discount rates of 3 and 7 percent, respectively. The 
annualized transfer over the 10-year period is $29.80 million and 
$30.17 million at discount rates of 3 and 7 percent, respectively.
---------------------------------------------------------------------------

    \94\ There is no FLS wage available for Alaska or Puerto Rico. 
Because of that, wages under the baseline are set by the public OEWS 
State data. Under the proposed rule, for SOC codes that have 
worksite locations in Alaska or Puerto Rico, the hourly wage would 
be set by the weighted average hourly wage rate calculated by BLS. 
Therefore, those certifications may have a wage impact under the 
proposed rule.
    \95\ Total transfers in each year are increased with the 
following formula to account for an annual increase in the 
underlying population of H-2A workers: 
Transfer*(1.056[caret](Current year - Base year)).
---------------------------------------------------------------------------

    The estimated transfers are likely on the high end of potential 
transfers. The Department does not make any adjustment to account for 
H-2A certifications that are made but do not end up in jobs with 
realized wages. In FY 2020, according to State Department data, there 
were 213,394 H-2A visas issued.\96\ In FY 2020 there were 275,430 
workers associated with H-2A certifications. The Department is unable 
to verify the specific H-2A certifications that do not end up in 
materialized jobs and so cannot adjust wage transfers to account for 
differences in regional, and by-SOC code, job materialization. Overall, 
the data on H-2A visas compared to workers associated with H-2A 
certifications indicates that about 80 percent of certified positions 
have associated H-2A visas. The remaining 20 percent could be jobs that 
did not materialize or were filled by U.S. workers.
---------------------------------------------------------------------------

    \96\ U.S. Department of State, Nonimmigrant Visas Issued by 
Classification, Fiscal Years 2016-2020, available at https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2020AnnualReport/FY20AnnualReport-TableXVB.pdf.
---------------------------------------------------------------------------

    The increase (or decrease) in the wage rates for H-2A workers also 
represents a wage transfer from employers to corresponding workers 
performing similar work for the employer, not just the H-2A workers 
employed under the work contract. The higher (or lower) wages paid to 
H-2A workers associated with the proposed rule's methodology for 
determining the AEWRs will also result in wage changes to corresponding 
workers. However, the Department does not collect or possess sufficient 
information about the number of corresponding workers affected and 
their wage payment structures to reasonably measure the transfers to 
corresponding workers. Employers are not required to provide the 
Department, on any application or report, the estimated or actual total 
number of workers in corresponding employment. Although each employer, 
as a condition of being granted a temporary labor certification, must 
provide the Department with a report of its initial recruitment efforts 
for U.S. workers, including the name and contact information of each 
U.S. worker who applied or was referred to the job, such information 
typically reflects only a very small portion of the total recruitment 
period, which runs through 50 percent of the certified work contract 
period, and does not account for any other workers who may be 
considered in corresponding employment and already working for the 
employer. And finally, the Department is also not able to estimate how 
much of the wage transfer stays in the U.S. economy. It is likely that 
a substantial portion of the wage transfer is from U.S. employers to 
the home economy of H-2A workers. Nonimmigrant foreign H-2A workers may 
spend wages earned in the U.S., spend the money outside of the U.S., 
send the money outside of the U.S., or some combination. The Department 
invites comments regarding how these wage transfer impacts can be 
calculated.
Qualitative Benefits
    The proposed rule makes an important update to the AEWR to ensure 
that it protects U.S. workers in occupations where the existing wage 
methodology may adversely affect wages in certain occupations where 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). U.S. workers in these occupations would benefit from the 
protections afforded them by an AEWR determined using a more accurate 
data source.
    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. A more accurate AEWR for workers in 
occupations where the FLS is inadequate will guard against the 
potential for the entry of H-2A foreign workers to adversely affect the 
wages and working conditions of workers in the United States similarly 
employed in these occupations. 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 access to an unlimited number of foreign workers in a 
particular labor market and occupation could cause the prevailing wage 
of workers in the United States similarly employed to stagnate or 
decrease.
    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 whose low educational attainment, low skills, low 
rates of unionization and high rates of unemployment leave them with 
few alternatives in the non-farm labor market.'' \97\ As a result, 
``their ability to negotiate wages and working conditions with farm 
operators or agriculture service employers is quite limited.'' \98\ 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.'' \99\
---------------------------------------------------------------------------

    \97 \ Proposed Rule, Temporary Agricultural Employment of H-2A 
Aliens in the United States, 74 FR 45905, 45911 (Sep. 4, 2009).
    \98 \ Id.
    \99\ Id.

---------------------------------------------------------------------------

[[Page 68196]]

Distributional Impact Analysis
    E.O. 13985: Advancing Racial Equity and Support for Underserved 
Communities Through the Federal Government, seeks to advance equity in 
agency actions and programs. The term equity is defined as consistent 
and systematic fair, just, and impartial treatment of individuals, 
including individuals who belong to underserved communities, such as 
Black, Latino, and Indigenous and Native American persons, Asian 
Americans and Pacific Islands, and other persons of color, as well as 
members of religious minorities, lesbian, gay, bisexual, transgender, 
and queer (LGBTQ+) persons, persons with disabilities, persons who live 
in rural areas, and persons otherwise adversely affected by persistent 
poverty or inequality.
    To assess the impact of the proposed rule on equity the Department 
used Current Population Survey (CPS) data from BLS \100\ to determine 
the ethnic and racial makeup of the most common SOC codes in the H-2A 
program. CPS only included data for three races, White, Black or 
African American, and Asian, and one ethnicity, Hispanic or Latino. The 
results of this analysis for the top ten H-2A SOC codes that experience 
wage impacts (SOC codes other than 45-2041, 45-2091, 45-2092, 45-2093, 
53-7064, 45-2099) is presented in Exhibit 7. These top 10 SOC codes 
\101\ account for over 90 percent of all the workers in the FY 2021 
certification data that experience wage impacts (certifications with 
wages set by the OEWS).
---------------------------------------------------------------------------

    \100\ BLS, Labor Force Statistics from the Current Population 
Survey, Employed persons by occupation, race, Hispanic or Latino 
ethnicity, and sex, https://www.bls.gov/cps/tables.htm (last 
modified May 14, 2021).
    \101\ Farm Labor Contractors are within the Top 10 impacted H-2A 
SOC codes, but because Farm Labor Contractor are employers it is 
excluded from Exhibit 7.

                        Exhibit 7--Racial/Ethnic Distribution of the Top 10 H-2A SOC Codes by Number of Workers With Wage Impacts
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                   % of employed people                                        Number of
                                            ------------------------------------------------------------------------------------------------- FY 2021 Q1-
        SOC code             Description                                 Black or  African                                                      Q3 H-2A
                                                      White                  American                  Asian            Hispanic or Latino      workers
--------------------------------------------------------------------------------------------------------------------------------------------------------
45-0000................  Farming, fishing,   90.....................  4.....................  2.....................  43....................        (**)
                          and forestry
                          occupations.
47-2061................  Construction        87.....................  8.....................  1.....................  46....................       2,107
                          Laborers.
53-3032................  Heavy and Tractor-  77.....................  17....................  3.....................  23....................         526
                          Trailer Truck
                          Drivers.
45-1011................  First-Line          90.....................  5.....................  3.....................  28....................         328
                          Supervisors of
                          Farming, Fishing,
                          and Forestry
                          Workers.
47-3012................  Helpers--Carpenter  Not available..........  Not available.........  Not available.........  Not available.........         104
                          s.
45-4022................  Logging Equipment   Not available..........  Not available.........  Not available.........  Not available.........          57
                          Operators.
49-3041................  Farm Equipment      94.....................  4.....................  1.....................  19....................          55
                          Mechanics and
                          Service
                          Technicians.
47-2031................  Carpenters........  88.....................  7.....................  2.....................  36....................          30
47-3019................  Helpers,            Not available..........  Not available.........  Not available.........  Not available.........          18
                          Construction
                          Trades, All Other.
47-2051................  Cement Masons and   83.....................  8.....................  1.....................  53....................          16
                          Concrete
                          Finishers.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Not available indicates that racial/ethnic data for that SOC code was not reported in the CPS data.
** 45-2000 is included as a reference for the racial/ethnic distribution of agricultural workers generally.
Note: Estimates for the above race groups (White, Black or African American, and Asian) do not sum to totals because data are not presented for all
  races. Persons whose ethnicity is identified as Hispanic or Latino may be of any race.

4. Summary of the Analysis
    Exhibit 8 summarizes the estimated total costs and transfers of the 
proposed rule over the 10-year analysis period. The Department 
estimates the annualized costs of the proposed rule at $0.19 million 
and the annualized transfers (from H-2A employers to employees) at 
$30.17 million, at a discount rate of 7-percent.

 Exhibit 8--Estimated Monetized Costs and Transfers of the Proposed Rule
                            [2020 $millions]
------------------------------------------------------------------------
                  Year                         Costs         Transfers
------------------------------------------------------------------------
2022....................................           $0.00          $11.86
2023....................................            0.00           25.05
2024....................................            0.00           26.45
2025....................................            0.00           27.93
2026....................................            0.00           29.50
2027....................................            0.00           31.15
2028....................................            0.00           32.90
2029....................................            0.00           34.74
2030....................................            0.00           36.68
2031....................................            0.00           38.74
                                         -------------------------------
    Undiscounted 10-Year Total..........            0.45          295.00
    10-Year Total with a Discount Rate              0.45          254.20
     of 3%..............................
    10-Year Total with a Discount Rate              0.45          211.87
     of 7%..............................
------------------------------------------------------------------------
10-Year Average.........................           0.045           29.50
Annualized with a Discount Rate of 3%...           0.053           29.80
Annualized with a Discount Rate of 7%...           0.064           30.17
------------------------------------------------------------------------


[[Page 68197]]

5. Regulatory Alternatives
    The Department considered two alternatives to the proposal of using 
the FLS-based field and livestock worker (combined) average gross 
hourly wage, where USDA reports such as wage, as the sole source for 
establishing the AEWR in job opportunities classified under one of the 
following SOCs:

 45-2041--Graders and Sorters, Agricultural Products
 45-2091--Agricultural Equipment Operators
 45-2092--Farmworkers and Laborers, Crop, Nursery and 
Greenhouse
 45-2093--Farmworkers, Farm, Ranch, and Aquacultural Animals
 53-7064--Packers and Packagers, Hand
 45-2099--Agricultural Workers, All Other

    For each alternative, job opportunities classified under any other 
SOC will have the AEWR set using the same methodology in the proposed 
rule: The AEWR for each occupation would be the statewide annual 
average hourly gross wage for that occupation as reported by the OEWS 
survey. If the statewide wage is not available, the AEWR would be set 
by the national annual average hourly wage for that occupation as 
reported by the OEWS survey.
    Under the first regulatory alternative, the Department considered 
setting the AEWR for job opportunities classified under SOCs 45-2041, 
45-2091, 45-2092, 45-2093, 53-7064, and 45-2099, using the highest of 
the annual average hourly gross wage reported by the FLS or the 
weighted average hourly gross wage provided by the OEWS for these same 
occupations for the State or region. If a statewide annual average 
hourly gross wage in the State is not reported in the FLS or the OEWS 
survey, the AEWR for the occupation shall be determined using the 
national annual average hourly gross wage as reported by the FLS or the 
OEWS survey.
    The total impact of the first regulatory alternative was calculated 
using the methodology described to calculate proposed wage impacts 
using FY 2020 to FY 2021 certification data. The Department estimated 
average annual undiscounted transfers of $103.30 million. The total 
transfer over the 10-year period was estimated at $1.03 billion 
undiscounted, or $890.12 million and $741.88 million at discount rates 
of 3 and 7 percent, respectively. The annualized transfer over the 10-
year period was $104.35 million and $105.63 million at discount rates 
of 3 and 7 percent, respectively.
    Under the second regulatory alternative, the Department would set 
the AEWR using only the OEWS average hourly wage for the SOC and State 
(i.e., use of FLS-based wages in establishing AEWRs under the H-2A 
program would be discontinued). When OEWS State data is not available, 
the Department would set the AEWR at the OEWS national average hourly 
wage for the SOC under this alternative. This alternative reflects the 
transfers that would occur if, for example, the USDA survey was 
discontinued or suspended and, as a result, the Department would set 
the AEWRs for each State using the OEWS data. For SOC codes 45-2041, 
45-2091, 45-2092, 45-2093, 53-7064, 45-2099, the weighted average 
hourly wage provided by BLS at the State and national level is applied. 
The Department again used the same method to calculate the total impact 
of the regulatory alternative and found that unlike the proposed rule 
and first regulatory alternative, the second regulatory alternative 
would result in transfers from H-2A employees to employers. The 
Department estimated average annual undiscounted transfers of $72.30 
million. The total transfer over the 10-year period was estimated at 
$723.03 million undiscounted, or $623.03 million and $519.28 million at 
discount rates of 3 and 7 percent, respectively. The annualized 
transfer over the 10-year period was $73.04 million and $73.93 million 
at discount rates of 3 and 7 percent, respectively.
    Exhibit 9 summarizes the estimated transfers associated with the 
three considered revised wage structures over the 10-year analysis 
period. Transfers under the proposal and the first regulatory 
alternative are transfers from H-2A employers to H-2A employees and 
transfers under the second alternative are transfers from H-2A 
employees to H-2A employers.

                     Exhibit 9--Estimated Monetized Transfers and Costs of the Proposed Rule
                                                [2020 $millions]
----------------------------------------------------------------------------------------------------------------
                                                                                Regulatory         Regulatory
                                                           Proposed rule      alternative 1      alternative 2
                                                          (transfers from    (transfers from    (transfers from
                                                            employers to       employers to       employees to
                                                             employees)         employees)         employers)
----------------------------------------------------------------------------------------------------------------
Total 10-Year Transfer.................................               $295             $1,033               $723
Total with 3% Discount.................................                254                890                623
Total with 7% Discount.................................                212                742                519
Annualized Undiscounted Transfer.......................                 30                103                 72
Annualized Transfer with 3% Discount...................                 30                104                 73
Annualized Transfer with 7% Discount...................                 30                106                 74
----------------------------------------------------------------------------------------------------------------

    The Department prefers the chosen approach of the proposed rule 
because it allows specific OEWS wages for workers in higher paid 
agricultural occupations, such as supervisors of farmworkers and 
construction laborers on farms while maintaining the use of FLS data 
for occupations with the majority of H-2A workers. As the Department 
has stated previously, the FLS, which surveys directly hired 
agricultural workers, is the best source of wage data to set AEWRs for 
the vast majority of H-2A occupations. This is in part because the FLS 
is a more comprehensive source of farmworker wage date than the OEWS 
survey. The chosen approach also minimizes transfers compared to the 
two alternatives, and ensures greater stability in the wage obligations 
of employers by determining AEWRs, including annual adjustments, using 
the data source that best reflects the wages of workers in the United 
States similarly employed.

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

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996, Public Law 104-121 (March 29, 1996), hereafter jointly referred 
to as the RFA, initial regulatory flexibility analysis

[[Page 68198]]

(IRFA) when proposing, and a final regulatory flexibility analysis 
(FRFA) when issuing, regulations that will have a significant economic 
impact on a substantial number of small entities. The Department 
certifies that the proposed rule does not have a significant economic 
impact on a substantial number of small entities. The Department 
presents the basis for this conclusion in the analysis below.
Definition of Small Entity
    The RFA defines a ``small entity'' as a (1) small not-for-profit 
organization, (2) small governmental jurisdiction, or (3) small 
business. The Department used the entity size standards defined by the 
Small Business Administration (SBA), in effect as of August 19, 2019, 
to classify entities as small.\102\ SBA establishes separate standards 
for individual 6-digit NAICS industry codes, and standard cutoffs are 
typically based on either the average number of employees, or the 
average annual receipts. For example, small businesses are generally 
defined as having fewer than 500, 1,000, or 1,250 employees in 
manufacturing industries and less than $7.5 million in average annual 
receipts for nonmanufacturing industries. However, some exceptions do 
exist, the most notable being that depository institutions (including 
credit unions, commercial banks, and noncommercial banks) are 
classified by total assets (small defined as less than $550 million in 
assets). Small governmental jurisdictions are another noteworthy 
exception. They are defined as the governments of cities, counties, 
towns, townships, villages, school districts, or special districts with 
populations of less than 50,000 people.\103\
---------------------------------------------------------------------------

    \102\ SBA, Table of Small Business Size Standards Matched to 
North American Industry Classification System Codes (Aug. 2019), 
https://www.sba.gov/document/support--table-size-standards.
    \103\ See https://advocacy.sba.gov/resources/the-regulatory-flexibility-act for details.
---------------------------------------------------------------------------

Number of Small Entities
    The Department collected employment and annual revenue data from 
the business information provider Data Axle and merged those data into 
the H-2A disclosure data for FY 2020 and FY 2021. This process allowed 
the Department to identify the number and type of small entities in the 
H-2A disclosure data as well as their annual revenues. The Department 
determined the number of unique employers in the FY 2020 and FY 2021 
certification data based on the employer name and city. The Department 
identified 9,927 unique employers (excluding labor contractors). Of 
those 9,927 employers, the Department was able to obtain data matches 
of revenue and employees for 2,615 H-2A employers in the FY 2020 and FY 
2021 certification data. Of those 2,615 employers, the Department 
determined that 2,105 were small (80.5 percent).\104\ These unique 
small entities had an average of 11 employees and average annual 
revenue of approximately $3.62 million. Of these small unique entities, 
2,085 of them had revenue data available from Data Axle. The 
Department's analysis of the impact of this proposed rule on small 
entities is based on the number of small unique entities (2,085 with 
revenue data).
---------------------------------------------------------------------------

    \104\ SBA, Table of Small Business Size Standards Matched to 
North American Industry Classification System Codes (Aug. 2019), 
https://www.sba.gov/document/support--table-size-standards.
---------------------------------------------------------------------------

    To provide clarity on the agricultural industries impacted by this 
regulation, Exhibit 10 shows the number of unique H-2A small entities 
employers with certifications in the FY 2020 and FY 2021 certification 
data within each NAICS code at the 6-digit level.

                            Exhibit 10--Number of H-2A Small Employers by NAICS Code
----------------------------------------------------------------------------------------------------------------
                                                                                     Number of
              6-Digit NAICS                             Description                  employers        Percent
----------------------------------------------------------------------------------------------------------------
111998...................................  All Other Miscellaneous Crop Farming.             611              31
444220...................................  Nursery, Garden Center, and Farm                  162               8
                                            Supply Stores.
561730...................................  Landscaping Services.................             134               7
445230...................................  Fruit and Vegetable Markets..........             127               6
424480...................................  Fresh Fruit and Vegetable Merchant                 84               4
                                            Wholesalers.
111339...................................  Other Noncitrus Fruit Farming........              78               4
112990...................................  All Other Animal Production..........              57               3
424930...................................  Flower, Nursery Stock, and Florists'               51               3
                                            Supplies Merchant Wholesalers.
424910...................................  Farm Supplies Merchant Wholesalers...              41               2
484230...................................  Specialized Freight (except Used                   39               2
                                            Goods) Trucking, Long-Distance.
----------------------------------------------------------------------------------------------------------------

Projected Impacts to Affected Small Entities
    The Department has estimated the incremental costs for small 
entities from the baseline (i.e., the 2010 Final Rule: Temporary 
Agricultural Employment of H-2A Aliens in the United States; TEGL 17-
06, Change 1; TEGL 33-10, and TEGL 16-06, Change 1) to this proposed 
rule. We estimated the costs of (a) time to read and review the 
proposed rule and (b) wage costs. The estimates included in this 
analysis are consistent with those presented in the E.O. 12866 section.
    The Department estimates that small entities not classified as H-
2ALCs, 1,946 unique small entities,\105\ would incur a one-time cost of 
$53.08 to familiarize themselves with the rule.\106\
---------------------------------------------------------------------------

    \105\ The 1,946 unique small entities exclude all labor 
contractors.
    \106\ $33.38 + $33.38(0.46) + $33.38(0.17) = $53.08.
---------------------------------------------------------------------------

    In addition to the cost of rule familiarization above, each small 
entity will have an increase in the wage costs due to the revisions to 
the wage structure. To estimate the wage impact for each small entity 
we followed the methodology presented in the E.O. 12866 section. For 
each certification of a small entity the Department calculated total 
wage impacts of the proposed rule in CY 2020 and CY 2021. The 
Department estimates the total annualized cost at a discount rate of 7 
percent is $4,347 on average.
    The Department determined the proportion of each small entity's 
total revenue that would be impacted by the costs of the proposed rule 
to determine if the proposed rule would have a significant and 
substantial impact on small entities. The cost impacts included 
estimated first year costs and the wage impact introduced by the 
proposed rule. The Department used a total cost estimate of 3 percent 
of revenue as the threshold for a significant individual impact and set 
a total of 15 percent of small entities incurring a significant impact 
as the threshold for a substantial impact on small entities.

[[Page 68199]]

    A threshold of 3 percent of revenues has been used in prior 
rulemakings for the definition of significant economic impact.\107\ 
This threshold is also consistent with that sometimes used by other 
agencies.\108\
---------------------------------------------------------------------------

    \107\ See, e.g., NPRM, Increasing the Minimum Wage for Federal 
Contractors, 79 FR 60634 (Oct. 7, 2014) (establishing a minimum wage 
for contractors); Final Rule, Discrimination on the Basis of Sex, 81 
FR 39108 (June 15, 2016).
    \108\ See, e.g., Final Rule, Medicare and Medicaid Programs; 
Regulatory Provisions to Promote Program Efficiency, Transparency, 
and Burden Reduction; Part II, 79 FR 27106 (May 12, 2014) 
(Department of Health and Human Services rule stating that under its 
agency guidelines for conducting regulatory flexibility analyses, 
actions that do not negatively affect costs or revenues by more than 
three percent annually are not economically significant).
---------------------------------------------------------------------------

    Exhibit 11 provides a breakdown of small entities by the proportion 
of revenue affected by the costs of the proposed rule. Of the 2,085 
unique small entities with revenue data in the FY 2020 and FY 2021 
certification data, 1.3 percent of employers had more than 3 percent of 
their total revenue impacted in the first year. Based on the findings 
presented in Exhibit 11, the proposed rule does not have a significant 
economic impact on a substantial number of small H-2A employers.

                                      Exhibit 11--Cost Impacts as a Proportion of Total Revenue for Small Entities
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                               2020, by NAICS code
            Proportion of revenue impacted             -------------------------------------------------------------------------------------------------
                                                            111998          444220          561730          445230         All other          Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
<1%...................................................     601 (98.4%)    162 (100.0%)     132 (98.5%)     126 (99.2%)    1,033 (98.3%)    2,054 (98.5%)
1%-2%.................................................        0 (0.0%)        0 (0.0%)        0 (0.0%)        0 (0.0%)         3 (0.3%)         3 (0.1%)
2%-3%.................................................        0 (0.0%)        0 (0.0%)        0 (0.0%)        0 (0.0%)         1 (0.1%)         1 (0.0%)
3%-4%.................................................        0 (0.0%)        0 (0.0%)        0 (0.0%)        0 (0.0%)         2 (0.2%)         2 (0.1%)
4%-5%.................................................        0 (0.0%)        0 (0.0%)        0 (0.0%)        0 (0.0%)         1 (0.1%)         1 (0.0%)
>5%...................................................       10 (1.6%)        0 (0.0%)        2 (1.5%)        1 (0.8%)        11 (1.0%)        24 (1.2%)
                                                       -------------------------------------------------------------------------------------------------
    Total >3%.........................................       10 (1.6%)        0 (0.0%)        2 (1.5%)        1 (0.8%)        14 (1.3%)        27 (1.3%)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                               2021, by NAICS code
--------------------------------------------------------------------------------------------------------------------------------------------------------
<1%...................................................     606 (99.2%)    162 (100.0%)     131 (97.8%)     125 (98.4%)    1,025 (97.5%)    2,049 (98.3%)
1%-2%.................................................        0 (0.0%)        0 (0.0%)        1 (0.7%)        0 (0.0%)         5 (0.5%)         6 (0.3%)
2%-3%.................................................        1 (0.2%)        0 (0.0%)        0 (0.0%)        0 (0.0%)         2 (0.2%)         3 (0.1%)
3%-4%.................................................        0 (0.0%)        0 (0.0%)        0 (0.0%)        0 (0.0%)         1 (0.1%)         1 (0.0%)
4%-5%.................................................        0 (0.0%)        0 (0.0%)        0 (0.0%)        0 (0.0%)         1 (0.1%)         1 (0.0%)
>5%...................................................        4 (0.7%)        0 (0.0%)        2 (1.5%)        2 (1.6%)        17 (1.6%)        25 (1.2%)
                                                       -------------------------------------------------------------------------------------------------
    Total >3%.........................................        4 (0.7%)        0 (0.0%)        2 (1.5%)        2 (1.6%)        19 (1.8%)        27 (1.3%)
--------------------------------------------------------------------------------------------------------------------------------------------------------

C. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501, et seq., 
and its attendant regulations, 5 CFR part 1320, require the Department 
to consider the agency's need for its information collections and their 
practical utility, the impact of paperwork and other information 
collection burdens imposed on the public, and how to minimize those 
burdens. This proposed rule does not require a collection of 
information subject to approval by OMB under the PRA, or affect any 
existing collections of information.

D. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among 
other things, to curb the practice of imposing unfunded Federal 
mandates on State, local, and tribal governments. Title II of UMRA 
requires each Federal agency to prepare a written statement assessing 
the effects of any Federal mandate in a proposed or final agency rule 
that may result in a $100 million or more expenditure (adjusted 
annually for inflation) in any one year by State, local, and tribal 
governments, in the aggregate, or by the private sector. The inflation-
adjusted value equivalent of $100 million in 1995 adjusted for 
inflation to 2019 levels by the Consumer Price Index for All Urban 
Consumers (CPI-U) is approximately $168 million based on the Consumer 
Price Index for All Urban Consumers.\109\
---------------------------------------------------------------------------

    \109\ See BLS, Historical Consumer Price Index for All Urban 
Consumers (CPI-U): U.S. City Average, All Items, By Month, https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202003.pdf (last visited Aug. 19, 2021).
    Calculation of inflation: (1) Calculate the average monthly CPI-
U for the reference year (1995) and the current year (2019); (2) 
Subtract reference year CPI-U from current year CPI-U; (3) Divide 
the difference of the reference year CPI-U and current year CPI-U by 
the reference year CPI-U; (4) Multiply by 100 = [(Average monthly 
CPI-U for 2019--Average monthly CPI-U for 1995)/(Average monthly 
CPI-U for 1995)] * 100 = [(255.657-152.383)/152.383] * 100 = 
(103.274/152.383) *100 = 0.6777 * 100 = 67.77 percent = 68 percent 
(rounded). Calculation of inflation-adjusted value: $100 million in 
1995 dollars * 1.68 = $168 million in 2019 dollars.
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    This proposed rule does not result in unfunded mandates for the 
public or private sector because private employers'' participation in 
the program is voluntary, and State governments are reimbursed for 
performing activities required under the program. The requirements of 
Title II of the UMRA, therefore, do not apply, and the Department has 
not prepared a statement under the UMRA.

E. Executive Order 13132 (Federalism)

    This proposed rule would not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with section 6 
of E.O. 13132, it is determined that this proposed rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

F. Executive Order 12988 (Civil Justice Reform)

    This proposed rule meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of E.O. 12988.

[[Page 68200]]

G. Regulatory Flexibility Executive Order 13175 (Consultation and 
Coordination With Indian Tribal Governments)

    This proposed rule does not have ``tribal implications'' because it 
does not have substantial direct effects on one or more Indian tribes, 
on the relationship between the Federal Government and Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal Government and Indian tribes. Accordingly, E.O. 13175, 
Consultation and Coordination with Indian Tribal Governments, requires 
no further agency action or analysis.

List of Subjects in 20 CFR Part 655

    Administrative practice and procedure, Employment, Employment and 
training, Enforcement, Foreign workers, Forest and forest products, 
Fraud, Health professions, Immigration, Labor, Passports and visas, 
Penalties, Reporting and recordkeeping requirements, Unemployment, 
Wages, Working conditions.

    For the reasons stated in the preamble, the Department of Labor 
proposes to amend 20 CFR part 655 as follows:

PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED 
STATES

0
1. The authority citation for part 655 continues to read as follows:

    Authority: Section 655.0 issued under 8 U.S.C. 
1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 8 U.S.C. 
1103(a)(6), 1182(m), (n), (p), and (t), 1184(c), (g), and (j), 1188, 
and 1288(c) and (d); sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 
2102 (8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 
4978, 5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102-232, 
105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103-
206, 107 Stat. 2428; sec. 412(e), Pub. L. 105-277, 112 Stat. 2681 (8 
U.S.C. 1182 note); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 
(8 U.S.C. 1182 note); 29 U.S.C. 49k; Pub. L. 107-296, 116 Stat. 
2135, as amended; Pub. L. 109-423, 120 Stat. 2900; 8 CFR 
214.2(h)(4)(i); and 8 CFR 214.2(h)(6)(iii); and sec. 6, Pub. L. 115-
218, 132 Stat. 1547 (48 U.S.C. 1806).
    Subpart A issued under 8 CFR 214.2(h).
    Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), 
and 1188; and 8 CFR 214.2(h).
    Subpart E issued under 48 U.S.C. 1806.
    Subparts F and G issued under 8 U.S.C. 1288(c) and (d); sec. 
323(c), Pub. L. 103-206, 107 Stat. 2428; and 28 U.S.C. 2461 note, 
Pub. L. 114-74 at section 701.
    Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and 
(b)(1), 1182(n), (p), and (t), and 1184(g) and (j); sec. 303(a)(8), 
Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 
412(e), Pub. L. 105-277, 112 Stat. 2681; 8 CFR 214.2(h); and 28 
U.S.C. 2461 note, Pub. L. 114-74 at section 701.
    Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and 
1182(m); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 
1182 note); Pub. L. 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).

Subpart B--Labor Certification Process for Temporary Agricultural 
Employment in the United States (H-2A Workers)

0
2. Amend Sec.  655.103(b) by revising the definition of Adverse effect 
wage rate to read as follows:


Sec.  655.103  Overview of this subpart and definition of terms.

* * * * *
    (b) * * *
    Adverse effect wage rate (AEWR). The wage rate published by the 
OFLC Administrator in the Federal Register for non-range occupations as 
set forth in Sec.  655.120(b) and range occupations as set forth in 
Sec.  655.211(c).
* * * * *
0
3. Amend Sec.  655.120 by revising paragraphs (b)(1)(i) through (iii) 
and (b)(5) to read as follows:


Sec.  655.120  Offered wage rate.

* * * * *
    (b)(1) * * *
    (i) For occupations included in the Department of Agriculture's 
(USDA) Farm Labor Survey (FLS) field and livestock workers (combined) 
category:
    (A) If an annual average hourly gross wage in the State or region 
is reported by the FLS, that wage shall be the AEWR for the State; or
    (B) If an annual average hourly gross wage in the State or region 
is not reported by the FLS, the AEWR for the occupations shall be the 
statewide annual average hourly gross wage in the State as reported by 
the Occupational Employment and Wage Statistics (OEWS) survey; or
    (C) If a statewide annual average hourly gross wage in the State is 
not reported by the OEWS survey, the AEWR for the occupations shall be 
the national annual average hourly gross wage as reported by the OEWS 
survey.
    (ii) For all other occupations:
    (A) The AEWR for each occupation shall be the statewide annual 
average hourly gross wage for that occupation in the State as reported 
by the OEWS survey; or
    (B) If a statewide annual average hourly gross wage in the State is 
not reported by the OEWS survey, the AEWR for each occupation shall be 
the national annual average hourly gross wage for that occupation as 
reported by the OEWS survey.
    (iii) The AEWR methodologies described in paragraphs (b)(1)(i) and 
(ii) of this section shall apply to all job orders submitted, as set 
forth in Sec.  655.121, on or after January 31, 2022, including job 
orders filed concurrently with an Application for Temporary Employment 
Certification to the NPC for emergency situations under Sec.  655.134. 
For purposes of paragraphs (b)(1)(i) and (ii) of this section, the term 
State and statewide include the 50 States, the District of Columbia, 
Guam, Puerto Rico, and the U.S. Virgin Islands.
* * * * *
    (5) If the job duties on the Application for Temporary Employment 
Certification do not fall within a single occupational classification, 
the applicable AEWR shall be the highest AEWR for all applicable 
occupations.
* * * * *

Angela Hanks,
Acting Assistant Secretary for Employment and Training, Labor.
 [FR Doc. 2021-25803 Filed 11-30-21; 8:45 am]
 BILLING CODE 4510-FP-P