Labor Certification Process for the Temporary Employment of Foreign Workers in Agriculture in the United States: Adverse Effect Wage Rate for Range Occupations in 2023, 77141-77142 [2022-27333]
Download as PDF
<![CDATA[
Federal Register / Vol. 87, No. 241 / Friday, December 16, 2022 / Notices
hearing transcript to EBSA’s website
and the date the reopened comment
period closes.
The Department held the virtual
public hearing on November 17, 2022,
and reopened the comment period on
the hearing date.5 The Department is
hereby providing notice that it posted
the hearing transcript to EBSA’s website
on December 12, 2022, and determined
that the reopened comment period will
close on January 6, 2023. The hearing
transcript may be accessed here: https://
www.dol.gov/agencies/ebsa/laws-andregulations/rules-and-regulations/
public-comments/1210-ZA07.
The Department encourages all
interested parties to submit comments
on the proposed amendment before the
reopened comment period closes. All
written comments should be identified
by Z–RIN 1210 ZA07 and sent to the
Office of Exemption Determinations
through the Federal eRulemaking Portal:
https://www.regulations.gov at Docket
ID number: EBSA–2022–0008. Please
follow the instructions for submitting
comments.
All comments on the proposed
amendment and requests to testify at the
hearing are available to the public
without charge online at https://
www.regulations.gov at Docket ID
number: EBSA–2022–0008 and https://
www.dol.gov/agencies/ebsa/laws-andregulations/rules-and-regulations/
public-comments/1210-ZA07. They also
are available for public inspection in
EBSA’s Public Disclosure Room, U.S.
Department of Labor, Room N–1513,
200 Constitution Avenue NW,
Washington, DC 20210.
Signed at Washington, DC, this 12th day of
December 2022.
Lisa M. Gomez,
Assistant Secretary, Employee Benefits
Security Administration, U.S. Department of
Labor.
[FR Doc. 2022–27334 Filed 12–15–22; 8:45 am]
BILLING CODE 4510–29–P
DEPARTMENT OF LABOR
lotter on DSK11XQN23PROD with NOTICES1
Employment and Training
Administration
Labor Certification Process for the
Temporary Employment of Foreign
Workers in Agriculture in the United
States: Adverse Effect Wage Rate for
Range Occupations in 2023
Employment and Training
Administration, Department of Labor.
AGENCY:
5 The hearing did not continue on November 18,
2022, because the Department was able to schedule
all witnesses that requested to testify on one day.
VerDate Sep<11>2014
20:05 Dec 15, 2022
Jkt 259001
ACTION:
Notice.
The Employment and
Training Administration of the
Department of Labor (DOL) is issuing
this notice to announce the 2023
Adverse Effect Wage Rate (AEWR) for
the employment of temporary or
seasonal nonimmigrant foreign workers
(H–2A workers) to perform herding or
production of livestock on the range.
AEWRs are the minimum wage rates
DOL has determined must be offered
and paid by employers to H–2A workers
and workers in corresponding
employment to help ensure the
Department meets its statutory
obligation to certify that the
employment of H–2A foreign workers
will not have an adverse effect on the
agricultural wages of workers in the
United States (U.S.) similarly employed
will not be adversely affected. In this
notice, DOL announces the annual
update of the AEWR for workers
engaged in the herding or production of
livestock on the range, as required by
the methodology previously established
in 2015.
DATES: The rate is effective January 1,
2023.
FOR FURTHER INFORMATION CONTACT:
Brian Pasternak, Administrator, Office
of Foreign Labor Certification,
Employment and Training
Administration, Department of Labor,
N–5311, 200 Constitution Ave. NW,
Washington, DC 20210, Telephone:
(202) 693–8200 (this is not a toll-free
number). Individuals with hearing or
speech impairments may access the
telephone number above via TTY by
calling the toll-free Federal Information
Relay Service at 1 (877) 889–5627 (TTY/
TDD).
SUPPLEMENTARY INFORMATION: The U.S.
Citizenship and Immigration Services of
the Department of Homeland Security
will not approve an employer’s petition
for the admission of H–2A
nonimmigrant temporary and seasonal
agricultural workers in the U.S. unless
the petitioner has received an H–2A
labor certification from DOL. The H–2A
labor certification provides that (1) there
are not sufficient U.S. workers who are
able, willing, and qualified and who
will be available at the time and place
needed to perform the labor or services
involved in the petition; and (2) the
employment of the foreign worker(s) in
such labor or services will not adversely
affect the wages and working conditions
of workers in the U.S. similarly
employed. See 8 U.S.C.
1101(a)(15)(H)(ii)(a), 1184(c)(1), and
1188(a); 8 CFR 214.2(h)(5); 20 CFR
655.100.
SUMMARY:
PO 00000
Frm 00085
Fmt 4703
Sfmt 4703
77141
Adverse Effect Wage Rate for 2023
DOL’s H–2A regulations covering the
herding or production of livestock on
the range, published in the Federal
Register as the Temporary Agricultural
Employment of H–2A Foreign Workers
in the Herding or Production of
Livestock on the Range in the United
States, 80 FR 62958 (Oct. 16, 2015),
provide that employers must offer,
advertise in recruitment, and pay each
worker employed under 20 CFR 655.200
through 655.235 a wage that is at least
the highest of (1) the monthly AEWR,
(2) the agreed-upon collective
bargaining wage, or (3) the applicable
minimum wage imposed by Federal or
State law or judicial action. See 20 CFR
655.210(g); 655.211(a)(1). Further, when
the monthly AEWR is adjusted during a
work contract and is higher than both
the agreed-upon collective bargaining
wage and the applicable minimum wage
imposed by Federal or State law or
judicial action in effect at the time the
work is performed, the employer must
pay that adjusted monthly AEWR upon
publication by DOL in the Federal
Register. See 20 CFR 655.211(a)(2).
As provided in 20 CFR 655.211(c)(2),
the monthly AEWR for range
occupations in all States for a calendar
year is based on the monthly AEWR for
the previous calendar year ($1,807.23),
adjusted by the Employment Cost Index
(ECI) for wages and salaries published
by the Bureau of Labor Statistics for the
preceding annual period. The 12-month
change in the ECI for wages and salaries
of private industry workers between
September 2021 and September 2022
was 5.2 percent, resulting in a monthly
AEWR for range occupations in effect
for 2023 of $1,901.21.1 The national
monthly AEWR rate for all range
occupations in the H–2A program in
2023 is calculated by multiplying the
monthly AEWR for calendar year 2022
by the October 2022 ECI adjustment
($1,807.23 × 1.052 = $1,901.21) or
$1,901.21. Accordingly, any employer
certified or seeking certification for
range workers must pay each worker a
wage that is at least the highest of the
1 The regulation at 20 CFR 655.211(c)(2) states
that the monthly AEWR is calculated based on the
ECI for wages and salaries ‘‘for the preceding
October–October period.’’ This regulatory language
was intended to identify the Bureau of Labor
Statistics’ (BLS) October publication of ECI for
wages and salaries, which presents data for the
September to September period. Accordingly, the
most recent 12-month change in the ECI for private
sector workers published on October 28, 2022, by
BLS was used for establishing the monthly AEWR
under the regulations. See https://www.bls.gov/
news.release/archives/eci_10282022.pdf. The ECI
for private sector workers was used rather than the
ECI for all civilian workers given the characteristics
of the H–2A herder workforce.
E:\FR\FM\16DEN1.SGM
16DEN1
77142
Federal Register / Vol. 87, No. 241 / Friday, December 16, 2022 / Notices
monthly AEWR of $1,901.21, the
agreed-upon collective bargaining wage,
or the applicable minimum wage
imposed by Federal or State law or
judicial action at the time work is
performed on or after the effective date
of this notice.
Authority: 20 CFR 655.211(b).
Brent Parton,
Acting Assistant Secretary for Employment
and Training, Labor.
[FR Doc. 2022–27333 Filed 12–15–22; 8:45 am]
BILLING CODE 4510–FP–P
DEPARTMENT OF LABOR
Employment and Training
Administration
Labor Certification Process for the
Temporary Employment of Foreign
Workers in Agriculture in the United
States: Adverse Effect Wage Rates for
Non-Range Occupations in 2023
Employment and Training
Administration, Department of Labor.
ACTION: Notice.
AGENCY:
lotter on DSK11XQN23PROD with NOTICES1
Adverse Effect Wage Rates for 2023
The Employment and
Training Administration of the
Department of Labor (DOL) is issuing
this notice to announce the 2023
Adverse Effect Wage Rates (AEWR) for
the employment of temporary or
seasonal nonimmigrant foreign workers
(H–2A workers) to perform agricultural
labor or services other than the herding
or production of livestock on the range.
AEWRs are the minimum wage rates the
DOL has determined must be offered
and paid by employers to H–2A workers
and workers in corresponding
employment to help ensure the
Department meets its statutory
obligation to certify that the
employment of H–2A foreign workers
will not have an adverse effect on the
wages of agricultural workers in the
United States (U.S.) similarly employed.
In this notice, DOL announces updates
of the AEWRs and the average AEWR,
which is used to calculate adjustments
to required bond amounts for H–2A
Labor Contractors.
DATES: These rates are applicable
January 1, 2023.
FOR FURTHER INFORMATION CONTACT:
Brian Pasternak, Administrator, Office
of Foreign Labor Certification,
Employment and Training
Administration, U.S. Department of
Labor, 200 Constitution Avenue NW,
Room N–5311, Washington, DC 20210,
telephone: (202) 693–8200 (this is not a
toll-free number). Individuals with
hearing or speech impairments may
access the telephone numbers above via
SUMMARY:
VerDate Sep<11>2014
20:05 Dec 15, 2022
Jkt 259001
TTY/TDD by calling the toll-free Federal
Information Relay Service at 1 (877)
889–5627.
SUPPLEMENTARY INFORMATION: The U.S.
Citizenship and Immigration Services of
the Department of Homeland Security
will not approve an employer’s petition
for the admission of H–2A
nonimmigrant temporary and seasonal
agricultural workers in the U.S. unless
the petitioner has received an H–2A
labor certification from DOL. The labor
certification provides that: (1) there are
not sufficient U.S. workers who are able,
willing, and qualified and who will be
available at the time and place needed
to perform the labor or services involved
in the petition; and (2) the employment
of the foreign worker(s) in such labor or
services will not adversely affect the
wages and working conditions of
workers in the U.S. similarly employed.
See 8 U.S.C. 1101(a)(15)(H)(ii)(a),
1184(c)(1), and 1188(a); 8 CFR
214.2(h)(5); 20 CFR 655.100.
DOL’s H–2A regulations at 20 CFR
655.122(l) provide that employers must
pay their H–2A workers and workers in
corresponding employment at least the
highest of: (i) the AEWR; (ii) a
prevailing wage rate if the Office of
Foreign Labor Certification (OFLC)
Administrator has approved a prevailing
wage survey for the applicable crop
activity or agricultural activity and, if
applicable, a distinct work task or tasks
performed in that activity; (iii) the
agreed-upon collective bargaining wage
rate; (iv) the Federal minimum wage
rate; or (v) the State minimum wage
rate, whichever is highest, for every
hour or portion thereof worked during
a pay period. Further, when the AEWR
is adjusted during a work contract and
is higher than the highest of the
previous AEWR, a prevailing rate for the
crop activity or agricultural activity and,
if applicable, a distinct work task or
tasks performed in that activity and
geographic area, the agreed-upon
collective bargaining wage, the Federal
minimum wage rate, or the State
minimum wage rate, the employer must
pay at least that adjusted AEWR upon
the effective date of the new rate, as
provided in the applicable Federal
Register Notice. See 20 CFR
655.120(b)(3). Similarly, when the
AEWR is adjusted during a work
contract and lower than the wage rate
that is guaranteed on the job order, the
employer must continue to pay at least
the wage rate guaranteed on the job
order. See 20 CFR 655.120(b)(4).
On November 5, 2020, DOL published
a final rule, Adverse Effect Wage Rate
PO 00000
Frm 00086
Fmt 4703
Sfmt 4703
Methodology for the Temporary
Employment of H–2A Nonimmigrants in
Non-Range Occupations in the United
States, 85 FR 70445 (2020 AEWR Final
Rule), to establish a new methodology
for setting hourly AEWRs, effective
December 21, 2020. Litigation followed
the 2020 AEWR Final Rule’s
publication. On December 23, 2020—
two days after the 2020 AEWR Final
Rule went into effect—the court in
United Farm Workers, et al. v. Dep’t of
Labor, et al., No. 20–cv–01690 issued an
order preliminarily enjoining the
Department from further implementing
the 2020 AEWR Final Rule and ordering
the Department to use the 2010 H–2A
Final Rule methodology for establishing
hourly AEWRs.1 On April 4, 2022, the
court vacated the 2020 AEWR Final
Rule.2 Accordingly, DOL has used the
methodology set forth in the 2010 H–2A
Final Rule to determine the 2023
AEWRs.
The 2023 AEWRs for all agricultural
employment (except for the herding or
production of livestock on the range,
which is covered by 20 CFR 655.200
through 655.235) for which temporary
H–2A certification is being sought is
equal to the annual weighted average
hourly wage rate for field and livestock
workers (combined) in the State or
region as published by the U.S.
Department of Agriculture (USDA) in
the November 23, 2022, Farm Labor
Report. DOL’s regulation, 20 CFR
655.120(b)(2), requires that the OFLC
Administrator publish the USDA field
and livestock worker (combined) wage
data as AEWRs in a Federal Register
Notice. Accordingly, the 2023 AEWRs to
be paid for agricultural work performed
by H–2A and workers in corresponding
employment on and after the effective
date of this notice are set forth in the
table below:
TABLE—2023 ADVERSE EFFECT WAGE
RATES
State 2023 AEWRs
Alabama ....................................
Arizona ......................................
Arkansas ...................................
California ...................................
Colorado ...................................
Connecticut ...............................
Delaware ...................................
Florida .......................................
Georgia .....................................
Hawaii .......................................
Idaho .........................................
Illinois ........................................
Indiana ......................................
Iowa ..........................................
1 509
$13.67
15.62
13.67
18.65
16.34
16.95
16.55
14.33
13.67
17.25
15.68
17.17
17.17
17.54
F. Supp. 3d 1225 (E.D. Cal. 2020).
20–cv–01690–DAD–BAK, 2022 WL 1004855
(E.D. Cal. April 4, 2022).
2 No.
E:\FR\FM\16DEN1.SGM
16DEN1
]]>Agencies
[Federal Register Volume 87, Number 241 (Friday, December 16, 2022)]
[Notices]
[Pages 77141-77142]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-27333]
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Employment and Training Administration
Labor Certification Process for the Temporary Employment of
Foreign Workers in Agriculture in the United States: Adverse Effect
Wage Rate for Range Occupations in 2023
AGENCY: Employment and Training Administration, Department of Labor.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The Employment and Training Administration of the Department
of Labor (DOL) is issuing this notice to announce the 2023 Adverse
Effect Wage Rate (AEWR) for the employment of temporary or seasonal
nonimmigrant foreign workers (H-2A workers) to perform herding or
production of livestock on the range. AEWRs are the minimum wage rates
DOL has determined must be offered and paid by employers to H-2A
workers and workers in corresponding employment to help ensure the
Department meets its statutory obligation to certify that the
employment of H-2A foreign workers will not have an adverse effect on
the agricultural wages of workers in the United States (U.S.) similarly
employed will not be adversely affected. In this notice, DOL announces
the annual update of the AEWR for workers engaged in the herding or
production of livestock on the range, as required by the methodology
previously established in 2015.
DATES: The rate is effective January 1, 2023.
FOR FURTHER INFORMATION CONTACT: Brian Pasternak, Administrator, Office
of Foreign Labor Certification, Employment and Training Administration,
Department of Labor, N-5311, 200 Constitution Ave. NW, Washington, DC
20210, Telephone: (202) 693-8200 (this is not a toll-free number).
Individuals with hearing or speech impairments may access the telephone
number above via TTY by calling the toll-free Federal Information Relay
Service at 1 (877) 889-5627 (TTY/TDD).
SUPPLEMENTARY INFORMATION: The U.S. Citizenship and Immigration
Services of the Department of Homeland Security will not approve an
employer's petition for the admission of H-2A nonimmigrant temporary
and seasonal agricultural workers in the U.S. unless the petitioner has
received an H-2A labor certification from DOL. The H-2A labor
certification provides that (1) there are not sufficient U.S. workers
who are able, willing, and qualified and who will be available at the
time and place needed to perform the labor or services involved in the
petition; and (2) the employment of the foreign worker(s) in such labor
or services will not adversely affect the wages and working conditions
of workers in the U.S. similarly employed. See 8 U.S.C.
1101(a)(15)(H)(ii)(a), 1184(c)(1), and 1188(a); 8 CFR 214.2(h)(5); 20
CFR 655.100.
Adverse Effect Wage Rate for 2023
DOL's H-2A regulations covering the herding or production of
livestock on the range, published in the Federal Register as the
Temporary Agricultural Employment of H-2A Foreign Workers in the
Herding or Production of Livestock on the Range in the United States,
80 FR 62958 (Oct. 16, 2015), provide that employers must offer,
advertise in recruitment, and pay each worker employed under 20 CFR
655.200 through 655.235 a wage that is at least the highest of (1) the
monthly AEWR, (2) the agreed-upon collective bargaining wage, or (3)
the applicable minimum wage imposed by Federal or State law or judicial
action. See 20 CFR 655.210(g); 655.211(a)(1). Further, when the monthly
AEWR is adjusted during a work contract and is higher than both the
agreed-upon collective bargaining wage and the applicable minimum wage
imposed by Federal or State law or judicial action in effect at the
time the work is performed, the employer must pay that adjusted monthly
AEWR upon publication by DOL in the Federal Register. See 20 CFR
655.211(a)(2).
As provided in 20 CFR 655.211(c)(2), the monthly AEWR for range
occupations in all States for a calendar year is based on the monthly
AEWR for the previous calendar year ($1,807.23), adjusted by the
Employment Cost Index (ECI) for wages and salaries published by the
Bureau of Labor Statistics for the preceding annual period. The 12-
month change in the ECI for wages and salaries of private industry
workers between September 2021 and September 2022 was 5.2 percent,
resulting in a monthly AEWR for range occupations in effect for 2023 of
$1,901.21.\1\ The national monthly AEWR rate for all range occupations
in the H-2A program in 2023 is calculated by multiplying the monthly
AEWR for calendar year 2022 by the October 2022 ECI adjustment
($1,807.23 x 1.052 = $1,901.21) or $1,901.21. Accordingly, any employer
certified or seeking certification for range workers must pay each
worker a wage that is at least the highest of the
[[Page 77142]]
monthly AEWR of $1,901.21, the agreed-upon collective bargaining wage,
or the applicable minimum wage imposed by Federal or State law or
judicial action at the time work is performed on or after the effective
date of this notice.
---------------------------------------------------------------------------
\1\ The regulation at 20 CFR 655.211(c)(2) states that the
monthly AEWR is calculated based on the ECI for wages and salaries
``for the preceding October-October period.'' This regulatory
language was intended to identify the Bureau of Labor Statistics'
(BLS) October publication of ECI for wages and salaries, which
presents data for the September to September period. Accordingly,
the most recent 12-month change in the ECI for private sector
workers published on October 28, 2022, by BLS was used for
establishing the monthly AEWR under the regulations. See https://www.bls.gov/news.release/archives/eci_10282022.pdf. The ECI for
private sector workers was used rather than the ECI for all civilian
workers given the characteristics of the H-2A herder workforce.
---------------------------------------------------------------------------
Authority: 20 CFR 655.211(b).
Brent Parton,
Acting Assistant Secretary for Employment and Training, Labor.
[FR Doc. 2022-27333 Filed 12-15-22; 8:45 am]
BILLING CODE 4510-FP-P
