Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States, 12760-12802 [2023-03756]

Agencies

• Employment and Training Administration
• DEPARTMENT OF LABOR

[Federal Register Volume 88, Number 39 (Tuesday, February 28, 2023)]
[Rules and Regulations]
[Pages 12760-12802]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-03756]



[[Page 12759]]

Vol. 88

Tuesday,

No. 39

February 28, 2023

Part III





 Department of Labor





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Employment and Training Administration





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20 CFR Part 655





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

Federal Register / Vol. 88, No. 39 / Tuesday, February 28, 2023 / 
Rules and Regulations

[[Page 12760]]


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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

[DOL Docket No. ETA-2021-0006]
RIN 1205-AC05


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

AGENCY: Employment and Training Administration, Department of Labor.

ACTION: Final rule.

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

DATES: This final rule is effective on March 30, 2023.

FOR FURTHER INFORMATION CONTACT: Brian Pasternak, Administrator, Office 
of Foreign Labor Certification, Employment and Training Administration, 
U.S. Department of Labor, 200 Constitution Avenue NW, Room N-5311, 
Washington, DC 20210, telephone: (202) 693-8200 (this is not a toll-
free number). Individuals with hearing or speech impairments may access 
the telephone numbers above via TTY/TDD by calling the toll-free 
Federal Information Relay Service at 1 (877) 889-5627.

SUPPLEMENTARY INFORMATION: 

Preamble Table of Contents

I. Background
    A. Legal Authority
    B. Purpose for the Regulatory Action
    C. Recent Rulemaking
    D. Implementation of This Final Rule
II. Summary of Proposed Changes to the AEWR Methodology and the 
Changes Adopted in This Final Rule
    A. General Overview of Comments
    B. Definition of AEWR
    C. AEWR Methodology
    D. Out-of-Scope Comments on the Proposed Rule
III. Administrative Information
    A. Executive Order 12866: Regulatory Planning and Review; and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Regulatory Flexibility Analysis and Small Business Regulatory 
Enforcement Fairness Act and Executive Order 13272: Proper 
Consideration of Small Entities in Agency Rulemaking

Table of Acronyms and Abbreviations

AEWR Adverse Effect Wage Rate
ALS Agricultural Labor Survey
ARIMA Autoregressive integrated moving average
ASB Agricultural Statistics Board
BLS Bureau of Labor Statistics
CFR Code of Federal Regulations
CO Certifying Officer
CPS Current Population Survey
CY calendar year
DOL U.S. Department of Labor
DWL deadweight loss
E.O. Executive Order
ECI Employment Cost Index
ETA Employment and Training Administration
FLR Farm Labor Report
FLS Farm Labor Survey
FY Fiscal Year
GVW Gross Vehicle Weight
H-2ALC H-2A Labor Contractor
INA Immigration and Nationality Act
IRCA Immigration Reform and Control Act of 1986
NAICS North American Industry Classification System
NASS National Agricultural Statistics Service
NPC National Processing Center
NPRM Notice of Proposed Rulemaking
O*NET Occupational Information Network
OES Occupational Employment Statistics
OEWS Occupational Employment and Wage Statistics
OFLC Office of Foreign Labor Certification
OIRA Office of Information and Regulatory Affairs
OMB Office of Management and Budget
Pub. L. Public Law
RFA Regulatory Flexibility Act of 1980
RIA Regulatory impact analysis
SBA Small Business Administration
SOC Standard Occupational Classification
Stat. U.S. Statutes at Large
SWA State Workforce Agency
U.S. United States
U.S.C. United States Code
USCIS U.S. Citizenship and Immigration Service
USDA U.S. Department of Agriculture
WHD Wage and Hour Division

I. Background

A. Legal Authority

    The Immigration and Nationality Act (INA), as amended by the 
Immigration Reform and Control Act of 1986 (IRCA), establishes an ``H-
2A'' nonimmigrant visa classification for a worker ``having a residence 
in a foreign country which he has no intention of abandoning who is 
coming temporarily to the United States to perform agricultural labor 
or services . . . of a temporary or seasonal nature.'' 8 U.S.C. 
1101(a)(15)(H)(ii)(a); see also 8 U.S.C. 1184(c)(1), 1188.\1\ Among 
other things, a prospective H-2A employer must first apply to the 
Secretary for a certification that (1) there are not sufficient workers 
who are able, willing, and qualified, and who will be available at the 
time and place needed to perform the labor or services involved in the 
petition, and (2) the employment of the H-2A workers in such services 
or labor will not adversely affect the wages and working conditions of 
workers in the United States similarly employed. 8 U.S.C. 1188(a)(1). 
The INA prohibits the Secretary from issuing this certification--known 
as a ``temporary agricultural labor certification''--unless both of the 
above-referenced conditions are met and none of the conditions in 8 
U.S.C. 1188(b) apply concerning strikes or lock-outs, labor 
certification program debarments, workers'

[[Page 12761]]

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 
Administrator, Wage and Hour Division (WHD), the responsibility under 
section 218(g)(2) of the INA, 8 U.S.C. 1188(g)(2), to ensure employer 
compliance with the terms and conditions of employment under the H-2A 
program.\3\ Since 1987, the Department has operated the H-2A temporary 
agricultural labor certification program under regulations it 
promulgated pursuant to the INA. The standards and procedures 
applicable to the certification and employment of workers under the H-
2A program are found in 20 CFR part 655, subpart B, and 29 CFR part 
501.
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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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    When creating the H-2A visa classification, Congress charged the 
Department with, among other things, regulating the employment of 
nonimmigrant foreign workers in agriculture to guard against adverse 
impact on the wages of agricultural workers in the United States 
similarly employed. See 8 U.S.C. 1188(a)(1)(B). Congress, however, did 
not ``define adverse effect and left it in the Department's discretion 
how to ensure that the [employment] of farmworkers met the statutory 
requirements.'' \4\ Thus, the Department has discretion to determine 
the methodological approach that best allows it to meet its statutory 
mandate.\5\ The INA ``requires that the Department serve the interests 
of both farmworkers and growers--which are often in tension. That is 
why Congress left it to [the Department's] judgment and expertise to 
strike the balance.'' \6\
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    \4\ AFL-CIO, et al. v. Dole, 923 F.2d 182, 184 (D.C. Cir. 1991).
    \5\ United Farmworkers v. Solis, 697 F. Supp. 2d 5, 8-11 (D.D.C. 
2010).
    \6\ Dole, 923 F.2d ad 187.
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    The AEWR is one of the primary ways the Department meets its 
statutory obligation to certify that the employment of H-2A workers 
will not have an adverse effect on the wages of agricultural workers in 
the United States similarly employed, while ensuring that employers can 
access legal agricultural labor. There is no statutory requirement that 
the Department determine the AEWR at the highest conceivable point, nor 
at the lowest, so long as it serves its purpose to guard against 
adverse impact on the wages of agricultural workers in the United 
States similarly employed.\7\ The Department also considers factors 
relating to the sound administration of the H-2A program in deciding 
how to determine the AEWR.
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    \7\ See 68 FR 11,460, 11,464 (Apr. 9, 1987) (``[T]he labor 
certification program is not the appropriate means to escalate 
agricultural earnings above the adverse effect level or to set an 
`attractive wage.''').
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B. Purpose for the Regulatory Action

    The Department has determined this rulemaking is necessary to 
ensure that the employment of H-2A foreign workers will not have an 
adverse effect on the wages of agricultural workers in the United 
States similarly employed. As discussed in the notice of proposed 
rulemaking (NPRM) published on December 1, 2021, concerns about the 
employment of foreign workers adversely affecting the wages of 
agricultural workers in the United States similarly employed are 
heightened in the H-2A program because the program involves an 
especially vulnerable population.\8\ Setting the AEWR and requiring 
employers who desire to employ H-2A foreign workers to offer, 
advertise, and pay at least the AEWR when it is the highest applicable 
wage is one of the primary regulatory controls the Department uses to 
meet its statutory obligation to certify that the employment of H-2A 
foreign workers will not have an adverse effect on the wages of 
agricultural workers in the United States similarly employed.\9\ The 
AEWR's role in the Department's administration of the H-2A program is 
distinct from and complementary to local prevailing wage findings, 
which are specific to a particular crop or agricultural activity. In 
the absence of a local prevailing wage finding, or where there is a 
local prevailing wage finding but that finding is lower than the 
prevailing wage of workers performing similar work within an 
occupational classification and broader geographic area (e.g., 
statewide or regional), the AEWR establishes a wage floor that serves 
to prevent localized wage stagnation or depression relative to the 
wages of workers similarly employed in areas and occupations in which 
employers desire to employ H-2A workers.
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    \8\ See Proposed Rule, Adverse Effect Wage Rate Methodology for 
the Temporary Employment of H-2A Nonimmigrants in Non-Range 
Occupations in the United States, 86 FR 68174, 68176 (Dec. 1, 2021) 
(2021 AEWR NPRM).
    \9\ An employer seeking H-2A workers is required to offer, 
advertise in its recruitment, and agree to pay a wage that is at 
least equal to the AEWR, the prevailing hourly wage rate, the 
prevailing piece rate, the agreed-upon collective bargaining rate, 
or the Federal or State minimum wage rate, in effect at the time 
work is performed, whichever is highest, and pay at least that rate 
to workers for every hour or portion thereof worked during a pay 
period. 20 CFR 655.120(a), 655.121(l).
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    The Department has expressed concerns with the current methodology 
used to determine the AEWR in the H-2A program, which was set forth in 
the 2010 Final Rule,\10\ and has engaged in rulemaking activities to 
address its concerns.\11\ As discussed below regarding recent 
rulemaking and related litigation, the Department determined that the 
2010 Final Rule AEWR methodology does not adequately prevent adverse 
effect on the wages of agricultural workers in the United States 
similarly employed in two principal ways. First, the 2010 Final Rule 
AEWR methodology uses Farm Labor Survey (FLS) wage data for field and 
livestock workers (combined) to determine a single AEWR for all non-
range H-2A job opportunities in each State or region, including job 
opportunities in Standard Occupational Classification (SOC) codes that 
the FLS does not include in the field and livestock worker (combined) 
data collection (e.g., supervisors, construction, logging, tractor-
trailer truck drivers). Not only is an AEWR determined under this 
methodology not reflective of the wages of workers performing similar 
work in those SOC codes, but the SOC codes not included in FLS field 
and livestock worker (combined) data collection generally account for 
more specialized or higher paid job opportunities. As a result, an AEWR 
determined using FLS field and livestock worker (combined) data does 
not adequately guard against adverse effect on the wages of 
agricultural workers similarly employed in the United States in these 
SOC codes. Second, the 2010 Final Rule AEWR methodology does not enable 
the Department to determine an AEWR for all geographic areas in which 
employers may seek to employ H-2A workers (e.g., Alaska or Puerto Rico) 
due to FLS' data collection methodology and procedures.\12\ Although 
the Department

[[Page 12762]]

requires consideration of several wage sources other than the AEWR 
(e.g., local prevailing wage finding, State or Federal minimum wages) 
to determine the minimum wage rate an employer must offer, advertise in 
its recruitment, and pay covered workers, not all of those wage sources 
are available or applicable to H-2A applications in all circumstances 
(e.g., a CBA or a local prevailing wage finding). Regardless of the 
availability or applicability of other wage sources, the AEWR currently 
serves as a primary wage source to protect against adverse effect 
relative to the wages of workers similarly employed in occupations and 
geographic areas included in FLS data collection. However, workers in 
geographic areas not included in FLS data collection procedures do not 
have an AEWR's protection against adverse effect.
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    \10\ Final Rule, Temporary Agricultural Employment of H-2A 
Aliens in the United States, 75 FR 6884 (Feb. 12, 2010) (2010 Final 
Rule).
    \11\ See, e.g., Proposed Rule, Temporary Agricultural Employment 
of H-2A Nonimmigrants in the United States, 84 FR 36168, 36171 (July 
26, 2019) (2019 NPRM); 2020 AEWR Final Rule, Adverse Effect Wage 
Rate Methodology for the Temporary Employment of H-2A Nonimmigrants 
in Non-Range Occupations in the United States, 85 FR 70445, 70447-
70465 (Nov. 5, 2020) (2020 AEWR Final Rule).
    \12\ USDA's National Agricultural Statistics Service (NASS) 
publishes Farm Labor Methodology and Quality Measures, a document 
that describes the methodology and quality measures used for the 
FLS. Most recently updated on May 25, 2022, this document may be 
accessed at https://www.nass.usda.gov/Publications/Methodology_and_Data_Quality/Farm_Labor/05_2022/fmlaqm22.pdf.
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    To address these concerns, this rule revises the methodology by 
which the Department determines the hourly AEWRs for non-range 
occupations (i.e., all occupations other than herding and production of 
livestock on the range).\13\ Using a combination of wage data reported 
by the USDA FLS and the Department's BLS OEWS survey, the methodology 
adopted in this final rule enables the Department to establish 
appropriate AEWRs in all geographic areas and for all SOC codes in 
which employers may seek to employ H-2A workers, which the Department 
considers a reasonable approach that strikes an appropriate balance 
under the INA, as discussed below.
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    \13\ Range occupations are subject to a minimum monthly AEWR, as 
set forth in 20 CFR 655.211(c).
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C. Recent Rulemaking

    As part of the comprehensive H-2A program notice of proposed 
rulemaking published on July 26, 2019 (2019 NPRM), the Department 
proposed to adjust the methodology used to establish the AEWRs in the 
H-2A program.\14\ That approach would have provided occupation-specific 
statewide hourly AEWRs for non-range occupations using data reported by 
FLS for the SOC code in the State or region,\15\ if available, or data 
reported by the OES (now OEWS) survey for the SOC code in the State, if 
FLS data in the State or region was not available. At the time, the 
Department explained that establishing AEWRs based on data more 
specific to the agricultural services or labor being performed under 
the SOC system would better protect against adverse effect on the wages 
of agricultural workers in the United States similarly employed. For 
example, the Department expressed concern that the AEWR methodology 
under the 2010 Final Rule could have had an adverse effect on the wages 
of workers in higher paid agricultural SOC codes, such as supervisors 
of farmworkers and construction laborers, whose wages may have been 
inappropriately lowered by use of a single hourly AEWR based on the 
wage data collected for the six SOC codes covering field and livestock 
workers (combined).\16\
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    \14\ See 84 FR 36168, 36171.
    \15\ For more information about the states and regions in the 
FLS survey, you may visit the following web page: https://
www.nass.usda.gov/Surveys/Guide_to_NASS_Surveys/Farm_Labor/
#:~:text=The%20Farm%20Labor%20Survey%20provides%20the%20basis%20for,t
urn%2C%20provide%20the%20basis%20for%20annual%20average%20estimates.
    \16\ See 84 FR 36168, 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 their comments were both in support of and in 
opposition to the proposed changes to establish occupation-specific 
hourly AEWRs for non-range occupations.\17\
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    \17\ A detailed discussion of the public comments as well as 
further background on the 2019 NPRM, specifically related to the 
hourly AEWR determinations, was included in the Department's 2020 
AEWR Final Rule and will not be restated here. See 85 FR 70445, 
70447-70465 (Nov. 5, 2020). The public comments are accessible in 
the public docket in regulations.gov. See https://www.regulations.gov/document/ETA-2019-0007-0002.
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    As the Department worked on drafting a comprehensive H-2A program 
final rule, USDA publicly announced, on September 30, 2020, its intent 
to cancel the planned October 2020 data collection and November 2020 
publication of the Agricultural Labor Survey (ALS) and Farm Labor 
Reports (better known as the FLS).\18\ The USDA's announcement created 
uncertainty regarding the annual average hourly gross wage rates for 
the six SOC codes covering field and livestock workers (combined) 
within the FLS that were necessary for the Department to establish and 
publish the hourly AEWRs for the next calendar year (CY) period on or 
before December 31, 2020, under the existing 2010 Final Rule 
methodology. To ensure AEWRs for each State were published before the 
end of CY 2020, the Department published the 2020 AEWR Final Rule on 
November 5, 2020, with an effective date of December 21, 2020.\19\ In 
revising the AEWR methodology in the 2020 AEWR Final Rule, the 
Department acknowledged that USDA had suspended FLS data collection on 
at least two prior occasions, and that the USDA decision to cancel both 
the October data collection and the related November 2020 report was 
the subject of ongoing litigation.\20\ In addition, the Department took 
into account the public comments received in response to the proposal 
to revise the AEWR methodology in the 2019 NRPM.
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    \18\ Notice of Revision to the Agricultural Labor Survey and 
Farm Labor Reports by Suspending Data Collection for October 2020, 
85 FR 61719 (Sept. 30, 2020); USDA NASS, Guide to NASS Surveys: Farm 
Labor Survey, https://www.nass.usda.gov/Surveys/Guide_to_NASS_Surveys/Farm_Labor (last modified Dec. 10, 2020); see 
also USDA NASS, USDA NASS to Suspend the October Agricultural Labor 
Survey (Sept. 30, 2020), https://www.nass.usda.gov/Newsroom/Notices/2020/09-30-2020.php.
    \19\ The Department's 2020 H-2A AEWR Final Rule revised the 
methodology by which the Department determines the hourly AEWR for 
non-range agricultural occupations, including the corresponding 
definition of the AEWR. The 2020 H-2A AEWR Final Rule addressed only 
that aspect of the 2019 NPRM, while the Department's Final Rule, 
Temporary Agricultural Employment of H-2A Aliens in the United 
States, 87 FR 61660 (Oct. 12, 2022) (2022 Final Rule) addressed the 
remaining aspects of the 2019 NPRM.
    \20\ 85 FR 70445, 70446.
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    The 2020 AEWR Final Rule set the 2021 AEWR for the six SOC codes 
covering field and livestock workers (combined) at the 2020 AEWR rates, 
which were based on results from FLS wage data published in November 
2019, and provided for those AEWRs to adjust annually, starting at the 
beginning of CY 2023, using the BLS Employment Cost Index (ECI), Wages 
and Salaries. For all other SOC codes, and for geographic areas not 
included in the FLS, the 2020 AEWR Final Rule set the 2021 AEWR at the 
statewide annual average hourly gross wage for the SOC code reported by 
the OEWS survey or, where a statewide average hourly gross wage is not 
reported, the national average hourly gross wage for the SOC code 
reported by the OEWS survey, to be adjusted annually based on the OEWS 
survey.
    Litigation challenging USDA's cancellation of the October data 
collection and November publication of the FLS followed USDA's 
September 30, 2020, announcement. On October 28, 2020, in United Farm 
Workers, et al. v. Perdue, et al., No. 20-cv-01452 (E.D. Cal. filed 
Oct. 13, 2020), the court preliminarily enjoined USDA from giving 
effect to its decision to cancel the October 2020 FLS data collection 
and cancel its November 2020 publication of the FLS.\21\ The USDA 
National

[[Page 12763]]

Agricultural Statistics Service (NASS) therefore proceeded with its 
data collection, and the USDA published the FLS report on February 11, 
2021.\22\ Meanwhile, the Department's 2020 AEWR Final Rule was 
challenged in United Farm Workers, et al. v. Dep't of Labor, et al., 
No. 20-cv-01690 (E.D. Cal. filed Nov. 30, 2020). On December 23, 2020--
two days after that rule went into effect--the court issued an order 
preliminarily enjoining the Department from further implementing 
it.\23\ Additionally, the court issued a supplemental order on January 
12, 2021, requiring the Department to publish the AEWRs for 2021 in the 
Federal Register on or before February 25, 2021, using the methodology 
set forth in the 2010 Final Rule, and to make those AEWRs effective 
upon their publication.\24\ Pursuant to the court's January 12, 2021, 
supplemental order, the Department published the 2021 AEWRs using the 
2010 Final Rule methodology on February 23, 2021, with an immediate 
effective date.\25\
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    \21\ United Farm Workers, 2020 WL 6318432 (E.D. Cal. Oct. 28, 
2020); see also United Farm Workers v. Perdue, 2020 WL 6939021 (E.D. 
Cal. Nov. 25, 2020) (denying USDA's motion to modify or dissolve the 
injunction).
    \22\ See USDA, Farm Labor Report (Feb. 11, 2021), https://downloads.usda.library.cornell.edu/usda-esmis/files/x920fw89s/f7624565c/9k420769j/fmla0221.pdf; see also Notice of Reinstatement 
of the Agricultural Labor Survey Previously Scheduled for October 
2020, 85 FR 79463 (Dec. 10, 2020).
    \23\ United Farm Workers, et al. v. U.S. Dep't of Labor, et al., 
509 F. Supp. 3d 1225 (E.D. Cal. 2020).
    \24\ Supplemental Order Regarding Preliminary Injunctive Relief, 
United Farm Workers, et al. v. U.S. Dep't of Labor, et al., No. 20-
cv-1690 (E.D. Cal. Jan. 12, 2021), ECF No. 39.
    \25\ See Labor Certification Process for the Temporary 
Employment of Aliens in Agriculture in the United States: 2021 
Adverse Effect Wage Rates for Non-Range Occupations, 86 FR 10996 
(Feb. 23, 2021).
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    In its order preliminarily enjoining the Department from further 
implementing its 2020 AEWR Final Rule, the court recognized that the 
Department has broad discretion in determining the methodology for 
setting the AEWR so long as the Department's approach is sufficiently 
explained.\26\ However, the court concluded that the plaintiffs were 
likely to succeed on their claims that the Department failed to justify 
freezing wages for two years, and failed to properly analyze the 
economic impact of the 2020 Final AEWR Rule on farmers.27 28 
In addition, the court found that, although the Department recognized 
``the importance of the AEWR reflecting the market rate'' throughout 
the 2020 AEWR Final Rule,\29\ the plaintiffs were likely to succeed on 
their claim that the Department failed to adequately explain its 
departure from its longstanding use of the FLS--which plaintiffs had 
asserted better reflected such market rates--to determine AEWRs for the 
field and livestock workers (combined) category.\30\
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    \26\ United Farm Workers, et al. v. U.S. Dep't of Labor, et al., 
509 F. Supp. 3d 1225, 1241 n.5 (E.D. Cal. 2020).
    \27\ Id. at 1241-42.
    \28\ Id. at 1243-45.
    \29\ Id. at 1241 (internal quotation and citation omitted).
    \30\ Id. at 1247-48.
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    In its decision granting plaintiffs' motion for summary judgment, 
the court adopted its rationale from its decision granting the 
requested preliminary injunction in holding that the 2020 Final Rule 
(1) did not protect against adverse effect as required by the INA, (2) 
did not adequately explain the 2-year wage freeze, and (3) failed to 
properly analyze the economic impact of the rule.\31\ Accordingly, the 
court vacated the 2020 Final AEWR Rule, and remanded to the Department 
for further rulemaking consistent with the court's opinion.\32\
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    \31\ United Farm Workers, et al. v. U.S. Dep't of Labor, et al., 
No. 20-cv-01690-DAD-BAK, 2022 WL 1004855, at *6-7 (E.D. Cal. April 
4, 2022).
    \32\ Id.
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D. Implementation of This Final Rule

    Any job order submitted to the OFLC National Processing Center 
(NPC) in connection with an Application for Temporary Employment 
Certification for H-2A workers and before the effective date of this 
final rule will be processed using the 2010 Final Rule methodology, 
under which the AEWR for all non-range H-2A job opportunities is equal 
to the annual average hourly gross wage rate for field and livestock 
workers (combined) in the State or region as reported by FLS.\33\ In 
addition, if an updated AEWR is published by the OFLC Administrator in 
the Federal Register during the work contract period for a temporary 
agricultural labor certification processed using the 2010 Final Rule 
methodology, and the updated AEWR is higher than the highest of the 
previous AEWR, the prevailing wage, the agreed-upon collective 
bargaining wage, or the Federal or State minimum wage in effect at the 
time the work is performed, the employer must pay at least the updated 
AEWR upon the effective date published in the Federal Register, as 
required by 20 CFR 655.120.\34\
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    \33\ Although a job order filed before the effective date of 
this rule is not subject to the AEWR methodology of this rule, it 
may be subject to the same AEWR as a job order for field and 
livestock workers filed on or after the effective date of this rule 
because an AEWR determined under the 2010 Final Rule's AEWR 
methodology is the same as an FLS-based AEWR determined under 
paragraph (b)(1)(i)(A) of this final rule.
    \34\ See 20 CFR 655.120(c) of the 2010 Final Rule (providing for 
AEWR adjustments ``at least once each calendar year'').
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    The methodology established by this final rule will apply to any 
job orders for non-range job opportunities submitted to the NPC in 
connection with an Application for Temporary Employment Certification 
for H-2A, as set forth in 20 CFR 655.121, on or after the effective 
date of this final rule, including job orders filed concurrently with 
an Application for Temporary Employment Certification to the NPC for 
emergency situations under 20 CFR 655.134. In order for employers to 
understand their wage obligations upon the effective date of this final 
rule, the Department is listing the statewide AEWRs applicable to the 
field and livestock workers (combined) category pursuant to 20 CFR 
655.120(b)(1)(i) of this final rule below and providing the URL that 
provides a search tool enabling interested parties to search by State 
and SOC code for the AEWR applicable to all other non-range job 
opportunities pursuant to 20 CFR 655.120(b)(1)(ii) of this final rule. 
In addition, the Department will post the AEWR applicable to each SOC 
code and geographic area contemporaneously with the publication of this 
final rule in the Federal Register on the OFLC website at https://www.dol.gov/agencies/eta/foreign-labor/. Employers will therefore have 
30 days from the date of the publication of this final rule to 
understand their new wage obligations before they go into effect.

 Table--Hourly AEWRS Determined Under Sec.   655.120(b)(1)(i) Effective
                       on or After March 30, 2023
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Alabama......................................................     $13.67
Alaska.......................................................      17.21
Arizona......................................................      15.62
Arkansas.....................................................      13.67
California...................................................      18.65
Colorado.....................................................      16.34
Connecticut..................................................      16.95
Delaware.....................................................      16.55
District of Columbia.........................................      20.33
Florida......................................................      14.33
Georgia......................................................      13.67
Guam.........................................................      10.40
Hawaii.......................................................      17.25
Idaho........................................................      15.68
Illinois.....................................................      17.17
Indiana......................................................      17.17
Iowa.........................................................      17.54
Kansas.......................................................      17.33
Kentucky.....................................................      14.26
Louisiana....................................................      13.67
Maine........................................................      16.95
Maryland.....................................................      16.55

[[Page 12764]]

 
Massachusetts................................................      16.95
Michigan.....................................................      17.34
Minnesota....................................................      17.34
Mississippi..................................................      13.67
Missouri.....................................................      17.54
Montana......................................................      15.68
Nebraska.....................................................      17.33
Nevada.......................................................      16.34
New Hampshire................................................      16.95
New Jersey...................................................      16.55
New Mexico...................................................      15.62
New York.....................................................      16.95
North Carolina...............................................      14.91
North Dakota.................................................      17.33
Ohio.........................................................      17.17
Oklahoma.....................................................      14.87
Oregon.......................................................      17.97
Pennsylvania.................................................      16.55
Puerto Rico..................................................       9.17
Rhode Island.................................................      16.95
South Carolina...............................................      13.67
South Dakota.................................................      17.33
Tennessee....................................................      14.26
Texas........................................................      14.87
Utah.........................................................      16.34
Vermont......................................................      16.95
Virgin Islands...............................................      13.24
Virginia.....................................................      14.91
Washington...................................................      17.97
West Virginia................................................      14.26
Wisconsin....................................................      17.34
Wyoming......................................................      15.68
------------------------------------------------------------------------

    Hourly AEWRs determined under Sec.  655.120(b)(1)(ii) effective on 
or after March 30, 2023 are available for each SOC code and geographic 
area using the search tool or searchable spreadsheet that may be 
accessed here: https://flag.dol.gov/.
    When the OFLC Administrator publishes subsequent updates to the 
AEWRs in the Federal Register, as required by 20 CFR 655.120(b)(2) of 
this final rule, the adjusted AEWRs will be effective on the date 
specified in the Federal Register notice.\35\ As of the effective date 
of an AEWR adjustment, the updated AEWR applies to both H-2A 
applications in process (e.g., filed, but no final determination made; 
or those with a final determination, but under appeal), and certified 
H-2A applications that remain in effect.\36\ If the AEWR is adjusted 
during a work contract period, the employer must reassess its wage 
obligation(s) under 20 CFR 655.122(l). If the new AEWR applicable to 
the employer's certified job opportunity is higher than the highest of 
the previous AEWR, the current prevailing hourly wage rate, the current 
prevailing piece rate, the current agreed-upon collective bargaining 
wage, the current Federal minimum wage rate, or the current State 
minimum wage rate, the employer must pay that adjusted AEWR upon the 
effective date of the new rate. See 20 CFR 655.120(b)(3). For a job 
order subject to the 2022 Final Rule, if the adjusted AEWR is lower 
than the rate guaranteed on the job order, the employer must continue 
to pay at least the rate guaranteed on the job order. See 20 CFR 
655.120(b)(4).
---------------------------------------------------------------------------

    \35\ See 20 CFR 655.120(b)(3) of the 2022 Final Rule, 87 FR at 
61796 (providing that ``the employer must pay at least the updated 
AEWR upon the effective date of the updated AEWR published in the 
Federal Register'').
    \36\ See 20 CFR 655.120(a) (requiring the employer to ``offer, 
advertise in its recruitment, and pay a wage that is at least the 
highest of'' the applicable wage sources) and 20 CFR 655.120(b)(3) 
and 655.122(l) (requiring the employer to increase a worker's pay 
due to an AEWR adjustment after certification, if applicable).
---------------------------------------------------------------------------

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

    On December 1, 2021, the Department issued the 2021 AEWR NPRM 
announcing its intent to amend the regulations governing the 
methodology by which it determines the hourly AEWRs for non-range H-2A 
occupations (i.e., all H-2A occupations other than herding and 
production of livestock on the range). See 86 FR 68174 (Dec. 1, 2021). 
Specifically, the Department proposed to use a single FLS-based AEWR 
for most agricultural work performed in a given State (i.e., work 
performed in the ``field and livestock workers (combined) occupational 
group'' reported by FLS). Only in the event FLS did not report a wage 
finding for the field and livestock workers (combined) occupational 
group (e.g., in Alaska, where FLS does not survey) would the OEWS serve 
as a wage source for setting the single statewide AEWR applicable to H-
2A job opportunities for field and livestock workers (combined) in that 
State or region, or equivalent district or territory. For each SOC code 
not included in the field and livestock workers (combined) occupational 
group reported by FLS, the Department proposed to use SOC-specific 
OEWS-based AEWRs in each State or equivalent district or territory. 
Additionally, for agricultural labor or services to be performed by H-
2A workers that cannot be encompassed within a single SOC code, the 
Department proposed to determine the AEWR using the SOC code assigned 
to the employer's job opportunity with the highest applicable AEWR.
    In addition, the Department proposed to continue to adjust the 
AEWRs for each State or region at least once in each calendar year. The 
Department explained that because the FLS is released in or around 
November and the OEWS is released in or around June, the Department 
intended to update the AEWRs through two separate annual announcements 
in the Federal Register. One Federal Register notice would announce 
annual adjustments to the AEWRs based on the FLS, effective on or about 
January 1, and a second Federal Register notice would announce annual 
adjustments to the AEWRs based on the OEWS survey, effective on or 
about July 1.
    Finally, the Department proposed to revise the definition of AEWR. 
The proposed definition clarified that the Department uses a different 
methodology to establish AEWRs for range occupations (i.e., job 
opportunities processed under the Department's herding and production 
of livestock regulations at 20 CFR 655.200 through 655.235) than it 
uses to establish AEWRs for non-range occupations. The Department 
explained that a different methodology is required to establish the 
national monthly AEWR for range occupations due to the nature of range 
occupations (i.e., occupational requirements for workers to be on call 
24 hours per day, 7 days a week, to perform herding and production of 
livestock duties on the range).
    The Department invited interested parties to submit written 
comments on all aspects of this proposal. Because the 2020 AEWR Final 
Rule had been preliminarily enjoined before the NPRM for this Final 
Rule was published, there was uncertainty as to whether the 2020 AEWR 
Final Rule would be vacated prior to the issuance of this Final Rule. 
The Department therefore sought comment on all aspects of the NPRM for 
this Final Rule that mirrored provisions in the 2020 AEWR Final Rule. 
In addition, the Department requested comments on use of the FLS and 
OEWS surveys and the conditions under which each survey should be used 
to establish the AEWR. For example, the Department sought comments on 
the continued use of a single statewide hourly AEWR for the field and 
livestock worker (combined) category, rather than statewide AEWRs for 
each SOC code within the FLS field and livestock workers (combined) 
category. In addition, the Department requested comments on use of the 
OEWS survey to establish the AEWR for the field and livestock workers 
(combined) category in the absence of the FLS or where the FLS does not 
report a wage finding for these SOC codes in a particular State or 
region or equivalent district or territory, and also sought comments on 
use of the OEWS to establish AEWRs for all job opportunities that do 
not fall within the

[[Page 12765]]

FLS field and livestock workers (combined) occupational group.
    The Department specifically stated that it was not considering 
eliminating the AEWR or changing the AEWR's role in determinations of 
an employer's required minimum wage rate in the H-2A program, for 
reasons explained at length in prior rulemakings, including in the 2020 
AEWR Final Rule and 2010 Final Rule.
    The comment period closed on January 31, 2022.

A. General Overview of Comments

    The Department received a total of 92 public comments in docket 
number ETA-2021-0006 in response to the 2021 AEWR NPRM prior to the 
comment submission deadline. The commenters represented a range of 
stakeholders from the public, private, and not-for-profit sectors. The 
Department received comments from a geographically diverse cross-
section of stakeholders. These commenters included workers' rights 
advocacy organizations, farm owners, trade associations for 
agricultural products and services, not-for-profit organizations 
interested in agricultural issues, and other organizations with an 
interest in farming, ranching, and other agricultural activities. 
Public sector commenters included State agencies, while private sector 
commenters included business owners, employer representatives, workers' 
rights advocacy groups, public policy organizations, and trade 
associations interested in agricultural and immigration-related issues. 
The Department recognizes and appreciates the value of comments, ideas, 
and suggestions from all those who commented on the proposal, and this 
final rule was developed after review and consideration of all public 
comments timely received in response to the 2021 AEWR NPRM.
    Among the comments received, the Department received 16 requests 
for an extension of the comment period for the 2021 AEWR NPRM.\37\ 
While the Department appreciates the issues raised concerning the 
public's opportunity to examine the rule and comment, the Department 
decided not to extend the comment period and posted its response in the 
rule's electronic docket (ETA-2021-0006-0046) for public viewing. In 
that response, the Department explained that the proposed changes would 
have an economic impact on the regulated community, and the 60-day 
comment period provided was consistent with the comment periods 
provided in rules on similar subject matter that were more 
comprehensive and complex. For example, the Department published the 
2019 NPRM, which proposed comprehensive revisions to the entire H-2A 
regulatory framework, including revisions to the AEWR methodology that 
were more complex than those proposed in the 2021 AEWR NPRM. The 2019 
NPRM received extensive public review and comments within the 60-day 
comment period even though the Department declined at that time to 
extend the comment period.
---------------------------------------------------------------------------

    \37\ The Department also received an ex parte communication 
during the comment period seeking clarification on one of the 
regulatory alternatives mentioned in the NPRM. The Department 
responded to the communication and posted the correspondence (ETA-
2021-0006-0013) on the public docket associated with this 
rulemaking.
---------------------------------------------------------------------------

    Most commenters specifically addressed one or more of the 
Department's proposed changes to the methodology used to determine the 
AEWR in the H-2A program, such as the Department's proposed use of FLS 
and OEWS as the wage sources for setting AEWRs and conditions under 
which each source would be used to determine the AEWR for a particular 
job opportunity. These comments are discussed in the subject-by-subject 
analysis below.
    Some commenters expressed support or opposition, generally, 
regarding the Department's rulemaking efforts to modify the AEWR 
methodology, regarding the AEWR, itself, or regarding the Department's 
balancing of employer and worker interests. For example, a variety of 
commenters asserted that there is no reason to change the methodology, 
or objected to the proposed changes by themselves without balancing 
them with other program changes or addressing the undocumented 
workforce. Some commenters expressed a preference for the current 
methodology (i.e., the 2010 Final Rule methodology) if the only 
alternative is the proposed 2020 AEWR Final Rule methodology. Comments 
from employers, trade associations, a law firm, and a government agency 
objected to both the 2010 AEWR methodology and the AEWR methodology 
proposed in the 2021 AEWR NPRM. In general, these commenters asserted 
that both the 2010 and 2021 (proposed) AEWR methodologies were 
disconnected from agricultural industry realities, such as labor 
shortages despite wage increases; the impact of labor and program costs 
on agricultural operations' viability and competitiveness in interstate 
and international markets; whether employers are able to absorb labor 
costs; and the impact of such costs on job availability, downstream 
industry, and food cost and supply.
    Other commenters expressed general concern about increases in 
required wage rates or asserted that the AEWR is too high, comparing it 
to the minimum wage rate or to general wage trends in the U.S. economy, 
using the ECI for comparison. Some commenters objected to the 
Department setting a wage floor, rather than permitting the employer to 
offer a wage based on work performance or experience, knowledge, 
loyalty, and contribution to the employer's operation. In contrast, a 
nonprofit public policy advocacy organization observed that farmworkers 
are not receiving unusually high wages or wages that are increasing at 
an unreasonable rate; rather, its review of wage data indicated that 
farmworkers are among the lowest-paid workers in the United States--
lower than other comparable low-paid workers--and the rate of 
farmworker wage changes over time has been reasonable and consistent 
with labor market trends, with the impact on farmers offset by rising 
productivity and/or output prices.
    Although the Department is sensitive to the commenters' general 
concerns, the Department notes the purpose of this rulemaking effort is 
to establish an AEWR methodology that guards against potential wage 
depression among similarly employed workers in areas where employers 
hire H-2A workers in accordance with H-2A program requirements. As 
stated above, the AEWR is a longstanding regulatory mechanism the 
Department uses to certify that the employment of H-2A workers will not 
adversely affect the wages of agricultural workers in the United States 
similarly employed. In addition, the Department's effort to improve the 
AEWR methodology through rulemaking is one part of the Department's 
larger efforts to update and improve the H-2A program within the scope 
of the Department's authority. Throughout the course of several 
rulemakings, the Department has articulated reasons for changing the 
AEWR methodology, including geographic limitations of the FLS survey 
and the need to address potential adverse effect on the wages of 
similarly employed workers in occupations outside the field and 
livestock workers (combined) occupations. The Department responds to 
specific comments about the proposed changes adopted by this final rule 
in the subject-by-subject analysis in Section II.B. Before beginning 
the subject-by-subject analysis, however, the Department here clarifies 
three significant

[[Page 12766]]

misconceptions about the 2021 AEWR NPRM reflected in the comments.
    First, one commenter objected to the Department's inclusion of any 
aspect of the 2020 AEWR Final Rule, noting that the rule was enjoined 
in Federal court. As discussed above, although the Federal court's 
decision determined that specific aspects of the methodology adopted in 
the 2020 AEWR Final Rule were inconsistent with the Department's 
mandate to ensure employment of foreign workers does not adversely 
affect the wages and working conditions of workers in the United States 
similarly employed, the Department reevaluated the 2020 AEWR Final 
Rule's provisions, in conjunction with the Federal court's findings, 
and proposed only aspects of the 2020 AEWR Final Rule that are 
consistent with the Department's objectives and the court's opinion. 
The Department solicited public comment on the specific aspects of the 
2020 AEWR Final Rule the Department proposed to retain, and these 
comments are addressed in subject-by-subject analysis in Section II.B.
    Second, some commenters misunderstood, or requested clarification 
regarding, the Department's statement in the 2021 AEWR NPRM that the 
proposed AEWR methodology would not change labor costs or wage 
requirements for the ``vast majority'' of H-2A job opportunities. The 
Department appreciates the opportunity to clarify. The Department 
proposed to retain the 2010 Final Rule AEWR methodology for field and 
livestock workers (combined) job opportunities, whenever the FLS 
reports the average hourly gross wage rate for field and livestock 
workers (combined) in a State or region. Apart from three instances in 
the past three decades in which USDA suspended the survey, which are 
discussed above, the FLS has consistently collected and reported wage 
data for field and livestock workers (combined) in 49 States. Thus, the 
Department's proposal would not change the methodology by which the 
AEWRs are established for field and livestock workers (combined) job 
opportunities in most of the United States. In addition, the FLS field 
and livestock workers (combined) category reports aggregate wage data 
covering six SOC titles and codes: Farmworkers and Laborers, Crop, 
Nursery and Greenhouse Workers (45-2092); Farmworkers, Farm, Ranch, and 
Aquacultural Animals (45-2093); Agricultural Equipment Operators (45-
2091); Packers and Packagers, Hand (53-7064); Graders and Sorters, 
Agricultural Products (45-2041); and All Other Agricultural Workers 
(45-2099). Based on the Department's program estimates, 98 percent of 
H-2A job opportunities are classified within these six SOC titles and 
codes.\38\ The Department acknowledges that some of the job 
opportunities within that 98 percent may involve some work that cannot 
be classified solely within the field and livestock workers (combined) 
occupational group and, instead, constitutes a combination of job 
duties covering multiple SOC codes subject to different AEWRs under the 
proposed methodology. However, as clarified in the subject-by-subject 
analysis in Section II.B, the Department anticipates the AEWRs 
established for the vast majority of H-2A job opportunities will not 
change under this final rule, and will impact H-2A wage requirements 
only for: (1) the small percentage of job opportunities that cannot be 
encompassed within the six SOC codes and titles in the FLS field and 
livestock workers (combined) reporting category, and (2) the small 
number of field and livestock workers (combined) job opportunities in 
States or regions, or equivalent districts or territories, for which 
the FLS does not report a wage (e.g., Alaska and Puerto Rico).
---------------------------------------------------------------------------

    \38\ Based on a review of H-2A applications certified during the 
5-year period of October 1, 2017, through September 1, 2022, OFLC 
certified 76,547 H-2A applications covering 1,484,699 worker 
positions across all SOCs. Of the total worker positions certified, 
1,459,792 (98.3%) worker positions were certified in the following 
six SOCs comprising the field and livestock workers (combined) 
category that the FLS reports: 3,056 worker positions as Graders and 
Sorters, Agricultural Products (45-2041); 86,157 worker positions as 
Agricultural Equipment Operators (45-2091); 1,302,604 worker 
positions as Farmworkers and Laborers, Crop, Nursery and Greenhouse 
(45-2092); 58,741 worker positions as Farmworkers, Farm, Ranch, and 
Aquacultural Animals (45-2093); 437 worker positions as Packers and 
Packagers, Hand (53-7064); and 8,797 worker positions as 
Agricultural Workers, All Other (45-2099). See https://www.dol.gov/agencies/eta/foreign-labor/performance (accessed September 12, 
2022).
---------------------------------------------------------------------------

    Third, comments reflecting employers' interests asserted a variety 
of objections to the Department continuing to require employers to 
adjust wage offers and rates of pay due to annual AEWR adjustments. An 
employer and a trade association expressed concern with wage increases 
after growers calculate payroll and receive loans for their production 
year or crop loan cycle, while a law firm expressed concern with wage 
increases after agricultural construction companies negotiate multiyear 
contracts with growers. An agent stated that AEWR adjustments appeared 
to require wage increases after the State Workforce Agency (SWA) has 
accepted a job order. Trade associations and employers objected to wage 
increases due to AEWR adjustments as infringing on negotiated 
employment contract terms. The Department appreciates the opportunity 
to clarify that wage requirement adjustments based on annual AEWR 
adjustments are not new for employers who choose to use the H-2A 
program. The 2010 H-2A Final Rule specified the employer's obligation 
to pay the wage rate ``in effect at the time work is performed,'' which 
required wage offer and payroll adjustments if the Department provided 
notice of an updated AEWR or prevailing wage determination higher than 
an employer's current wage offer or pay rate.\39\ In the 2022 Final 
Rule, the Department clarified and codified in 20 CFR 655.120(b)(3) and 
655.120(c)(3) an employer's wage adjustment obligation in the event of 
an AEWR or prevailing wage determination update.
---------------------------------------------------------------------------

    \39\ See 75 FR at 6901.
---------------------------------------------------------------------------

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

B. Definition of AEWR

    The Department proposed to define AEWR as ``[t]he wage rate 
published by the OFLC Administrator in the Federal Register for non-
range occupations as set forth in Sec.  655.120(b) and range 
occupations as set forth in Sec.  655.211(c),'' mirroring the 
definition in the 2020 AEWR Final Rule.
    One commenter opposed the use of any part of the 2020 AEWR Final 
Rule,

[[Page 12767]]

including the definition of AEWR, because of the litigation history in 
Federal court. The commentor misinterpreted the impact of the 
litigation, as the court's decision vacating the 2020 rule was 
unrelated to the definition of AEWR, and the court's vacatur of the 
2020 rule does not prevent the Department from proposing and 
subsequently adopting the same definition of AEWR in this rulemaking. 
The Department has reevaluated the definition of AEWR and determined 
that the definition adopted in the 2020 AEWR Final Rule and proposed in 
the 2021 AEWR NPRM remains consistent with the Department's objectives.
    The same commenter suggested that the Department, instead, continue 
to use the AEWR definition provided in the 2010 Final Rule, and wait 
for the FLS to adjust its methodology, an endeavor the commentor 
asserted is underway. The Department declines to adopt this suggestion, 
as the 2010 Final Rule definition \40\ is inconsistent with the 
methodology adopted in this final rule. In addition, the 2010 Final 
Rule definition failed to account for the distinct AEWR methodology 
applicable to H-2A range occupations, implemented in 2015.
---------------------------------------------------------------------------

    \40\ See 75 FR 6883, 6960 (defining AEWR as ``[t]he annual 
weighted average hourly wage for field and livestock workers 
(combined) in the States or regions as published annually by the 
USDA based on its quarterly wage survey'').
---------------------------------------------------------------------------

C. AEWR Methodology

1. Wage Sources Used To Determine the AEWR
    The Department proposed a contingency approach to calculate the 
AEWR in which the FLS is the primary data source for the overwhelming 
majority of workers with backup wage sources for each occupational 
classification grouping based on availability of wage source data. The 
Department recognizes that having contingencies in place when data are 
not available is a practical necessity in certain circumstances to 
determine an AEWR. Thus, the Department proposed to implement secondary 
and, in some instances, tertiary safeguards to determine the AEWR when 
data is not available using the primary wage source in a particular 
State or region.
    For the field and livestock workers (combined) occupational group 
within a given State or region, or equivalent district or territory, 
the Department proposed to determine the AEWR using, as its primary 
wage source, the annual average combined hourly gross wage from the 
USDA's NASS quarterly FLS for the State or region. Hourly wage rates 
are calculated based on employers' reports of total wages paid and 
total hours worked for all hired workers during the survey reference 
week each quarter. In the event FLS data is not available to calculate 
the AEWR for field and livestock workers in a particular State or 
region, or equivalent district or territory, the Department proposed to 
determine the AEWR using, as its secondary wage source, the OEWS 
statewide annual average hourly gross wage for the field and livestock 
workers (combined) category. In the event that neither the FLS nor the 
OEWS report a wage for the field and livestock workers (combined) 
category for a State, or equivalent district or territory, the 
Department proposed to determine the AEWR for the field and livestock 
workers (combined) category using, as its tertiary wage source, the 
OEWS national annual average hourly gross wage for the field and 
livestock workers (combined) category.
    For all SOC codes other than the six covering field and livestock 
workers (combined), the Department proposed to determine the AEWR 
using, as its primary wage source, the statewide annual average hourly 
gross wage for the SOC code for the State, or equivalent district or 
territory, as reported by the OEWS survey. In the event the OEWS survey 
does not report a statewide annual average hourly gross wage for the 
SOC code, the Department proposed to determine the AEWR for that State, 
or equivalent district or territory, using as its secondary wage 
source, the national annual average hourly gross wage for the SOC code, 
as reported by the OEWS survey. After considering public comments 
discussed in detail below, the Department has adopted these proposals 
without change.
a. The Department Will Use the FLS To Establish the AEWR for Field and 
Livestock Worker Job Opportunities in the Vast Majority of Cases
    The Department received some comments in support of its proposal to 
continue using the FLS to determine the AEWR for H-2A job opportunities 
for field and livestock workers. Several comments noted that the FLS 
provides the most accurate and reliable source of wage data to 
represent the field and livestock workers (combined) category. A trade 
association stated that the FLS is the only wage survey that collects 
data directly from farm and ranch employers. Additional comments in 
support of using the FLS over other data sources noted that the FLS 
most accurately captures seasonal peaks in farmworker wages by 
measuring wages quarterly (January, April, July, and October), and 
provides the most up-to-date data on worker wages by using only single-
year data. One of these commenters asserted that the Department's 
current proposal is not too burdensome or expensive to use and it 
provides consistency for employers and workers because--in most cases--
the AEWR methodology proposed is the same methodology the Department 
has used for more than three decades.
    The Department also received numerous comments opposing its 
proposal to continue using the FLS to determine the AEWR for H-2A 
applications for job opportunities in the field and livestock workers 
(combined) occupational group for various reasons. Several commenters 
asserted that the Department's use of the FLS to determine the AEWR is 
arbitrary and capricious and does not meet the Department's statutory 
obligations. A trade association stated that the proposal is ``likely 
to cost exponentially more than what the Department estimates to the 
users of the H-2A program and will most certainly drive some to shutter 
operations.'' Other commenters also expressed concern that using the 
FLS to determine the AEWR in the H-2A program would lead to curtailed 
operations, more automated processes, or closing farms. These 
commenters suggested that using the FLS would result in diminished job 
opportunities and an inadequate labor supply. Many of these commenters 
provided alternative suggestions, such as setting a static wage rate of 
115 percent of the Federal or State minimum wage, or adopting the 
Canadian model of farmworker wage setting (without providing any 
information regarding that model), which are addressed in the 
discussion of alternative methodology suggestions in this preamble, 
below.
    In response to commenters' concerns that the use of the FLS to 
determine the AEWR for H-2A job opportunities in the field and 
livestock workers (combined) occupational group will result in 
operational and labor supply issues for employers who choose to 
participate in the H-2A program, the Department reiterates that, with 
the exception of brief periods, it has used FLS data to establish the 
AEWR for such field and livestock job opportunities since 1987. While 
the Department is sensitive to the concerns raised, continuing to use 
FLS data will not introduce new operational or labor supply issues. In 
carrying out its statutory responsibility under the INA, the Department 
seeks to balance employers' and workers' interests by, among other 
things, using the best available actual wage data for workers in the 
United States similarly employed

[[Page 12768]]

(when available) to determine the AEWR.
    As discussed in the legal authority section above (Section I.A), 
the Department has discretion to determine the methodological approach 
that best allows it to meet its statutory mandate.\41\ The Department 
continues to believe the FLS is the best available wage source for 
establishing AEWRs covering the vast majority of H-2A job opportunities 
(i.e., the field and livestock workers (combined) category), whenever 
such data is available. The FLS is the most comprehensive survey of 
wages paid by farmers and ranchers.\42\ The data collected in the FLS 
allows the Department to establish AEWRs using the most current wage 
rates, which protects workers in the United States similarly employed 
against adverse effects on their wages resulting from the employment of 
foreign workers willing to work for less.
---------------------------------------------------------------------------

    \41\ See AFL-CIO v. Dole, 923 F.2d 182, 187 (D.C. Cir. 1991); 
AFL-CIO v. Brock, 835 F.2d 912, 915 (D.C. Cir. 1987).
    \42\ 85 FR 70445, 70458 (Nov. 5, 2020) (AEWR 2020 Final Rule); 
75 FR 6883, 6898-6899 (Mar. 15, 2010) (AEWR 2010 Final Rule).
---------------------------------------------------------------------------

    In addition, the Department considers the broad geographic scope of 
the survey an advantage of the FLS. The FLS consistently collects 
sufficient data to generate a wage finding for the field and livestock 
workers (combined) category in each State or region surveyed, making it 
a reliable source of wage data year-to-year. As explained in the 2021 
AEWR NPRM, the geographic scope of the FLS, covering California, 
Florida, and Hawaii, and 15 multi-State groupings for other States, and 
the statewide and regional wages issued ``provide[s] protection against 
wage depression that is most likely to occur in particular local areas 
where there is a significant influx of foreign workers.'' \43\ The 
broad geographic scope of the FLS is also ``consistent with both the 
nature of agricultural employment and the statutory intent of the H-2A 
program,'' reflecting the migratory pattern of many workers providing 
agricultural labor or services across wide areas, and Congress's 
recognition of ``this unique characteristic of the agricultural labor 
market with its statutory requirement that employers recruit for labor 
in multi-State regions as part of their labor market before receiving a 
labor certification . . . .'' \44\ The Department continues to believe 
that use of FLS data serves to prevent adverse effect on the wages of 
farmworkers in the United States by establishing a prevailing wage 
defined over a broader geographic area and over a broader occupational 
span (i.e., the six SOC codes covering all field and livestock workers 
(combined), rather than a narrow crop or job description).\45\ For 
similar reasons, the Department explained that the FLS-based AEWR may 
serve ``to mobilize domestic farm labor in neighboring counties and 
States to enter the subject labor market over the longer term and 
obviate the need to rely on . . . foreign labor on an ongoing basis.'' 
\46\
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    \43\ 86 FR 68174, 68180 (Dec. 1, 2021).
    \44\ 75 FR 6883, 6899 (Mar. 15, 2010).
    \45\ Id.
    \46\ Id.
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    Several commenters expressed concerns related to the accuracy, 
reliability, and future availability of FLS data. One of these 
commenters suggested that the Department's use of the FLS is 
``inconsistent, difficult to measure, and should be discontinued'' as a 
wage source to calculate the AEWR, without clearly explaining its 
characterization of the FLS as ``inconsistent'' and ``difficult to 
measure.'' In addition, this commenter asserted the FLS ``artificially 
inflates the reported wage'' both by not differentiating between the 
U.S. workforce and H-2A workforce--thereby creating an echo chamber of 
rising wages--and by including incentive pay such as piece rate, 
bonuses, and overtime. Noting that the FLS is used for various purposes 
other than determining AEWRs, two commenters suggested the Department 
should ``ensure it only uses the data that applies to its use . . .''. 
Another commenter suggested the Department should coordinate with the 
USDA to ensure that FLS data is accurate and does not result in 
creation of an artificial wage rate. To the extent the commenters 
suggested the Department change the FLS' methodology, those comments 
are beyond the scope of the present rule, as well as beyond the 
Department's authority. Regarding the comments directed toward the 
Department's continued reliance on the FLS to determine the AEWR and 
the value of the FLS for that purpose, the Department responds in this 
section.
    The USDA has conducted the FLS since 1910, and has developed 
extensive expertise analyzing, measuring, and assessing the accuracy 
and reliability of its annual wage estimates.\47\ USDA NASS publishes 
FLS data semiannually in May and November in the Farm Labor Report 
(FLR).\48\ The May report includes employment and wage estimates based 
on January and April reference weeks, and the November report includes 
estimates based on July and October reference weeks. In each case, the 
reference week is the Sunday to Saturday period that includes the 12th 
day of the month. The November report also provides annual data based 
on quarterly estimates. The Department uses the annual data from the 
November report to determine AEWRs.
---------------------------------------------------------------------------

    \47\ 86 FR 40802 (July 29, 2021).
    \48\ See USDA NASS, Surveys: Farm Labor, https://www.nass.usda.gov/Surveys/Guide_to_NASS_Surveys/Farm_Labor/.
---------------------------------------------------------------------------

    The scope, purpose, and statistical methodology for each FLR is 
extensively outlined in NASS's ``Methodologies and Quality Measures 
Report,'' which is published concurrently with each FLR publication. In 
the ``Methodologies and Quality Measures Report,'' the NASS states that 
``the employment and wage estimates published support USDA and DOL 
programs'' and inform other ``government agencies, educational 
institutions, farm organizations, and private sector employers of farm 
labor.'' \49\ Each FLR contains specific information about the types 
and purposes of the statistical methods used for analysis of the data 
collected in that round of the FLS. Additionally, each FLR outlines the 
quality metrics for that round of the FLS, including the sample size, 
response rate and outliers, calibration for survey nonresponses, and 
coefficient of variation for each survey. For the final step in the 
survey process, NASS convenes farm labor experts from its Agricultural 
Statistics Board (ASB), a panel of senior statisticians and program 
specialists, to perform a national review, reconcile the State-level 
evaluations to regional and national estimates, and prepare the 
official findings for release.
---------------------------------------------------------------------------

    \49\ Farm Labor Methodology and Quality Measures (May 2022), 
USDA, National Agricultural Statistics Service (May 25, 2022) 
https://www.nass.usda.gov/Publications/Methodology_and_Data_Quality/Farm_Labor/05_2022/fmlaqm22.pdf at 1.
---------------------------------------------------------------------------

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

[[Page 12769]]

statement had been made, it would not affect the Department's decision 
to utilize the FLS, particularly in light of other statements that 
contradict any such statement. For example, a 2019 Memorandum of 
Understanding (MOU) between USDA and the Department explicitly 
acknowledged the Department's ``continued and recurring bona fide need 
for the information provided by the [FLS], which will allow [DOL] to 
produce the official AEWRs.'' \50\ In enjoining the Department of 
Agriculture from suspending the 2020 FLS, a Federal district court 
cited this MOU, observing that ``USDA has recognized that FLS data is 
used . . . `by farm worker organizations to help set wage rates and 
negotiate labor contracts as well as determine the need for additional 
workers.' '' \51\ Subsequently, the Department of Agriculture issued a 
court-ordered notice of reinstatement of the Agricultural Labor 
Survey.\52\
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    \50\ United Farm Workers v. Perdue, No. 1:20-cv-01452-DAD-JLT, 
17-18 (E.D. Cal. Oct. 28, 2020) (citing USDA-DOL MOU at 2-6).
    \51\ United Farm Workers v. Perdue, No. 1:20-cv-01452-DAD-JLT, 
17-18 (E.D. Cal. Oct. 28, 2020) (citing USDA-DOL MOU at 2-6 and 83 
FR at 50632).
    \52\ 85 FR 79463 (December 10, 2020).
---------------------------------------------------------------------------

    Additionally, NASS itself recognizes on its website that ``the 
employment and wage estimates published in the Farm Labor report are 
used by Federal, State, and local government agencies; educational 
institutions; farm organizations; and private sector employers of farm 
labor.'' \53\ One of the listed current uses of FLS data includes the 
Department's use of the ``annual weighted average hourly wage rate for 
field and livestock workers combined'' to set the AEWR in the 
administration of the H-2A program.\54\ As the Department explains at 
length below and in prior rulemakings, ``only the FLS directly surveys 
farmers and ranchers and the FLS is recognized by the BLS as the 
authoritative source for data on agricultural wages.'' \55\ As the 
Department has noted, BLS refers the public to USDA and NASS for 
statistics on U.S. agriculture employment and wages.\56\ Therefore, the 
Department disagrees with the assertions made by these commenters.
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    \53\ https://www.nass.usda.gov/Surveys/Guide_to_NASS_Surveys/Farm_Labor/.
    \54\ https://www.nass.usda.gov/Surveys/Guide_to_NASS_Surveys/Farm_Labor/.
    \55\ 84 FR 36168, 36243 (Jul. 26, 2019); See also 85 FR 70445, 
70473 (Nov. 5, 2020).
    \56\ 84 FR at 36182 (citing OEWS Frequently Asked Questions, 
https://www.bls.gov/oes/oes_ques.htm, which states, ``[f]or 
statistics on the U.S. agricultural sector, please visit the United 
States Department of Agriculture's National Agricultural Statistics 
Service program website.'').
---------------------------------------------------------------------------

    Other commenters noted that the Department decided against using 
the FLS to determine the AEWR for range occupations, noting that ``the 
Department determined utilization of the FLS would harm herding 
operations by causing them to downsize or close altogether.'' The 
Department, however, issued separate regulations governing the 
employment and wages of foreign workers in jobs related to the herding 
or production of livestock on the range (i.e., range occupations) in 
2015,\57\ in recognition of the unique nature of such occupations, 
which made it necessary to use a different AEWR methodology.\58\ Such 
occupations are located in remote areas, and have nontraditional work 
schedules that generally require workers to be on call 24 hours per 
day, 7 days per week. Additionally, even prior to the 2015 Herder Final 
Rule, the Department generally relied on wage surveys, historically 
conducted by the SWAs, for range occupations. The nature of these 
occupations and scarcity of U.S. workers employed in such occupations 
made it difficult to conduct statistically valid wage surveys for these 
occupations, and the lack of adequate survey data ultimately resulted 
in 20 years of wage stagnation for workers in these range occupations. 
Due to the unique nature of the occupations, challenges in producing 
valid wage surveys, and the inadequacy of wages produced by these 
circumstances, the Department established a new methodology to 
determine a monthly AEWR for all range occupations.\59\ In contrast, 
non-range occupations do not present these unique circumstances that 
rendered use of the FLS for range occupations inadequate. Additionally, 
as discussed below, the Department declines to adopt an AEWR 
methodology that incorporates a broad index like the ECI as it did in 
the 2015 Herder Final Rule.
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    \57\ 2015 H-2A Herder Final Rule, 80 FR 62958. The Department 
recently rescinded Sec.  655.215(b)(2) in a separate rulemaking. 
Final Rule, Adjudication of Temporary and Seasonal Need for Herding 
and Production of Livestock on the Range Applications Under the H-2A 
Program, 86 FR 71373 (Dec. 16, 2021) (2021 H-2A Herder Final Rule).
    \58\ See 20 CFR 655.210(g) and 655.211(a).
    \59\ The Federal minimum wage serves as the basis for an initial 
national monthly wage rate (calculated based on a 48-hour workweek), 
and beginning in 2017, the Department adjusts the AEWR annually 
based on the ECI for wages and salaries. See 20 CFR 655.211(c).
---------------------------------------------------------------------------

b. The Department Will Use OEWS Data for Field and Livestock Workers 
(Combined) Only if FLS Data Is Not Available
    As set forth above, the Department's preference is to use the FLS, 
whenever possible, to determine the AEWR for all job opportunities that 
fall within the FLS field and livestock workers (combined) category. 
The Department recognizes, however, that there may be instances in 
which the FLS is unavailable to determine the AEWR for some or all such 
workers. In such circumstances, the Department believes that it is 
appropriate to determine the AEWR using the next best alternative data 
source (i.e., the OEWS), as discussed below.
    In the event the FLS cannot report the annual average hourly gross 
wage for the field and livestock workers (combined) category in a 
particular geographic area (e.g., in Alaska, which is not covered in 
FLS data) or in the unanticipated circumstance that the FLS survey 
becomes unavailable (e.g., suspension of the survey), the Department 
proposed to use the OEWS to determine a statewide AEWR for the field 
and livestock workers (combined) category. The Department also proposed 
a tertiary safeguard if neither the FLS nor the OEWS survey reports a 
statewide annual average hourly gross wage for the field and livestock 
workers (combined) category in a particular State, or equivalent 
district or territory. In these instances, the Department proposed to 
use the OEWS survey's national annual average hourly gross wage for the 
field and livestock workers (combined) category to determine the AEWR 
in that State. After consideration of comments, discussed below, the 
Department adopts this proposal without change.
    The Department received several comments opposed to use of the OEWS 
as a wage source to establish the AEWR for the field and livestock 
workers (combined) category, when the FLS is not available to do so. 
Some of these commenters generally opposed use of the OEWS to establish 
the AEWR or set a wage floor for primarily agricultural operations, 
while others expressed concern that use of the OEWS in these cases may 
disconnect the AEWR from actual market wages paid to workers employed 
on farms because the OEWS does not survey farms and ranches.
    The Department appreciates the concerns of the commenters, but 
maintains that the OEWS is the best available alternative source of 
wage data to use to determine the AEWR for the field and livestock 
worker (combined)

[[Page 12770]]

category if the FLS is not available. Aside from the FLS, the OEWS 
survey is the only comprehensive and statistically valid source of wage 
data for agricultural occupations and geographic areas common in the H-
2A program. The OEWS is also the wage source most consistent with the 
SOC-based wage collection of the FLS. Within the agricultural sector of 
the U.S. economy, the OEWS survey collects employment and hourly gross 
wage data from farm labor contractors that support fixed-site 
agricultural employers. Although the OEWS survey does not collect data 
from such fixed-site agricultural employers, the farm labor contractors 
surveyed by OEWS employ workers to provide agricultural labor or 
services similar to that of workers employed by fixed-site agricultural 
employers. In addition, farm labor contractors participate in the H-2A 
program and represent an increasing share of the H-2A worker positions 
certified by the Department.\60\ Data reported by these types of 
employers, therefore, represent the best information available for 
purposes of establishing the AEWRs when FLS data is unavailable. BLS 
has the capability of providing a single annual average hourly gross 
wage for the six SOC codes that comprise the field and livestock 
workers (combined) category that mirrors the FLS, at both the statewide 
and national levels, based on the OEWS survey data.\61\ The Department 
will make these OEWS-based AEWRs, both at the statewide and national 
levels, accessible to the public online.
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    \60\ For example, the proportion of all H-2A worker positions 
certified by DOL for employment in non-range occupations with 
employers qualifying as H-2A Labor Contractors (i.e., farm labor 
contractors) has increased significantly from 33.1 percent in FY 
2016 (54,787 positions out of 165,741 positions) to 42.6 percent in 
FY 2021 (135,314 positions out of 317,619 total positions) and 43.1 
percent through August FY 2022 (151,439 positions out of 351,268 
total positions).
    \61\ An overview of the OEWS survey methodology is available at 
https://www.bls.gov/oes/current/oes_tec.htm. An explanation of the 
survey standards and estimation procedures is available at https://www.bls.gov/opub/hom/oews/pdf/oews.pdf.
---------------------------------------------------------------------------

    One commenter suggested alternative AEWR determination methods 
would be unnecessary because, the commenter predicted, the FLS will 
always be available. On the contrary, there have been, currently are, 
and likely will be future instances where FLS data is unavailable to 
establish an AEWR for at least some workers. For example, FLS data has 
not been and currently is not available for AEWR determinations in 
certain locations such as Alaska and Puerto Rico. Additionally, the FLS 
may become unavailable in the future for reasons that cannot be 
anticipated. As previously noted, the Department does not have control 
over the FLS; the USDA does, and it could elect to suspend or even 
terminate the survey at some point in the future--as it has three times 
previously. In 2007 \62\ and 2011,\63\ the USDA did not conduct the 
survey due to budget constraints. In 2020, the USDA announced its 
intention to suspend data collection for the October 2020 survey,\64\ 
but was ultimately forced to conduct the survey by a federal court. 
Thus, in order to ensure the Department's ability to determine AEWRs in 
any circumstances in which the FLS is, or becomes, unavailable, the 
Department has identified the OEWS as its alternative source of wage 
data for the reasons discussed in the proposed rule and here.
---------------------------------------------------------------------------

    \62\ Notice of Intent to Suspend the Agricultural Labor Survey 
and Farm Labor Reports, 72 FR 5675 (Feb. 7, 2007).
    \63\ Notice of Intent to Suspend the Agricultural Labor Survey 
and Farm Labor Reports, 76 FR 28730 (May 18, 2011).
    \64\ 85 FR 61719.
---------------------------------------------------------------------------

c. The Department Will Use the OEWS Survey To Establish SOC-Specific 
AEWRs for All Other Job Opportunities
    For H-2A job opportunities that do not fall within the FLS field 
and livestock workers (combined) category, the Department proposed to 
use the OEWS survey to determine SOC-specific AEWRs. Under this 
methodology, the AEWR for all non-range SOC codes outside the field and 
livestock workers (combined) category would be the statewide annual 
average hourly gross wage for the SOC code, as reported by the OEWS 
survey. If the OEWS survey does not report a statewide annual average 
hourly gross wage for the SOC code, the AEWR for that State would be 
the national annual average hourly gross wage for the SOC code, as 
reported by the OEWS survey. In this final rule, the Department is 
adopting the OEWS-based, SOC-specific AEWR methodology for these job 
opportunities for the reasons explained below and in the 2020 AEWR 
Final Rule (which was vacated on other grounds).\65\
---------------------------------------------------------------------------

    \65\ 85 FR 70445, 70453, 70458-70459.
---------------------------------------------------------------------------

    The Department received several comments in support of using an 
OEWS-based AEWR determination for SOC codes outside of field and 
livestock workers (combined) category, as well as several comments in 
support of not using the FLS for SOC codes other than field and 
livestock workers. For example, two workers' rights advocacy 
organizations noted the FLS does not ``adequately or consistently 
survey'' farm employers about positions beyond the six field and 
livestock SOC codes, and many of the SOC codes outside the six field 
and livestock SOC codes are more often filled as contract positions 
than hired positions; thus, for positions outside the six field and 
livestock SOC codes, the advantages of FLS wage findings no longer 
apply. One of these two workers' rights organizations emphasized that 
the multisector reach of the OEWS survey does a better job of 
accurately reflecting market wage rates for positions such as truck 
drivers and construction workers whose work inherently includes work 
both in and outside the agricultural sector. The Department agrees with 
these commenters for the reasons outlined below.
    As the Department stated in the NPRM, the OEWS survey is a reliable 
and comprehensive wage survey that consistently produces annual average 
hourly gross wages for nearly all SOC codes other than the six codes 
covering the field and livestock workers (combined) occupational 
category and is, therefore, a better wage source for those other SOC 
codes. The OEWS survey, which began collecting occupational employment 
and wage data from employer establishments in 1996, is among the 
largest ongoing statistical survey programs of the Federal government, 
producing wage estimates for more than 800 SOC codes, and is used as 
the primary wage source for prevailing wage determinations in the H-2B 
temporary non-agricultural labor certification program, and other 
nonimmigrant and immigrant programs.\66\ The OEWS program surveys 
approximately 200,000 establishments every 6 months and over a 3-year 
period collects the full sample of 1.2 million establishments, 
accounting for approximately 57 percent of employers in the United 
States.\67\ Every 6 months, the oldest data from the previous 3-year 
cycle is removed and new data is added. The wages previously reported 
are adjusted by the ECI, which is a BLS index that measures the change 
in labor costs for businesses. The OEWS survey is conducted primarily 
by mail, with telephone follow-ups to nonrespondents, or, if needed, to 
clarify written responses.\68\ The OEWS

[[Page 12771]]

average \69\ hourly gross wage reported includes all gross pay, 
exclusive of premium pay, but including piece rate pay.
---------------------------------------------------------------------------

    \66\ See, e.g., 20 CFR 655.731(a)(2)(ii)(A) (H-1B program, for 
specialty (professional) workers) and 20 CFR 656.40(b)(2) (Permanent 
Labor Certification program, for permanent employment of foreign 
workers).
    \67\ See BLS, Occupational Employment and Wage Statistics 
Frequently Asked Questions, https://www.bls.gov/oes/oes_ques.htm 
(last modified Aug. 13, 2021).
    \68\ Id.
    \69\ The OEWS uses the term ``mean.'' However, for purposes of 
this regulation the Department uses the term ``average'' because the 
two terms are synonymous, and the Department has traditionally used 
the term ``average'' in setting the AEWR from the FLS.
---------------------------------------------------------------------------

    While the FLS is the most accurate and comprehensive wage source to 
determine the AEWRs for the field and livestock workers (combined) 
occupational group, the OEWS survey is a more accurate data source for 
other SOC codes common in agricultural operations, such as supervisors, 
that the FLS does not adequately or consistently survey, as noted above 
and in response to comments discussed below. In addition, the OEWS 
survey includes SOC codes that are more often contracted-for services 
(e.g., construction supporting farm production) than farmer-employed 
positions, which makes the OEWS data collection from farm labor 
contractors a more direct, relevant data source for determining AEWRs 
for these SOC codes than the FLS.
    The Department received several comments opposing the proposed use 
of the OEWS as a wage source because the OEWS does not survey fixed-
site agricultural employers directly. For that reason, some commenters 
asserted that using the OEWS survey as a wage source would not reflect 
the intricacies of the agricultural industry and would further remove 
the wages paid using this wage source from actual market wages in 
agriculture. For example, a trade association and an employer alleged 
that the use of OEWS-based AEWRs for SOC codes outside the six field 
and livestock workers (combined) category would force employers to pay 
workers what the commenters considered to be ``private sector rates'' 
for certain positions, such as truck drivers, farm managers, and farm 
mechanics. These commenters also shared the perspective that the skill 
sets needed for each of these positions is ``materially different'' in 
the agricultural versus non-agricultural sectors, primarily based on 
factors such as the location, scale, or commodity involved, rather than 
the qualifications or requirements of the work to be performed, a 
perspective the Department disagrees with and addresses further in 
Section II.C.4, below. Another employer stated that ``wages based on 
surveys outside of agriculture will skew labor costs out of our ability 
to pay.'' Similarly, an agent asserted that if the Department 
classifies a job opportunity using an inappropriate SOC code, the 
Department's OEWS-based methodology would ``widen the gap . . . in the 
direction of higher AEWRs than market conditions dictate.'' \70\ The 
Department is not persuaded for the reasons discussed below.
---------------------------------------------------------------------------

    \70\ Other commenters also addressed the potential for SOC code 
assignments that employers may view as inaccurate, including 
assignment of more than one SOC code to an employer's job 
opportunity; these comments are addressed in the Department's 
discussion of job opportunity evaluation and SOC code assignment in 
Sections II.C.3 and II.C.4, below.
---------------------------------------------------------------------------

    As noted in the 2020 AEWR Final Rule (vacated on other grounds) and 
the NPRM, the OEWS is more accurate than the FLS for SOC codes, such as 
supervisors, that the FLS does not adequately or consistently survey, 
and positions that are more often employed by farm labor contractors 
(e.g., construction supporting farm production) than by fixed-site 
agricultural employers; therefore, use of the OEWS will better protect 
against adverse effects for those SOC codes. In contrast, an AEWR based 
solely on the field and livestock worker (combined) category wage may 
have the effect of depressing wages in these other, typically higher-
paid SOC codes because the FLS field and livestock worker (combined) 
category does not reflect the wages in these SOC codes as accurately as 
the OEWS survey does. This aspect of the methodology under the 2010 
Final Rule did not adequately prevent adverse effects on the wages of 
such workers in the United States similarly employed, contrary to the 
Department's statutory mandate, as discussed above. In addition, 
whereas in 2010 H-2A Labor Contractors (H-2ALCs) comprised a much 
smaller percentage of participants in the H-2A program, H-2ALC 
participation has grown in recent years, which supports using OEWS wage 
data collected from farm labor contractors who employ workers to 
perform duties not covered by the six field and livestock workers 
(combined) category SOC codes, as an appropriate source of actual 
market wages in agriculture to determine the AEWR for these SOC 
codes.\71\
---------------------------------------------------------------------------

    \71\ For example, based on a review of OFLC H-2A certification 
data covering 2010 through 2019, the USDA Economic Research Service 
(ERS) reported that H-2ALCs (also known as Farm Labor Contractors 
(FLC)) have become the dominant employer type in the vegetable and 
melon sector--among the most labor-intensive agricultural sectors in 
the United States. Specifically, USDA ERS noted that ``the number of 
certifications obtained by both individual employers and FLCs 
increased every year between 2011 and 2019; however, the number of 
certifications obtained by FLCs increased faster, which led 
contractors to overtake individual employers in 2016. The share of 
certifications obtained by FLCs steadily increased from 17 percent 
in 2011 to its maximum of 57 percent in 2018, decreasing slightly to 
53 percent in both share and number in 2019.'' See USDA, Examining 
the Growth in Seasonal Agricultural H-2A Labor (August 2021), 
Economic Information Bulletin No. (EIB-226), https://www.ers.usda.gov/webdocs/publications/102015/eib-226.pdf?v=8349.1 
(accessed September 12, 2022). More recently and based on a review 
of H-2A applications covering all agricultural sectors certified by 
OFLC during the most recent 3 fiscal years covering October 1, 2019, 
through September 1, 2022, the proportion of H-2A worker positions 
certified for employers operating as H-2ALCs increased from 36 
percent in FY 2020 to more than 43 percent in FY 2022. In FY 2020, 
of the 275,430 worker positions certified nationally, 99,505 (or 
36.1 percent) were issued to H-2ALCs. From October 1, 2021, through 
September 1, 2022, for FY 2022, of the 352,103 worker positions 
certified nationally, 151,706 (or 43.1 percent) were issued to 
employers operating as H-2ALCs. See https://www.dol.gov/agencies/eta/foreign-labor/performance (accessed September 12, 2022).
---------------------------------------------------------------------------

    The Department understands the common concern of several employers 
and trade associations that OEWS-based AEWRs would, in some cases, 
result in wage increases compared to the FLS-based AEWR applicable 
under the 2010 Final Rule AEWR methodology. For example, a trade 
association compared average wages for the three SOC codes covering 
Construction Laborers, Bus Drivers, and Light Truck Drivers, based on 
the 2020 OEWS and the 2021 FLS, which showed that the 2020 OEWS for 
each occupation resulted in a higher AEWR than when using the 2021 FLS 
for field and livestock workers (combined). Based on its independent 
research, which is a topic the Department addresses in the 
Administrative Information section below (Section III), another trade 
association expressed concern that OEWS-based AEWRs would be 
significantly higher than the national average 2010 H-2A Final Rule 
FLS-based AEWR. These comments reflect the Department's concerns about 
the continued use of FLS-based AEWRs for SOC codes outside the field 
and livestock workers (combined) category not adequately addressing the 
Department's statutory mandate regarding all H-2A job opportunities, 
concerns that resulted in this rulemaking. In addition, some commenters 
appeared to believe, without providing supporting evidence, that using 
the OEWS survey would always produce SOC-specific AEWRs higher than the 
FLS rate for the field and livestock workers (combined) category, 
which, if true, would bolster the Department's concerns regarding 
adverse effect of the 2010 AEWR methodology and the need for 
rulemaking.
    As previously stated, the Department has discretion to determine 
the

[[Page 12772]]

methodological approach that best allows it to meet its statutory 
mandate.\72\ The Department remains cognizant of the fact that the 
``clear congressional intent was to make the H-2A program usable, not 
to make U.S. producers non-competitive'' and that ``[u]nreasonably high 
AEWRs could endanger the total U.S. domestic agribusiness, because the 
international competitive position of U.S. agriculture is quite 
fragile.'' \73\ However, the Department is not required to set the AEWR 
at the highest conceivable point, nor at the lowest, so long as it 
serves its purpose, and the Department may also consider factors 
relating to the sound administration of the H-2A program in deciding 
how to set the AEWR. The approach adopted in this final rule is 
reasonable and strikes an appropriate balance under the INA. The 
Department recognizes that the revised methodology may result in some 
AEWR increases in those SOC codes for which the Department will use the 
OEWS survey, depending upon geographic location and the specific SOC 
code. These changes, however, would be the result of the Department's 
use of more accurate occupational data that better reflect the actual 
wage paid, and thus better protect against adverse effect. In the 
Department's policy judgement, any incremental burden placed on 
employers is outweighed by the benefits attendant to better protection 
against adverse effect on the wages of workers in the United States 
similarly employed.
---------------------------------------------------------------------------

    \72\ 2020 AEWR final rule at 70450, 2021 AEWR NPRM at 68176, and 
Section I.A above, which cite AFL-CIO, et al. v. Dole, 923 F.2d 182, 
184 (D.C. Cir. 1991) (Congress did not ``define adverse effect and 
left it in the Department's discretion how to ensure that the 
[employment] of farmworkers met the statutory requirements.''); 
United Farmworkers v. Solis, 697 F. Supp. 2d 5, 8-11 (D.D.C. 2010) 
(the Department has discretion to determine the methodological 
approach that best allows it to meet its statutory mandate).
    \73\ 54 FR 28037, 28046 (July 5, 1989).
---------------------------------------------------------------------------

    With regards to commenter concerns about variation in OEWS-based 
AEWRs from year to year, the OEWS-based AEWRs generally would 
experience lower rates of change per year than the FLS AEWR variations 
to which employers are accustomed to adjusting. While the FLS 
calculates annual findings from quarterly estimates of data collected 
during a single year, ``each set of OE[W]S estimates is calculated from 
six panels of survey data collected over three years,'' an approach 
that moderates year-to-year fluctuation. However, as the AEWR 
methodology adopted in this final rule bases AEWR adjustments on 
changes in wages actually paid to similarly employed workers from year 
to year, annual variation in the AEWRs--both FLS-based AEWRs and OEWS-
based AEWRs--are normal and provide the best available information on 
changing market conditions.
    Several commenters were concerned that by factoring in wages in 
both non- metropolitan areas and metropolitan areas (where they assume 
wages are higher because of a higher cost of living), the use of a 
statewide OEWS wage would mean that employers in non-metropolitan areas 
would be required to pay inflated wages. Another commenter expressed a 
similar concern with respect to statewide or national AEWRs generally. 
Two additional commenters justified support for using OEWS wage data, 
rather than the FLS, for SOC codes outside of field and livestock 
workers (combined) category by noting that the OEWS produces available 
data at the local level, while the FLS does not capture data at this 
level of precision. While the OEWS can provide data at a smaller 
geographic level than statewide, such as by Metropolitan and Non-
Metropolitan Statistical Areas, the Department is adopting the proposal 
to use statewide OEWS data to better protect against localized wage 
depression. As explained in prior rulemakings, the Department is 
concerned about localized wage depression in the H-2A program, 
particularly because of the economic vulnerability of agricultural 
workers and the fact that the H-2A program is not subject to a 
statutory cap, which allows an unlimited number of nonimmigrant workers 
to enter a given local area.\74\ Thus, a statewide wage, which includes 
a broad variety of geographic areas, is more likely to protect against 
wage depression from a large influx of nonimmigrant agricultural 
workers that is most likely to occur at the local level.\75\ In the 
Department's policy judgment, even if the commenter's assumptions were 
accurate (e.g., that agricultural wage rates in metropolitan areas are 
higher than those in non-metropolitan areas; that metropolitan and non-
metropolitan areas house distinct labor markets), protecting a 
vulnerable workforce from wage depression outweighs potential concerns 
regarding potential upward pressure on wages that may occur because of 
the inclusion of metropolitan areas. For these reasons, the Department 
believes it is important to use the statewide OEWS wage where one 
exists for the particular SOC code. In the limited circumstances in 
which there is no statewide wage, use of the national annual average 
gross hourly wage reported for the particular SOC code will ensure an 
AEWR determination can be made each year for each SOC code outside of 
the field and livestock workers (combined) category.
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    \74\ See, e.g., 75 FR 6883, 6895.
    \75\ Id. at 6899 (The Department ``consistently has set 
statewide AEWRs rather than substate [ ] AEWRs because of the 
absence of data from which to measure wage depression at the local 
level'' and use of surveys reporting data at a broader geographic 
level ``immunizes the survey from the effects of any localized wage 
depression that might exist.'')
---------------------------------------------------------------------------

d. The Department's Decision Not To Use ECI-Adjusted AEWRs or Other 
Methodologies Suggested in Comments
    The Department received comments from employers, trade 
associations, agents, and workers' rights advocacy organizations 
suggesting alternative methods of determining the AEWR, including use 
of the ECI; use of the wage source that produces the highest wage, 
regardless of geographical or occupational scope; use of the median 
wage rate, instead of the mean; implementation of a two-tiered wage 
system permitting employers to pay foreign workers less; and imposition 
of caps on AEWR growth. As discussed below, the Department declines to 
adopt the suggested alternatives because none of them provides an 
administratively feasible method of allowing the Department to carry 
out its statutory mandate of ensuring that the employment of foreign 
workers will not adversely affect the wages of workers in the United 
States similarly employed.
    Several commenters suggested the Department reconsider use of a 
broad index like the ECI instead of using the FLS to determine the 
AEWR, and some specifically asserted these indices are less likely to 
be suspended than the FLS, and more likely to produce consistent, 
moderate wage increases. Such indices, the commenters asserted, would 
avoid wage stagnation among agricultural workers and ``provide wage 
stability [that] is critically important to the viability of the H-2A 
program.'' Three of these commenters also urged the Department to cap 
AEWR increases by setting a ``percentage-change `floor' and `ceiling' 
to further limit uncertainty.'' Some commenters suggested the 
Department should determine the AEWR based on ``one of the myriads of 
models passed in the U.S. House of Representatives,'' such as setting 
the AEWR at 115 percent of Federal or State minimum wage, or by using 
other similar models.
    As in prior rulemakings, some commenters also asserted that the 
Department should or must determine the existence of adverse effect in 
particular areas or occupations before issuing any AEWR determination. 
For

[[Page 12773]]

example, one commenter noted recent efforts to address truck driver 
labor shortages in the United States and asserted the Department 
``should provide additional analysis to determine if there is an 
adverse effect on U.S. workers given these current dynamics.'' However, 
as the Department and courts have long explained, the INA does not 
require DOL to prove or rely on the existence of past adverse effect 
but instead is focused on prevent[ing] future adverse effect.'' \76\ 
Further, the AEWR is one of the primary regulatory controls to 
prevent--not compensate for--adverse effects.
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    \76\ 54 FR 28,037, 28,046-47 (Jul. 5, 1989); 75 FR 6884, 6895 
(Feb. 12, 2010) (reiterating justification for protection against 
future adverse effect in 1989 rule); 73 FR 77110, 77167 (Dec. 18, 
2008) (noting the D.C. Circuit observed there is no ``statutory 
requirement to adjust for past wage depression''); see also 75 FR 
6884, 6891 (Feb. 12, 2010) (``By computing an AEWR to approximate 
the equilibrium wages that would result absent an influx of 
temporary foreign workers, the AEWR serves to put incumbent farm 
workers in the position they would have been in but for the H-2A 
program. In this sense, the AEWR avoids adverse effects . . .''); 
Overdevest Nurseries v. Walsh, 2 F.4th 977, 984 (D.C. Cir. 2021) 
(finding reasonable the Department's definition of ``corresponding 
employer'' based on prospective view of adverse effect, i.e., 
intended to prevent future adverse effect).
---------------------------------------------------------------------------

    In contrast, a nonprofit public policy advocacy organization and a 
workers' rights advocacy organization suggested the Department should 
use the wage sources that results in the highest wage rate, whether 
determined by either the FLS or OEWS, regardless of the SOC code or 
geographic level of specificity (e.g., the Department should consider 
State, regional, and national FLS data; and local, State, and national 
OEWS data, when determining the AEWR). Similarly, two commenters urged 
the Department to require the employer to pay the FLS-based AEWR to 
workers performing duties outside the six SOC codes covering field and 
livestock workers (combined) category, such as construction labor and 
first-line supervisor, if this wage is higher than the OEWS-based AEWR 
for the SOC code(s).
    The Department declines to adopt the use of the ECI or other broad 
indices to determine the AEWR, even if the use of such indices would 
provide greater wage continuity and predictability from year-to-year. 
Unlike the FLS and OEWS, which provide actual wage data in the States 
and regions where these workers are employed, the ECI provides a 
general measure of changes in the cost of labor across the private 
sector in the United States, but does not provide actual wage data for 
agricultural workers in particular geographic areas. In addition, the 
FLS--the Department's preferred wage source for establishing the AEWR 
for the field and livestock workers (combined) category--is again 
available, eliminating the Department's primary impetus for having 
elected to use the ECI to adjust AEWRs in future years under the since-
vacated 2020 AEWR Final Rule. Where the FLS is not available, the 
Department believes that the OEWS survey is better suited to 
determining the AEWR for H-2A applications involving non-range job 
opportunities, and a better substitute to use to determine the AEWR 
when the FLS is not available than using the ECI for adjusting AEWRs, 
because the OEWS survey provides actual wage data specifically tailored 
to geographic areas and non-range occupations common in the H-2A 
program.\77\ As the FLS and OEWS surveys both consistently report wage 
data annually, the Department declines to adopt an indexing mechanism, 
like the ECI, to determine the AEWR.
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    \77\ Since 2015, the Department has adjusted the AEWR applied to 
H-2A range occupations using the ECI. The nature of range 
occupations--located in remote areas, with non-traditional work 
schedules that generally require workers to be on call 24 hours per 
day, 7 days per week--required the Department to adopt a different 
AEWR methodology for range occupations than non-range occupations. 
See 80 FR 62958, 62986 (Oct. 16, 2015). The Department explained at 
length the reasoning for using a base minimum wage adjusted by the 
ECI for these occupations, rather than the FLS or OEWS. See 80 FR at 
62991-62992.
---------------------------------------------------------------------------

    The Department also declines to adopt a methodology that would set 
the AEWR at a predetermined minimum wage, such as the State minimum 
wage, or some version of an enhanced local, State, or Federal minimum 
wage. Such predetermined wages would be untethered from data on wages 
employers pay to workers in the United States similarly employed. As 
explained in prior rulemakings, the Department establishes the AEWR for 
non-range job opportunities based on actual wages paid by agricultural 
employers to workers in the United States similarly employed. 
Establishing an AEWR for all H-2A job opportunities, based on either 
the Federal minimum wage or the applicable local or State minimum wage, 
would not meet that purpose, and would instead immediately and 
dramatically reduce the wages of many H-2A and similarly employed 
workers in the United States \78\ and not be responsive to actual 
increases or decreases in wages paid in SOC codes common in the H-2A 
program. As the Department noted ``a single national AEWR applicable to 
all agricultural jobs in all geographic locations would prove to be 
below market rates in some areas and above market rates in other areas, 
resulting in all of the associated adverse effects'' discussed 
above.\79\
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    \78\ For example, the AEWR in Nebraska in 2022 was $16.47 per 
hour. Using the Nebraska State minimum wage of $9.00 per hour in 
2022, or 115 percent of the Federal minimum wage (i.e., $10.35 per 
hour) would significantly reduce the wages of H-2A workers and 
workers in the United States similarly employed.
    \79\ 73 FR 8537, 8550 (Feb. 13, 2008).
---------------------------------------------------------------------------

    For similar reasons, the Department declines to impose an arbitrary 
cap on wage increases. As discussed above, the AEWR is based on surveys 
of actual wages paid or projected to be paid to workers in the United 
States similarly employed, and changes in the AEWR reflect changes in 
wages employers pay to these workers. Commenters did not provide a 
reasoned economic basis to impose an arbitrary cap on H-2A wages, and 
imposition of such a cap would produce wage stagnation, most 
significantly in years when the wages of agricultural workers are 
rising faster due to strong economic and labor market conditions. As 
with the other methods suggested by commenters, this disconnection 
between actual wages paid and a capped AEWR is contrary to the 
Department's statutory mandate.
    The Department also declines to implement the workers' rights 
advocacy organization commenters' proposals to require employers to pay 
the highest of all wage sources in the proposed methodology, regardless 
of the applicable SOC code or geographic scope. As noted above and in 
prior rulemaking, the FLS is a ``superior wage source. . .'' for field 
and livestock worker job opportunities for many reasons, including the 
comparatively broad geographic scope and the fact that ``only the FLS 
directly surveys farmers and ranchers and the FLS is recognized by the 
BLS as the authoritative source for data on agricultural wages.'' \80\ 
The workers' rights advocacy commenters did not state that the higher 
wage would be a more accurate wage, nor did they allege deficiencies in 
the FLS for particular States or regions or for specific field and 
livestock worker job opportunities. Because the FLS is the most 
accurate and best available wage information source for field and 
livestock workers, the Department has limited use of the OEWS to 
circumstances in which the FLS is not available to determine the AEWR 
for the field and livestock workers (combined) category and for those 
SOC codes not adequately surveyed or represented by the FLS. Requiring 
payment of the highest wage rate among all available

[[Page 12774]]

sources at all levels of geographic specificity, regardless of the 
applicable SOC code(s), would, in many cases, require an employer to 
pay an enhanced wage untethered to the best available information on 
the actual wages paid to similarly employed workers. This result would 
not only unreasonably increase the labor costs of H-2A employers in 
those cases, but could reduce agricultural job opportunities and place 
unnecessary upward pressure on wages in order for employers to attract 
a sufficient number of available workers. The Department believes this 
approach does not reasonably ``balance the competing goals of the 
statute--providing an adequate labor supply and protecting the jobs of 
domestic workers.'' \81\
---------------------------------------------------------------------------

    \80\ 84 FR 36168, 36183-36184, 36243 (July 26, 2019).
    \81\ Am. Fed'n. of Labor & Cong. of Indus. Organizations (AFL-
CIO) v. Dole, 923 F.2d 182, 187 (D.C. Cir. 1991).
---------------------------------------------------------------------------

    The proposed system of multiple potential wage sources for all H-2A 
job opportunities also would result in an exceedingly complex and 
confusing set of minimum wages. The use of sub-state level OEWS wages, 
for example, would introduce significant complexities in establishing 
the offered wage. Agricultural associations filing master applications 
that cover members and worksites across two States or other job 
opportunities involving work across multiple States according to a 
planned itinerary would have to keep pace with many dozens of different 
local wage sources and the potential adjustments to each of those 
during the course of a work contract period. The wage payment, 
recordkeeping, and compliance burden associated with that kind of AEWR 
methodology would be substantial and unjustifiable.
    In addition to the comments discussed above, the Department 
received some comments requesting specific changes to aspects of 
existing wage data sources or the Department's use of them. One 
commenter objected to the Department's use of the mean wage rate to 
calculate the AEWR and suggested that the Department calculate the AEWR 
using the median wage rate, which the commenter asserted would produce 
a more representative wage because it would prevent ``outliers'' on 
both the low and high end of the wage distribution from unduly 
influencing the AEWR. In addition, the commenter suggested the 
Department consider only guaranteed hourly rates, not piece or 
incentive pay, when determining the AEWR to ``avoid a skewed wage 
floor.'' The commenter noted that the USDA considered modifying the FLS 
to capture only base pay data, but ``reverted back to reporting the 
gross rate of pay'' due to ``funding limitations . . .'' The commenter 
also suggested the Department consider data on wages paid to H-2A 
workers and corresponding workers when determining the AEWR in areas 
where ``more than ten percent of the agricultural workforce is composed 
of H-2A workers . . .'' The commenter asserted that in these areas, an 
AEWR based only on wages paid to U.S. workers would lead to 
disproportionate annual wage increases because non-H-2A employers set 
their wages above the AEWR each year to ensure retention of their U.S. 
workers.
    Another commenter suggested the Department adopt a two-tiered wage 
system under which employers would pay the OEWS rate to U.S. workers 
performing duties like construction labor but would pay foreign workers 
performing the same or similar duties the AEWR based on FLS data for 
the field and livestock workers (combined) category. The commenter 
acknowledged this would provide employers an incentive to hire foreign 
workers over U.S. workers, but suggested the Department could counter 
this incentive by ``imposing additional penalties and scrutiny on U.S. 
employers [for] failing to hire domestic labor . . .''
    As noted in prior rulemakings, the Department believes use of the 
mean wage best meets the Department's obligation to protect workers in 
the United States similarly employed against the adverse effects on 
their wages that could be caused by the employment of foreign 
workers.\82\ The Department has a long-standing practice of using the 
average or mean wage to determine the AEWR in the H-2A program, and it 
uses the mean wage within the OEWS wage distributions to determine 
prevailing wages for other employment-based visa programs. The 
Department declines to use the median because it does not represent the 
most predominant wage across a distribution, but instead represents 
only a midpoint. The mean provides equal weight to the wage rate 
received by each worker in the SOC code across the wage spectrum and 
represents the average wage paid to workers to perform jobs in the SOC 
codes.\83\ Setting the AEWR below the mean in the relatively less 
skilled agricultural SOC codes that predominate in the H-2A program may 
have a depressive effect on the wages of workers in the United States 
similarly employed. Use of the mean is also consistent with the 
Department's determination of prevailing wages for other foreign worker 
programs.
---------------------------------------------------------------------------

    \82\ See 80 FR 24146, 24159-24160 (Apr. 29, 2015); see also 78 
FR 24047, 24058 (Apr. 24, 2013).
    \83\ See 80 FR 24146, 24159 (Apr. 29, 2015).
---------------------------------------------------------------------------

    The Department also declines to exclude piece rate or incentive pay 
from FLS data or to request that USDA modify the FLS so that it reports 
a base pay that excludes piece rate and incentive pay. Comments 
suggesting the Department modify or seek modification of FLS 
methodology are beyond the scope of this rulemaking. As noted in prior 
rulemaking, the Department does not have control over the FLS, and the 
FLS is not conducted exclusively for the purpose of setting the AEWR. 
Similarly, the OEWS survey is not produced exclusively for temporary 
agricultural labor certification purposes, and it collects wage data 
for straight-time, gross pay, exclusive of premium pay, which includes 
incentive-based pay and production bonuses, for example. Moreover, as 
some agricultural jobs guarantee only the State or Federal minimum wage 
and otherwise pay based on a piece rate, advertising an hourly wage 
that does not include ``incentive pay'' is not a reasonable ``base 
rate'' for H-2A employers to advertise to U.S. workers.
    With regard to the comment suggesting the wages of H-2A workers be 
``considered'' when determining the AEWR using the FLS, the Department 
notes that FLS collects wage data for all workers, which necessarily 
includes wage data for H-2A workers. It is appropriate to base the AEWR 
on actual wages paid to all similarly employed workers since the AEWR, 
as the wage necessary to ensure the employment of foreign workers does 
not adversely affect the wages of workers similarly employed in the 
United States, should be based on market conditions. To the extent the 
commenter may be suggesting a methodological change to wage data 
collection through the FLS, the suggestion is beyond the scope of this 
rulemaking.
    Finally, the Department declines to adopt a two-tiered system by 
which employers' wage obligations to U.S. workers are determined using 
an OEWS-based, SOC-specific wage rate, while their wage obligations to 
foreign workers are determined using the FLS without regard to the 
applicable SOC code. To do so would create a wage system that 
advantages H-2A employers over non-H-2A employers, bases skilled H-2A 
worker wages on wage data that does not cover similarly employed 
workers in the SOC code (e.g., construction), and provides a 
disincentive to the hiring of U.S. workers that is contrary to the INA 
and cannot be justified through increased

[[Page 12775]]

enforcement or scrutiny of program users and the labor market test.
    Having considered the concerns of commenters, including both 
employers and workers' rights advocacy organizations, the Department 
has determined that adoption of the methodology proposed in the NPRM 
will best allow the Department to fulfill its statutory mandate and 
balance the competing goals of the statute. The methodology in this 
final rule uses the OEWS to provide appropriate wage increases for many 
highly skilled workers in positions like construction labor and first-
line supervisors, and will better protect the wages of workers in 
States or regions where the FLS does not provide wage data. The 
methodology continues to base the AEWR for the field and livestock 
workers (combined) category on the FLS, the most accurate and reliable 
source of wage information for most agricultural job opportunities in 
the H-2A program. Finally, the Department notes that prevailing wages 
for particular geographic areas and agricultural activities, determined 
using State-conducted prevailing wage surveys, will continue to serve 
as an important protection for workers in crop and agricultural 
activities that offer piece rate pay or higher hourly rates of pay than 
the AEWR.\84\
---------------------------------------------------------------------------

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

2. The Department Will Publish FLS-Based AEWRs and OEWS-Based AEWRs 
Coinciding With Those Surveys' Publication Schedules
    The Department proposed to continue to require the OFLC 
Administrator to publish an AEWR update as a notice in the Federal 
Register at least once in each calendar year, on a date to be 
determined by the OFLC Administrator. The Department explained in the 
NPRM that the OFLC Administrator would apply this annual notification 
requirement to each of the AEWRs to be determined under the proposed 
methodology. Therefore, the OFLC Administrator would publish an 
announcement in the Federal Register to update the AEWRs based on the 
FLS, effective on or about January 1, and a separate announcement in 
the Federal Register to update the AEWRs based on the OEWS survey, 
effective on or about July 1. See 86 FR 68174, 68184 (Dec. 1, 2021). 
After considering the comments on this proposal, addressed in detail 
below, the Department adopts the proposal with technical conforming 
edits to 20 CFR 655.120(b)(2).\85\
---------------------------------------------------------------------------

    \85\ Technical changes to 20 CFR 655.120(b)(2) were necessary 
because of the vacatur of the 2020 AEWR Final Rule and the 
publication of the 2022 Final Rule. The 2022 Final Rule reinstated 
the 2010 Final Rule's AEWR methodology and therefore reinstated the 
2010 Final Rule's language regarding OFLC's publication of the 
AEWRs, i.e., referring to publication of the AEWRs ``for each 
State.'' 87 FR 61660, 61796 (Oct. 12, 2022); 75 FR 6884, 6962 (Feb. 
12, 2010). The new methodology adopted in this AEWR Final Rule 
renders the reference to ``each State'' inapt, and therefore section 
655.120(b)(2) in this rule refers simply to ``each AEWR.''
---------------------------------------------------------------------------

    Two workers' rights advocacy organizations expressed support for 
the Department's proposal to issue new AEWRs at two points in the year 
based on the separate release schedules of FLS and OEWS survey data. 
These commenters viewed the proposal as a method of ensuring that the 
AEWR reflects real-time changes to wages in the labor market. In 
addition, these commenters stated the approach would provide clarity 
and predictability to both employers and workers.
    Comments from trade associations, an employer, and an agent opposed 
the proposal to use two different AEWR adjustment cycles, one for FLS-
based AEWRs and one for OEWS-based AEWRs. These commenters expressed 
concern that the two cycles of AEWR adjustment could create conflict 
among employees and add complexity and confusion for employers. For 
example, two trade associations observed that the different AEWR 
adjustment cycles could result in some employees receiving a mid-season 
wage increase, while other employees, whose work is subject to the 
other AEWR adjustment cycle, would not. One of the same trade 
associations and a third trade association asserted that separate 
publications of the AEWRs, particularly with the OEWS-based AEWR 
adjustment occurring during the growing season, would cause budget, 
planning, and contracting challenges for farmers who use the H-2A 
program.
    The Department appreciates the opportunity to clarify that the 
incidence of H-2A job opportunities that are assigned multiple SOC 
codes and subject to two different AEWR adjustment cycles is expected 
to be rare, and that the vast majority of H-2A job opportunities will 
continue to be subject only to FLS-based AEWR adjustment, effective on 
or about January 1. Based on program experience, discussed above, and 
the Department's approach to evaluating the SOC code(s) applicable to 
an employer's job opportunity, discussed below, the Department 
estimates that approximately 98 percent of H-2A job opportunities will 
experience no change in assigned SOC code, wage source, or AEWR 
adjustment cycle under this final rule. The OFLC Administrator will 
continue to announce the FLS-based AEWR adjustment--which potentially 
impacts all job opportunities classified in the field and livestock 
workers (combined) occupational group located in the 49 States covered 
by the FLS--with an effective date on or about January 1. For those job 
opportunities classified in the field and livestock workers (combined) 
occupational group that are not located in the 49 States covered in the 
FLS (e.g., job opportunities in Alaska), the methodology adopted in 
this final rule will establish a single statewide AEWR, adjusted 
annually based on the OEWS survey wage data release, with an effective 
date on or about July 1. Similarly, an H-2A job opportunity classified 
with an SOC code outside the six SOC codes within the field and 
livestock workers (combined) category will be subject only to a single 
AEWR adjustment cycle, as the final rule will establish a single 
statewide AEWR for each SOC code outside the field and livestock 
workers (combined) category, adjusted annually based on the OEWS survey 
wage data release, with an effective date on or about July 1. Both 
annual AEWR adjustment notices will potentially impact an employer's 
wage obligation to workers under a temporary agricultural employment 
certification only in the rare circumstances in which a job opportunity 
requires workers under the job order or work contract to perform not 
only field and livestock workers (combined) category duties (e.g., 
grading and sorting produce), but also duties from another SOC code 
(e.g., transporting produce to storage or market using a heavy tractor 
trailer, transporting workers using vans) for which the OEWS-based AEWR 
may be higher. Also, where an employer files multiple H-2A 
applications, each for distinct job opportunities within the employer's 
agricultural operation, the employer's wage obligation to the workers 
hired under one certified application may be potentially impacted by 
one AEWR adjustment notice (e.g., the FLS-based AEWR adjustment in 
January), and its wage obligation to the workers hired under the other 
certified application may be potentially impacted by another AEWR 
adjustment notice (e.g., the OEWS-based AEWR adjustment in July). For 
example, if an employer submits an H-2A application for workers to 
grade and sort produce and a separate H-2A application for a first-line 
supervisor, the employer's

[[Page 12776]]

wage obligation for worker(s) engaged in grading and sorting produce 
would potentially be impacted by the FLS-based AEWR adjustment notice 
in January, and its wage obligation for the worker(s) engaged in first-
line supervisory duties would potentially be impacted by the OEWS-based 
AEWR adjustment notice in July. Although some employers may be required 
to evaluate and implement payroll adjustments corresponding with both 
AEWR adjustment cycles, the Department anticipates the incidence of a 
single temporary agricultural employment certification being subject to 
both AEWR adjustment notices to be rare, primarily given the prevalence 
of H-2A job opportunities encompassed within the field and livestock 
workers (combined) category. In addition, the Department considers the 
likelihood of confusion or disruption among workers subject to 
different temporary agricultural employment certifications to be low.
    Some employers and a trade association suggested the Department 
revise the proposed rule to limit the potential for change in the AEWR 
from year-to-year, such as by implementing an annual cap on AEWR 
adjustment increases. Two of these commenters expressed concern that 
unmoderated year-to-year AEWR increases could outpace wage growth in 
local economies, may not reflect current conditions in the agricultural 
economy, and would not allow the program to function properly. The 
Department understands the importance of stability and predictability 
for both growers and workers, but declines to adopt the commenters' 
suggestion to cap annual AEWR increases. As explained in the previous 
section, the AEWR serves its purpose best when it reflects actual wages 
paid to similarly employed workers from year to year.
3. AEWR Bifurcation and Disaggregation of SOC Codes
    The Department proposed to bifurcate the determination of AEWRs for 
the field and livestock workers (combined) category, a group of six 
SOCs, from the determination of AEWRs for work performed in any other 
SOC codes that qualify for the H-2A program. For H-2A job opportunities 
represented by the six SOC codes comprising the field and livestock 
workers (combined) category that the FLS reports--which comprise 
approximately 98 percent of H-2A job opportunities--the Department 
proposed to continue to determine a single statewide AEWR, as proposed 
in paragraph (b)(1)(i). For any non-range occupations other than the 
six field and livestock workers (combined) SOC codes, the Department 
proposed to determine a distinct statewide AEWR for each SOC code 
(i.e., disaggregate the AEWR by SOC code), as proposed in paragraph 
(b)(1)(ii). After considering comments, discussed in detail below, the 
Department adopts these proposals without change.
    A variety of commenters, including workers' rights advocacy 
organizations, trade associations, a nonprofit public policy advocacy 
organization, and an employer, supported the proposed bifurcation. The 
consensus among commenters who supported the proposal was that a single 
statewide AEWR for the field and livestock workers (combined) category 
provides some stability and consistency for employers and workers.
    Among commenters who expressed concern about the proposal to 
bifurcate AEWR determinations, a trade association opposed bifurcation 
as ``arbitrary and capricious,'' asserting that the Department did not 
substantiate the premise that continuing to use a single statewide AEWR 
for all workers in the H-2A program may adversely affect wages of 
workers who perform the duties of SOC codes outside the field and 
livestock workers (combined) category. Conversely, a workers' rights 
advocacy organization suggested the Department use occupation-specific 
AEWRs for all job opportunities, unless the Department would exclude 
SOC code 45-2091 (Agricultural Equipment Operators) and aquaculture 
work \86\ from paragraph (b)(1)(i) (field and livestock workers 
(combined) category). This commenter asserted that agricultural 
equipment operator and aquaculture work is differently skilled and 
higher paying than the other work in the field and livestock workers 
(combined) category, making an AEWR determined using field and 
livestock workers (combined) category wage data inaccurate for this 
work. In contrast, another trade association asserted that the 
Department should expand the group of SOC codes subject to paragraph 
(b)(1)(i) to include SOC code 53-3032 (Heavy and Tractor-Trailer Truck 
Drivers), alleging that such job opportunities involve skills that are 
readily learned in a short period of time and do not increase with 
long-term experience. Similarly, several other commenters, including 
trade associations and employers, advocated expanding the SOC codes 
subject to the single statewide AEWR determination under paragraph 
(b)(1)(ii) to include SOC code 53-3032 (Heavy and Tractor-Trailer Truck 
Drivers) as well as, for example, SOC code 45-1011 (First-Line 
Supervisors of Farming, Fishing, and Forestry Workers) and SOC code 47-
2061 (Construction Laborers),\87\ asserting that field and livestock 
workers generally perform a variety of duties, some of which are 
included within one (or more) of these SOC codes.
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    \86\ Aquaculture is not a distinct SOC code within the SOC 
system. Rather, aquaculture tasks are encompassed in SOC code 45-
2093 (Farmworkers, Farm, Ranch, and Aquacultural Animals).
    \87\ The commenters did not identify the occupations by SOC 
codes, although one capitalized the titles of the three occupations 
highlighted, which correspond to the SOC codes noted.
---------------------------------------------------------------------------

    Some commenters expressed concern regarding the potential impact of 
the proposal on employers whose H-2A job opportunities involve tasks 
not encompassed within the field and livestock workers (combined) 
category SOC codes, which would be subject to the AEWR determinations 
under paragraph (b)(1)(ii). Commenters, including trade associations, a 
government agency, a State government, and an employer, commented that 
the proposed methodology would have a greater impact on smaller 
operations, where a worker is more likely to be required to perform a 
wider variety of duties, than on a larger operation, which may be more 
likely to have specialized positions. A trade organization asserted 
that the proposals would price one part of the industry--presumably 
those hiring workers to perform duties outside the field and livestock 
workers (combined) occupational group--out of existence.
    The Department declines to expand or contract the group of six SOC 
codes for which the Department will use the FLS to establish a single 
statewide AEWR, where available. The Department's objective in this 
rulemaking is to establish an administratively efficient method for 
producing AEWRs sufficiently tailored to protect workers in the United 
States similarly employed. By using the same group of six SOC codes as 
the FLS uses to report its single wage finding for its field and 
livestock workers (combined) category, the Department satisfies its 
objective of basing AEWR determinations on actual wage data for workers 
in the United States similarly employed, when such data is available. 
In addition, the broad, overlapping nature of tasks listed in the 
Occupational Information Network (O*NET) for the six field and 
livestock workers (combined) SOC codes is consistent with comments 
above providing anecdotal accounts of common tasks performed in 
agricultural

[[Page 12777]]

operations and the variety of duties employers may require of field and 
livestock workers during a typical workday or intermittently during the 
period of employment. Establishing a single statewide AEWR for this 
group of six SOC codes provides a reasonable amount of flexibility with 
respect to the type of duties a field and livestock worker may perform 
without added recordkeeping, administrative burden, or uncertainty 
regarding wage obligations. While the Department finds a single 
statewide AEWR for this group of SOC codes to be appropriate, applying 
that AEWR to other SOC codes would not satisfy the Department's 
objective to strikes a reasonable balance between the statute's 
competing goals of providing employers with an adequate supply of legal 
agricultural labor and protecting the wages and working conditions of 
workers in the United States similarly employed. For other SOC codes, 
such an approach would not use actual wage data for workers similarly 
employed to determine the AEWR. Both employers and workers benefit from 
a clear process to ensure that work is correctly compensated.
    Although the Department's experience indicates that the duties in 
most H-2A job opportunities fall within the field and livestock workers 
(combined) category, subject to the single statewide AEWR determination 
under paragraph (b)(1)(i), the Department recognizes that some H-2A job 
opportunities may include duties that fall both within and outside of 
that category. For example, some employers may submit H-2A applications 
for job opportunities that require workers to perform a variety of 
duties (e.g., general crop tasks encompassed in SOC code 45-2092 
(Farmworkers and Laborers, Crop, Nursery, and Greenhouse) and 
construction work encompassed in, e.g., SOC code 47-2061 (Construction 
Laborers)). For these types of mixed job opportunities, discussed in 
Section II.C.4, the Department believes that using the AEWR for the 
higher paid SOC code is necessary to prevent adverse effects on the 
wages of workers in the United States similarly employed resulting from 
inaccurate SOC code assignment.
    Given the significance of the SOC code in determining the 
applicable AEWR under the proposed rule, some commenters expressed 
concern or requested clarification regarding the SWA and Certifying 
Officer's evaluation of an employer's H-2A job opportunity to determine 
its occupational classification (i.e., SOC code). Commenters expressed 
concern that SOC code determination would create processing delays and 
inefficiency, rather than simplifying the process for ensuring that 
workers are correctly compensated. Several trade associations 
anticipated that employers would file additional applications for each 
distinct SOC code, and that SWAs and the Department would therefore be 
required to process those additional applications, increasing the 
administrative burden. One of the trade associations and an agent 
expressed concern about uncertainty for employers who may not be able 
to anticipate the AEWR to be applied to their H-2A job orders. Comments 
expressed concern that it could be difficult and would be an 
administrative burden for the Department to determine SOC codes, that 
the Department's SOC code determinations would be based on infrequently 
performed tasks, and that, as a result, wage obligations could 
dramatically increase. Some commenters asserted the proposals would be 
unworkable because tracking a worker's time performing tasks subject to 
different pay rates would increase administrative burden, with one 
employer additionally expressing concern about increased compliance 
liability.
    The Department shares the commenters' interest in methodological 
clarity, processing efficiency, and accurate determinations; and 
straightforward application of wage obligations during the employment 
period. The Department accounted for these interests in its proposal to 
apply a single statewide AEWR to all job opportunities within one of 
the six field and livestock workers (combined) SOC codes. As a group, 
the six field and livestock workers (combined) SOC codes encompass the 
tasks required in approximately 98 percent of H-2A job opportunities. 
Each of the six SOC codes encompasses a broad variety of tasks, some of 
which overlap (i.e., the same or similar duties are included in more 
than one of the six SOC codes). Although an employer may not be certain 
whether the SWA and Certifying Officer (CO) will assign SOC code 45-
2092 (Farmworkers and Laborers, Crop, Nursery, and Greenhouse) or SOC 
code 45-2091 (Agricultural Equipment Operators) to a particular job 
opportunity, for example, the same statewide AEWR would apply to that 
job opportunity under either SOC code. All job opportunities that 
require workers to perform tasks fully encompassed in any one or more 
of the field and livestock workers (combined) SOC codes will be subject 
to the same statewide AEWR. Using this approach will provide a 
reasonable level of flexibility in a worker's agricultural duties and 
predictability in employer wage obligations, while ensuring that the 
wages of workers in the United States similarly employed are not 
adversely affected. This approach also provides continuity, a 
reasonable level of predictability, and wage protections to workers who 
may perform work encompassed within multiple SOC codes included in the 
field and livestock workers (combined) category, whether during a 
workday or a work contract period.
    The Department reiterates that it has discretion to determine the 
methodological approach that it believes best allows it to meet its 
statutory mandate to ensure that the employment of H-2A foreign workers 
does not adversely affect the wages of workers in the United States 
similarly employed. In exercising that discretion, the Department 
considered issues relating to the sound administration of the H-2A 
program, such as uniformity in process and predictability in AEWR 
determinations, protecting workers, and providing efficient temporary 
agricultural labor certification determinations to employers, among 
other factors. In the Department's policy judgment, the benefits of a 
more tailored AEWR, based on actual wage data for similarly employed 
workers, outweigh the added complexity of the proposed methodology 
because it ensures work that is not encompassed within the six SOC 
codes applicable to the field and livestock workers (combined) category 
will be more accurate and better reflect market conditions for workers 
in those occupational classifications. In addition, the Department is 
not required to set the AEWR at the highest or lowest conceivable 
point. The Department is exercising its broad discretion in this 
rulemaking to revise the AEWR methodology in a way that more accurately 
yields an appropriate wage determination reflective of wages paid to 
workers in the United States similarly employed for each H-2A job 
opportunity. The Department has determined the AEWR methodology that 
best protects such workers and supports sound administration of the H-
2A program is the bifurcated methodology in this final rule, under 
which the Department will continue to issue a single, statewide AEWR 
for job opportunities in the field and livestock workers (combined) 
category using the FLS, when available, and will issue an SOC-specific 
statewide AEWR based on the OEWS survey for all other non-range

[[Page 12778]]

job opportunities. The Department adopts the proposal in this final 
rule.
4. For Job Opportunities Involving a Combination of SOC Codes, the 
Highest AEWR for the Assigned SOC Codes Governs the Employer's Wage 
Obligation
    The Department's H-2A regulations governing an H-2A employer's wage 
obligations at 20 CFR 655.120(a), 655.120(c)(3), and 655.122(l) refer 
to ``the AEWR'' in the singular. Similarly, 20 CFR 655.120(b)(3) refers 
to ``the updated AEWR'' in the singular. The Department recognizes that 
the AEWR methodology proposed in this rulemaking could result in more 
than one AEWR determination applicable to an employer's H-2A job 
opportunity; an employer's H-2A job opportunity may require skills and 
duties that are encompassed within more than one SOC code and the 
assigned SOC codes may be subject to different AEWR determinations. For 
example, if an employer chooses to file a single H-2A application 
requiring workers to perform a variety of duties covering multiple SOC 
codes, the H-2A job opportunity may be assigned one SOC code that is 
subject to the AEWR determined under paragraph (b)(1)(i) (e.g., SOC 
code 45-2092 (Farmworkers and Laborers, Crop, Nursery, and Greenhouse)) 
and another SOC code subject to an AEWR determined under paragraph 
(b)(1)(ii) (e.g., SOC code 45-1011 (First-Line Supervisors of Farming, 
Fishing, and Forestry Workers)), or an employer's H-2A job opportunity 
may be assigned more than one SOC code subject to more than one AEWR 
determined under paragraph (b)(1)(ii) (e.g., SOC code 45-1011 (First-
Line Supervisors of Farming, Fishing, and Forestry Workers) and SOC 
code 47-2061 (Construction Laborers)). To address potential confusion, 
and for conformity, the Department proposed paragraph (b)(5). Under 
proposed paragraph (b)(5), if an employer's H-2A job opportunity were 
assigned more than one SOC code, and the SOC codes assigned are subject 
to different AEWR determinations, the highest of the applicable AEWR 
determinations would be ``the AEWR'' and ``the updated AEWR'' for 
purposes of the employer's H-2A program wage obligations.\88\ That is, 
the highest of the AEWRs applicable to the H-2A job opportunity would 
be ``the AEWR'' in 20 CFR 655.120(c)(3) and 655.122(l) and ``the 
updated AEWR'' in 20 CFR 655.120(b)(3), which is then compared to the 
other wage sources (e.g., a prevailing wage determination or State 
minimum wage) in 20 CFR 655.120(a). The highest wage rate applicable to 
the H-2A job opportunity among those in 20 CFR 655.120(a) is the 
employer's minimum H-2A wage obligation. After considering public 
comments and providing clarification and examples of the provision's 
application to H-2A job opportunities, the Department adopts the 
proposal.
---------------------------------------------------------------------------

    \88\ The proposal in the 2021 AEWR NPRM is consistent with the 
Department's proposal in the 2019 AEWR NPRM, which was adopted in 
the now-vacated 2020 AEWR Final Rule.
---------------------------------------------------------------------------

    A trade association commented that the Department's proposal in 
paragraph (b)(5) is unnecessary because employers already voluntarily 
offer wages higher than the AEWR for job opportunities that require 
workers to perform the duties of multiple SOC codes due to market 
pressure. Although the Department recognizes that some employers offer 
and pay wages higher than the wage floor established through the AEWR, 
the Department continues to view paragraph (b)(5) as an important 
clarification regarding the AEWR determination to be used to evaluate 
an employer's wage obligations in the H-2A program and an essential 
component of the Department's responsibility to prevent adverse effect 
on the wages of workers in the United States.
    While H-2A job opportunity assessment and SOC code assignment, 
discussed in more detail below, is both consistent with long standing 
practice in the H-2A program and OFLC's practice across the employment-
based visa programs it administers (e.g., H-2B and H-1B), the proposed 
AEWR methodology introduced the potential for an employer's H-2A job 
opportunity to have more than one applicable AEWR determination. 
Paragraph (b)(5) was intended to address the rare situation in which an 
employer chooses to file a single H-2A application requiring workers to 
perform a variety of duties covering multiple SOC codes by using an 
approach consistent with prevailing wage determinations in other 
employment-based programs OFLC administers (e.g., H-2B and H-1B). 
Similarly, under paragraph (b)(5), the CO will use the highest AEWR 
among those applicable to the SOC codes assigned an employer's H-2A job 
opportunity as ``the AEWR'' used to evaluate the employer's wage 
obligations under 20 CFR 655.120(a), 655.120(b)(3), 655.120(c)(3), and 
655.122(l). As previously discussed, SOC codes not included in the 
field and livestock worker (combined) data collection generally account 
for more specialized, higher paid job opportunities (e.g., construction 
labor, logging workers, heavy truck and tractor-trailer drivers, first-
line supervisors). However, in some cases, an SOC code not included in 
the field and livestock workers (combined) data collection may have a 
lower statewide OEWS survey result than the FLS survey result for field 
and livestock workers (combined) category. Where an employer's job 
opportunity involves a variety of duties, some of which are consistent 
with higher paid SOC codes in the State, territory, or equivalent area, 
the Department would not satisfy its statutory obligation if it were to 
establish the required wage floor for H-2A employers at a lower rate 
than the AEWR applicable to workers in the United States who perform 
work in the higher paid SOC code. An AEWR determined using the lower-
paid SOC code does not adequately guard against adverse effect on the 
wages of workers in the United States similarly employed. In contrast 
to anecdotal concerns expressed in comments about a wage requirement 
based on duties performed for a minimal amount of time, which are 
discussed below, the Department generally finds that duties requiring 
particular skills are typically assigned to a subset of an employer's 
workforce--those workers who have qualifications or experience related 
to the duties--and, as a result, the amount of time spent performing 
those duties is not minimal. In addition, determining the AEWR 
applicable to an employer's job opportunity using the highest of the 
AEWRs applicable to all duties to be performed provides predictability, 
consistency, and administrative efficiency with regard to H-2A program 
wage requirements, which benefits both employers and workers.
    Among comments that addressed this proposal, many expressed concern 
regarding how employers would adjust their operations (e.g., division 
of labor, number of jobs offered, types of jobs offered) due to the 
perceived impact of paragraph (b)(5). Commenters asserted that the 
proposal would result in higher wage obligations for employers who 
include a variety of duties in the H-2A job order, which the employer 
considers to be routine farm work, but which the Department views as a 
combination of SOC codes subject to a higher AEWR determination. 
Commenters asserted that employers would have to reorganize operations 
in order to offer single-SOC code job opportunities in their H-2A 
applications, which would result in more H-2A applications per employer 
and operational disruptions, such as less flexibility in work 
assignments, more recordkeeping and

[[Page 12779]]

worker oversight, and confusion or conflict among workers paid at 
different rates. In addition, these commenters asserted that some 
employers would have to hire more workers to perform the more limited 
spectrum of duties of each SOC-specific H-2A application, potentially 
for short periods, and some employers may not be able to offer a full-
time job opportunity to perform only those duties. Another trade 
association asserted that employers would reduce operations or 
otherwise reduce job opportunities due to the impact of the AEWR 
methodology proposed. Expressing concern with burden and cost 
associated with filing H-2A applications, a State government, an 
employer association and its members, a trade association, and an agent 
asked the Department to clarify whether employers will be required to 
file multiple applications for different SOC codes and urged the 
Department to permit an employer to include several SOC codes in one 
job order.
    The AEWR methodology adopted in this final rule does not dictate 
how many H-2A applications an employer may choose to file, the duties 
included in each H-2A application filed, or whether an employer chooses 
to address its labor needs through the H-2A program or through options 
other than the H-2A program. Rather, it provides a minimum wage rate 
threshold that an employer must offer and pay a worker for performing 
the H-2A job opportunity, including those H-2A job opportunities that 
require a worker to perform a combination of tasks that cannot 
reasonably be classified within a single SOC code. The Department 
understands that the AEWR determination applicable to an H-2A job 
opportunity--and the employer's resulting H-2A wage obligation--and the 
costs or benefits associated with filing multiple single-SOC code-
specific H-2A applications or filing one H-2A application for a job 
opportunity encompassing a combination of duties from multiple SOC 
codes, subject to paragraph (b)(5), may be factors employers weigh when 
making business decisions regarding their agricultural operations. 
However, the Department maintains that the final rule does not require 
employers to file additional SOC-specific H-2A applications for job 
opportunities that require performing job duties encompassed by a 
combination of SOC codes. Employers may determine whether it is more 
cost effective--or beneficial to their business operation in other 
ways--to file one H-2A application for a job opportunity encompassing 
duties of more than one SOC code; to file more than one H-2A 
application, each focused on the duties of a single SOC code; or, to 
find avenues other than H-2A to address particular duties that are not 
regularly required, such as driving a semi tractor-trailer truck to 
market when crops are harvested. In any event, the Department has 
determined that requiring the payment of the highest applicable AEWR is 
necessary to protect against adverse effect, as discussed above.\89\
---------------------------------------------------------------------------

    \89\ See also 86 FR 68174, 68183 (Dec. 1, 2021) (``The 
Department best protects against adverse effect by setting the AEWR 
applicable to the job opportunity at the highest of the applicable 
AEWRs.'').
---------------------------------------------------------------------------

    In lieu of requiring an employer to pay workers the highest of the 
AEWR determinations applicable to the SOC codes assigned to the 
employer's H-2A job opportunity, some commenters suggested the 
Department require the employer to compensate workers on a per-hour 
basis at the AEWR determination applicable to the particular duties 
performed during that hour. However, two commenters, who may have 
misunderstood the Department's proposal to use a single AEWR 
determination applicable to the job opportunity, regardless of when a 
worker would perform particular duties within the employment period, 
expressed concern regarding burdens associated with tracking duties, 
time, and pay rates, even under the Department's proposed methodology, 
which would not require extensive recordkeeping. The Department 
declines to adopt the commenters' suggestion to apply an applicable 
AEWR on a per-hour basis, which would increase complexity and confusion 
regarding pay obligations for both employers and workers.
SOC Code Assessment
    Commenters expressed various concerns regarding the SWA's and CO's 
assessments of H-2A job opportunities and assignment of SOC code(s), 
which commenters understood could impact the AEWR applicable to an 
employer's job opportunity and, therefore, the employer's wage 
obligations under 20 CFR 655.120(a), 655.120(b)(3), 655.120(c)(3), and 
655.122(l). Several commenters stated that the Department had not 
adequately explained how the SOC code assessment and related AEWR 
determination process would function. Two trade associations expressed 
concern about the potential for the SWA and CO to assess an H-2A job 
opportunity differently, resulting in conflicting SOC code assignments, 
including the assessment of whether a job opportunity involves duties 
covering multiple SOC codes. An agent expressed concern about the 
potential for misclassification of job opportunities under an 
inappropriate SOC code. A law firm expressed concern about the 
potential for inconsistencies in SOC code assignments (e.g., between 
SWAs), the potential for increased use of general SOC codes, and the 
absence of a detailed administrative process, like the process used for 
prevailing wage determination requests in the H-2B program that 
includes requests for information, appeals, and requests for 
reconsideration. Similarly, trade associations asked for clarification 
regarding how an employer would challenge or appeal SOC code decisions.
    The Department reiterates that the evaluation of tasks associated 
with an employer's job opportunity and SOC code assignment is not new 
in the H-2A program and declines to introduce a new, separate 
administrative process. Due to the time-sensitive nature of receiving 
and processing H-2A applications under the statute, the SWA will 
continue to evaluate an employer's job opportunity in the first 
instance--and determine the appropriate SOC code(s) 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 continue to enter the SOC code assigned to the employer's job 
opportunity on the Form ETA-790, Agricultural Clearance Order. After 
the employer files its H-2A Application for Temporary Employment 
Certification, the OFLC CO will continue to perform a secondary 
evaluation of the employer's application and job order, including SOC 
coding. As is currently the case, the CO may determine whether a 
different SOC coding is necessary, for example, based on additional 
information received during processing.
    In making a determination of the applicable SOC code(s), the CO 
will continue to compare the duties and requirements of the employer's 
job opportunity with SOC definitions, skill requirements, and tasks 
that are listed in O*NET. Where similar tasks appear in more than one 
SOC code (i.e., overlapping tasks), such as transporting workers or 
agricultural commodities or maintaining and repairing farm equipment, 
the CO will continue to consider other factual information presented in 
the employer's application and job order (e.g., special skill or 
license requirements) that provide context for determining which SOC 
code or codes best represent the employer's job opportunity.
    Even where the CO evaluates the totality of circumstances presented 
in

[[Page 12780]]

the employer's job order and H-2A application and determines that more 
than one SOC code must be assigned to appropriately reflect the job 
offered, the job opportunity may or may not be subject to paragraph 
(b)(5). For example, an H-2A job opportunity that requires a worker to 
hand harvest field crops and operate light trucks to drive themselves 
along with other farmworkers from place to place around the farm 
property during the course of performing hand-harvest work, may be 
assigned SOC code 45-2091 (Agricultural Equipment Operators), which 
encompasses driving ``trucks to haul . . . farm workers,'' \90\ in 
addition to SOC code 45-2092 (Farmworkers and Laborers, Crop, Nursery, 
and Greenhouse). As both SOC codes 45-2091 and 45-2092 are subject to 
the same AEWR determination (i.e., the AEWR determination under 
paragraph (b)(1)(i)), this H-2A job opportunity is subject to a single 
AEWR determination, and paragraph (b)(5) would not apply. In contrast, 
an H-2A job opportunity that requires a worker to perform hand-harvest 
work and to pick-up farmworkers, according to a regular schedule, from 
employer-provided housing or a centralized pick-up point, in a van used 
only for passenger transport, on public roads (e.g., from a motel to 
the farm), and drive them to the place(s) of employment to perform 
hand-harvest work, may be assigned SOC code 53-3053 (Shuttle Drivers 
and Chauffeurs), in addition to SOC code 45-2092 (Farmworkers and 
Laborers, Crop, Nursery, and Greenhouse). SOC codes 53-3053 and 45-2092 
are subject to different AEWR determinations; SOC code 53-3053 is 
subject to the AEWR determination under paragraph (b)(1)(ii), while SOC 
code 45-2092 is subject to the AEWR determination under paragraph 
(b)(1)(i). Therefore, paragraph (b)(5) applies when determining the 
employer's H-2A wage obligation, and the higher of the two AWERs (i.e., 
the AEWR applicable to SOC code 53-3053 and the AEWR applicable to SOC 
code 45-2092) is the single AEWR for evaluating the employer's wage 
obligations for all of the work performed for this job opportunity. 
Similarly, for an H-2A job opportunity that requires a worker to 
perform hand-harvest work and help the farm supervisor direct or 
monitor the work of other workers engaged in planting and harvesting 
activities in the field, the CO may assign only SOC code 45-2092 
(Farmworkers and Laborers, Crop, Nursery, and Greenhouse), as that SOC 
code encompasses ``direct[ing] and monitor[ing] the work of other 
seasonal help during . . . harvesting.'' However, if the duties 
identified in the job order include tasks such as training workers, 
monitoring compliance with safety regulations, or scheduling work 
crews, which are not encompassed in SOC code 45-2092, then the CO may 
also assign SOC code 45-1011 (First-Line Supervisors of Farm Workers) 
to the H-2A job opportunity. As SOC code 45-1011 is subject to the AEWR 
determination under paragraph (b)(1)(ii), while SOC code 45-2092 is 
subject to the AEWR determination under paragraph (b)(1)(i), paragraph 
(b)(5) applies when determining the employer's H-2A wage obligation, 
and the higher of the two AEWRs (i.e., the AEWR applicable to SOC code 
45-1011 and the AEWR applicable to SOC code 45-2092). If the AEWR 
applicable to SOC code 45-1011 is higher than the AEWR applicable to 
SOC code 45-2092, then the AEWR applicable to SOC code 45-4011 is the 
single AEWR for evaluating the employer's wage obligations for all of 
the work performed for this job opportunity, unless a subsequent 
adjustment to either of the applicable AEWRs changes which of the two 
AEWRs is highest. Similar to the highest of the wage sources governing 
an employer's wage obligations under 20 CFR 655.120(a), the highest of 
the applicable AEWRs governs which rate is ``the AEWR'' for evaluating 
an employer's wage obligations under 20 CFR 655.120(b)(3), 
655.120(c)(3), and 655.122(l).
---------------------------------------------------------------------------

    \90\ The tasks listed in O*NET are derived from surveys of 
workers, who may use terms like ``trucks'' to refer to a variety of 
vehicles (e.g., vans or sports utility vehicles (SUV)).
---------------------------------------------------------------------------

    For job opportunities involving driving duties, as explained in the 
NPRM, the CO will continue to 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 any qualifications and requirements for the job opportunity in 
order to determine the appropriate SOC code to assign to the employer's 
job opportunity. Similarly, for job opportunities that involve driving 
farmworkers from place to place around the farm property during the 
course of performing hand-harvest work, the CO will consider factors 
such as the type of vehicle (e.g., a farm truck or van or a hired van 
or bus, such as a Calvans vehicle), the location where the farmworker 
transport will be performed (e.g., around the farm, including on 
private roads, or on public roads), and any qualifications and 
requirements for the transport (e.g., type of driver's licensure, gross 
vehicle weight, vehicle maintenance responsibilities, paperwork 
requirements) to determine the appropriate SOC code to assign to the 
employer's job opportunity. Because each employer's need for labor or 
services is unique to its operational needs, the CO must evaluate each 
H-2A 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(s).
    As in current practice, if the CO determines that the employer's 
wage offer is less than the wage rate that must be offered to satisfy 
H-2A program requirements (e.g., the wage offer is less than the 
highest of the wage sources listed in 20 CFR 655.120(a), including the 
AEWR determination applicable to the H-2A job opportunity), the CO will 
issue a Notice of Deficiency alerting the employer to the issue and 
providing an opportunity for the employer to amend its wage offer. If 
the employer chooses not to amend its wage offer, the CO will deny the 
application for failure to satisfy criteria for certification, and the 
employer may appeal the final determination. If the SOC code assigned 
to the H-2A job opportunity is material to the CO's final 
determination, the employer may contest the SOC code assessment on 
appeal.
    Many commenters expressed concern that the SWA and CO would assign 
multiple SOC codes, even though all of the duties may be encompassed 
within a single SOC code, because those duties appeared in multiple 
SOCs as overlapping tasks. The Department recognizes that its statement 
in the NPRM that multiple SOC codes would be assigned if duties ``can 
be classified in multiple SOCs'' could have been misinterpreted as 
allowing or encouraging the SWA or CO to search for and assign as many 
SOC codes as may be relevant to any of the duties, qualifications, or 
requirements included in the employer's job opportunity 
description.\91\ This was not the Department's intent. Rather, the 
Department's intent was more clearly expressed where the Department 
explained in the NPRM that ``[g]enerally, 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'' and the CO will assign more than one 
SOC code only if the job opportunity ``cannot be classified within a 
single SOC.'' As

[[Page 12781]]

demonstrated in examples provided in this section, multiple SOC codes 
will be assigned in situations where the employer's job opportunity 
includes duties that are not found within a single SOC code and, 
therefore, multiple SOC codes must be assigned in order to reflect all 
of the duties within the SOC system.
---------------------------------------------------------------------------

    \91\ See 86 FR 68174, 68183 (Dec. 1, 2021).
---------------------------------------------------------------------------

    After reviewing comments received and scenarios raised in requests 
for clarification or expressing concern that employers will experience 
disruption in the assignment of the applicable AEWR to their job 
opportunities, the Department believes that the vast majority of job 
opportunities will continue to be covered by the six field and 
livestock workers (combined) SOC codes. Those codes are quite broad, 
both individually and as a grouping, and any H-2A job opportunity 
classified as any one or more SOC codes within this group of six SOC 
codes will not be impacted by this final rule, as only one AEWR 
determination will apply. For example, absent additional job details 
that might indicate otherwise, an H-2A job opportunity that requires a 
worker to care for livestock, including driving a truck loaded with 
supplemental feed to the locations where livestock are grazing and 
repairing fences, would be assigned only SOC code 45-2093 (Farmworkers, 
Farm, Ranch, and Aquacultural Animals), as the list of tasks for this 
SOC code in O*NET includes duties driving trucks to distribute feed and 
repairing fences and other enclosures. Likewise, an H-2A job 
opportunity that requires a worker to manually harvest crops in a field 
or orchard, perform other crop cultivation duties, and move the truck 
that holds the harvested crop from one place in the field or orchard to 
another and to storage or a pick-up point on the farm would be assigned 
only SOC code 45-2092 (Farmworkers and Laborers, Crop, Nursery, and 
Greenhouse), as the list of tasks for this SOC code in O*NET includes 
duties driving trucks loaded with agricultural products on the farm. 
If, in the second example, the ``truck'' was a heavy or more 
specialized piece of agricultural equipment than the basic example 
suggests (e.g., a harvesting machine that gathers and holds the crop 
during harvest), SOC code 45-2091 (Agricultural Equipment Operators) 
would be assigned in addition to SOC code 45-2092, because operating 
heavy agricultural machinery is not covered in SOC code 45-2092, but it 
is covered in SOC code 45-2091, while manual harvesting is covered in 
SOC code 45-2092, but is not covered in SOC code 45-2091. However, 
based on the description of the location, type of equipment involved, 
and purpose of the truck driving in this example (i.e., driving trucks 
loaded with harvested crops from one location to another on the farm), 
neither SOC code 53-3033 (Light Truck Drivers) nor SOC code 53-3032 
(Heavy and Tractor-Trailer Truck Drivers) would be assigned to the job 
opportunity. Therefore, even if the SWA and CO assign a combination of 
SOC codes--45-2091 and 45-2092--paragraph (b)(5) would not impact the 
AEWR determination applicable to the employer's job opportunity, as 
both SOC codes are subject to the same AEWR determination under 
paragraph (b)(1)(i).
    In addition, the Department reminds employers that H-2A job 
opportunities must include only qualifications and requirements that 
are bona fide and consistent with non-H-2A job opportunities in the 
same or comparable occupations and crops.\92\ This also applies to H-2A 
job orders that include duties that fall under a combination of SOC 
codes. For example, an H-2A job order seeking workers to perform hand-
harvest tasks, accounting tasks, and semi-truck driving tasks would 
present an unusual combination of duties, spanning multiple SOC codes, 
and either the CO or the SWA may require the employer to submit 
documentation to substantiate the appropriateness of the combination of 
duties specified in the job offer.
---------------------------------------------------------------------------

    \92\ See 20 CFR 655.122(b).
---------------------------------------------------------------------------

    Some commenters objected to the SWA and CO's consideration of all 
duties listed in an employer's H-2A job opportunity description when 
assessing SOC code assignment. Most of these commenters urged the 
Department to adopt some form of a primary or majority duties test or 
otherwise disregard duties an employer characterizes as minor, 
infrequent, or intermittent. A trade association asserted that using a 
``primary duties'' test would reduce the risk of inconsistent SOC code 
assignments between the SWA and CO and simplify employer filings by not 
requiring separate applications for each SOC code.
    Trade organizations, a government agency, and an employer offered 
various approaches for identifying duties that should be included or 
excluded from consideration during SOC code assessment. Among 
commenters suggesting the SOC code should be based on the principal or 
most important duty the worker performs, some suggested the Department 
only consider duties performed 51, 80, or 90 percent of the time, or 
that an SOC code should apply only if workers perform mostly the same 
duties as in the SOC code description. Other suggestions included 
disregarding any duty performed as less than 10 percent of a worker's 
day-to-day activities; a duty performed for 1 hour during an 8-hour 
workday; any duty performed less than 20 percent of the time, although 
without specifying whether ``time'' meant per day, per work week, or 
throughout the entire employment period; ``minor truck driving,'' 
without specifying the meaning of ``minor''; and construction labor 
performed intermittently during the employment period, without 
specifying the meaning of ``intermittently.'' Some employers and trade 
associations recommended that the Department require the employer to 
identify the percentage of time per duty on their H-2A application and 
attest that if the percentage changes for any of the workers such that 
a different duty becomes the primary duty, the employer will notify the 
Department and the SWA of the change and request an updated wage for 
that worker.
    The Department declines to adopt commenters' suggestions. For one, 
the Department is concerned with how such suggestions would work in 
practice. Rather than resulting in more appropriate and consistent AEWR 
determinations, assigning an SOC code based on the ``primary duties'' 
or the percentage of time identified for each duty in an employer's job 
opportunity description could permit or encourage employers to combine 
work from various SOC codes, interspersing higher-skilled, higher-
paying work among many workers so that the higher-paying work is never 
a duty performed by any one employee more than the specified 
percentage. Such an approach would undermine the Department's goals of 
providing predictability, consistency, and administrative efficiency in 
AEWR determinations, and of preventing inaccurate SOC code assignment. 
In addition, such an approach to assigning SOC codes could permit an 
employer to gain the benefit of work in a higher paid SOC code, while 
paying less than the AEWR applicable to that work. Ultimately, a 
``primary duties''-type approach runs a risk of adversely affecting the 
wages of workers in the United States who are employed in the higher 
paid SOC code. In addition, implementing the ``percentage per duty'' 
disclosure requirement would increase administrative burden for 
employers (e.g., substantial recordkeeping to ensure that the actual 
work each worker performed aligns with the percentages

[[Page 12782]]

disclosed), and potentially restrict fluid movement of workers among 
all the duties the employer requires in the job opportunity, which was 
a concern many commenters expressed. The Department believes that the 
CO's review of the totality of each H-2A job opportunity, as discussed 
above, addresses commenters' concerns regarding consistency and 
accuracy of SOC code assignment, without increasing administrative 
burden, complexity, or risk of inadequate AEWRs.
Similarly Employed by SOC Code, not Industry
    Some commenters asserted that truck driving, mechanic, and 
construction duties performed in agriculture are categorically 
different than truck driving, mechanic, and construction duties 
performed in other industries and should not be classified using SOC 
codes outside the field and livestock workers (combined) occupational 
group, subject to the AEWR determinations based on OEWS, and 
potentially resulting in H-2A job opportunities assigned multiple SOC 
codes and subject to paragraph (b)(5). Commenters asserted that the 
truck driving conditions involved in H-2A applications are distinct 
from those that are classified as SOC code 53-3033 (Light Truck 
Drivers) or SOC code 53-3032 (Heavy and Tractor-Trailer Truck Drivers), 
or that the nature of the commodity being hauled (e.g., a harvested 
crop, rather than a nonagricultural commodity) should be dispositive in 
the SOC code assignment of an H-2A job opportunity involving truck 
driving. These commenters stated that farmers may require a worker to 
drive only short distances and only through rural areas (e.g., between 
the farm and a nearby packing house), never hundreds of miles at a 
time, navigating urban areas, or delivering industrial goods. In 
addition, commenters asserted that SOC code 45-2091 alone should apply 
to drivers who haul a farmer's crop or commodity from the field, 
including drivers of semi-trucks hauling the crop or commodity off the 
farm and ``regardless of whether the driver is operating the semi-truck 
with a Class A CDL license or operating the semi-truck with a Standard 
Driver's License under the Farm-Related CDL Exemption.''
    The Department acknowledges that some H-2A job opportunities 
involving truck driving would not appropriately be classified as SOC 
code 53-3033 (Light Truck Drivers) or SOC code 53-3032 (Heavy and 
Tractor-Trailer Truck Drivers) based on the equipment, vehicle weight, 
location, and other factors involved, as discussed above. However, the 
Department disagrees that SOC code 45-2091 (Agricultural Equipment 
Operators) is the only SOC code appropriate for truck-driving duties 
listed on an H-2A application. As discussed in the NPRM, an H-2A job 
opportunity requiring a worker to operate semi-trucks with at least 
26,001 pounds Gross Vehicle Weight (GVW), whether a commercial driver's 
license is required or not, over public roads (e.g., hauling the crops 
away from the farm to market, to a packing facility, or to storage) 
would likely result in the CO assigning SOC code 53-3032 (Heavy and 
Tractor-Trailer Truck Drivers). Thus, the Department views operating 
semi-trucks hauling commodities over public roads to generally involve 
the same or similar skills, qualifications, and tasks, whether the 
commodity is agricultural or nonagricultural in nature.
    One commenter who addressed construction labor asserted that SOC 
code 47-2061 involves tasks that are too highly skilled to apply to 
construction on farms. The Department respectfully disagrees. The 
Department receives H-2A applications involving skilled construction 
labor or services, some requiring licensure, particularly where a 
grower contracts with an H-2ALC for a project requiring construction 
labor. For example, the Department receives H-2A applications for 
livestock confinement or grain bin elevator construction on farms that 
require workers to perform duties such as reading and following plans 
and measurements; aligning and sealing structural components (e.g., 
walls and pipes), sometimes by welding; building frameworks (e.g., 
walls, roofs, joists, studding, and window and door frames); installing 
metal siding, windows, ceiling tiles, and insulation; and pouring 
concrete. These construction duties are consistent with SOC code 47-
2061, not with SOC code 45-2093. In addition, the location of the 
work--on a farm or off a farm--or type of structure to be constructed--
a livestock confinement building or a retail building--does not alter 
the essential duties or skills required of the worker. Where an H-2A 
job opportunity's tasks, qualifications, and requirements indicate 
skilled construction work will be performed, then SOC code 47-2061 
(Construction Laborers) may be assigned, or potentially a different SOC 
code if the construction work is even more specialized (e.g., 47-2051 
(Cement Masons and Concrete Finishers)).
    Two trade associations and an employer asserted that on-farm 
mechanics perform very limited mechanic work that is very different 
from the duties mechanics outside the agricultural industry perform. 
One stated that on-farm mechanics perform routine maintenance on a 
farm's equipment to keep it operational, ``not reprogramming computer-
based trucks or rebuilding engines.'' The Department acknowledges that 
some on-farm mechanics may perform only the type of routine maintenance 
consistent with SOC code 45-2091's (Agricultural Equipment Operators) 
listed tasks of ``[o]perate or tend equipment used in agricultural 
production, such as tractors, combines, and irrigation equipment'' or 
``[a]djust, repair, and service farm machinery and notify supervisors 
when machinery malfunctions.'' \93\ However, the Department receives H-
2A applications for mechanics that include duties such as the 
following: diagnose, repair, and overhaul engines, transmissions, 
components, electrical and fuel systems, etc. on tractors, irrigation 
systems, generators and/or other farm equipment; make major mechanical 
adjustments and repairs on farm machinery; repair defective parts using 
welding equipment, grinders, or saws; repair defective engines or 
engine components; replace motors; fabricate parts, components, or new 
metal parts using drill presses, engine lathes, welding torches, and 
other machine tools (grinders or grinding torches); test and replace 
electrical circuits, components, wiring, and mechanical equipment using 
test meters, soldering equipment, and hand tools; read inspection 
reports, work orders, or descriptions of problems to determine repairs 
or modifications needed; and maintain service and repair records. 
Duties of this type and scale are encompassed within 49-3041 (Farm 
Equipment Mechanics and Service Technicians), and not within the 
routine general maintenance or repair tasks associated with SOC code 
45-2091. The Department notes that if, in addition to duties on the 
list above, an H-2A job opportunity included diagnosing, repairing, and 
overhauling engines, transmissions, components, electrical and fuel 
systems, etc. on cars, the H-2A job opportunity would be a combination 
of occupations: 49-3041 (Farm Equipment Mechanics and Service 
Technicians) and 49-3023 (Automotive Service Technicians and 
Mechanics), which encompasses duties that include diagnosing, 
adjusting, repairing, or overhauling automotive vehicles. Similarly, if 
the H-2A job opportunity included diagnosing, repairing, and 
overhauling engines, transmissions, components, electrical and fuel 
systems,

[[Page 12783]]

etc. on trucks (including diesel trucks) or busses, the H-2A job 
opportunity would be a combination of SOC codes: 49-3041 (Farm 
Equipment Mechanics and Service Technicians) and 49-3031 (Bus and Truck 
Mechanics and Diesel Engine Specialists), which encompasses duties that 
include diagnosing, adjusting, repairing, or overhauling trucks and 
busses; or maintaining and repairing any type of diesel engines.
---------------------------------------------------------------------------

    \93\ https://www.onetonline.org/link/summary/45-2091.00 (last 
accessed August 5, 2022).
---------------------------------------------------------------------------

Corresponding Employment
    Trade associations asked the Department to clarify how the AEWR 
determined under the proposed methodology would interact with the 
definition of ``corresponding employment'' at 20 CFR 655.103(b). 
Specifically, these commenters asked the Department to clarify whether 
where the H-2A job opportunity involves duties that span multiple SOC 
codes, non-H-2A workers who only perform the duties associated with one 
SOC code included in the job opportunity would be in ``corresponding 
employment'' with H-2A workers who perform any of the same duties as 
well as the duties associated with another SOC code.\94\ As explained 
in Overdevest Nurseries LP v. Walsh, 2 F.4th 977 (D.C. Cir. 2021), a 
non-H-2A worker is in ``corresponding employment'' with an H-2A worker 
if the non-H-2A worker performs any duties included in the H-2A job 
order, or any other agricultural work performed by the H-2A worker(s), 
regardless of whether the non-H-2A worker performs all of the duties 
listed in the job order. Agreeing with the Secretary's reasoning behind 
the corresponding employment regulation, the D.C. Circuit explained 
that this requirement ``advances the statute's purpose . . . by 
requiring employers to pay non-H-2A workers the same amount that they 
pay the H-2A workers when they are doing the same work.'' Id. At 984 
(internal citations omitted). The Court concluded that this is an 
``eminently reasonable interpretation'' of the statute's mandate to 
prevent ``adverse effect'' on workers in the United States ``similarly 
employed.'' Id. Applying the AEWR methodology adopted in this final 
rule, a non-H-2A worker is engaged in corresponding employment when the 
worker performs any of the duties listed in the H-2A job order, 
regardless of whether the worker performs or does not perform all of 
the duties listed in the job order. The worker in corresponding 
employment must be paid at least the applicable H-2A wage rate for all 
time so spent. For example, consider an employer whose H-2A job 
opportunity includes hand-harvesting and driving a semi-truck to haul 
the harvested crop to delivery points away from the farm. Assuming the 
AEWR determination for SOC code 53-3032 (Heavy and Tractor-Trailer 
Truck Drivers) is higher than the AEWR determination for SOC code 45-
2092 (Farmworkers and Laborers, Crop, Nursery, and Greenhouse Workers) 
and all other potential wage sources (e.g., any applicable State 
minimum wage), the employer must offer and pay all of its workers 
employed in the H-2A job opportunity the higher AEWR amount for all 
hours worked, i.e., for hours spent performing the hand-harvesting 
duties and for hours spent performing the truck-driving duties. The 
employer also employs non-H-2A workers to perform only hand-harvesting 
work. These workers would be in ``corresponding employment'' when 
performing the hand-harvesting duties described in the job order, 
regardless of whether such workers do or do not also perform the truck-
driving duties, and must receive the same pay as the H-2A workers 
receive for performing that same work. Accordingly, the employer must 
pay these workers in corresponding employment at least the H-2A wage 
rate (in this example, the AEWR determination for SOC code 53-3032) for 
time spent engaged in such corresponding employment. As discussed 
above, the Department anticipates that most H-2A job opportunities will 
fall within one or more of the SOC codes encompassed within the six 
field and livestock workers (combined) SOC codes, and, therefore, wage 
complexities related to ``corresponding employment'' are unlikely to 
occur.
---------------------------------------------------------------------------

    \94\ See 20 CFR 655.103(b) (The employment of workers who are 
not H-2A workers by an employer who has an approved Application for 
Temporary Employment Certification in any work included in the job 
order, or in any agricultural work performed by the H-2A workers. To 
qualify as corresponding employment, the work must be performed 
during the validity period of the job order, including any approved 
extension thereof.'')
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Importance of Appropriate SOC Code Assignment
    As explained in the NPRM, determining the appropriate SOC code is 
an important component of the Department's decision to move to SOC-
specific wages. The H-2A program is not limited to job opportunities 
classifiable within the six field and livestock workers (combined) SOC 
codes. Based on the statutory and regulatory framework governing the 
definition of what constitutes agricultural labor or services, the 
Department's experience is that a wide range of jobs within the U.S. 
agricultural economy, depending on the nature and location of work 
performed, could be eligible under the H-2A visa classification. Though 
the vast majority of job opportunities will be classifiable within a 
relatively small number of SOC codes, the Department has issued H-2A 
certifications to employers covering jobs classified in dozens of SOC 
codes, including approximately three dozen in fiscal year 2021 alone. 
Use of the highest applicable wage in these cases reduces the potential 
for employers to offer and pay workers a wage rate that, while 
appropriate for the general duties to be performed, is not appropriate 
for other, more specialized duties the employer requires. In addition, 
use of the highest applicable wage imposes a lower recordkeeping burden 
than if the Department permitted employers to pay different AEWRs for 
job duties falling within different SOC codes on a single Application 
for Temporary Employment Certification. This policy is also consistent 
with the way the Department determines prevailing wage rates for jobs 
that cover multiple SOC codes in other employment-based visa programs.
    Under this final rule, if the job duties on the H-2A application 
(including the job order) constitute a combination of SOC codes that do 
not all fall within the field and livestock worker (combined) 
occupational grouping, the Department will determine the applicable 
AEWR based on the highest AEWR among the SOCs assigned to the job 
opportunity. In the event an employer's job opportunity requires the 
performance of duties that are not encompassed in a single SOC code's 
description and tasks and the SOC codes that must be assigned to cover 
the entirety of the employer's job opportunity are subject to different 
AEWRs (e.g., a field and livestock worker (combined) SOC code and an 
SOC code not encompassed in the field and livestock worker (combined) 
occupational group, or two SOC codes neither of which are encompassed 
in the field and livestock worker (combined) occupational group), the 
AEWR for the job opportunity is the highest AEWR for all applicable SOC 
codes to reduce the potential for inaccurate SOC code assignment and 
AEWR determination and effectuate the purpose of the AEWR (i.e., 
protect against adverse effect on the wages of workers in the United 
States similarly employed).
    The Department has considered all the comments it received and has 
decided to adopt the language of the NPRM as proposed. Under this final 
rule, if the job duties on the job order are not encompassed within a 
single SOC code, the CO will determine the applicable AEWR based on the 
highest

[[Page 12784]]

AEWR for all applicable SOC codes, as provided in paragraph (b)(5).

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

    The Department received comments on several issues that were 
unrelated to its proposal to revise the methodology it uses to 
determine the AEWR for non-range job opportunities in the H-2A program. 
Some comments requested regulatory action beyond the proposed changes 
that the Department presented for public comment in the NPRM or 
discussed potential Congressional action (e.g., immigration reform). 
Some commenters noted general farm worker labor shortages and commented 
on the current administration's policies (e.g., programs to address the 
trucking shortage) that the commenters asserted are exacerbating the 
shortage. A workers' rights advocacy organization noted the historical 
and current exclusion of agricultural workers from laws that protect 
workers in the United States (e.g., National Labor Relations Act). 
Comments about policies or laws outside the parameters of the H-2A 
program are all out of scope. Other comments addressed topics unrelated 
to the H-2A program, such as requests for employment, matters at a U.S. 
Consulate, or related to COVID-19, all of which are beyond the scope of 
this rulemaking. Many commenters suggested that the Department abandon 
the AEWR altogether as a means of preventing the employment of H-2A 
workers from adversely affecting the domestic workforce. These comments 
were not within the scope of this rulemaking, which the NPRM expressly 
limited to revising the methodology for calculating the AEWR. 86 FR at 
68185 (``[t]he 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 example, some 
commenters objected to the Department's continued use of the AEWR as 
one of the primary means of preventing adverse effects of H-2Arkers on 
the domestic workforce, with some commenters characterizing the 
underlying assumptions of the AEWR (e.g., regarding the existence of 
workers in the United States similarly employed who require protection) 
as outdated. These commenters noted the growth of the H-2A program and 
paucity of SWA referrals and a limited number of hires from those few 
referrals as an indicator of the lack of domestic labor. Some 
commenters asked the Department to hold hearings on whether to continue 
using the AEWR concept. Some asserted that the Department misuses the 
AEWR as a preventative measure and should instead use the AEWR only 
after a factual finding of adverse effect in particular areas or 
occupations. Others stated the Department should examine current 
dynamics in the labor market (e.g., particular labor shortages), hold 
public hearings to ``examine the underlying tenants [sic] of the 
Department's mandate and test solutions'' obtained through testimony 
presenting agricultural industry realities, or otherwise engage in 
further evaluation of adverse effect with focus on the employers' 
perspective. One commenter stated the Department should, in 
consultation with USDA, assess the impact of the continued use of AEWR 
on the global competitive position of farmers in the United States and 
on U.S. workers, due to offshoring or innovations to reduce employers' 
dependence on labor (e.g., mechanization and automation). The continued 
use of the AEWR was not the subject of this rulemaking, so these 
comments are out of scope.
    Other comments outside the scope of this rulemaking addressed 
program issues unrelated to the methodology for setting the AEWR for 
non-range job opportunities, such as regulation of farm labor 
contractors, U.S. worker recruitment, employment eligibility of 
applicants referred for employment, prevailing wage survey methodology, 
the AEWR methodology for range occupations, logging, the definition of 
agricultural labor or services, and the length of H-2A certifications. 
For example, some commenters expressed concern about employers refusing 
to offer wages higher than the AEWR during recruitment of prospective 
workers. One of these commenters expressed concern about the failure of 
wage sources other than the AEWR to protect U.S. workers' wages. The 
commenter asserted that a Federal minimum wage rate that is lower than 
the AEWR and the absence of prevailing wage survey findings, collective 
bargaining agreements, and State minimum wage rates applicable to H-2A 
job opportunities undermine workers' efforts to demand higher wages. 
Two other commenters urged the Department to require that employers 
``reasonably negotiate'' wages with applicants--both prospective H-2A 
workers and U.S. applicants--and to reconsider whether U.S. workers who 
demand wages above an employer's offer are considered ``available'' 
within the meaning of 8 U.S.C. 1188(a)(1)(A) for purposes of reducing 
the number of H-2A workers potentially certified. To the extent these 
comments object to the use or role of the AEWR in the H-2A program 
overall or suggest concerns with aspects of the H-2A program beyond the 
AEWR methodology (e.g., recruitment and consideration of U.S. 
applicants; prevailing wage surveys), these comments address issues 
beyond the scope of this rulemaking, which is limited to proposed 
changes to the methodology the Department uses to determine the AEWR 
for non-range job opportunities in the H-2A program. However, as 
explained above and below, the Department continues to believe that the 
AEWR, functioning as a wage floor, is a critical measure to protect 
against adverse effect on the wages of agricultural workers in the 
United States, a particularly vulnerable workforce, and that the 
improvements made in this final rule to the AEWR methodology will serve 
to better protect against such adverse effect.

III. Administrative Information

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

    Under Executive Order (E.O.) 12866, the Office of Management and 
Budget (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 final rule and has determined that it is a 
significant regulatory action under E.O. 12866, but not an economically 
significant regulatory action within the scope of section 3(f)(1).
    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

[[Page 12785]]

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.
Public Comments
    Multiple commenters stated the Department underestimated cost 
increases for employers and suggested the rule should be economically 
significant. The comments claimed this increased labor cost can put 
pressure on farms and reduce their advantage in the global marketplace 
and regional marketplaces, and potentially put them out of business. 
The Department recognizes that there will be some cost increases to 
some employers as described in the analysis of transfer payments 
section. The analysis in this final rule estimates the impacts of the 
rule based on actual wage records in Fiscal Year (FY) 2020 and FY 2021 
to determine the most accurate impact of the revised AEWR structure in 
the final rule. Of the 25,150 certifications between FY 2020 and FY 
2021, only 732 (2.91 percent) have wage impacts and the average 
certification would have an impact of $63,943 with an average per 
worker wage impact of $5,117. Based on the Department's analysis, the 
overall transfer payments imposed by the rule are less than $100 
million and, therefore, not economically significant.
    Multiple commenters asserted that the Department failed to use the 
most recent data available and suggested the Department has not taken 
into account the average 11 percent year-over-year increase in 
applications since 2017, resulting in an inaccurate estimate of wage 
impacts on farms affected by the AEWR. They also suggested that the 
OEWS does not accurately reflect farmworker wages. The proposed rule 
calculated wage impacts using the most recent data available at the 
time of publishing which consisted of data through Quarter 3 of FY 
2021. In addition, the proposed rule calculated assumptions used in the 
analysis such as wage rates, growth rates, and impacted entities using 
the most recent full year of data available, 2020. In this final rule, 
the Department has updated the analysis to include the entirety of FY 
2021 disclosure data to calculate wage impacts and updated data sources 
and growth rate calculations to include 2021 data now that there is a 
full year of disclosure data available. The growth rate calculations, 
as discussed in the analysis below, account for the increasing number 
of certifications that have occurred historically, resulting in an 
estimate of increased wage impacts over time.
    One commenter asked the Department to compare existing FLS wage 
rates for field and livestock workers (combined) occupations with State 
or national OEWS data when the FLS is not available to facilitate 
evaluation of the impact of wages in the event the FLS were to become 
unavailable beyond the geographical limits discussed in this rule 
(e.g., Alaska). In this final rule, the Department is adding a 
comparison of wage rates into the docket.
    One commenter asserted the analysis in the proposed rule was 
incomplete because it does not consider how many employers and workers 
would be impacted by mid-season AEWR adjustments for OEWS updates that 
will be effective on or about July 1 annually. The Department has 
considered mid-season changes to wage rates from newly released OEWS 
data. As discussed in the section on transfer payments, the Department 
estimates wage impacts assuming that OEWS wages are released in June. 
The Department reiterates that 98 percent of the job opportunities 
subject to the AEWR methodology in this final rule will be subject to 
FLS-based AEWRs only--and related AEWR adjustments, if the employment 
period crosses the calendar year--and will not be impacted by OEWS 
adjustments. In addition, for the small percentage of job opportunities 
subject to an OEWS-based AEWR, wage adjustment would impact only those 
with an employment period crossing July 1. The Department's estimates 
of wage impacts due to OEWS-based adjustments during the employment 
period accounts for a potential impact on this small percentage. The 
Department's calculations of wage impacts assumes that worker wages 
would remain constant if the mid-season OEWS shows a decline in wage 
rates, while worker wages would increase if the mid-season OEWS release 
shows an increase in wage rates.
    Multiple commenters asserted that the Department underestimates the 
impact of the revised AEWR structure because it does not consider 
impacts on specialty crops, specific industries, or occupations. 
Examples include nurseries and greenhouse farms, fruit and tree nut 
farms, and vegetable and melon operations. The commenter suggested that 
data used does not accurately represent these varying subsectors. The 
Department understands that impacts on each industry will be different 
depending on market dynamics, including local wage rates. The 
Department has taken the approach of estimating wage impacts using 
actual historical certification data that allows for detailed wage 
impacts to be calculated for each certification based on the industry 
and location of the certification.
    Several commenters asserted that the Department underestimates the 
impact of the revised AEWR structure because it does not consider 
classifications of workers to new (higher wage) SOC codes as a result 
of the requirement to pay the highest of applicable SOC code AEWRs. One 
commenter asserted that all farm work overlaps and classifications 
should not be based on intermittent activities and others assert that 
workers should not receive higher wages if they only minimally perform 
the higher classification.
    The Department understands that we may have underestimated the 
impact of the revised AEWR structure due to the final rule's new 
requirement to pay the highest of applicable SOC code AEWRs. However, 
the Department does not have any data readily available to estimate the 
number of workers that may have their SOC codes reclassified as a 
result of the final rule,\95\ and commenters did not provide such data 
in their comments on the NPRM. In addition, the Department considers 
the impact of this potential underestimation to be de minimis for the 
reasons included in our discussion and clarification above regarding 
SOC assignment and assignment of the highest AEWR applicable, namely, 
that the Department anticipates low incidence of multiple SOCs 
assigned, resulting in job opportunities subject to the highest of 
multiple AEWRs.
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    \95\ The group of potentially reclassified SOCs fall into two 
groups: (1) jobs that were assigned an inappropriate SOC code; and 
(2) combination of SOC-code jobs that were assigned the field and 
livestock worker (combined) SOC. Commenters are correct that the 
specific incidences are case-specific and require detailed analysis 
to assign codes. To determine the number of potentially reclassified 
certifications would require review of each case in the 
certification dataset. As such, the number of workers who may have 
their SOC codes reclassified because of this final rule is not 
readily accessible to the Department.
---------------------------------------------------------------------------

    Many comments asserted that the equity analysis in the proposed 
rule was insufficient and asserted that the Department was claiming 
that the transfers from employers to H-2A workers is good for 
diversity, equity, and inclusion. In addition, commenters

[[Page 12786]]

stated that the equity analysis does not consider impacts on 
individuals in rural communities. The Department contends that the 
distributional impact analysis section does not make any claims about 
the positives or negatives of transfers from employers to H-2A workers. 
The distributional impact analysis only shows the distribution of U.S. 
workers within the SOC codes impacted by the H-2A program. E.O. 12866 
does not require an analysis of impacts on rural communities or an 
analysis in general of underserved communities, as that term is defined 
by E.O. 13985, Advancing Racial Equity and Support for Underserved 
Communities Through the Federal Government. However, the Department 
expects that the wage impacts estimated in this regulatory impact 
analysis (RIA) will predominantly occur in rural communities where 
farms are located.
    Multiple commenters asserted the Department does not consider 
administrative costs including increased paperwork, filing fees to DOL 
and U.S. Citizenship and Immigration Service (USCIS), attorney costs, 
and costs to DOL to review increased applications. One of these 
commenters suggested that the number of applications could increase by 
three to four times. The Department does not have data to quantify 
administrative costs. As discussed in the unquantifiable cost section 
of the RIA below, the Department expects some administrative costs such 
as payroll changes to be de minimis because employers already need to 
update payrolls when AEWR wage rates are released annually. The 
Department acknowledges that there may be other administrative costs, 
but commenters did not provide specific data to quantify those costs.
    Finally, one commenter asserted that the impacts of the proposed 
rule would increase food inflation. The Department does not have data 
to quantify impacts on food inflation from the estimated wage 
transfers. However, the Department reiterates that the analysis shows 
only 2.9 percent of certifications would have wage impacts under the 
AEWR methodology in this final rule and, as discussed in the Regulatory 
Flexibility Act of 1980 (RFA), the wage impacts are not significant for 
98 percent of small employers. The Department does not expect this 
final rule alone will cause a general increase in food prices because 
there are many other factors such as an overall increase in the price 
level and an increase in the transportation and material costs that 
would have more substantive impacts on food prices.\96\
---------------------------------------------------------------------------

    \96\ The Department does not have data to estimate the impact of 
this rule on specific types of food. The Department believes that 
the impact of the rule will most likely affect Puerto Rico and 
Alaska, where no AEWRs currently exist because the FLS data does not 
collect wage data covering those geographic areas.
---------------------------------------------------------------------------

Outline of the Analysis
    Section III.A.1 describes the need for the final rule, and Section 
III.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 III.A.3 explains how the provisions of the final rule 
will result in quantifiable costs and transfers and presents the 
calculations the Department used to estimate them. In addition, Section 
III.A.3 describes the unquantified costs of the final rule, a 
description of qualitative benefits, and presents an analysis of 
distributional impacts of the rule. Section III.A.4 summarizes the 
estimated first-year and 10-year total and annualized costs and 
transfers of the final rule. Finally, Section III.A.5 describes the 
regulatory alternatives that were considered during the development of 
the final rule.
Summary of the Analysis
    The Department estimates that the final rule will result in costs 
and transfers. As shown in Exhibit 1, the final rule is expected to 
have an annualized cost of $0.073 million and a total 10-year 
quantifiable cost of $0.51 million at a discount rate of 7 percent.\97\ 
The final rule is estimated to result in annual transfers from H-2A 
employers to H-2A employees of $38.22 million and total 10-year 
transfers of $268.47 million at a discount rate of 7 percent.\98\
---------------------------------------------------------------------------

    \97\ The final rule will have an annualized cost of $0.06 
million and a total 10-year cost of $0.51 million at a discount rate 
of 3 percent in 2021 dollars.
    \98\ The final rule will have annualized transfer payments from 
H-2A employers to H-2A employees of $37.83 million and a total 10-
year transfer payments of $322.73 million at a discount rate of 3 
percent in 2021 dollars.

  Exhibit 1--Estimated Monetized Costs and Transfers of the Final Rule
                            [2021 $millions]
------------------------------------------------------------------------
                                               Costs         Transfers
------------------------------------------------------------------------
Undiscounted 10-Year Total..............           $0.51         $375.07
10-Year Total with a Discount Rate of 3             0.51          322.73
 percent................................
10-Year Total with a Discount Rate of 7             0.51          268.47
 percent................................
10-Year Average.........................            0.05           37.51
Annualized at a Discount Rate of 3                  0.06           37.83
 percent................................
Annualized with at a Discount Rate of 7             0.07           38.22
 percent................................
------------------------------------------------------------------------

    The total cost of the final 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 III.A.3 (Subject-by-Subject Analysis) for a detailed 
explanation.
    The Department was unable to quantify some costs and benefits of 
the final rule and describes them qualitatively in Section III.A.3 
(Subject-by-Subject Analysis).
1. Need for Regulation
    As discussed above, court-issued injunctions prevented USDA from 
suspending FLS data collection for CY 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

[[Page 12787]]

the 2010 Final Rule, FLS wage data is used to determine the AEWRs for 
all H-2A non-range job opportunities. However, the Department remains 
concerned that the use of a single AEWR for all non-range job 
opportunities in the H-2A program may adversely affect the wages of 
workers in the United States similarly employed in certain jobs where 
the FLS does not adequately collect or consistently report wage data at 
a State or regional level. Therefore, the Department will use 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 SOC codes covering field 
workers and livestock workers--while shifting AEWR determinations to 
the OEWS survey for all other SOC codes for which the FLS does not 
adequately collect or consistently report wage data at a State or 
regional level (e.g., tractor-trailer truck drivers, farm supervisors 
and managers, construction workers, logging workers, and many 
occupations in contract employment). As AEWR determinations become more 
SOC-specific, the Department believes it is appropriate to continue 
requiring that employers pay the highest applicable wage if the job 
opportunity cannot be classified within a single SOC code to reduce the 
potential for employers to misclassify workers, guard against adverse 
effect on the wages of similarly employed workers in the United States 
who are engaged in work encompassed in the higher-paid SOC code.
    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 will implement revisions in 
this final rule that better meet the statute's twin goals to ensure 
that employers can access legal agricultural labor while maintaining 
strong wage protection for workers in the United States similarly 
employed.
2. Analysis Considerations
    The Department estimated the costs and transfers of the final 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 was preliminarily 
enjoined and subsequently vacated by a Federal district court, as 
explained above.
    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 final rule (i.e., costs and transfers that accrue 
to entities affected). The analysis covers 10 years (from 2023 through 
2032) to ensure it captures major costs and transfers that accrue over 
time. The Department expresses all quantifiable impacts in 2021 dollars 
and uses discount rates of 3 and 7 percent, pursuant to Circular A-4.
    Exhibit 2 presents the number of affected entities that are 
expected to be impacted by the final rule. The average number of 
affected entities is calculated using OFLC temporary agricultural labor 
certification data from 2017 through 2021. The Department provides this 
estimate and uses it to estimate the costs of the final rule.

             Exhibit 2--Number of Affected Entities by Type
                         [CY 2017-2021 average]
------------------------------------------------------------------------
                       Entity type                            Number
------------------------------------------------------------------------
Annual Unique H-2A Applicants...........................           8,856
------------------------------------------------------------------------

Growth Rate
    The Department's estimated growth rates for applications processed 
and certified H-2A workers based on FYs 2012 to 2021 H-2A program data, 
is presented in Exhibit 3.

                 Exhibit 3--Historical H-2A Program Data
------------------------------------------------------------------------
     Fiscal year       Applications certified       Workers certified
------------------------------------------------------------------------
           2012                       5,278                    85,248
           2013                       5,706                    98,814
           2014                       6,476                   116,689
           2015                       7,194                   139,725
           2016                       8,297                   165,741
           2017                       9,797                   199,924
           2018                      11,319                   242,853
           2019                      12,626                   258,446
           2020                      13,552                   275,430
           2021                      15,619                   317,619
------------------------------------------------------------------------

    The geometric growth rate for certified H-2A workers using the 
program data in Exhibit 3 is calculated as 17.9 percent. This growth 
rate, applied to the analysis timeframe of 2023 to 2032, would result 
in more H-2A certified workers than projected employment of workers in 
the relevant H-2A SOC codes by BLS.\99\ Therefore, to estimate 
realistic growth rates for the analysis, the Department applied an 
autoregressive integrated moving average (ARIMA) model to the FY 2012-
2021 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.\100\ Multiple models yielded indistinctive measures of 
goodness of fit. Therefore, each model was used to

[[Page 12788]]

project workers and applications through 2032. 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 7.5 percent for H-2A applications and 6.3 percent for H-
2A certified workers. The estimated growth rates for applications (7.5 
percent) and workers (6.3 percent) were applied to the estimated costs 
and transfers of the final rule to forecast participation in the H-2A 
program.
---------------------------------------------------------------------------

    \99\ Comparing BLS 2030 projections for combined agricultural 
workers (SOC 45-2000) with a 17.9 percent growth rate of H-2A 
workers yields estimated H-2A workers that are about 127 percent 
greater than BLS 2030 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 https://www.bls.gov/emp/tables/occupational-projections-and-characteristics.htm.
    \100\ 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 III.A.3 (Subject-by-Subject Analysis).
Compensation Rates
    In Section III.A.3 (Subject-by-Subject Analysis), the Department 
presents the costs, including labor, associated with the implementation 
of the provisions of the final rule. Exhibit 4 presents the hourly 
compensation rates for the SOC codes expected to experience a change in 
the number of hours necessary to comply with the final rule. The 
Department used the mean hourly wage rate for private sector Human 
Resources Specialists (SOC 13-1071).\101\ 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 \102\ 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.\103\ 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.
---------------------------------------------------------------------------

    \101\ BLS, May 2021 National Occupational Employment and Wage 
Estimates: 13-1071--Human Resources Specialist, https://www.bls.gov/oes/current/oes131071.htm (last modified Mar. 31, 2022).
    \102\ 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.
    \103\ See Employer Costs for Employee Compensation, https://www.bls.gov/news.release/ecec.toc.htm (last modified March 18, 
2022). This shows the ratio of total compensation to wages and 
salaries for all private industry workers.

                                                              Exhibit 4--Compensation Rates
                                                                    [2021 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           $34.00   $14.19 ($34.00 x 0.42)......  $5.78 ($34.00 x 0.17).......          $53.97
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Numbers do not add due to rounding.

3. Subject-By-Subject Analysis
    The Department's analysis below covers the rule familiarization 
costs, unquantifiable costs, transfers, and qualitative benefits of the 
final 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 analysis includes the cost 
of rule familiarization and transfers associated with the AEWR wage 
structure in this final rule. The Department also described efficiency 
impacts, payroll and other transition costs, and the distributional 
impacts that could result from this final rule.
Costs
    The following section describes the costs of the final rule.
Quantifiable Costs
Rule Familiarization
    When the final 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 (7.5 percent) to the average number of annual 
unique H-2A applicants from 2017 to 2021 (8,856) 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 (9,520) was 
multiplied by the estimated amount of time required to review the rule 
(1 hour).\104\ This number was then multiplied by the hourly 
compensation rate of Human Resources Specialists ($53.97 per hour), who 
the Department assumes will be responsible for rule familiarization as 
they are typically well versed in the wages and benefits structure of 
employment. This calculation results in a one-time undiscounted cost of 
$513,804 \105\ in the first year after the final rule takes effect. The 
annualized cost over the 10-year period is $60,234 and $73,154 at 
discount rates of 3 and 7 percent, respectively.
---------------------------------------------------------------------------

    \104\ This estimate reflects the nature of the final 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.
    \105\ Numbers do not add due to rounding.
---------------------------------------------------------------------------

Unquantifiable Costs
a. Efficiency Impacts
    The final wage methodology is designed to achieve the statute's 
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 
relevant labor markets are perfectly competitive, if the final rule 
results in a wage floor above competitive market wages, it will produce 
some deadweight loss (DWL). In the case of when employers have some 
monopsony market power, if the final rule sets 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

[[Page 12789]]

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 final rule may act as a wage 
floor that is above competitive market equilibrium wages for certain 
job opportunities, whereas in other job opportunities imperfect 
competition may suppress domestic labor markets at quantities below the 
competitive market equilibrium. In this case, if the rule raises the 
wage floor, resulting wages will be closer to what they would be in a 
competitive market, resulting in greater efficiency (and reduced DWL).
    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, 
and 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 requested public comment 
on the DWL or other labor market inefficiencies resulting from the 
final rule and did not receive any. The efficiency impact of the final 
rule is limited only to the 2 percent of H-2A workers whose wages the 
final rule will affect, while there would be no change to the DWL for 
the other 98 percent of H-2A workers.\106\ Therefore, the DWL resulting 
from the final rule is likely very small. Because the market 
equilibrium wages for construction workers, supervisors/managers of 
farmworkers, and logging workers are above current baseline AEWRs, the 
final 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 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).
---------------------------------------------------------------------------

    \106\ Under this final 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 SOC codes (45-2041, 45-2091, 
45-2092, 45-2093, 53-7064, 45-2099) which comprise 98 percent of H-
2A workers. Of the 25,150 certifications between FY 2020 and FY 2021 
only 732 (2.91%) have wage impacts from the final rule.
---------------------------------------------------------------------------

    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 following 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 final 
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 final 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 multi-State region. Under the final rule when the 
AEWR is annually adjusted, the DWL may increase when the AEWR covering 
the State or multi-State region also increases and remains above market 
equilibrium. Under the final rule this may occur for some, but not all, 
positions covering field and livestock workers where the AEWR is 
determined using the annual weighted statewide gross hourly wage based 
on the OEWS survey.\107\ 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 SOC codes 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 based on OEWS domestic wage data 
would likely be higher than both the baseline AEWR (based on the FLS) 
and the market equilibrium wage for temporary agricultural employment. 
Furthermore, under the final rule, for workers with roles spanning 
multiple SOC codes, the highest wage would be used, which would be 
above the market equilibrium wage, on average. Therefore, for most SOC 
code and area combinations, the AEWRs under this final rule, set at the 
OEWS wage, would serve as a wage floor and may create DWL in the labor 
market, as illustrated by Figure 1.
---------------------------------------------------------------------------

    \107\ Of the 25,150 certifications in 2020 and 2021, 24,430 were 
for field and livestock workers. Of those 24,430, only 28, or 0.1%, 
would have AEWR determined based on the OEWS survey.
---------------------------------------------------------------------------

BILLING CODE 4510-FP-P

[[Page 12790]]

[GRAPHIC] [TIFF OMITTED] TR28FE23.009

    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 some combinations of SOC codes and geographic areas 
where this can occur. For example, workers in higher paid SOC codes and 
SOC codes 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 final rule the AEWR will be 
increased for these SOC codes to the State-level OEWS.\108\ In 
addition, workers in SOC codes 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 the field 
and livestock worker occupational category which may be below market 
wage rates for a specific SOC code and geographic area 
combination.\109\ 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 final rule that DWL is 
reduced because of the higher AEWR (see Figure 2).
---------------------------------------------------------------------------

    \108\ For example, Mobile Heavy Equipment Mechanics, Except 
Engine (49-3042, in ME) has a 2021 AEWR of $14.99 and under the 
final rule would have an OEWS wage of $22.85.
    \109\ For example, Agricultural Workers, All Other (45-2099, in 
SOC) has a 2021 AEWR of $11.81. If FLS data was unavailable it would 
have a weighted average OEWS wage of $14.18 and the OEWS wage for 
that specific SOC codes is $16.51. Thus, the weighted average OEWS 
wage would be below the actual market wage for that SOC code.

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

[[Page 12791]]

[GRAPHIC] [TIFF OMITTED] TR28FE23.010

    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 12792]]

[GRAPHIC] [TIFF OMITTED] TR28FE23.011

    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, 
possibly 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 on foreign workers 
from increasing their wages. Increasing the AEWR under the final rule 
will extend all these impacts; that is, increase DWL, decrease domestic 
employer surplus, and increase domestic worker surplus.

[[Page 12793]]

[GRAPHIC] [TIFF OMITTED] TR28FE23.012

BILLING CODE 4510-FP-C
b. Payroll and Other Transition Costs
    The final 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 final 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 H-2A workers perform. The Department sought comment on 
these transition costs and did not receive any data from commenters 
allowing for quantification of the potential transition expenses such 
as recruitment and training.
Transfers
    The following section describes the transfers of the final 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.\110\ Therefore, the 
Department considers the wage transfers in the analysis as transfer 
payments within the global economic system.\111\
---------------------------------------------------------------------------

    \110\ 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/.
    \111\ If, instead, the rule was analyzed from the perspective of 
the U.S. economy, these wages would be costs since they would be 
paid to individuals outside the economy.
---------------------------------------------------------------------------

    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 final rule maintains this general wage-setting 
structure but modifies 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

[[Page 12794]]

region, without regard to SOC code, 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 workers in higher paid SOC codes, such as 
supervisors of farmworkers, tractor-trailer truck drivers, logging 
workers, 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 final rule the Department modifies 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 SOC codes that are less 
common in the H-2A program. While labor demanded from H-2ALCs (i.e., 
farm labor contractors) using the H-2A program 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.\112\ 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 H-2A applications.\113\ 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 data, it also surveys the agricultural employers who 
make up a significant majority of H-2A applications.
---------------------------------------------------------------------------

    \112\ Based on an analysis of temporary agricultural labor 
certification data for FY 2020, the Department issued 12,491 
temporary agricultural 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).
    \113\ Id.
---------------------------------------------------------------------------

    Under this final rule the Department uses 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 FLS does not report the annual gross average hourly wage in 
the State or region, the Department will set the annual AEWR for these 
SOC codes (45-2041, 45-2091, 45-2092, 45-2093, 53-7064, 45-2099) using 
the statewide gross average hourly wage rate the OEWS survey reports. 
If the OEWS survey does not report the annual statewide gross average 
hourly wage, the Department will set the AEWR for these SOC codes by 
using the annual national gross average hourly wage the OEWS survey 
reports. To produce an equivalent AEWR for field and livestock worker 
job opportunities using the OEWS survey under the final rule, BLS will 
compute an annual weighted average hourly wage using the establishment 
data reported for these SOC codes at the State and national level.
    For all other SOC codes, the Department will 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 will set the AEWR based on the national annual 
average hourly wage reported by the OEWS survey.
    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, and 45-2099 SOC codes at the 
State and national level using the OEWS May 2020 survey. The OEWS May 
2020 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 2019. To determine the appropriate 
weighted average hourly wage for these six SOC codes between October 
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 data sets. 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.\114\
---------------------------------------------------------------------------

    \114\ 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 revised AEWR methodology. Then, 
the Department determined the annual wage impact in CY 2020 and CY 2021 
by subtracting the AEWR baseline wage from the final rule wage. The 
Department summed the wage impacts in each calendar year, converted the 
wage impact to 2021 dollars using the ECI \115\ and took the average 
impact of CY 2020 and CY 2021.\116\ Wage impacts

[[Page 12795]]

for 2023 to 2032 were estimated by applying the H-2A workers growth 
rate (6.3 percent) to reflect that the number of H-2A workers affected 
(and the total wage impact) will grow annually at 6.3 percent. The 
Department assumed that the difference in wage rates between the 
baseline and the final rule wage will be the same over the 10-year 
analysis period. In addition, it is assumed that the geographic and SOC 
distribution of H-2A workers remain the same over the 10-year analysis 
period. Because the final rule wage-setting methodology would not 
retroactively impact workers and OEWS wages in the May 2022 OEWS will 
not apply until July 2023, the wage impact in 2023 is divided by 2 to 
account for the fact that only half the year of wages would be 
impacted.\117\
---------------------------------------------------------------------------

    \115\ BLS, Employment Cost Index Archived News Releases, https://www.bls.gov/bls/news-release/eci.htm (last modified July 30, 2021).
    \116\ 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. At the time of publishing only one quarter 
of FY 2022 is available that would have work for CY 2022, therefore 
the Department maintains the use of FY 2020 and FY 2021 data.
    \117\ The Department assumes in the economic analysis of the 
final rule that the final rule will not become effective until the 
second half of the year 2023.
---------------------------------------------------------------------------

    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 baseline and the 
final rule. 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 5 provides an example of the calculation of the 
AEWR baseline). In the example provided in Exhibit 5 for SOC code 45-
2092, the AEWR baseline wage is not available in Alaska, so the 
baseline wage, for the purpose of this analysis, is set by the public 
OEWS State wage as a proxy for estimating wage transfers.

                                                 Exhibit 5--AEWR Wage Under the Baseline (Example Case)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                   Number of      Basic      Number of    Number of
           SOC code               Baseline wage    certified    number of   days worked  days worked   Wage 2020    Wage 2021    Total AEWR   Total AEWR
                                     source         workers       hours       in 2020      in 2021                               wages 2020   wages 2021
                                                          (a)          (b)          (c)          (d)          (e)          (f)       (a*(b/       (a*(b/
                                                                                                                                    5)*c*e)      5)*d*f)
--------------------------------------------------------------------------------------------------------------------------------------------------------
45-2092.......................  FLS AEWR                   14           40          152           10       $15.54       $15.72  $264,552.96   $17,606.40
                                 (unavailable);
                                 OEWS State.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    For calculating the AEWR wage under the final rule, 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 6, for 
farmworkers (SOC code 45-2092, Farmworkers and Laborers, Crop, Nursery, 
and Greenhouse) the FLS AEWR wage is not available in Alaska, so the 
AEWR is set by the weighted average OEWS wage. For SOC codes outside of 
45-2041, 45-2091, 45-2092, 45-2093, 53-7064, and 45-2099, 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 6--AEWR Wage Under the Final Rule (Example Case)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                   Number of      Basic      Number of    Number of
           SOC code              Final rule wage   certified    number of   days worked  days worked   Wage 2020    Wage 2021    Total AEWR   Total AEWR
                                     source         workers       hours       in 2020      in 2021                               wages 2020   wages 2021
                                                          (a)          (b)          (c)          (d)          (e)          (f)       (a*(b/       (a*(b/
                                                                                                                                    5)*c*e)      5)*d*f)
--------------------------------------------------------------------------------------------------------------------------------------------------------
45-2092.......................  FLS AEWR                   14           40          152           10       $15.15       $16.78  $257,913.60   $18,793.60
                                 (unavailable);
                                 weighted
                                 average OEWS.
13-1074.......................  OEWS............           10           35          280           50        25.45        29.84   498,820.00   104,440.00
--------------------------------------------------------------------------------------------------------------------------------------------------------

    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.\118\ 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 (6.3 percent).\119\ The results are average annual undiscounted 
transfers of $37.5 million. The total transfer over the 10-year period 
is estimated at $375.07 million undiscounted, or $322.73 million and 
$268.47 million at discount rates of 3 and 7 percent, respectively. The 
annualized transfer over the 10-year period is $37.83 million and 
$38.22 million at discount rates of 3 and 7 percent, respectively.
---------------------------------------------------------------------------

    \118\ There is no FLS wage available for Alaska or Puerto Rico. 
Because of that, wages under the baseline in this analysis are set 
by the public OEWS State data as a proxy for estimating wage 
transfers. The H-2A wage provisions are the highest of (1) AEWR, (2) 
SWA prevailing wage, (3) CBA wage, or (4) federal or state minimum 
wage. If an AEWR is not available for a geographic area, which has 
been the case for Alaska and Puerto Rico, then the current minimum 
wage shifts to one of the other 3 sources if they are available. If 
there is no SWA prevailing wage or CBA wage, for example, then the 
Federal or state minimum wage (whichever is highest) would be 
minimum wage. However, we cannot accurately identify the baseline 
wage and its source in the certification when the AEWR is not 
available and therefore, used the OEWS State wage as a proxy for the 
baseline wage in the economic analysis that represents a likely wage 
estimate within the range from the 4 wage sources.
    Under the final 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 final rule.
    \119\ 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[supcaret](Current year-Base year)).
---------------------------------------------------------------------------

    The estimated transfers are likely on the high end of potential 
transfers. The

[[Page 12796]]

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, 213,394 H-2A 
visas were issued.\120\ In FY 2020, 275,430 workers were 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 that U.S. workers filled. As a result, our estimates for 
wage transfers are likely overstated. The Department is unable to 
identify the occupations associated with the 20 percent of workers that 
did not materialize. Therefore, the Department believes that our 
estimates for wage transfers are reasonable based on the available data 
and historical practice.
---------------------------------------------------------------------------

    \120\ 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 final 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 agricultural 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. Because the report of initial recruitment 
efforts for U.S. workers only captures information from a limited 
portion of the recruitment period and does not account for workers 
already employed by the employer who may be in corresponding 
employment, the Department is not able to draw on this information to 
meaningfully assess the total number of corresponding workers affected 
or their wage payment structures, without which the Department is 
unable to reasonably measure the transfers to corresponding workers. 
The Department sought public comment on how these wage transfer impacts 
can be calculated but received no comments. Finally, the Department is 
not able to estimate how much of the wage transfer stays in the U.S. 
economy. Likely 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 United States, spend the money 
outside the United States, send the money outside the United States, or 
some combination. The Department also invited comments regarding how 
these wage transfer impacts can be calculated but received no comments.
Qualitative Benefits
    This final rule makes an important update to the AEWR to ensure 
that it protects workers in the United States in positions where the 
existing wage methodology may adversely affect wages because the FLS 
does not adequately collect or consistently report wage data at a State 
or regional level (e.g., tractor-trailer truck drivers, farm 
supervisors and managers, logging workers, construction workers, and 
many occupations in contract employment). Workers in these positions 
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 
jobs 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 jobs. The potential for the employment of foreign workers to 
adversely affect the wages of similarly employed 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.'' \121\ As a result, 
``their ability to negotiate wages and working conditions with farm 
operators or agriculture service employers is quite limited.'' \122\ 
The AEWR is one way to prevent such adverse effect, as it 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.'' \123\
---------------------------------------------------------------------------

    \121\ Final Rule, Temporary Agricultural Employment of H-2A 
Aliens in the United States, 74 FR 45905, 45911 (Sep. 4, 2009).
    \122\ Id.
    \123\ Id.
---------------------------------------------------------------------------

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

[[Page 12797]]

Indigenous and Native American persons; Asian Americans and Pacific 
Islanders; other persons of color; 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.
    In addition, OMB Circular A-4, which provides guidelines for 
preparing economic analyses of regulations, discusses various ways that 
the distributional effects of a regulatory action across the population 
and economy can be assessed (e.g., income groups, race, sex, industry 
sector, and geography). Circular A-4 states the following:
    ``The regulatory analysis should provide a separate description of 
distributional effects (i.e., how both benefits and costs are 
distributed among sub-populations of particular concern) so that 
decision makers can properly consider them along with the effects on 
economic efficiency (i.e., net benefits). Executive Order 13563 and 
Executive 12866 authorize this approach. Where distributive effects are 
thought to be important, the effects of various regulatory alternatives 
should be described quantitatively to the extent possible, including 
the magnitude, likelihood, and severity of impacts on particular 
groups.''
    To assess the impact of the final rule on equity the Department 
used Current Population Survey (CPS) data from BLS \124\ 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) are presented in Exhibit 7. These top 10 SOC codes 
\125\ account for more than 90 percent of all the workers in the FY 
2021 certification data that experience wage impacts (certifications 
with wages set by the OEWS).
---------------------------------------------------------------------------

    \124\ 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).
    \125\ 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
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                            Percent of employed people
                                                                         ----------------------------------------------------------------  # of FY 2021
                 SOC Code                            Description                             Black or                                       Q1-Q3 H-2A
                                                                             White (%)        African        Asian (%)      Hispanic or       workers
                                                                                           American (%)                     Latino (%)
--------------------------------------------------------------------------------------------------------------------------------------------------------
45-0000...................................  Farming, fishing, and                     90               4               2              43              **
                                             forestry occupations.
47-2061...................................  Construction laborers.......              87               8               1              46           2,107
53-3032...................................  Heavy and tractor-trailer                 77              17               3              23             526
                                             truck drivers.
45-1011...................................  First-line supervisors of                 90               5               3              28             328
                                             farming, fishing, and
                                             forestry workers.
47-3012...................................  Helpers--carpenters.........             N/A             N/A             N/A             N/A             104
45-4022...................................  Logging equipment operators.             N/A             N/A             N/A             N/A              57
49-3041...................................  Farm equipment mechanics and              94               4               1              19              55
                                             service technicians.
47-2031...................................  Carpenters..................              88               7               2              36              30
47-3019...................................  Helpers, construction                    N/A             N/A             N/A             N/A              18
                                             trades, all other.
47-2051...................................  Cement masons and concrete                83               8               1              53              16
                                             finishers.
--------------------------------------------------------------------------------------------------------------------------------------------------------
*N/A 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 
final rule over the 10-year analysis period. The Department estimates 
the annualized costs of the final rule at $0.07 million and the 
annualized transfers (from H-2A employers to employees) at $38.22 
million, at a discount rate of 7 percent.

  Exhibit 8--Estimated Monetized Costs and Transfers of the Final Rule
                            [2021 $millions]
------------------------------------------------------------------------
                  Year                         Costs         Transfers
------------------------------------------------------------------------
2023....................................           $0.51          $14.57
2024....................................            0.00           30.98
2025....................................            0.00           32.94
2026....................................            0.00           35.01
2027....................................            0.00           37.22
2028....................................            0.00           39.56
2029....................................            0.00           42.05
2030....................................            0.00           44.70

[[Page 12798]]

 
2031....................................            0.00           47.52
2032....................................            0.00           50.51
Undiscounted 10-Year Total..............            0.51          375.07
10-Year Total with a Discount Rate of 3%            0.51          322.73
10-Year Total with a Discount Rate of 7%            0.51          268.47
10-Year Average.........................            0.05           37.51
Annualized with a Discount Rate of 3%...            0.06           37.83
Annualized with a Discount Rate of 7%...            0.07           38.22
------------------------------------------------------------------------

5. Regulatory Alternatives
    The Department maintains from the proposed rule the analysis of two 
alternatives to the final rule. The final rule requires the use of 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 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
    For each alternative analyzed, job opportunities classified under 
any other SOC code will have the AEWR set using the same methodology in 
the final rule: the AEWR for each SOC code would be the statewide 
annual average hourly gross wage for that SOC code 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 SOC code as 
reported by the OEWS survey.
    Under the first regulatory alternative, the Department considered 
setting the AEWR for job opportunities classified under SOC codes 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 SOC codes 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 SOC code 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 $117.03 million. The total 
transfer over the 10-year period was estimated at $1,170.34 million 
undiscounted, or $1,007.01 million and $837.71 million at discount 
rates of 3 and 7 percent, respectively. The annualized transfer over 
the 10-year period was $118.05 million and $119.27 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 code 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 code 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, and 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 $75.0672.30 million. The total transfer over 
the 10-year period was estimated at $750.6523.03 million undiscounted, 
or $645.8923.03 million and $537.3019.28 million at discount rates of 3 
and 7 percent, respectively. The annualized transfer over the 10-year 
period was $75.713.04 million and $76.503.93 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 of the Final Rule
                                                [2021 $millions]
----------------------------------------------------------------------------------------------------------------
                                                                                    Regulatory      Regulatory
                                                                    Final rule     alternative 1   alternative 2
                                                                    (transfers      (transfers      (transfers
                                                                  from employers  from employers  from employees
                                                                   to employees)   to employees)   to employers)
----------------------------------------------------------------------------------------------------------------
Total 10-Year Transfer..........................................            $375          $1,170            $751
Total with 3% Discount..........................................             323           1,007             646
Total with 7% Discount..........................................             268             838             537
Annualized Undiscounted Transfer................................              38             117              75
Annualized Transfer with 3% Discount............................              38             118              76

[[Page 12799]]

 
Annualized Transfer with 7% Discount............................              38             119              77
----------------------------------------------------------------------------------------------------------------

    The Department prefers the chosen approach of the final rule 
because it allows specific OEWS wages for workers in higher paid SOC 
codes, such as supervisors of farmworkers, tractor-trailer truck 
drivers, logging workers, and construction laborers on farms while 
maintaining the use of FLS data for SOC codes 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 positions. 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 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 (IRFA) when proposing, and a final regulatory 
flexibility analysis (FRFA) when issuing, requires Federal agencies 
engaged in rulemaking to assess the impact of regulations that will 
have a significant economic impact on a substantial number of small 
entities. The Department certifies that the final 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.
Public Comments
    Multiple commenters, including the Small Business Administration 
(SBA), asserted the Department underestimated the costs to small 
businesses. These costs include transition costs, filing fees, and wage 
increases that all lower profit margins for small businesses 
potentially leading to small business closures. One small farm owner 
stated they do not have enough division of labor to allocate separate 
workers for specific tasks resulting in the need to pay all workers the 
higher wage, which they are unable to afford. The Department 
acknowledges that some administrative costs to small businesses for 
recruitment and training if they hire U.S. workers for the jobs that H-
2A workers perform were not quantified due to the lack of data, as this 
data would be typically known to small businesses, rather than in the 
possession of the Department. In the NPRM, the Department sought public 
comment on these administrative costs but did not receive any comments 
or information to allow for a quantification of these costs. In 
addition, the Department considers the impact of the inability to 
quantify these costs to be de minimis because of the limited overall 
impact of this final rule on small employers. Specifically, the 
analysis in this RFA section estimates the impacts of the rule based on 
actual wage records in FY 2020 and FY 2021 for the most accurate impact 
of the revised AEWR structure. Based on the Department's analysis, 
approximately 98 percent of all small employers will have impacts of 
the final rule amounting to less than 1 percent of their revenue.
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 
SBA, in effect as of August 19, 2019, to classify entities as 
small.\126\ SBA establishes separate standards for individual 6-digit 
North American Industry Classification System (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 is 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.\127\
---------------------------------------------------------------------------

    \126\ 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.
    \127\ 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 USA \128\ and merged that 
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's name and city. 
The Department identified 9,927 unique employers (excluding labor 
contractors).\129\ 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

[[Page 12800]]

small (80.5 percent).\130\ 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 final rule on small entities is based on the number of small 
unique entities (2,085 with revenue data). Compared to the proposed 
rule, the final rule added Quarter 4 of FY 2021 certification data 
which contained 758 new unique employers that did not match employers 
in the Data Axle data and are, therefore, not included in this 
analysis. However, the Department expects the impacts for those 758 
employers to follow the distribution of impacts analyzed in this RFA.
---------------------------------------------------------------------------

    \128\ Data Axle USA is a business database that provide 
information on business size by employment and revenue. https://www.data-axle.com/.
    \129\ Labor contractors are not included because wage impacts 
associated with this final rule is incurred by employers not by 
labor contractors. The Department believes that labor contractors 
will adjust their contracts to the new wage rates and thereby pass 
the costs of any new wage rates on to their clients.
    \130\ 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 entity 
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 Supply Stores...             162               8
                      561730   Landscaping Services.............................             134               7
                      445230   Fruit and Vegetable Markets......................             127               6
                      424480   Fresh Fruit and Vegetable Merchant Wholesalers...              84               4
                      111339   Other Noncitrus Fruit Farming....................              78               4
                      112990   All Other Animal Production......................              57               3
                      424930   Flower, Nursery Stock, and Florists' Supplies                  51               3
                                Merchant Wholesalers............................
                      424910   Farm Supplies Merchant Wholesalers...............              41               2
                      484230   Specialized Freight (except Used Goods) Trucking,              39               2
                                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) to this 
final rule. As discussed in previous sections, the Department estimates 
impacts using historical certification data and, therefore, simulates 
the impacts of the final rule to each actual employer in the H-2A 
program rather than using representative data for employers within a 
given sector. The Department estimated the costs of (1) time to read 
and review the final rule and (2) 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, which consists of 2,085 unique small entities, would incur a 
one-time cost of $55.42 to familiarize themselves with the rule.\131\
---------------------------------------------------------------------------

    \131\ $34.00 + $34.00(0.46) + $34.00(0.17) = $55.42. Numbers do 
not add due to rounding.
---------------------------------------------------------------------------

    In addition to the cost of rule familiarization, each small entity 
may 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 final rule in CY 2020 and CY 2021. The Department 
estimates the wage impact on all small entities is $4,582 on average. 
Many of the small entities have no wage impact from the final rule 
because they typically do not hire H-2A workers in the occupations that 
are subject to wage changes in the final rule. Of small entities with 
wage impacts, their average wage impact is $149,541.
    The Department calculated the proportion of each small entity's 
total revenue that would be impacted by the costs of the final rule to 
determine if the final 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.
    A threshold of 3 percent of revenue has been used in prior 
rulemakings for the definition of significant economic impact.\132\ 
This threshold is also consistent with that sometimes used by other 
agencies.\133\
---------------------------------------------------------------------------

    \132\ 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).
    \133\ 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 
3 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 final 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 are estimated to have more 
than 3 percent of their total revenue impacted in the first year based 
on 2020 data and 1.8 percent of employers are estimated to have more 
than 3 percent of their total revenue impacted in the first year based 
on 2021 data. Based on the findings presented in Exhibit 11, the final 
rule does not have a significant economic impact on a substantial 
number of small H-2A employers.

[[Page 12801]]



                                      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)     1033 (98.3)     2054 (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
             Proportion of revenue impacted              -----------------------------------------------------------------------------------------------
                                                            111998 (%)      444220 (%)      561730 (%)      445230 (%)     All other (%)     Total (%)
--------------------------------------------------------------------------------------------------------------------------------------------------------
<1%.....................................................      599 (98.0)     162 (100.0)      131 (97.8)      126 (99.2)     1021 (97.1)     2039 (97.8)
1%-2%...................................................         4 (0.7)         0 (0.0)         1 (0.7)         0 (0.0)         2 (0.2)         7 (0.3)
2%-3%...................................................         0 (0.0)         0 (0.0)         0 (0.0)         0 (0.0)         2 (0.2)         2 (0.1)
3%-4%...................................................         1 (0.2)         0 (0.0)         0 (0.0)         0 (0.0)         2 (0.2)         3 (0.1)
4%-5%...................................................         1 (0.2)         0 (0.0)         0 (0.0)         0 (0.0)         2 (0.2)         3 (0.1)
>5%.....................................................         6 (1.0)         0 (0.0)         2 (1.5)         1 (0.8)        22 (2.1)        31 (1.5)
Total >3%...............................................         8 (1.3)         0 (0.0)         2 (1.5)         1 (0.8)        26 (2.5)        37 (1.8)
--------------------------------------------------------------------------------------------------------------------------------------------------------

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 DOL amends 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 (AEWR)'' 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 adding paragraph (b)(1), revising paragraph 
(b)(2), and adding paragraph (b)(5) to read as follows:


Sec.  655.120   Offered wage rate.

* * * * *
    (b) * * *
    (1) Except for occupations governed by the procedures in Sec. Sec.  
655.200 through 655.235, the OFLC Administrator will determine the 
AEWRs as follows:
    (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.

[[Page 12802]]

    (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 March 30, 2023, 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.
    (2) The OFLC Administrator will publish a notice in the Federal 
Register, at least once in each calendar year, on a date to be 
determined by the OFLC Administrator, establishing each AEWR.
* * * * *
    (5) If the job duties on the job order cannot be encompassed within 
a single occupational classification, the applicable AEWR shall be the 
highest AEWR for all applicable occupations.
* * * * *

Brent Parton,
Acting Assistant Secretary for Employment and Training, Labor.
[FR Doc. 2023-03756 Filed 2-27-23; 8:45 am]
 BILLING CODE 4510-FP-P