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

CourtEmployment And Training Administration,Labor Department
Citation86 FR 68174
Publication Date01 December 2021
Record Number2021-25803
Federal Register, Volume 86 Issue 228 (Wednesday, December 1, 2021)
[Federal Register Volume 86, Number 228 (Wednesday, December 1, 2021)]
                [Proposed Rules]
                [Pages 68174-68200]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2021-25803]
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                DEPARTMENT OF LABOR
                Employment and Training Administration
                20 CFR Part 655
                [DOL Docket No. ETA-ETA-2021-0006]
                RIN 1205-AC05
                Adverse Effect Wage Rate Methodology for the Temporary Employment
                of H-2A Nonimmigrants in Non-Range Occupations in the United States
                AGENCY: Employment and Training Administration, Department of Labor.
                ACTION: Notice of proposed rulemaking.
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                SUMMARY: The Department of Labor (Department or DOL) is proposing to
                amend its regulations governing the certification of agricultural labor
                or services to be performed by temporary foreign workers in H-2A
                nonimmigrant status (H-2A workers). Specifically, the Department
                proposes to revise the methodology by which it determines the hourly
                Adverse Effect Wage Rates
                [[Page 68175]]
                (AEWRs) for non-range occupations (i.e., all occupations other than
                herding and production of livestock on the range) using a combination
                of wage data reported by the U.S. Department of Agriculture's (USDA)
                Farm Labor Survey (FLS) and the Department's Bureau of Labor Statistics
                (BLS) Occupational Employment and Wage Statistics (OEWS) survey,
                formerly the Occupational Employment Statistics (OES) survey prior to
                March 31, 2021. For the vast majority of H-2A job opportunities
                represented by six occupations comprising the field and livestock
                worker (combined) wages reported by USDA, the proposed regulations will
                rely on the FLS to establish the AEWRs for these occupations in
                accordance with the methodology used by the Department for nearly all
                of the last 30 years. For all other occupations and to address
                circumstances in which the FLS does not report wage data for the field
                and livestock worker occupations, the Department proposes to use the
                OEWS survey to establish the AEWRs for each occupation. These proposed
                regulations are consistent with the Secretary of Labor's (Secretary)
                statutory responsibility to certify that the employment of H-2A workers
                will not adversely affect the wages and working conditions of workers
                in the United States similarly employed. The Department believes the
                proposed methodology will strike a reasonable balance between the
                statute's competing goals of providing employers with an adequate legal
                supply of agricultural labor and protecting the wages and working
                conditions of workers in the United States similarly employed.
                DATES: Interested persons are invited to submit written comments on the
                proposed rule on or before January 31, 2022.
                ADDRESSES: You may submit comments electronically by the following
                method:
                 Federal eRulemaking Portal: https://www.regulations.gov. Follow the
                instructions on the website for submitting comments.
                 Instructions: Include the agency's name and docket number ETA-2021-
                0006 in your comments. All comments received will become a matter of
                public record and will be posted without change to https://www.regulations.gov. Please do not include any personally identifiable
                or confidential business information you do not want publicly
                disclosed.
                FOR FURTHER INFORMATION CONTACT: Brian Pasternak, Administrator, Office
                of Foreign Labor Certification, Employment and Training Administration,
                U.S. Department of Labor, 200 Constitution Avenue NW, Room N-5311,
                Washington, DC 20210, telephone: (202) 693-8200 (this is not a toll-
                free number). Individuals with hearing or speech impairments may access
                the telephone numbers above via TTY/TDD by calling the toll-free
                Federal Information Relay Service at 1 (877) 889-5627.
                SUPPLEMENTARY INFORMATION:
                I. Background
                A. Statutory and Regulatory Framework
                 The Immigration and Nationality Act (INA), as amended by the
                Immigration Reform and Control Act of 1986 (IRCA), establishes an ``H-
                2A'' nonimmigrant visa classification for a worker ``having a residence
                in a foreign country which he has no intention of abandoning who is
                coming temporarily to the United States to perform agricultural labor
                or services . . . of temporary or a seasonal nature.'' 8 U.S.C.
                1101(a)(15)(H)(ii)(a); see also 8 U.S.C. 1184(c)(1), 1188.\1\ Among
                other things, a prospective H-2A employer must first apply to the
                Secretary for a certification that (1) there are not sufficient workers
                who are able, willing, and qualified, and who will be available at the
                time and place needed to perform the labor or services involved in the
                petition, and (2) the employment of the H-2A workers in such services
                or labor will not adversely affect the wages and working conditions of
                workers in the United States similarly employed. 8 U.S.C. 1188(a)(1).
                The INA prohibits the Secretary from issuing this certification--known
                as a ``temporary labor certification''--unless both of the above
                referenced conditions are met and none of the conditions in 8 U.S.C.
                1188(b) apply concerning strikes or lock-outs, labor certification
                program debarments, workers'' compensation assurances, and positive
                recruitment.
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                 \1\ For ease of reference, sections of the INA are referred to
                by their corresponding section in the United States Code.
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                 The Secretary has delegated the authority to issue temporary
                agricultural labor certifications to the Assistant Secretary,
                Employment and Training Administration (ETA), who in turn has delegated
                that authority to ETA's Office of Foreign Labor Certification
                (OFLC).\2\ In addition, the Secretary has delegated to the Wage and
                Hour Division (WHD) the responsibility under section 218(g)(2) of the
                INA, 8 U.S.C. 1188(g)(2), to ensure employer compliance with the terms
                and conditions of employment under the H-2A program.\3\
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                 \2\ See Secretary's Order 06-2010 (Oct. 20, 2010), 75 FR 66268
                (Oct. 27, 2010); 20 CFR 655.101.
                 \3\ See Secretary's Order 01-2014 (Dec. 19, 2014), 79 FR 77527
                (Dec. 24, 2014).
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                 Since 1987, the Department has operated the H-2A temporary labor
                certification program under regulations promulgated pursuant to the
                INA. The standards and procedures applicable to the certification and
                employment of workers under the H-2A program are found in 20 CFR part
                655, subpart B, and 29 CFR part 501.
                 An employer seeking H-2A workers generally initiates the temporary
                labor certification process by filing an H-2A Agricultural Clearance
                Order, Form ETA-790/790A (job order), with the State Workforce Agency
                (SWA) in the area where it seeks to employ H-2A workers.\4\ In
                preparing the job order and to comply with its wage obligations under
                20 CFR 655.122(l), the employer is required to offer, advertise in its
                recruitment, and pay a wage that is the highest of the AEWR, the
                prevailing wage, the agreed-upon collective bargaining wage, the
                Federal minimum wage, or the State minimum wage.\5\
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                 \4\ 20 CFR 655.121.
                 \5\ 20 CFR 655.120(a).
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                 With the exception of brief periods under the 2008 Final Rule \6\
                and 2020 AEWR Final Rule,\7\ discussed in more detail below, the
                Department has established an AEWR using FLS data for each State in the
                multistate or single-State crop region to which the State belongs since
                1987.\8\ Currently, pursuant to the 2010 Final Rule,\9\ the AEWR for
                each State or region is published annually as a single average hourly
                gross wage that is set using the field and livestock workers (combined)
                data from the FLS, which is conducted by the USDA's National
                Agricultural
                [[Page 68176]]
                Statistics Service (NASS).\10\ The current methodology produces a
                single AEWR for all agricultural workers in a given State or region,
                without regard to occupational classification, and no AEWR in
                geographic areas not surveyed by NASS (e.g., Alaska). At the time of
                submitting the job order, the employer must agree to pay at least the
                AEWR, the prevailing hourly wage rate, the prevailing piece rate, the
                agreed-upon collective bargaining rate, or the Federal or state minimum
                wage rate, in effect at the time work is performed, whichever is
                highest, and pay that rate to workers for every hour or portion thereof
                worked during a pay period.\11\
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                 \6\ Final Rule, Temporary Agricultural Employment of H-2A Aliens
                in the United States; Modernizing the Labor Certification Process
                and Enforcement, 73 FR 77110 (Dec. 18, 2008) (2008 Final Rule).
                 \7\ As discussed in subsequent sections of this preamble, a
                federal court in United Farm Workers v. Dept of Labor, No. 20-cv-
                01690 (E.D. Cal. Dec. 23, 2020), enjoined the Department from
                further implementing the 2020 AEWR Final Rule, Adverse Effect Wage
                Rate Methodology for the Temporary Employment of H-2A Nonimmigrants
                in Non-Range Occupations in the United States, 85 FR 70445 (Nov. 5,
                2020) (2020 AEWR Final Rule) two days after its effective date of
                December 21, 2020.
                 \8\ The FLS collects data for workers directly hired by U.S.
                farms and ranches in each of 15 multistate labor regions, and the
                single-State regions of California, Florida, and Hawaii. The FLS
                does not collect data in other locations, for example, Alaska and
                Puerto Rico, where an employer may seek to employ H-2A workers.
                 \9\ As discussed more fully below, the Department has utilized
                the methodology set forth in the 2010 Final Rule since March 15,
                2010, except for the two-day period of December 21-22, 2020.
                 \10\ Final Rule, Temporary Agricultural Employment of H-2A
                Aliens in the United States, 75 FR 6883 (Feb. 12, 2010) (2010 Final
                Rule); Interim Final Rule, Labor Certification Process for the
                Temporary Employment of Aliens in Agriculture and Logging in the
                United States, 52 FR 20496 (Jun. 1, 1987) (1987 IFR).
                 \11\ 20 CFR 655.120(l).
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                B. The Role of AEWRs in the H-2A Program
                 As explained in prior rulemakings, requiring employers to pay the
                AEWR when it is the highest applicable wage is the primary way the
                Department meets its statutory obligation to certify no adverse effect
                on workers in the United States similarly employed. The AEWR is the
                rate that the Department has determined is necessary to ensure the
                employment of H-2A foreign workers will not have an adverse effect on
                the wages of agricultural workers in the United States similarly
                employed. Specifically, the AEWR is intended to guard against the
                potential for the entry of H-2A foreign workers to adversely affect the
                wages and working conditions of agricultural workers in the United
                States similarly employed. As the Department noted shortly after the
                creation of the modern H-2A program, a ``basic Congressional premise
                for temporary foreign worker programs . . . is that the unregulated use
                of [nonimmigrant foreign workers] in agriculture would have an adverse
                impact on the wages of U.S. workers, absent protection.'' \12\ The
                potential for the employment of foreign workers to adversely affect the
                wages of U.S. workers is heightened in the H-2A program because the H-
                2A program is not subject to a statutory cap on the number of foreign
                workers who may be admitted to work in agricultural jobs. Consequently,
                concerns about wage depression from the employment of foreign workers
                are particularly acute because employers'' access to a potentially
                unlimited number of foreign workers in a particular labor market and
                crop activity or agricultural activity could cause the prevailing wage
                of workers in the United States similarly employed to stagnate or
                decrease. The Department continues to believe that the use of an AEWR
                is necessary in order to effectuate its statutory mandate of protecting
                agricultural workers in the United States similarly employed from the
                possibility of adverse effects on their wages and working conditions.
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                 \12\ Interim Final Rule, Labor Certification Process for the
                Temporary Employment of Aliens in Agriculture and Logging in the
                United States, 52 FR 20496, 20505 (Jun. 1, 1987).
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                 Addressing the potential adverse effect that the employment of
                temporary foreign workers may have on the wages of agricultural workers
                in the United States similarly employed is particularly important
                because U.S. agricultural workers are, in many cases, especially
                susceptible to adverse effects caused by the employment of temporary
                foreign workers. As discussed in prior rulemakings, the Department
                continues to hold the view that ``U.S. agricultural workers need
                protection from potential adverse effects of the use of foreign
                temporary workers, because they generally comprise an especially
                vulnerable population . . . with few alternatives in the non-farm labor
                market.'' \13\ As a result, ``their ability to negotiate wages and
                working conditions with farm operators or agriculture service employers
                is quite limited.'' \14\ The AEWR provides ``a floor below which wages
                cannot be negotiated, thereby strengthening the ability of this
                particularly vulnerable labor force to negotiate over wages with
                growers who are in a stronger economic and financial position in
                contractual negotiations for employment.'' \15\
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                 \13\ Proposed Rule, Temporary Agricultural Employment of H-2A
                Aliens in the United States, 74 FR 45905, 45911 (Sep. 4, 2009).
                 \14\ Id.
                 \15\ Id.
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                 The use of an AEWR, separate from a prevailing wage for a
                particular crop or agricultural activity, ``is most relevant in cases
                in which the local prevailing wage is lower than the wage considered
                over a larger geographic area (within which the movement of domestic
                labor is feasible) or over a broader occupation/crop/activity
                definition (within which reasonably ready transfer of skills is
                feasible).'' \16\ The AEWR acts as ``a prevailing wage concept defined
                over a broader geographic or occupational field.'' \17\ The AEWR is
                generally based on data collected in a multistate agricultural region
                and an occupation broader than a particular crop activity or
                agricultural activity, while the prevailing wage is commonly determined
                based on a particular crop activity or agricultural activity at the
                State or sub-State level. Therefore, the AEWR protects against
                localized wage depression that might occur in prevailing wage rates.
                The AEWR is complemented by the prevailing wage determination process,
                which serves a related, but distinct purpose. The prevailing wage, as
                determined under current Departmental guidance, provides an additional
                safeguard against wage depression that could arise in the performance
                of specific crop or agricultural activities within a regional or local
                geographic area.
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                 \16\ 75 FR 6883, 6892-6893.
                 \17\ Id. at 6893.
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                 Congress, however, did not ``define adverse effect and left it in
                the Department's discretion how to ensure that the [employment] of
                farmworkers met the statutory requirements.'' \18\ Thus, the Department
                has discretion to determine the methodological approach that best
                allows it to meet its statutory mandate.\19\ The INA ``requires that
                the Department serve the interests of both farmworkers and growers--
                which are often in tension. That is why Congress left it to [the
                Department's] judgment and expertise to strike the balance.'' \20\
                There is no statutory requirement that the Department set the AEWR at
                the highest conceivable point, nor at the lowest, so long as it serves
                its purpose. The Department may also consider factors relating to the
                sound administration of the H-2A program in deciding how to set the
                AEWR. For the reasons discussed below, the Department is proposing an
                approach that is reasonable and strikes an appropriate balance under
                the INA.
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                 \18\ AFL-CIO, et al. v. Dole, 923 F.2d 182, 184 (D.C. Cir.
                1991).
                 \19\ United Farmworkers v. Solis, 697 F. Supp. 2d 5, 8-11
                (D.D.C. 2010).
                 \20\ Dole, 923 F.2d at 187.
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                C. Recent Rulemaking
                 As part of a comprehensive H-2A program notice of proposed
                rulemaking (2019 NPRM) published on July 26, 2019, the Department
                proposed to adjust the methodology used to establish the AEWRs in the
                H-2A program. That approach would have provided occupation-specific
                hourly AEWRs for non-range occupations \21\ (i.e., all occupations
                other than herding and production of livestock on the range) in each
                State using data reported by FLS for the occupation, if available, or
                data reported by the OES (now OEWS) survey for the occupation in the
                State,
                [[Page 68177]]
                if FLS data was not available.\22\ The Department explained that
                establishing AEWRs based on data more specific to the agricultural
                services or labor being performed under the Standard Occupational
                Classification (SOC) system would better protect against adverse effect
                on the wages of workers in the United States similarly employed. For
                example, the Department expressed concern that the AEWR methodology
                under the 2010 Final Rule may have an adverse effect on the wages of
                workers in higher paid non-range occupations, such as supervisors of
                farmworkers and construction laborers, whose wages may be
                inappropriately lowered by use of a single hourly AEWR based on the
                wages collected for occupations covering field and livestock
                workers.\23\
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                 \21\ Range occupations are subject to a monthly AEWR, as set
                forth in 20 CFR 655.211(c).
                 \22\ See Proposed Rule, Temporary Agricultural Employment of H-
                2A Nonimmigrants in the United States, 84 FR 36168, 36171 (July 26,
                2019) (2019 NPRM).
                 \23\ Id. at 36180-36185.
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                 The Department received thousands of comments on the proposed
                changes to the methodology for setting the AEWRs in the 2019 NPRM. The
                commenters represented a wide range of stakeholders interested in the
                H-2A program, and the Department received comments both in support of
                and in opposition to the proposed changes to establish occupation-
                specific hourly AEWRs for non-range occupations. A detailed discussion
                of the public comments as well as further background on the 2019 NPRM,
                specifically related to the hourly AEWR determinations, is available in
                the Department's 2020 AEWR Final Rule and will not be restated
                here.\24\
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                 \24\ See 85 FR 70445, 70447-70465.
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                 On September 30, 2020, USDA publicly announced its intent to cancel
                the planned October data collection and November publication of the
                Agricultural Labor Survey (ALS) and Farm Labor reports (better known as
                the FLS).\25\ The 2020 AEWR Final Rule revised the AEWR methodology to
                account for public comments received on the 2019 NPRM proposals and the
                USDA announcement that NASS did not plan to release its November 2020
                report containing the annual gross hourly wage rates for field and
                livestock workers (combined), which was necessary for the Department to
                establish and publish the hourly AEWRs for the next calendar year
                period on or before December 31, 2020, under the existing 2010 Final
                Rule methodology. In revising the AEWR methodology in the 2020 AEWR
                Final Rule, the Department acknowledged that USDA had suspended FLS
                data collection on at least two prior occasions, and the USDA decision
                to cancel the October data collection and release of the report planned
                for November 2020 was the subject of ongoing litigation.\26\ Given the
                uncertainty regarding the future of the FLS and to ensure AEWRs for
                each State were published before the end of calendar year 2020, the
                Department published the 2020 AEWR Final Rule on November 5, 2020, with
                an effective date of December 21, 2020.
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                 \25\ Notice of Revision to the Agricultural Labor Survey and
                Farm Labor Reports by Suspending Data Collection for October 2020,
                85 FR 61719 (Sept. 30, 2020); USDA NASS, Guide to NASS Surveys: Farm
                Labor Survey, https://www.nass.usda.gov/Surveys/Guide_to_NASS_Surveys/Farm_Labor (last modified Dec. 10, 2020); see
                also USDA NASS, USDA NASS to Suspend the October Agricultural Labor
                Survey (Sept. 30, 2020), https://www.nass.usda.gov/Newsroom/Notices/2020/09-30-2020.php.
                 \26\ 85 FR 70445, 70446.
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                 The 2020 AEWR Final Rule set the 2021 AEWR for field and livestock
                worker occupations at the 2020 AEWR rates, which were based on results
                from the FLS wage survey published in November 2019, and provided for
                those AEWRs to adjust annually, starting at the beginning of calendar
                year 2023, using the BLS Economic Cost Index (ECI), Wages and Salaries.
                For all other occupations, and for geographic areas not included in the
                FLS, the 2020 AEWR Final Rule set the 2021 AEWR at the statewide annual
                average hourly gross wage for the occupation reported by the OEWS
                survey or, where a statewide average hourly gross wage is not reported,
                the national average hourly gross wage for the occupation reported by
                the OEWS survey, to be adjusted annually based on the OEWS survey.
                D. Need for New Rulemaking
                 On October 28, 2020, the U.S. District Court for the Eastern
                District of California in United Farm Workers, et al. v. Perdue, et
                al., No. 20-cv-01452 (E.D. Cal. filed Oct. 13, 2020), preliminarily
                enjoined USDA from giving effect to its decision to suspend the October
                2020 FLS data collection and cancel its November 2020 publication of
                the FLS.\27\ Additionally, on December 23, 2020, in United Farm Workers
                v. Dep't of Labor, No. 20-cv-01690 (E.D. Cal. filed Nov. 30, 2020), the
                same court issued an order enjoining the Department from further
                implementing the 2020 AEWR Final Rule.\28\ On January 12, 2021, the
                court issued a supplemental order requiring the Department to publish
                the AEWRs for 2021 in the Federal Register on or before February 25,
                2021, using the methodology set forth in the 2010 Final Rule, and to
                make those AEWRs effective upon their publication.\29\ After NASS
                completed its data collection, USDA published the FLS report on
                February 11, 2021.\30\ Shortly thereafter, the Department published the
                2021 AEWRs on February 23, 2021, with an immediate effective date,
                pursuant to the court's January 12, 2021 supplemental order.\31\
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                 \27\ United Farm Workers v. Perdue, 2020 WL 6318432 (E.D. Cal.
                Oct. 28, 2020); see also United Farm Workers v. Perdue, 2020 WL
                6939021 (E.D. Cal. Nov. 25, 2020) (denying USDA's motion to modify
                or dissolve the inunction).
                 \28\ Order Granting Plaintiffs'' Motion for a Preliminary
                Injunction, United Farm Workers, et al. v. U.S. Dep't of Labor, et
                al., No. 20-cv-1690 (E.D. Cal.), ECF No. 37.
                 \29\ Supplemental Order Regarding Preliminary Injunctive Relief,
                United Farm Workers, et al. v. U.S. Dep't of Labor, et al., No. 20-
                cv-1690 (E.D. Cal. Jan. 12, 2021), ECF No. 39.
                 \30\ See USDA, Farm Labor Report (Feb. 11, 2021), https://downloads.usda.library.cornell.edu/usda-esmis/files/x920fw89s/f7624565c/9k420769j/fmla0221.pdf; see also Notice of Reinstatement
                of the Agricultural Labor Survey Previously Scheduled for October
                2020, 85 FR 79463 (Dec. 10, 2020).
                 \31\ See Labor Certification Process for the Temporary
                Employment of Aliens in Agriculture in the United States: 2021
                Adverse Effect Wage Rates for Non-Range Occupations, 86 FR 10996
                (Feb. 23, 2021).
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                 In the litigation challenging the Department's 2020 AEWR Final
                Rule, the court recognized that the Department has broad discretion in
                determining the methodology for setting the AEWR so long as the
                Department's approach is sufficiently explained.\32\ However, the court
                ultimately granted the plaintiffs'' Motion for Preliminary Injunction,
                concluding that the plaintiffs were likely to succeed on their claim
                that the Department failed to justify freezing wages for two years
                prior to indexing wages using the ECI.\33\ According to the court,
                while the Department recognized ``the importance of the AEWR reflecting
                the market rate'' throughout the 2020 AEWR Final Rule,\34\ it failed to
                adequately explain a departure from its longstanding use of the FLS to
                set AEWRs for field and livestock workers ``to ensure that U.S.
                `workers receive the greatest potential protection from adverse effects
                on their wages and working conditions, including the adverse effect of
                being denied access to the opportunity to earn a higher equilibrium
                wage that would have resulted as the market (perhaps slowly) adjusted
                in the absence of the
                [[Page 68178]]
                guest workers.' '' \35\ The court rejected the Department's explanation
                that the new AEWR methodology, as applied to the field and livestock
                workers, was justified, at least in part, by continued uncertainty
                about the long-term availability of the FLS, as demonstrated by USDA's
                decision to suspend the October 2020 data collection. The court
                determined ``the USDA's FLS Suspension Notice should not factor into
                this equation, at least with regard to setting the 2021 AEWRs, because
                the [court] enjoined that decision and [new] FLS data should therefore
                be available in a timely fashion.'' \36\ Accordingly, the court ruled
                that ``[d]espite claiming that it concluded `on balance' that use of
                the FLS was `not appropriate in this context,' the [Department] has not
                in fact addressed the impact that freezing'' wages would have on field
                and livestock workers.\37\
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                 \32\ Order Granting Plaintiffs'' Motion for a Preliminary
                Injunction, United Farm Workers, et al. v. U.S. Dep't of Labor, et
                al., No. 20-cv-1690 (E.D. Cal.), ECF No. 37 at 17 n.5.
                 \33\ Id. at 17.
                 \34\ Id.
                 \35\ Id. at 18 (quoting 85 FR 70445, 70453) (``However, the
                closest that the Final Rule gets to addressing the intentional
                departure from accurate market wages is its statement that `even if
                more recent, 2020 FLS wage data were available, relying on it to set
                2021 AEWR[s] would only serve to perpetuate the very wage volatility
                that the Department seeks to ameliorate through this rule.' '').
                 \36\ Id.
                 \37\ Id. (internal citations omitted).
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                 As the court noted, the Department has previously stated that the
                FLS ``is the only annually available data source that actually uses
                information sourced directly from [farm employers],'' and its ``broader
                geographic scope makes the FLS more consistent with both the nature of
                agricultural employment and the statutory intent of the H-2A program.''
                \38\ Given that USDA has resumed FLS data collection,\39\ and plans to
                release the next annual data in November 2021,\40\ and given the
                Department's longstanding reliance on the FLS to establish the AEWR,
                the Department has decided it is appropriate to reassess its decision
                to no longer rely on annual FLS data for the vast majority of H-2A job
                opportunities.
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                 \38\ Id. at *4.
                 \39\ USDA NASS, Farm Labor report, https://usda.library.cornell.edu/concern/publications/x920fw89s?locale=en
                (last modified May 26, 2021).
                 \40\ Id.
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                 Additionally, while the 2020 AEWR Final Rule would have led to
                higher wages for certain higher skilled workers, the rule also
                acknowledged that the revised methodology ``may result in the AEWRs for
                field workers and livestock workers being set at slightly lower levels
                in future years than would be the case under the [2010 Rule's]
                methodology.'' \41\ The court's order found that, given the
                Department's statutory mandate to prevent adverse effects, it was
                likely that plaintiffs would succeed on their claim that the 2020 AEWR
                Final Rule failed to provide adequate justification for a methodology
                that could lead to lower wages for field and livestock workers than the
                wages that would have be produced under the 2010 methodology.\42\
                Although nominal wages for field and livestock were expected not to
                decline under the 2020 methodology, the Department acknowledged that
                the 2021 AEWRs, set pursuant to the 2010 methodology and the FLS
                published in February 2021, will result in higher wages for the
                majority of H-2A workers in 2021. Consistent with the court's decision,
                the Department believes adjustment of the methodology used to establish
                the required wage rate for the H-2A program will better enable the
                Department to meet its statutory obligation regarding adverse effect.
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                 \41\ Id. at *14.
                 \42\ Id. at *14-15, 18.
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                 The Department has also reviewed the policy underlying the 2020
                AEWR Final Rule in light of its statutory mandate, and has determined
                that two major aspects of the 2020 AEWR Final Rule do not adequately
                protect against adverse impact: (1) The imposition of a 2-year wage
                freeze for field and livestock workers at a wage level based on the FLS
                survey published in November 2019, and (2) the use of the BLS ECI,
                Wages and Salaries, to annually adjust AEWRs for field and livestock
                workers annually thereafter. These policy decisions represent a
                significant departure from how minimum or prevailing wage
                determinations are issued to employers in other employment-based visa
                programs administered by the Department, and from how the Department
                has established the AEWR in the H-2A program for more than 30 years.
                The Department considers actual, current wage data to be the best
                source of information for determining prevailing wages, when an
                appropriate data source is available, and has consistently relied upon
                such information in determining minimum or prevailing wages in the
                other employment-based visa programs it administers. Using a
                methodology other than actual, current wage data increases the
                likelihood of permitting employers to pay wages that are not reflective
                of market wages, which undermines the Department's mandate to prevent
                an adverse effect on the wages of workers in the United States
                similarly employed.
                 However, as discussed above, the Department remains concerned that
                the use of a single AEWR for all workers in the H-2A program may
                adversely affect wages in certain occupations. Therefore, the
                Department proposes utilizing the bifurcated approach set forth in the
                2020 rule that set a single AEWR based on the FLS for the vast majority
                of job opportunities used by employers in the H-2A program--
                occupational classifications for field workers and livestock workers--
                while shifting AEWR determinations to the OEWS survey for all other
                occupations for which the FLS does not adequately collect or
                consistently report wage data at a State or regional level (e.g., truck
                drivers, farm supervisors and managers, construction workers, and many
                occupations in contract employment). Because these other, typically
                higher paid occupations are not reported in the FLS field and livestock
                workers (combined) category, an OEWS-based AEWR will better protect
                against adverse effect. Additionally, as AEWR determinations become
                more occupation specific, the Department also believes it is
                appropriate to require that employers pay the highest applicable wage
                if the job opportunity can be classified within more than one
                occupation to reduce the potential for employers to misclassify workers
                and establish greater consistency with prevailing wage determinations
                in the H-2B program.
                 Accordingly, the Department has determined these policies must be
                reconsidered and proposes revisions in this notice of proposed
                rulemaking (NPRM). The Department has determined that the proposals
                outlined below reflect an approach that allows the Department to meet
                its statutory mandate to ensure that workers in the United States are
                provided an adequate level of wage protection in their employment. The
                Department took into account the regulations promulgated in 2010, as
                well as the significant revision of the AEWR provisions in the 2020
                AEWR Final Rule, in order to arrive at the approach described below.
                The Department believes the methodology described below is reasonable
                and strikes an appropriate balance under the INA.
                II. Proposed Changes to the AEWR Determination Methodology
                A. Summary of Proposed Revisions
                 The Department proposes to use the definition of AEWR found in the
                2020 AEWR Final Rule. Because that rule has been preliminarily
                enjoined, and there is uncertainty as to whether that rule will be
                vacated prior to the issuance of a final rule, the Department seeks
                comment on the proposal to define the
                [[Page 68179]]
                AEWR as set forth in the 2020 AEWR Final Rule.
                 The 2010 Final Rule defined the AEWR as ``[t]he annual weighted
                average hourly wage for field and livestock workers (combined) in the
                States or regions as published annually by the U.S. Department of
                Agriculture (USDA) based on its quarterly wage survey.'' In the 2019
                NPRM, to be consistent with the Department's proposal to adjust the
                AEWR methodology for non-range occupations, the Department proposed to
                revise the definition of AEWR to include both the FLS and OEWS survey
                as sources for determining the AEWR and to reference the new AEWR
                methodology provision at Sec. 655.120(b). The revised definition in
                the 2020 AEWR Final Rule clarified that the term AEWR applies to both
                the hourly rate for non-range occupations, as set forth in Sec.
                655.120(b), and to the monthly rate for range occupations, as set forth
                in Sec. 655.211(c). Second, rather than identifying particular data
                sources, the revised definition stated that the AEWR is the rate that
                the OFLC Administrator publishes in the Federal Register in accordance
                with the AEWR-setting methodology and procedural provisions at
                Sec. Sec. 655.120(b) and 655.211(c). Finally, the Department made
                additional nonsubstantive technical revisions to Sec. 655.103(b) in
                the 2020 AEWR Final Rule for clarity.
                 In Sec. 655.120(b), for the vast majority of H-2A job
                opportunities represented by six occupations comprising the field and
                livestock worker (combined) category within the FLS, the Department
                proposes to utilize the AEWR methodology set forth in the 2010 Final
                Rule, which set a single AEWR using the annual average gross hourly
                wage for field and livestock workers (combined) for the State or
                region, as determined by the USDA's NASS FLS report, whenever such data
                is available. For this occupational grouping, the Department proposes
                to use OEWS wage data in limited circumstances. Specifically, the AEWR
                would be set using OEWS wage data in circumstances where FLS wage data
                is unavailable or insufficient to generate a State or regional wage
                finding. For example, in Alaska and Puerto Rico, where the FLS is not
                currently conducted and, accordingly, NASS does not report wage data
                for field and livestock workers (combined), the Department proposes
                using OEWS wage data to determine the statewide (or statewide
                equivalent for the District of Columbia and U.S. territories) \43\ AEWR
                for that combination of field and livestock worker occupations, using
                statewide data, if available, or nationwide data, if the OEWS survey
                does not report a statewide annual average gross hourly wage for those
                occupations. Finally, in the event FLS wage data becomes unavailable
                for the State or region due to future changes in methodology or the
                survey's suspension or termination, the Department proposes to
                immediately use OEWS wage data for this occupational grouping to
                establish the AEWR.
                ---------------------------------------------------------------------------
                 \43\ OEWS collects wage date from all fifty states as well as
                the District of Columbia, Puerto Rico, Guam, and the Virgin Islands.
                See BLS, Occupational Employment and Wage Statistics Overview,
                https://www.bls.gov/oes/oes_emp.htm (last modified Mar. 31, 2021)
                (``The OEWS survey is a federal-state cooperative program between
                [BLS] and State Workforce Agencies (SWAs). BLS provides the
                procedures and technical support, draws the sample, and produces the
                survey materials, while the SWAs collect the data. SWAs from all
                fifty states, plus the District of Columbia, Puerto Rico, Guam, and
                the Virgin Islands participate in the survey. Occupational
                employment and wage rate estimates at the national level are
                produced by BLS using data from the fifty states and the District of
                Columbia.'').
                ---------------------------------------------------------------------------
                 For all other occupations, the Department proposes to use the
                methodology previously set forth in the 2020 AEWR Final Rule, under
                which the AEWR will be the statewide annual average gross hourly wage
                for the occupational classification, as reported by the OEWS survey, or
                the national annual average hourly wage for the occupational
                classification reported by the OEWS survey, if the OEWS survey does not
                report a statewide annual average gross hourly wage for the occupation.
                 As with the 2020 AEWR Final Rule, the Department proposes to
                require that if the job duties on the H-2A application (including the
                job order) do not fall within a single occupational classification, and
                the occupations involved are subject to different AEWRs, the Department
                will determine the applicable AEWR at the highest AEWR for the
                applicable occupational classifications.
                 Also as with the 2020 AEWR Final Rule, the Department proposes to
                require that the OFLC Administrator publish, at least once in each
                calendar year, on a date to be determined by the OFLC Administrator, an
                update to each AEWR via a notice in the Federal Register. The
                Department will update the AEWRs through two separate announcements in
                the Federal Register, one for the AEWRs based on the FLS, and a second
                for the AEWRs based on the OEWS survey, due to the different time
                periods for release of these two wage surveys. As discussed below, if a
                job opportunity may be classified within more than one occupational
                classification or SOC code, making that job opportunity subject to both
                FLS- and OEWS-based AEWRs, the employer must pay the highest applicable
                wage as of the effective date of that AEWR.
                B. The Department Proposes To Use the FLS To Establish the AEWR for
                Field and Livestock Worker Job Opportunities in Most Cases
                 The Department proposes to use the average gross hourly wage rate
                for the field and livestock workers (combined) category from the FLS
                for the State or region to determine the AEWR for field and livestock
                worker job opportunities, when that data is available.
                1. Use of a Single Field and Livestock Workers (Combined) Occupational
                Category
                 The FLS field and livestock workers (combined) category encompasses
                the vast majority of temporary agricultural job opportunities offered
                in the H-2A program. According to NASS, wage data reported for this
                category includes workers who ``plant, tend, pack, and harvest field
                crops, fruits, vegetables, nursery and greenhouse crops, or other
                crops'' or ``tend livestock, milk cows, or care for poultry,''
                including those who ``operate farm machinery while engaged in these
                activities.'' \44\ The FLS field and livestock worker category reports
                aggregate wage data covering the following Standard Occupational
                Classification (SOC) titles and codes: Farmworkers and Laborers, Crop,
                Nursery and Greenhouse Workers (45-2092); Farmworkers, Farm, Ranch, and
                Aquacultural Animals (45-2093); Agricultural Equipment Operators (45-
                2091); Packers and Packagers, Hand (53-7064); Graders and Sorters,
                Agricultural Products (45-2041); and All Other Agricultural Workers
                (45-2099). Depending on the agricultural product reported by the
                employer, wage data collected under the All Other Agricultural Workers
                occupational classification are assigned to either the livestock worker
                or field worker major category of the FLS.
                ---------------------------------------------------------------------------
                 \44\ USDA NASS, Crosswalk from the National Agricultural
                Statistics Services (NASS) Farm Labor Survey Occupations to the 2018
                Standard Occupational Classification System, https://www.nass.usda.gov/Surveys/Guide_to_NASS_Surveys/Farm_Labor/farm-labor-soc-crosswalk (last visited Aug. 19, 2021).
                ---------------------------------------------------------------------------
                 Determining AEWRs using a single gross hourly wage for this group
                of occupations, rather than occupation-specific AEWRs for each
                occupation encompassed in the field and livestock worker (combined)
                category, is consistent with the Department's conclusion in the 2010
                Final Rule that
                [[Page 68180]]
                the skills of many farm laborers are ``adaptable across a relatively
                wide range of crop or livestock activities and occupations'' because
                these activities and occupations ``involve skills that are readily
                learned in a very short time on the job, skills peak quickly, rather
                than increasing with long-term experience, and skills related to one
                crop or activity are readily transferred to other crops or
                activities.'' \45\ It also is consistent with the approach taken in the
                2020 AEWR Final Rule in response to the significant number of comments
                \46\ opposing the Department's proposal in the 2019 NPRM to use an
                occupation-specific AEWR for occupations in this category, using the
                FLS where available, and using the OEWS survey where the FLS does not
                report a wage for the occupation in the State or region.\47\ In the
                2020 AEWR Final Rule, the Department retained use of the FLS field and
                livestock workers (combined) category to determine the AEWR applicable
                to all field and livestock worker job opportunities in each State,
                rather than occupation-specific AEWRs for occupations encompassed by
                the FLS field and livestock workers (combined) category.
                ---------------------------------------------------------------------------
                 \45\ 75 FR 6883, 6899-6900.
                 \46\ See 85 FR 70445, 70451-70458 (Addressing comments that
                occupation-specific field and livestock worker wages would reduce
                wages in common occupations, increase complexity and
                unpredictability, increase employer recordkeeping burdens and the
                Department's administrative burden, and create artificial boundaries
                between similar occupations.).
                 \47\ The Department explained in that NPRM that it could use the
                FLS to establish an occupation-specific AEWR for many States and
                regions for SOCs 45-2092 (Farmworkers and Laborers, Crop, Nursery,
                and Greenhouse) and 45-2093 (Farmworkers, Farm, Ranch, and
                Aquacultural Animals), but an FLS-based AEWR could only be
                established in some States and regions for several other
                occupations, including SOCs 45-2041 (Graders and Sorters,
                Agricultural Products), 45-2091 (Agricultural Equipment Operators),
                45-2099 (Agricultural Workers, All Other), 53-7064 (Packers and
                Packagers, Hand), 11-9013 (Farmers, Ranchers and Other Agricultural
                Managers), and 45-1011 (First-Line Supervisors of Farm Workers)
                based on NASS data. 84 FR at 36182.
                ---------------------------------------------------------------------------
                 The Department proposes to continue using a single gross hourly
                AEWR applicable to all H-2A job opportunities covered by the
                occupations in the field and livestock category (combined) in each
                State, because this approach strikes a reasonable balance between the
                interests of employers and workers and ensures employment of foreign
                workers in the vast majority of H-2A job opportunities will not
                adversely affect agricultural workers in the United States similarly
                employed. Continuing to use this approach will provide continuity and a
                reasonable level of predictability and flexibility for employers using
                the H-2A program while reducing the complexities and business impacts
                associated with greater occupation-specific determinations, including
                combination of occupation determinations, on the AEWR applicable to an
                employer's job opportunity in the vast majority of cases. This approach
                also provides continuity and a reasonable level of predictability and
                protection to workers who may move between the occupations in the field
                and livestock category (combined). In addition, as each of the field
                and livestock occupations encompass a broad variety of duties,
                resulting in areas of overlap between the occupations, a worker's
                duties within a single workday may fall under multiple field and
                livestock occupations. The proposed approach helps both employers and
                workers by simplifying the process each uses to ensure that work is
                correctly compensated. Use of a single AEWR in each State applicable to
                this occupational grouping will minimize recordkeeping burdens,
                especially in cases where workers are needed to perform a variety of
                field and livestock duties, as employers will be required to pay such
                workers the same wage rate for all of those duties.
                2. Use of FLS Data for Field and Livestock Workers (Combined)
                 The Department proposes to use the FLS field and livestock worker
                (combined) wage data as the primary source for determining the AEWRs
                for this grouping of six occupations for several reasons. As noted in
                prior rulemaking, the FLS is the best available information for
                determining the AEWRs because it is the only wage survey that collects
                data from farm and ranch employers.\48\ Since 1987, the Department
                primarily has established an AEWR using the FLS for each State in the
                multistate or single-State crop region to which the State belongs. The
                Department continues to believe the FLS is the best available wage
                source for establishing AEWRs covering the vast majority of H-2A job
                opportunities, whenever such data is available.
                ---------------------------------------------------------------------------
                 \48\ See, e.g., 84 FR 36168, 36180-36182. USDA NASS provides
                additional information about the procedures used to collect,
                analyze, estimate, and disseminate the Farm Labor Survey at https://www.nass.usda.gov/Publications/Methodology_and_Data_Quality/Farm_Labor.
                ---------------------------------------------------------------------------
                 In addition, the Department considers the broad geographic scope of
                the survey an advantage of the FLS. The FLS consistently collects
                sufficient data to generate a wage finding for field and livestock
                workers (combined) in each State or region surveyed, making it a
                reliable source of wage data year to year. As explained in the 2019
                NPRM, the geographic scope of the FLS, covering California, Florida,
                and Hawaii, and 15 multistate groupings for other States, and the
                statewide and regional wages issued ``provide[s] protection against
                wage depression that is most likely to occur in particular local areas
                where there is a significant influx of foreign workers.'' \49\ The
                broad geographic scope of the FLS is also ``consistent with both the
                nature of agricultural employment and the statutory intent of the H-2A
                program,'' reflecting the migratory pattern of employment of many
                farmworkers over a large region and Congress's recognition of ``this
                unique characteristic of the agricultural labor market with its
                statutory requirement that employers recruit for labor in multistate
                regions as part of their labor market before receiving a labor
                certification . . . .'' \50\ As the Department noted in the 2010 Final
                Rule, ``[b]y providing a prevailing wage defined over a broader
                geographic area and over a broader occupational span (all field and
                livestock workers, rather than a narrow crop or job description), use
                of the FLS provides a check on the expansion of [the employment of]
                foreign labor . . . to prevent undermining job opportunities and wages
                for domestic farm workers'' and ``reflects the view that farm labor is
                mobile across relatively wide areas.'' \51\ For similar reasons, the
                Department explained that the FLS-based AEWR may serve ``to mobilize
                domestic farm labor in neighboring counties and States to enter the
                subject labor market over the longer term and obviate the need to rely
                on . . . foreign labor on an ongoing basis.'' \52\
                ---------------------------------------------------------------------------
                 \49\ 84 FR 36168, 36182.
                 \50\ 75 FR 6883, 6899.
                 \51\ Id.
                 \52\ Id.
                ---------------------------------------------------------------------------
                3. Use of OEWS Data for Field and Livestock Workers (Combined)
                 The Department proposes using the OEWS wage data to determine a
                statewide AEWR for field and livestock workers in the event the FLS
                cannot report wages to establish a statewide AEWR for the field and
                livestock workers (combined) category. By using the FLS report as the
                sole source for establishing AEWRs under the 2010 final rule's
                methodology, the Department cannot establish an AEWR in all geographic
                locations where employers may seek to employ H-2A workers (e.g., Alaska
                or Puerto Rico) due to limitations in the FLS's methodology and
                estimation procedures. In addition, as it has previously noted, the
                [[Page 68181]]
                Department does not have direct control over the FLS, and USDA could
                elect to terminate the survey at some point in the future. USDA has
                announced its intention to suspend the survey on three occasions,
                including in 2020,\53\ as noted above, and in 2007 \54\ and 2011 \55\
                due to budget constraints. Thus, in order to ensure continuity in
                establishing statewide AEWRs, to address situations where the FLS does
                not currently report a wage,\56\ to protect against the possibility of
                a future decision by USDA to suspend or discontinue collection of the
                FLS, and other potential circumstances in which FLS wage data may not
                be available to set an AEWR for the State or region at least once
                annually, the Department proposes to use a second source of
                occupational wage data--the OEWS survey--to determine the statewide
                AEWRs for this grouping of occupations in circumstances where FLS does
                not report a State or regional wage finding or is otherwise not
                available.
                ---------------------------------------------------------------------------
                 \53\ 85 FR 61719.
                 \54\ Notice of Intent to Suspend the Agricultural Labor Survey
                and Farm Labor Reports, 72 FR 5675 (Feb. 7, 2007).
                 \55\ Notice of Intent to Suspend the Agricultural Labor Survey
                and Farm Labor Reports, 76 FR 28730 (May 18, 2011).
                 \56\ This situation is rare. The Department's H-2A disclosure
                data for FY 2020 includes two applications submitted for job
                opportunities in Alaska and two for job opportunities in Puerto
                Rico, while disclosure data for FY 2019 includes three for job
                opportunities in Alaska and one in Puerto Rico.
                ---------------------------------------------------------------------------
                 Although the Department generally prefers to establish AEWRs based
                on the FLS for this group of occupations for the reasons discussed
                above, the OEWS survey would become the best available source of wage
                data to establish AEWRs for field and livestock workers (combined) if
                the FLS is not available. OEWS survey data is the only other
                comprehensive and statistically valid set of wage data collected from
                employers engaged in agricultural activities, tailored to geographic
                areas and occupations common in the H-2A program, and is most
                consistent with the occupation-based wage collection of the FLS. Within
                the agricultural sector of the U.S. economy, the OEWS survey collects
                employment and gross hourly wage data from employer establishments that
                support farm production activities. Although they do not represent
                fixed-site farms and ranches, these establishments employ workers
                engaged in similar agricultural labor or services as those workers who
                are directly employed by farms and ranches. In addition, these types of
                employer establishments (i.e., farm labor contractors) participate in
                the H-2A program and represent an increasing share of the worker
                positions certified by the Department on H-2A applications in this
                grouping of occupations,\57\ so data reported by these types of
                establishments represents the best information available for purposes
                of establishing the AEWRs where FLS data is unavailable for the
                occupation. BLS has the capability of providing a single annual average
                gross hourly wage for field and livestock workers (combined), in this
                grouping of occupations that mirrors the FLS, at the statewide level
                based on the OEWS survey data, which the Department will make
                accessible to the public online. Specifically, BLS can leverage its
                existing survey standards and estimation procedures to compute
                statewide and national average gross hourly wages across this grouping
                of occupations based on employer establishments across industries.\58\
                ---------------------------------------------------------------------------
                 \57\ For example, the proportion of all H-2A worker positions
                certified by DOL for employment in non-range occupations with
                employers qualifying as H-2A Labor Contractors (i.e., farm labor
                contractors) has increased significantly from 33.1 percent in FY
                2016 (54,787 positions out of 165,741 positions) to 42.3 percent in
                FY 2020 (116,472 positions out of 275,430 total positions).
                 \58\ An overview of the OEWS survey methodology is available at
                https://www.bls.gov/oes/current/oes_tec.htm. A more detailed
                explanation of the survey standards and estimation procedures is
                available at https://www.bls.gov/opub/hom/oews/pdf/oews.pdf.
                ---------------------------------------------------------------------------
                 Finally, to further address potential data gaps, the Department
                proposes that in the event neither the FLS nor the OEWS survey report a
                statewide annual average hourly gross wage for field and livestock
                workers (combined) in a particular State, the District of Columbia, or
                U.S. Territory, the AEWR will be the national annual average hourly
                gross wage for field and livestock workers (combined) in that State (or
                equivalent district/territory), as reported by the OEWS survey. Given
                the anticipated scenarios in which such a data gap may occur, the
                Department does not propose to use the FLS's national data to establish
                the AEWR for field and livestock workers (combined) in the event a
                statewide annual average hourly gross wage for those workers in a
                particular State is unavailable. Whenever the FLS has published, it
                consistently reports annual average hourly gross wage findings for
                field and livestock workers (combined) in 15 multistate and three
                single-State regions, covering 49 States. The Department anticipates
                that a national rate would be needed for field and livestock workers
                (combined) in these 49 States only in the unexpected event the FLS is
                broadly not available (e.g., due to suspension or termination of the
                entire survey). In addition, as discussed above, the FLS does not
                survey Alaska and other geographic areas in which employers may seek to
                employ H-2A workers. As a result, the FLS' national wage findings do
                not include wage data for workers in these geographic areas, whereas
                the OEWS survey consistently reports wage data for these geographic
                areas. For these reasons, the Department proposes to use the OEWS
                survey's national annual average hourly gross wage for field and
                livestock workers (combined) as the AEWR, if neither the FLS nor the
                OEWS survey report a statewide annual average hourly gross wage for
                field and livestock workers (combined) in a particular State.
                B. The Department Proposes To Use the OEWS Survey To Establish
                Occupation-Specific AEWRs for All Other Job Opportunities
                 For job opportunities that do not fall within the FLS field and
                livestock workers (combined) category, the Department proposes adopting
                the OEWS-based, occupation-specific AEWR methodology explained in the
                2020 AEWR Final Rule. Under this methodology, the AEWR for all
                occupations other than field and livestock workers will be the
                statewide annual average hourly wage for the occupational
                classification, as reported by the OEWS survey. If the OEWS survey does
                not report a statewide annual average hourly wage for the SOC, the AEWR
                for that State will be the national annual average hourly wage for the
                SOC, as reported by the OEWS survey.
                 The Department is proposing to utilize the OEWS-based methodology
                for these occupations for the reasons explained below and in the 2020
                AEWR Final Rule.\59\ In part, while the FLS is the most accurate and
                comprehensive wage source to determine the AEWRs for field and
                livestock workers, as noted above, the OEWS survey is a more accurate
                data source for other agricultural occupations, such as supervisors,
                that the FLS does not adequately or consistently survey. In addition,
                the OEWS survey includes occupations that are more often contracted-for
                services than farmer-employed (e.g., construction, equipment operators
                supporting farm production), which makes the OEWS data collection from
                farm labor contractors a better data source for determining AEWRs and
                protecting against adverse effect for these occupations.
                ---------------------------------------------------------------------------
                 \59\ 85 FR 70445, 70453, 70458-70459.
                ---------------------------------------------------------------------------
                 Since 2014, the FLS has collected data by SOC--the same taxonomy
                that is
                [[Page 68182]]
                used for the OEWS survey. However, it does not currently report wage
                data by SOC. Instead, the FLS aggregates and reports data in four major
                FLS occupational categories: Field workers, livestock workers, field
                and livestock workers (combined), and all hired workers. In
                collaboration with the Department and the OMB, USDA established and
                implemented a crosswalk from the major FLS categories to the SOC
                categories.\60\ Although the FLS collects data on the wages of
                supervisors, the FLS has not been able to report a statistically valid
                wage result for the major FLS category of supervisors.\61\ As a result,
                the wages of supervisors are currently only reported in the ``all hired
                workers'' category and are not included in the ``field and livestock
                workers (combined)'' category that the Department uses to establish the
                AEWR. The FLS also collects data on ``other workers,'' \62\ though the
                FLS has not been able to report a statistically valid wage result for
                this FLS category, and, as a result, wages for ``other workers'' are
                reported only in the ``all hired workers'' category and are not
                included in the wages reported in the ``field and livestock workers
                (combined)'' category. Because the FLS does not consistently report
                data in all States or regions for each SOC outside of the field and
                livestock workers category, use of the FLS to determine wages for these
                occupations would require frequent use of the OEWS survey or another
                wage source, varying sources from year to year, and resulting in a much
                higher degree of year-to-year variability in the AEWR than if the OEWS
                survey is used at the outset for job opportunities not included in the
                field and livestock workers (combined) category, and this lack of
                variability will provide greater year-over-year certainty to both
                workers and employers.
                ---------------------------------------------------------------------------
                 \60\ See Crosswalk from the National Agricultural Statistics
                Service (NASS) Farm Labor Survey (FLS) Occupations to the 2018
                Standard Occupational Classification (SOC) System, available at
                https://www.nass.usda.gov/Surveys/Guide_to_NASS_Surveys/Farm_Labor/farm-labor-soc-crosswalk (last visited Aug. 19, 2021).
                 \61\ Included within the major FLS category of supervisors are
                Farmers, Ranchers, and Other Agricultural Managers (SOC 11-9013);
                and First-Line Supervisors of Farm Workers (SOC 45-1011).
                 \62\ Included in the ``other workers'' category are Agricultural
                Inspectors (SOC 45-2011), Animal Breeders (45-2021), Pest Control
                Workers (37-2021), and any other agricultural worker not fitting
                into the categories above, including mechanics, shop workers, truck
                drivers, accountants, bookkeepers, and office workers who fall
                within a variety of SOCs and have a wide variety of job duties.
                Contract and custom workers are excluded from the FLS sample
                population.
                ---------------------------------------------------------------------------
                 The OEWS survey is a reliable and comprehensive wage survey that
                consistently produces annual average wages for nearly all SOC outside
                of the field and livestock workers occupational category. The OEWS
                survey is among the largest ongoing statistical survey programs of the
                Federal Government, producing wage estimates for over 800 occupations,
                and it is used as the primary wage source for prevailing wage
                determinations in the H-2B temporary non-agricultural labor
                certification program, as well as other nonimmigrant and immigrant
                programs. The OEWS program surveys approximately 200,000 establishments
                every 6 months and over a 3-year period collects the full sample of 1.2
                million establishments, accounting for approximately 57 percent of
                employment in the United States.\63\ Every 6 months, the oldest data
                from the 3-year cycle is removed from the sample, and new data is
                added. The wages reported in the older data are adjusted by the ECI,
                which is a BLS index that measures the change in labor costs for
                businesses. The OEWS survey is primarily conducted by mail, with follow
                up by phone to nonrespondents or if needed to clarify data.\64\ The
                OEWS average \65\ hourly wage reported includes all straight-time,
                gross pay, exclusive of premium pay, but including piece rate pay.
                ---------------------------------------------------------------------------
                 \63\ See BLS, Occupational Employment and Wage Statistics
                Frequently Asked Questions, https://www.bls.gov/oes/oes_ques.htm
                (last modified Aug. 13, 2021).
                 \64\ Id.
                 \65\ The OEWS uses the term ``mean.'' However, for purposes of
                this regulation the Department uses the term ``average'' because the
                two terms are synonymous, and the Department has traditionally used
                the term ``average'' in setting the AEWR from the FLS.
                ---------------------------------------------------------------------------
                 Similarly to state or regional FLS-based AEWRs for field and
                livestock workers, the use of an OEWS-based statewide AEWR addresses
                the Department's concern that the potential for localized wage
                depression is more pronounced in the H-2A program than in the H-2B
                program due to both the economic position of agricultural workers and
                the fact that the H-2A program is not subject to a statutory cap, which
                allows an unlimited number of nonimmigrant workers to enter a given
                local area.\66\ Thus, a statewide wage is more likely to protect
                against wage depression from a large influx of nonimmigrant workers
                that is most likely to occur at the local level. In the limited
                circumstances in which there is no statewide wage, use of the national
                annual average hourly wage reported for the particular SOC will ensure
                an AEWR determination can be made each year without the need for any
                adjustment method. In addition, and as with the FLS, the OEWS survey
                also reports a wage that covers activities above a crop activity level,
                which, as discussed above, is where wage depression from an influx of
                foreign workers could be most acute.
                ---------------------------------------------------------------------------
                 \66\ See, e.g., 75 FR 6883, 6895.
                ---------------------------------------------------------------------------
                 Shifting AEWR determinations to the OEWS survey for those
                occupations for which the FLS does not report statistically reliable
                wage data at a State or regional level also addresses the Department's
                concern that use of the combined field and livestock worker FLS data to
                determine the AEWR for all occupations may have an adverse effect on
                the wages of workers in higher paid agricultural occupations, including
                truck drivers, farm supervisors and managers, construction workers, and
                many occupations primarily in contract employment, because OEWS data
                will provide an occupation-specific wage that does not include data for
                lower wage occupations and because OEWS data includes farm labor
                contractor wage data. For example, a worker performing construction
                labor on a farm under the H-2A program in Ohio must currently be paid
                at least the AEWR of $15.31 per hour because the worker's wage is
                determined based on the field and livestock workers (combined) wage,
                which reflects neither wages paid to agricultural workers engaged in
                duties typically performed by a construction worker nor wages of
                workers who perform contract work, which an agricultural construction
                laborer in the H-2A program is likely to perform. In contrast, if the
                same construction worker performed identical job duties at a location
                other than a farm and, therefore, fell under the H-2B program, the
                required prevailing wage rate based on OEWS data would be approximately
                $22.73 per hour.\67\ This same variance is seen across other non-field
                and livestock occupations for which H-2A workers are used. For example,
                the OEWS mean wage in Ohio for first-line supervisors (SOC 45-1011) in
                2020 was $27.83, in contrast to the AEWR of $15.31. Given the disparity
                in wages between the FLS and OEWS survey for these occupations, using
                the FLS to establish the AEWR for non-field and livestock occupations
                may cause an adverse effect on the wages of workers in the United
                States similarly employed, contrary to the Department's statutory
                mandate. An OEWS-based AEWR based on an occupational classification
                that accounts for significantly different job duties, but remains
                broader than a particular crop activity or agricultural
                [[Page 68183]]
                activity in a local area, will thus not only provide greater
                predictability but also better protect workers in the United States in
                occupations other than field and livestock occupations.
                ---------------------------------------------------------------------------
                 \67\ This is the current statewide OEWS wage for the category of
                Construction Laborer, SOC 47-2061, in Ohio. Under the H-2B program,
                a local wage for that occupation would be used if available.
                ---------------------------------------------------------------------------
                C. The Department Proposes To Assign the Highest AEWR for All SOCs
                Applicable to Job Opportunities Covering Multiple SOCs
                 The Department proposes to require that employers pay the highest
                applicable wage if the job opportunity can be classified within more
                than one occupation, when those occupations are subject to different
                AEWRs, as proposed in the 2019 NPRM and adopted in the 2020 AEWR Final
                Rule.
                 This requirement would address scenarios in which the combination
                of duties an employer requires involves different AEWRs. The Department
                best protects against adverse effect by setting the AEWR applicable to
                the job opportunity at the highest of the applicable AEWRs. Under this
                proposal, if the job duties on the H-2A application (including the job
                order) do not fall within the field and livestock worker (combined)
                occupational grouping, the Department will determine the applicable
                AEWR based on the highest AEWR for all applicable occupational
                classifications. In the event an employer's job opportunity requires
                the performance of duties encompassed by two or more distinct
                occupational classifications subject to different AEWRs (e.g., a field
                and livestock worker (combined) occupation and an SOC occupation not
                encompassed in the field and livestock worker (combined) occupational
                group, or two SOC occupations both of which are not encompassed in the
                field and livestock worker (combined) occupational group), the
                Department will assign the highest AEWR among all applicable
                occupational classifications to reduce the potential for job
                misclassification by the employer and effectuate the purpose of the
                AEWR (i.e., prevent adverse effect to the wages of workers in the
                United States similarly employed).
                 The proposal, discussed above, to determine a single statewide AEWR
                for all job opportunities in the field and livestock workers (combined)
                occupational grouping will minimize use of this provision because a job
                opportunity involving a combination of occupations that are all
                encompassed within the field and livestock workers (combined) will be
                subject to a single AEWR, regardless of which of the particular SOCs
                applicable to the field and livestock workers (combined) occupational
                category may be involved. For example, a job opportunity involving
                duties properly classified under SOC 45-2091 (Agricultural Equipment
                Operators) and duties properly classified under SOC 45-2093
                (Farmworkers, Farm, Ranch, and Aquacultural Animals) would be subject
                only to the field and livestock workers (combined) AEWR and the
                provision regarding combination of occupations with different AEWRs
                would not be relevant, as a single AEWR applies to the job opportunity.
                 Under this proposal, the SWA will continue to review job orders--
                and SOCs therein--in the first instance and determine the appropriate
                SOC code for the job opportunity when it reviews an employer's job
                order for compliance with 20 CFR part 653, subpart F, and 20 CFR part
                655, subpart B. The SWA will enter the SOC code assigned to the
                employer's job opportunity in Section I, Items 4 and 5, of the Form
                ETA-790, Agricultural Clearance Order. After the employer files its H-
                2A Application for Temporary Employment Certification, the OFLC
                Certifying Officer (CO) will review the employer's application and job
                order, including SOC coding. The CO may determine a different SOC
                coding is necessary, for example, based on additional information
                received during processing. The CO evaluates each job opportunity on a
                case-by-case basis, considering the totality of the information in an
                H-2A application and job order, to determine the appropriate SOC code.
                In making a determination, the CO compares the duties of the employer's
                job opportunity with SOC definitions and tasks that are listed in the
                Department's Occupational Information Network (O*NET). Where similar
                tasks appear in more than one SOC code (e.g., driving or maintenance
                and repair of farm equipment), the CO considers other factual
                information in the employer's application and job order. For example,
                for job opportunities involving driving duties, the CO will look at
                factors such as the type of equipment involved (e.g., pickup trucks,
                custom combine machinery, or semi tractor-trailer trucks; makes and
                models of machines to be used), the location where the work will be
                performed (e.g., on a farm or off), and the qualifications and
                requirements for the job opportunity in order to determine the most
                appropriate SOC code to assign to the employer's job opportunity.
                 Generally, a job opportunity corresponds with a single SOC code if
                all of the duties fall within a single occupation and the
                qualifications, requirements, and other factors are consistent with
                that occupation. For example, a job opportunity for workers to solely
                perform hand harvesting activities would match with a single
                occupation, SOC code 45-2092 (Farmworkers and Laborers, Crop, Nursery,
                and Greenhouse), absent factors indicating other SOCs (e.g., a required
                machinery repair certification). In the event the job opportunity
                cannot be classified within a single SOC, the CO will assign a
                combination of occupations--more than one SOC code--to the employer's
                job opportunity. As noted above, the Department anticipates that the
                majority of H-2A job opportunities will be classifiable in one of the
                SOC occupations associated with the FLS field workers and livestock
                workers (combined) category, or a combination of those SOCs, since the
                H-2A program requires that job opportunities constitute agricultural
                labor or services, as defined by the Fair Labor Standards Act and
                Internal Revenue Code. Jobs classified within one of these codes or a
                combination of these codes will receive the AEWR applicable to field
                and livestock workers (combined). If different AEWRs apply to the SOCs,
                the CO will use the highest AEWR of the applicable AEWRs.
                 As explained in the 2020 AEWR Final Rule, a job opportunity
                involving driving duties may be properly classified under SOC 45-2091
                (Agricultural Equipment Operators), SOC 53-3032 (Heavy and Tractor-
                Trailer Truck Drivers), or a combination of the two, depending on the
                duties described in the employer's job order. A job opportunity for
                workers to drive tractors and other mechanized, electrically powered or
                motor-driven equipment on farms to plant, cultivate, and harvest a crop
                (including driving tractors in and out of fields carrying bins and
                driving forklifts to transfer and stack bins of full product onto
                trailers), which requires 12 months of experience operating such
                equipment, would be properly classified under SOC 45-2091 and subject
                to the field and livestock worker (combined) FLS-based AEWR. In
                contrast, a job opportunity for workers to drive semi tractor-trailer
                trucks to and from specified destinations within an area of intended
                employment (including maneuvering trucks into and out of loading and
                unloading positions as well as driving in both on-road (paved) and off-
                road conditions), which requires 12 months of experience operating such
                equipment and a valid Class A CDL or equivalent, would be properly
                classified under SOC 53-3032 and subject to the OEWS-based, occupation-
                specific AEWR. In the event an employer seeks
                [[Page 68184]]
                workers to both drive tractors and other mechanized, electrically
                powered or motor-driven equipment on farms and semi tractor-trailer
                units, as described above, the employer's job opportunity constitutes a
                combination of SOC 45-2091 and SOC 53-3032, subject to either the field
                and livestock worker (combined) FLS-based AEWR applicable to SOC 45-
                2091 or the OEWS-based, occupation-specific AEWR applicable to SOC 53-
                3032, whichever is a higher rate per hour.
                 As noted in the 2019 NPRM and 2020 AEWR Final Rule, determining the
                appropriate occupational classification is an important component of
                the Department's decision to move to occupation-specific wages for job
                opportunities not classifiable within the field and livestock
                (combined) occupational grouping. Use of the highest applicable wage in
                these cases reduces the potential for employers to misclassify workers
                than if the Department permitted employers to pay different AEWRs for
                job duties falling within different occupational classifications on a
                single Application for Temporary Employment Certification. This
                proposal also reduces an employer's recordkeeping burdens with respect
                to wages. Under the proposal, for example, employers who currently file
                a single Application for Temporary Employment Certification covering
                multiple workers and a wide variety of duties might instead choose to
                file separate Applications for Temporary Employment Certification and
                limit the duties of the job opportunities in each Application for
                Temporary Employment Certification to a single occupational
                classification. The employer would then pay a separate wage rate based
                on the duties of each job opportunity included in the separate
                Applications for Temporary Employment Certification, which reduces the
                potential for misclassification and lowers recordkeeping burdens, as
                employers would only need to track the highest wage among distinct
                occupational classifications, if applicable. This policy is also
                consistent with the way the Department determines prevailing wage rates
                for jobs that cover multiple SOCs in other employment-based visa
                programs.
                D. The Department Proposes To Publish FLS-Based AEWRs and OEWS-Based
                AEWRs Coinciding With Those Surveys' Publication Schedules
                 As with the 2020 AEWR Rule, the Department proposes to require that
                the OFLC Administrator publish, at least once in each calendar year, on
                a date to be determined by the OFLC Administrator, an update to each
                AEWR as a notice in the Federal Register. The Department proposes to
                make the updated AEWRs effective through two announcements in the
                Federal Register, one for the AEWRs based on the FLS (i.e., effective
                on or about January 1), and a second for the AEWRs based on the OEWS
                survey (i.e., effective on or about July 1), due to the different time
                periods for release of these two wage surveys.
                 The Department anticipates that only one of the two AEWR adjustment
                notifications may impact an employer's wage obligations during the work
                contract period. Given the Department's proposal to determine the AEWR
                for the majority of H-2A job opportunities using the field and
                livestock worker (combined) wage reported by FLS, most H-2A
                certifications would be subject only to the FLS-based AEWR adjustment
                in January. Further, due to the seasonal nature of temporary
                agricultural labor or services, many H-2A employment periods begin and
                end between FLS-based AEWR adjustments. Only in the circumstance in
                which a job opportunity constitutes a combination of occupations that
                involves both an FLS-based AEWR and an OEWS-based AEWR would two AEWR
                adjustment notices potentially impact an employer's wage obligations.
                E. The Department's Decision Not To Use ECI-Adjusted AEWRs
                 In proposing to annually adjust the AEWRs based on the annual
                publication of new FLS and OEWS data, the Department is proposing not
                to use the ECI to adjust AEWRs as the 2020 AEWR Final Rule had done,
                and is not contemplating use of a similar index for several reasons.
                First, the FLS--the Department's preferred wage source for establishing
                the AEWR for field and livestock workers--is again available,
                eliminating the Department's primary impetus for electing to use the
                ECI to adjust AEWRs in future years under the 2020 AEWR Final Rule.
                Second, the Department proposes to leverage OEWS survey data for this
                group of occupations instead of using of the ECI, as OEWS data is more
                consistent with the FLS data category used to set the AEWRs. As noted
                above, BLS now will provide the Department wage data for field and
                livestock workers (combined), based on the OEWS survey, to determine
                the AEWR for these occupations in each State or region where the FLS is
                not available or does not report wage data for workers in a particular
                geographic area. In those cases where the FLS is not available, the
                Department believes that using the OEWS survey rather than the ECI best
                allows the Department to prevent adverse effect as required under the
                INA because the OEWS survey provides data more specifically tailored to
                geographic areas and occupations common in the H-2A program and is more
                consistent with the FLS. In particular, though the ECI provides a
                stable measure of annual increases in the wages of private sector
                workers generally, the ECI does not report the annual change in wages
                of field and livestock workers specifically, and does not provide wage
                data for agricultural workers in particular geographic areas. Both the
                FLS and OEWS survey provide data more specifically tailored to U.S.
                agricultural workers and the States and regions where these workers are
                employed, making these sources more effective in ensuring that the
                temporary employment of foreign workers in field and livestock job
                opportunities will not adversely affect the wages of workers in the
                United States similarly employed. In addition, OEWS data includes wage
                data from farm labor contractors, who increasingly provide labor or
                services to growers both in the predominant field and livestock workers
                (combined) occupational group and in occupations that are less common
                in the H-2A program.
                 While the Department remains sensitive to concerns of employers
                regarding increases in the FLS-based AEWRs, the Department believes,
                for the reasons discussed above, that the approach proposed in this
                rulemaking best allows the Department to fulfill its statutory mandate.
                The concerns about AEWR increases also appear overstated when
                considering long-term historical trends in agricultural worker wages
                and the agricultural labor market. Long-term data on growth in the
                AEWRs shows that with the exception of the AEWRs for Hawaii, Oregon,
                and Washington, growth in the AEWRs from 2010 through 2019 was lower
                than growth from 2000 to 2010 and substantially lower in many States.
                Considering top user States as examples, the total AEWR increase from
                2010 through 2019 compared to 2000 through 2010 was lower in four of
                the five top States.\68\
                ---------------------------------------------------------------------------
                 \68\ 3.95% lower in California, 3.07% lower in Florida, 8.34%
                lower in Georgia, 6.07% lower in North Carolina, and 6.07% higher in
                Washington, based on an average of annual changes in the AEWR over
                the past two decades.
                ---------------------------------------------------------------------------
                 Moreover, despite higher-than-average wage increases in some recent
                years, farmworkers remain among the lowest paid workers in the United
                States. The USDA Economic Research Service (ERS) recently reported that
                the gap between farmworker and non-farmworker wages
                [[Page 68185]]
                is ``slowly shrinking, but still substantial,'' noting that the average
                farmworker wage in 1990 ``was just over half the average real wage in
                the nonfarm economy for private-sector nonsupervisory occupations,''
                but rose to 60% of the non-farmworker wage by 2019, indicating the wage
                gap decreased by less than 10% over three decades.\69\ The ERS data
                also indicates that labor costs as a share of total gross farm income
                has not risen significantly over the past two decades, with the ERS
                concluding that ``[a]lthough farm wages are rising in nominal and real
                terms, the impact of these rising costs on farmers'' incomes has been
                offset by rising productivity and/or output prices,'' and adding that
                ``labor costs as a share of gross cash income do not show an upward
                trend for the industry as a whole over the past 20 years.'' \70\
                ---------------------------------------------------------------------------
                 \69\ USDA Economic Research Services, Farm Labor, https://www.ers.usda.gov/topics/farm-economy/farm-labor (last modified Aug.
                18, 2021).
                 \70\ Id. (The ERS found that for all farms, ``labor costs
                (including contract labor, and cash fringe benefit costs) averaged
                10.4 percent of gross cash income during 2016-18, compared with 10.7
                percent for 1996-98.'' At the commodity level, the ERS found that
                ``[l]abor cost shares have fallen slightly over the past 20 years
                for the more labor-intensive fruit and vegetable sectors . . . .'').
                ---------------------------------------------------------------------------
                 AEWR increases above historical averages in recent years also are
                consistent with a growing agricultural labor shortage that is evidenced
                by an exponential increase in use of the H-2A program since 2015, USDA
                data, and recurrent statements by employers and associations that it is
                increasingly difficult to find U.S. workers for their job
                opportunities.\71\ As the Department has explained in prior rulemaking,
                basic ``economic theory holds that, under conditions of an emerging
                labor shortage . . . [wage] adjustments would occur over time and the
                observed wage would increase by an amount sufficient to attract more
                workers until supply and demand were met in equilibrium.'' \72\
                However, ``labor shortages that would normally drive wages up may
                become distorted by the availability of foreign workers . . . .'' \73\
                The AEWR methodology in the 2010 Final Rule and the similar FLS-based
                methodology proposed here provide a wage floor distinct from the local
                prevailing wage and are intended to ``comput[e] an AEWR to approximate
                the equilibrium wage that would result absent an influx of temporary
                foreign workers . . . serv[ing] to put incumbent farm workers in the
                position they would have been in but for the H-2A program.'' \74\
                ---------------------------------------------------------------------------
                 \71\ See, e.g., Steven Zhaniser et al., Rising Wages Point to a
                Tighter Farm Labor Market in the United States, Amber Waves (Feb 15,
                2019), https://www.ers.usda.gov/amber-waves/2019/february/rising-wages-point-to-a-tighter-farm-labor-market-in-the-united-states
                (noting that rising real (inflation-adjusted) farm wages in the past
                four years is a ``prominent indicator of a tighter farm labor
                market'' and that ``greater employment of nonimmigrant, foreign-born
                farmworkers through the H-2A'' program is another indicator).
                 \72\ 75 FR 6883, 6891; see also Final Rule, Wage Methodology for
                the Temporary Non-Agricultural Employment H-2B Program, 80 FR 24146,
                24159-24160 (Apr. 29, 2015) (noting that ``if employers experience a
                shortage of available workers in a particular region or occupation,
                compensation should rise as needed to attract workers'').
                 \73\ 80 FR 24146, 24158-24159.
                 \74\ 75 FR 6883, 6891.
                ---------------------------------------------------------------------------
                III. Request for Comments
                 The Department invites comments on all aspects of the proposed AEWR
                methodology. Because the 2020 AEWR Final Rule has been preliminarily
                enjoined, and there is uncertainty as to whether that rule will be
                vacated prior to the issuance of a final rule, the Department seeks
                comment on all proposals to mirror provisions found in the 2020 rule.
                In addition, the Department is interested in comments on the use of the
                FLS and OEWS survey and the conditions under which each survey should
                be used to establish the AEWR. For example, the Department is
                interested in comments on the continued use of a single statewide
                hourly AEWR for field and livestock worker occupations (combined),
                rather than occupation-specific statewide AEWRs for each occupation
                comprising the field and livestock workers (combined) category covered
                by the FLS. In addition, the Department is interested in comments on
                use of the OEWS survey to establish the AEWR for field and livestock
                worker occupations (combined) in the absence of the FLS or where the
                FLS does not report a wage finding for these occupations in a
                particular geographic area, as well as the use of the OEWS to establish
                AEWRs for all job opportunities that do not fall within the FLS field
                and livestock workers (combined) category. Commenters may address the
                existence or role of the AEWR, but the Department encourages commenters
                to focus on the methodology used to determine the AEWR. The Department
                is not considering eliminating the AEWR or changing the AEWR's role in
                determinations of an employer's required minimum wage rate in the H-2A
                program, for reasons explained at length in prior rulemakings,
                including in the 2020 AEWR Final Rule and 2010 Final Rule.
                IV. Administrative Information
                A. Executive Order 12866: Regulatory Planning and Review; and Executive
                Order 13563: Improving Regulation and Regulatory Review
                 Under E.O. 12866, the OMB's Office of Information and Regulatory
                Affairs (OIRA) determines whether a regulatory action is significant
                and, therefore, subject to the requirements of the E.O. and review by
                OMB. 58 FR 51735. Section 3(f) of E.O. 12866 defines a ``significant
                regulatory action'' as an action that is likely to result in a rule
                that: (1) Has an annual effect on the economy of $100 million or more,
                or adversely affects in a material way a sector of the economy,
                productivity, competition, jobs, the environment, public health or
                safety, or State, local, or tribal governments or communities (also
                referred to as economically significant); (2) creates serious
                inconsistency or otherwise interferes with an action taken or planned
                by another agency; (3) materially alters the budgetary impacts of
                entitlement grants, user fees, or loan programs, or the rights and
                obligations of recipients thereof; or (4) raises novel legal or policy
                issues arising out of legal mandates, the President's priorities, or
                the principles set forth in the E.O. Id. OIRA reviewed this proposed
                rule and has determined that it is a significant--but not economically
                significant--regulatory action under E.O. 12866.
                 E.O. 13563 directs agencies to propose or adopt a regulation only
                upon a reasoned determination that its benefits justify its costs; the
                regulation is tailored to impose the least burden on society,
                consistent with achieving the regulatory objectives; and in choosing
                among alternative regulatory approaches, the agency has selected those
                approaches that maximize net benefits. E.O. 13563 recognizes that some
                benefits are difficult to quantify and provides that, where appropriate
                and permitted by law, agencies may consider and discuss qualitative
                values that are difficult or impossible to quantify, including equity,
                human dignity, fairness, and distributive impacts.
                Outline of the Analysis
                 Section VI.A.1 describes the need for the proposed rule, and
                section VI.A.2 describes the process used to estimate the costs of the
                rule and the general inputs used, such as wages and number of affected
                entities. Section VI.A.3 explains how the provisions of the proposed
                rule will result in quantifiable costs and transfers and presents the
                calculations the Department used to estimate them. In addition, section
                [[Page 68186]]
                VI.A.3 describes the unquantified costs of the proposed rule, a
                description of qualitative benefits, and presents an analysis of
                distributional impacts of the rule. Section VI.A.4 summarizes the
                estimated first-year and 10-year total and annualized costs and
                transfers of the proposed rule. Finally, section VI.A.5 describes the
                regulatory alternatives that were considered during the development of
                the proposed rule.
                Summary of the Analysis
                 The Department estimates that the proposed rule will result in
                costs and transfers. As shown in Exhibit 1, the proposed rule is
                expected to have an annualized cost of $0.064 million and a total 10-
                year quantifiable cost of $0.45 million at a discount rate of 7
                percent.\75\ The proposed rule is estimated to result in annual
                transfers from H-2A employers to H-2A employees of $30.17 million and
                total 10-year transfers of $211.87 million at a discount rate of 7
                percent.\76\
                ---------------------------------------------------------------------------
                 \75\ The proposed rule will have an annualized cost of $0.18
                million and a total 10-year cost of $1.54 million at a discount rate
                of 3 percent in 2020 dollars.
                 \76\ The proposed rule will have annualized transfer payments
                from H-2A employers to H-2A employees of $29.80 million and a total
                10-year transfer payments of $254.20 million at a discount rate of 3
                percent in 2020 dollars.
                 Exhibit 1--Estimated Monetized Costs and Transfers of the Proposed Rule
                 [2020 $millions]
                ------------------------------------------------------------------------
                 Costs Transfers
                ------------------------------------------------------------------------
                Undiscounted 10-Year Total.............. $0.45 $295.00
                10-Year Total with a Discount Rate of 3% 0.45 254.20
                10-Year Total with a Discount Rate of 7% 0.45 211.87
                ------------------------------------------------------------------------
                10-Year Average......................... 0.45 29.50
                Annualized at a Discount Rate of 3%..... 0.53 29.80
                Annualized with at a Discount Rate of 7% 0.064 30.17
                ------------------------------------------------------------------------
                 The total cost of the proposed rule is associated with rule
                familiarization. Transfers are the results of changes to the AEWR
                methodology and, more specifically, in H-2A job opportunities where the
                FLS does not adequately collect or consistently report wage data at a
                State or regional level. See the costs and transfers subsections of
                section VI.A.3 (Subject-by-Subject Analysis) below for a detailed
                explanation.
                 The Department was unable to quantify some costs and benefits of
                the proposed rule. The Department describes them qualitatively in
                section VI.A.3 (Subject-by-Subject Analysis) and seek input from the
                public to help us to reasonably quantify them in the final rule.
                1. Need for Regulation
                 As discussed above, court-issued injunctions prevented USDA from
                suspending FLS data collection for calendar year 2020 and prevented the
                Department from further implementing the 2020 AEWR Final Rule on
                December 23, 2020, resulting in a return to the 2010 Final Rule AEWR
                methodology. Under the 2010 Final Rule, the FLS wage data is used to
                determine the AEWRs for all H-2A job opportunities. However, the
                Department remains concerned that the use of a single AEWR for all job
                opportunities in the H-2A program may adversely affect the wages of
                workers in the United States similarly employed in certain occupations
                where the FLS does not adequately collect or consistently report wage
                data at a State or regional level. Therefore, the Department proposes
                using the bifurcated approach set forth in the 2020 AEWR Final Rule
                that set a single AEWR based on the FLS for the vast majority of job
                opportunities used by employers in the H-2A program--six occupational
                classifications covering field workers and livestock workers--while
                shifting AEWR determinations to the OEWS survey for all other
                occupations for which the FLS does not adequately collect or
                consistently report wage data at a State or regional level (e.g. ,
                truck drivers, farm supervisors and managers, construction workers, and
                many occupations in contract employment). As AEWR determinations become
                more occupation specific, the Department believes it is appropriate to
                continue requiring that employers pay the highest applicable wage if
                the job opportunity can be classified within more than one occupational
                classification to reduce the potential for employers to misclassify
                workers and establish greater consistency with prevailing wage
                determinations in the H-2B program.
                 The Department has also determined that two major aspects of the
                2020 AEWR Final Rule are inconsistent with the Department's statutory
                mandate to protect the wages of workers in the United States similarly
                employed against adverse effect: (1) The imposition of a 2-year wage
                freeze for field and livestock workers at a wage level based on the FLS
                published in November 2019, and (2) using the BLS ECI solely to adjust
                AEWRs annually thereafter. Accordingly, the Department has determined
                these policies must be reconsidered and proposes revisions in this NPRM
                that better meet the statute's twin goals to ensure that employers can
                access legal agricultural labor while maintaining an adequate level of
                wage protection for workers in the United States similarly employed.
                2. Analysis Considerations
                 The Department estimated the costs and transfers of the proposed
                rule relative to the existing baseline (i.e., the current practices for
                complying, at a minimum, with the H-2A program as currently codified at
                20 CFR part 655, subpart B). This existing baseline is consistent with
                the 2010 Final Rule because the 2020 AEWR Final Rule has been
                preliminarily enjoined by a federal district court, as explained above,
                and there is uncertainty as to whether the 2020 AEWR Final Rule rule
                will be vacated prior to the issuance of this final rule.
                 In accordance with the regulatory analysis guidance articulated in
                OMB's Circular A-4 and consistent with the Department's practices in
                previous rulemakings, this regulatory analysis focuses on the likely
                consequences of the proposed rule (i.e., costs and transfers that
                accrue to entities affected). The analysis covers 10 years (from 2022
                through 2031) to ensure it captures major costs and transfers that
                accrue over time. The Department expresses all quantifiable impacts in
                2020 dollars and uses discount rates of 3 and 7 percent, pursuant to
                Circular A-4.
                [[Page 68187]]
                 Exhibit 2 presents the number of affected entities that are
                expected to be impacted by the proposed rule. The average number of
                affected entities is calculated using OFLC H-2A labor certification
                data from 2016 through 2020. The Department provides this estimate and
                uses it to estimate the costs of the proposed rule.
                 Exhibit 2--Number of Affected Entities by Type
                 [FY 2016-2020 average]
                ------------------------------------------------------------------------
                 Entity type Number
                ------------------------------------------------------------------------
                Annual Unique H-2A Applicants.......................... 8,204
                ------------------------------------------------------------------------
                Growth Rate
                 The Department estimated growth rates for applications processed
                and certified H-2A workers based on fiscal year (FY) 2012-2020 H-2A
                program data, presented in Exhibit 3.
                 Exhibit 3--Historical H-2A Program Data
                ------------------------------------------------------------------------
                 Applications Workers
                 Fiscal year certified certified
                ------------------------------------------------------------------------
                2012.................................... 5,278 85,248
                2013.................................... 5,706 98,814
                2014.................................... 6,476 116,689
                2015.................................... 7,194 139,725
                2016.................................... 8,297 165,741
                2017.................................... 9,797 199,924
                2018.................................... 11,319 242,853
                2019.................................... 12,626 258,446
                2020.................................... 13,552 275,430
                ------------------------------------------------------------------------
                 The geometric growth rate for certified H-2A workers using the
                program data in Exhibit 3 is calculated as 15.8 percent. This growth
                rate, applied to the analysis timeframe of 2022 to 2031, would result
                in more H-2A certified workers than projected employment of workers in
                the relevant H-2A SOC codes by BLS.\77\ Therefore, to estimate
                realistic growth rates for the analysis, the Department applied an
                autoregressive integrated moving average (ARIMA) model to the FY 2012-
                2020 H-2A program data to forecast workers and applications, and
                estimated geometric growth rates based on the forecasted data. The
                Department conducted multiple ARIMA models on each set of data and used
                common goodness of fit measures to determine how well each ARIMA model
                fit the data.\78\ Multiple models yielded indistinctive measures of
                goodness of fit. Therefore, each model was used to project workers and
                applications through 2031. Then, a geometric growth rate was calculated
                using the forecasted data from each model and an average was taken
                across each model. This resulted in an estimated growth rate of 3.1
                percent for H-2A applications and 5.6 percent for H-2A certified
                workers. The estimated growth rates for applications (3.1 percent) and
                workers (5.6 percent) were applied to the estimated costs and transfers
                of the proposed rule to forecast participation in the H-2A program.
                ---------------------------------------------------------------------------
                 \77\ Comparing BLS 2029 projections for combined agricultural
                workers with a 15.8 percent growth rate of H-2A workers yields
                estimated H-2A workers that are about 107 percent greater than BLS
                2029 projections. The projected workers for the agricultural sector
                were obtained from BLS's Occupational Projections and Worker
                Characteristics, which may be accessed at https://www.bls.gov/emp/tables/occupational-projections-and-characteristics.htm.
                 \78\ The Department estimated models with different lags for
                autoregressive and moving averages, and orders of integration:
                ARIMA(0,2,0); (0,2,1); (0,2,2); (1,2,1); (1,2,2); (2,2,2). For each
                model we used the Akaike Information Criteria (AIC) goodness of fit
                measure.
                ---------------------------------------------------------------------------
                Estimated Number of Workers and Change in Hours
                 The Department presents the estimated average number of applicants
                and the change in burden hours required for rule familiarization in
                section VI.A.3 (Subject-by-Subject Analysis).
                Compensation Rates
                 In section VI.A.3 (Subject-by-Subject Analysis), the Department
                presents the costs, including labor, associated with the implementation
                of the provisions of the proposed rule. Exhibit 4 presents the hourly
                compensation rates for the occupational categories expected to
                experience a change in the number of hours necessary to comply with the
                proposed rule. The Department used the mean hourly wage rate for
                private sector Human Resources Specialists (SOC code 13-1071).\79\ Wage
                rates are adjusted to reflect total compensation, which includes
                nonwage factors such as overhead and fringe benefits (e.g., health and
                retirement benefits). We use an overhead rate of 17 percent \80\ and a
                fringe benefits rate based on the ratio of average total compensation
                to average wages and salaries in 2021. For the private sector
                employees, we use a fringe benefits rate of 42 percent.\81\ We then
                multiply the loaded wage factor by the wage rate to calculate an hourly
                compensation rate. The Department used the hourly compensation rates
                presented in Exhibit 4 throughout this analysis to estimate the labor
                costs for each provision.
                ---------------------------------------------------------------------------
                 \79\ BLS, May 2020 National Occupational Employment and Wage
                Estimates: 13-1071--Human Resources Specialist, https://www.bls.gov/oes/current/oes131071.htm (last modified Mar. 31, 2021).
                 \80\ See Cody Rice, U.S. Environmental Protection Agency, Wage
                Rates for Economic Analyses of the Toxics Release Inventory Program
                (June 10, 2002), available at https://www.regulations.gov/document?D=EPA-HQ-OPPT-2014-0650-0005.
                 \81\ See Employer Costs for Employee Compensation, https://www.bls.gov/news.release/ecec.toc.htm (last modified Sept. 16,
                2021). This shows the ratio of total compensation to wages and
                salaries for all private industry workers.
                [[Page 68188]]
                 Exhibit 4--Compensation Rates
                 [2020 dollars]
                --------------------------------------------------------------------------------------------------------------------------------------------------------
                 Hourly
                 Position Grade level Base hourly Loaded wage factor Overhead costs compensation
                 wage rate rate
                 (a) (b) (c) d = a + b + c
                --------------------------------------------------------------------------------------------------------------------------------------------------------
                 Private Sector Employees
                --------------------------------------------------------------------------------------------------------------------------------------------------------
                HR Specialist.................................. N/A $33.38 $14.02 ($33.38 x 0.42) $5.67 ($33.38 x 0.17) $53.08
                --------------------------------------------------------------------------------------------------------------------------------------------------------
                3. Subject-by-Subject Analysis
                 The Department's analysis below covers the rule familiarization
                costs, unquantifiable costs, transfers, and qualitative benefits of the
                proposed rule. In accordance with Circular A-4, the Department
                considers transfers as payments from one group to another that do not
                affect total resources available to society. This proposed rule
                includes the cost of rule familiarization and transfers associated with
                the AEWR wage structure from the proposed rule. The Department also
                described efficiency impacts, payroll and other transition costs, and
                the distributional impacts that could result from the proposed rule.
                Costs
                 The following section describes the costs of the proposed rule.
                Quantifiable Costs
                Rule Familiarization
                 When the proposed rule takes effect, H-2A employers will need to
                familiarize themselves with the new regulations. Consequently, this
                will impose a one-time cost in the first year. To estimate the first-
                year cost of rule familiarization, the Department applied the growth
                rate of H-2A applications (3.1 percent) to the average number of annual
                unique H-2A applicants from FY2016 to FY2020 (8,204) to determine the
                number of unique recurring H-2A applicants impacted in the first year
                the rule is in effect. The number of unique H-2A applicants (8,459) was
                multiplied by the estimated amount of time required to review the rule
                (1 hour).\82\ This number was then multiplied by the hourly
                compensation rate of Human Resources Specialists ($53.08 per hour).
                This calculation results in a one-time undiscounted cost of $448,973 in
                the first year after the proposed rule takes effect. In each subsequent
                year new unique employers (2,199) requesting H-2A certifications will
                need to review the rule. The growth rate of H-2A applications (3.1
                percent) was applied to the number of new unique employer to determine
                the annual number of new unique H-2A applicants impacted in the
                remaining years of the analysis. This results in an average annual
                undiscounted cost of $140,589 in years 2-10 of the analysis. The one-
                time and continuing costs yield a total average annual undiscounted
                cost of $171,428. The annualized cost over the 10-year period is
                $52,633,180,190 and $63,924,192,560 at discount rates of 3 and 7
                percent, respectively.
                ---------------------------------------------------------------------------
                 \82\ This estimate reflects the nature of the proposed rule. As
                a rulemaking to amend parts of an existing regulation, rather than
                to create a new rule, the 1-hour estimate assumes a high number of
                readers familiar with the existing regulation.
                ---------------------------------------------------------------------------
                Unquantifiable Costs
                a. Efficiency Impacts
                 The proposed wage methodology is designed to achieve the statute's
                twin goals of providing employers with an adequate legal supply of
                agricultural labor and protecting the wages and working conditions of
                workers in the United States similarly employed. The AEWR provides a
                floor below which wages cannot be negotiated, thereby strengthening the
                ability of this particularly vulnerable labor force to negotiate over
                wages with growers who are in a stronger economic and financial
                position in contractual negotiations for employment. In the case of
                perfect competition, if the proposed rule results in a wage floor above
                competitive market wages, it will produce some deadweight loss (DWL).
                In the case of market power, if the proposed rule reduces a wage floor
                below competitive market wages, it may produce some DWL if employers
                exercise market power, but otherwise will not. Setting minimum wage
                rates has implications on economic efficiency that are complicated and
                difficult to assess because, in certain combinations of SOC codes and
                geographies, the gross average hourly wage rates used to determine the
                AEWRs annually for each State under this proposed rule may act as a
                wage floor that is above competitive market equilibrium wages for
                certain job opportunities whereas in others imperfect competition may
                suppress domestic labor markets at quantities below the competitive
                market equilibrium.
                 These two impacts are dependent on local labor market conditions,
                the nature of the agricultural work to be performed and wage payment
                structure (i.e., fixed hourly pay versus combination of hourly and
                piece-rate pay), the relation of the AEWR to the regional OEWS wage, as
                well as the shape and components (i.e., makeup of nonimmigrant foreign
                and domestic workers) of the combined temporary agricultural employment
                labor supply curve in the local or regional labor market.
                 The Department is unable to quantify these efficiency impacts
                because it does not have data on all local labor market conditions for
                all occupations, data on foreign labor supply curves, and how these
                interact with employer demand. The Department seeks public comment on
                the DWL or other labor market inefficiencies resulting from the
                proposed rule. The efficiency impact of the proposed rule is limited
                only to the 2 percent of H-2A workers whose wages the proposed rule
                will affect, while there would be no change to the DWL for the other 98
                percent of H-2A workers.\83\ Therefore, the DWL resulting from the
                proposed rule is likely very small. Because the market equilibrium
                wages for construction workers, supervisors/managers of farmworkers,
                and logging equipment operators are above current baseline AEWRs, the
                proposed rule may create some efficiency gain (or decrease in the DWL)
                for jobs within the 2 percent when it raises the wage floor from the
                current baseline AEWRs toward competitive equilibrium wages if
                employers currently exercise market power to prevent wages from being
                bid up to competitive equilibrium rates. On the
                [[Page 68189]]
                other hand, there may be instances in which the new wage floor
                (depending on the job and geographic area) could be above the market
                equilibrium wage; this would result in efficiency loss (or increase in
                the DWL). A DWL occurs when a market operates at less than or more than
                the market equilibrium output. The AEWR sets compensation in some cases
                above the equilibrium level and in other cases may set wage levels that
                allow employers with market power to suppress wage rates below the
                competitive equilibrium, resulting in a labor shortage. When the AEWR
                is set above market equilibrium, the higher cost of labor can lead to a
                decrease in the total number of labor hours purchased in the local
                labor market. On the contrary, when the AEWR is set below competitive
                equilibrium and employers have market power, employers may pay below-
                competitive-equilibrium wage rates, decreasing the total number of
                worker labor hours purchased in the local labor market. DWL is a
                function of the difference between the compensation the employers are
                willing to pay for the hours lost and the compensation employees are
                willing to take for those hours. In short, DWL is the total loss in
                economic surplus resulting from a ``wedge'' between the employer's
                willingness to pay for, and the employees'' willingness to accept work
                arising from the intervention (in this case the AEWR).
                ---------------------------------------------------------------------------
                 \83\ Under this proposed rule the Department would use the AEWR
                methodology set forth in the 2010 Final Rule (i.e., setting the
                annual AEWRs using the gross average hourly wage rate for field and
                livestock workers (combined)) for the occupations (45-2041, 45-2091,
                45-2092, 45-2093, 53-7064, 45-2099) which comprise 98 percent of H-
                2A workers.
                ---------------------------------------------------------------------------
                 The Department is unable to quantify the DWL without data on the
                equilibrium wage arising from each locality and occupational code's
                labor demand and combined immigrant foreign worker and domestic U.S.
                worker labor supply curves. The below paragraphs qualitatively discuss
                changes in the AEWR wages that may result in some DWL. In the analysis
                of wage transfers, only 2 percent of workers would be employed in H-2A
                job opportunities where the AEWR will change under the proposed rule
                from the current baseline. For the 98 percent of workers employed in H-
                2A job opportunities under the six occupational classifications
                covering field workers and livestock workers reported by the FLS with
                no change to wages, the proposed rule does not change the DWL and
                existing labor market efficiencies or inefficiencies from the current
                baseline.
                 In some cases the baseline AEWR creates a DWL by setting a minimum
                wage above the market equilibrium, because the hourly wage represents
                an annual weighted average across six occupational classifications
                covering a State or multistate region. Under the proposed rule when the
                AEWR is annually adjusted, the DWL may increase when the AEWR covering
                the State or multistate region also increases and remains above market
                equilibrium. Under the proposed rule this may occur for some, but not
                all, occupations covering field and livestock workers where the AEWR is
                determined using the annual weighted statewide gross hourly wage based
                on the OEWS survey. The OEWS survey does not collect wages for fixed-
                site farms and ranches but does include data for establishments that
                support farm production activities (i.e., farm labor contractors) and
                are engaged in similar agricultural labor or services. Additionally,
                the types of agricultural establishments included in the OEWS survey,
                such as farm labor contractors, represent an increasing share of
                workers certified by the Department on H-2A applications. The OEWS wage
                for occupations associated with these establishments is unlikely to
                reflect any wage suppression created by nonimmigrant foreign workers''
                willingness to work at lower wages than domestic U.S. workers.
                Therefore, an AEWR determined for a State based on OEWS wage data may
                be higher than the baseline AEWR that is based on the FLS and market
                equilibrium wage for temporary agricultural employment. Therefore, for
                most SOC code and area combinations, the AEWRs under this proposed rule
                AEWR, set at the OEWS wage, will serve as a wage floor and may create a
                DWL in the labor market, as illustrated by Figure 1.
                BILLING CODE 4510-FP-P
                [GRAPHIC] [TIFF OMITTED] TP01DE21.000
                 When employers have market power in the labor market and the AEWR
                is set below the domestic competitive market equilibrium wage, then
                there may be a DWL in the associated U.S. labor market. In the H-2A
                program there are
                [[Page 68190]]
                some combinations of occupations and geographic areas where this can
                occur. For example, workers in higher paid occupations and occupations
                that are typically performed off farm yet qualify under the H-2A
                program (e.g., logging operations) have a baseline wage set by the FLS
                that is substantially below the U.S. market equilibrium according to
                OEWS data covering the State. Under the proposed rule the AEWR will be
                increased for these occupations to the State-level OEWS.\84\ In
                addition, workers in occupations that continue to have an AEWR set by
                the FLS, but in areas where FLS data for a given year cannot be
                reported, will have the AEWR set by a weighted average OEWS wage for
                field and livestock worker occupations which may be below market wage
                rates for a specific SOC code and geographic area combination.\85\ In
                these examples, some U.S. employers that do not compete with other
                employers for workers may set wage rates below competitive equilibrium
                at a wage level that balances the revenue gains from an additional
                worker against the cost of raising wages for all employees to attract
                that marginal worker. Some U.S. and foreign workers who would be
                willing to work at competitive equilibrium wages may not be willing to
                work at a lower wage. In these cases, a DWL is produced in the U.S.
                labor market, but under the proposed rule that DWL is reduced because
                of the higher AEWR (see Figure).
                ---------------------------------------------------------------------------
                 \84\ For example, Mobile Heavy Equipment Mechanics, Except
                Engine (49-3042, in ME) has a 2021 AEWR of $14.99 and under the
                proposed rule would have an OEWS wage of $22.85.
                 \85\ For example, Agricultural Workers, All Other (45-2099, in
                SOC) has a 2021 AEWR of $11.81. If the FLS data was unavailable it
                would have a weighted average OEWS wage of $14.18 and the OEWS wage
                for that specific occupation is $16.51. Thus, the weighted average
                OEWS wage would be below the actual market wage for that occupation.
                [GRAPHIC] [TIFF OMITTED] TP01DE21.001
                 When labor markets are competitive, an AEWR set below the U.S.-only
                labor market equilibrium wage rate in absence of foreign labor, but
                above the market equilibrium, with both domestic and foreign labor,
                results in DWL for the United States because it reduces domestic
                employer surplus more than it increases domestic worker surplus. In a
                competitive labor market with no AEWR, there will be no DWL. Figure 3
                illustrates this in a simplified case where domestic and foreign
                agricultural workers are perfect substitutes, and an infinite supply of
                foreign agricultural workers are willing to work at wage rate
                WFOREIGN below the U.S.-worker-only market equilibrium wage
                rate WUS-ONLY. The competitive market equilibrium will equal
                WFOREIGN and domestic employers will hire a combination of
                QEFFICIENT_US domestic workers and
                (QEFFICIENT_TOTAL - QEFFICIENT_US) foreign
                workers. U.S. DWL will be zero because U.S. total surplus (U.S.
                employer surplus + U.S. worker surplus) is maximized.
                [[Page 68191]]
                [GRAPHIC] [TIFF OMITTED] TP01DE21.002
                 Setting an AEWR above the competitive labor market equilibrium wage
                creates a DWL. Working from the same assumptions as Figure 3, Figure 4
                illustrates that setting AEWRBASE above the competitive
                equilibrium wage WFOREIGN reduces the total number of
                workers employers are willing to hire from QEFFICIENT_TOTAL
                to QAEWR_TOTAL. Because employers now hire fewer workers at
                a higher wage rate, domestic employer surplus falls. At the higher
                wage, the number of domestic workers willing and hired to work
                increases from QEFFICIENT_US to QAEWR_US,
                increasing domestic worker surplus. Total surplus falls, generating
                DWL, because the increase in domestic worker surplus is only a fraction
                of the decrease in domestic employer surplus. Figure 4 depicts U.S. DWL
                as the amount that the decrease in domestic employer surplus exceeds
                the increase in domestic worker surplus. Global DWL is smaller than
                this if we consider the welfare impacts to foreign workers from
                increasing their wages. Increasing the AEWR under the proposed rule
                will extend all these impacts; that is, increase DWL, decrease domestic
                employer surplus, and increase domestic worker surplus.
                [[Page 68192]]
                [GRAPHIC] [TIFF OMITTED] TP01DE21.003
                BILLING CODE 4510-FP-C
                b. Payroll and Other Transition Costs
                 The proposed rule will result in new AEWR wage rates for some SOC
                code and geographic area combinations compared to the baseline.
                Companies employing H-2A workers will need to update payrolls to
                account for the new AEWR wage rates. The Department does not quantify
                this cost and expects it to be de minimis because employers already
                need to update payrolls when AEWR wage rates are released annually.
                Therefore, they already have the capabilities and processes to quickly,
                and at de minimis cost, update payrolls when AEWR wage rates change.
                 The proposed rule may also result in other transition costs to some
                employers for recruitment and training if they hire U.S. workers for
                the jobs that are performed by H-2A workers. The Department is not able
                to quantify the transition costs and seeks public input on the
                potential transition expenses such as recruitment and training.
                Transfers
                 The following section describes the transfers of the proposed rule
                related to the revisions to the wage structure. The Department
                considers transfers as payments from one group to another that do not
                affect total resources available to society. The transfers measured in
                this analysis are wage transfers from U.S. employers to H-2A workers.
                H-2A workers are migrant workers who will spend some of their earnings
                on consumption goods in the U.S. economy but likely send a large
                fraction of their earnings to their home countries.\86\ Therefore, the
                Department considers the wage transfers in the analysis as transfer
                payments within the global economic system.
                ---------------------------------------------------------------------------
                 \86\ Walmsley, Winters, and Ahmed report the remittances to
                labor income for migrants from Mexico (the primary source of H-2A
                workers) at nearly 20%. The ratio ranges from close to 5% for
                migrants from China to close to 70% for migrants from India. These
                remittances can provide substantial financial assistance for migrant
                workers' families in their home countries. Terrie L. Walmsley et
                al., Global Trade Analysis Project, Measuring the Impact of the
                Movement of Labor Using a Model of Bilateral Migration Flows (Nov.
                2007), available at https://www.gtap.agecon.purdue.edu/resources/download/4635.pdf. See also Dilip Ratha, Remittances: Funds for the
                Folks Back Home, International Monetary Fund, https://www.imf.org/external/pubs/ft/fandd/basics/remitt.htm (last updated Feb. 24,
                2020); Daniel Costa & Philip Martin, Economic Policy Institute,
                Temporary Labor Migration Programs (Aug. 1, 2018), available at
                https://www.epi.org/publication/temporary-labor-migration-programs-governance-migrant-worker-rights-and-recommendations-for-the-u-n-global-compact-for-migration/.
                ---------------------------------------------------------------------------
                 Section 218(a)(1) of the INA, 8 U.S.C. 1188(a)(1), provides that an
                H-2A worker is admissible only if the Secretary of Labor determines
                that ``there are not sufficient workers who are able, willing, and
                qualified, and who will be available at the time and place needed, to
                perform the labor or services involved in the petition, and the
                employment of the alien in such labor or services will not adversely
                affect the wages and working conditions of workers in the United States
                similarly employed.'' In 20 CFR 655.120(a), the Department currently
                meets this statutory requirement, in part, by requiring the employer to
                offer, advertise in its recruitment, and pay a wage that is the highest
                of the AEWR, the prevailing wage, the agreed-upon collective bargaining
                wage, the Federal minimum wage, or the State minimum wage. As discussed
                below, the Department's proposed rule maintains this general wage-
                setting structure but proposes to modify the methodology by which it
                establishes the AEWRs.
                 Currently, pursuant to the 2010 Final Rule, the AEWR for each State
                or region is published annually as a single average hourly gross wage
                that is set using the field and livestock workers (combined) data from
                the FLS, which is conducted by the USDA's NASS. This methodology
                produces a single AEWR for all agricultural workers in a State or
                region, without regard to occupational classification, and no AEWR in
                geographic areas not surveyed by NASS (e.g., Alaska). As discussed in
                depth in the preamble, the Department is concerned that this
                methodology may have an adverse effect on the wages of
                [[Page 68193]]
                workers in higher paid agricultural occupations, such as supervisors of
                farmworkers and construction laborers on farms, whose wages may be
                inappropriately lowered by an AEWR established from the wages of the
                FLS field and livestock workers (combined) occupational category, which
                does not include those workers.
                 Under this proposed rule the Department would modify the AEWR
                methodology so that it is based on data more specific to the
                agricultural occupation of workers in the United States similarly
                employed. Both the FLS and OEWS survey provide data tailored to U.S.
                agricultural workers and the States and regions where these workers are
                employed, making these sources effective in ensuring that the temporary
                employment of foreign workers in field and livestock job opportunities
                will not adversely affect the wages of workers in the United States
                similarly employed. In addition, OEWS data includes employment and
                gross hourly wage data from employer establishments that support farm
                production activities. Although they do not represent fixed-site farms
                and ranches, these establishments employ workers engaged in similar
                agricultural labor or services as those workers who are directly
                employed by farms and ranches.
                 As explained above, these types of employer establishments (i.e.,
                farm labor contractors) participate in the H-2A program and represent
                an increasing share of the worker positions certified by the Department
                on H-2A applications both in the predominant field and livestock
                workers (combined) occupational group and in occupations that are less
                common in the H-2A program. While the labor demanded from H-2ALCs
                (i.e., farm labor contractors) using the H-2A program for employment in
                non-range occupations has significantly increased in recent years, they
                only represented approximately 16 percent of all certified H-2A
                applications in FY 2020.\87\ Individual employers and agricultural
                associations filing for one or more individual association members,
                which generally hire workers directly for employment, constituted
                approximately 84 percent of all of H-2A applications.\88\ Using the
                FLS, which surveys directly hired agricultural workers, to set AEWRs
                therefore is more accurate and reasonable because, in addition to being
                a comprehensive source of farmworker wage date, it also surveys the
                agricultural employers which make up a significant majority of H-2A
                applications.
                ---------------------------------------------------------------------------
                 \87\ Based on an analysis of H-2A labor certification data for
                FY 2020, the Department issued 12,491 temporary labor certifications
                covering 272,610 worker positions for non-range employment. Of this
                total, the Department certified 2,052 H-2A applications covering
                116,479 worker positions submitted by, or on behalf of, H-2ALCs;
                1,669 H-2A applications covering 34,236 worker positions submitted
                by agricultural associations by, or on behalf of, one of more
                individual association members; and 8,770 H-2A applications covering
                121,895 worker positions submitted by individual employers (i.e.,
                fixed-site agricultural businesses). See ETA, Performance Data,
                https://www.dol.gov/agencies/eta/foreign-labor/performance (last
                visited Sept. 29, 2021).
                 \88\ Id.
                ---------------------------------------------------------------------------
                 Under this proposed rule the Department would use the AEWR
                methodology set forth in the 2010 Final Rule, i.e., setting the annual
                AEWRs using the gross average hourly wage rate for field and livestock
                workers (combined) in the State or region, as reported by the FLS, when
                that data is available, for the following SOC codes:
                 45-2041--Graders and Sorters, Agricultural Products
                 45-2091--Agricultural Equipment Operators
                 45-2092--Farmworkers and Laborers, Crop, Nursery and
                Greenhouse
                 45-2093--Farmworkers, Farm, Ranch, and Aquacultural Animals
                 53-7064--Packers and Packagers, Hand
                 45-2099--Agricultural Workers, All Other
                 If the annual gross average hourly wage in the State or region is
                not reported by the FLS, the Department proposes to set the annual AEWR
                for these occupations (45-2041, 45-2091, 45-2092, 45-2093, 53-7064, 45-
                2099) using the statewide gross average hourly wage rate reported by
                the OEWS survey. If the annual statewide gross average hourly wage is
                not reported by the OEWS survey, the Department proposes to set the
                AEWR for these occupations by using the annual national gross average
                hourly wage as reported by the OEWS survey. To produce an equivalent
                AEWR for field and livestock worker job opportunities using the OEWS
                survey under the proposed rule, BLS will compute an annual weighted
                average hourly wage using the establishment data reported for these
                occupations at the State and national level.
                 For all other SOC codes the Department proposes to annually set the
                AEWR for agricultural services or labor based on the statewide annual
                average hourly wage reported by the OEWS survey. If the OEWS survey
                does not report a statewide annual average hourly wage for the SOC
                code, the Department proposes to set the AEWR based on the national/
                annual average hourly wage reported by the OEWS survey.
                 To estimate wage impacts the Department uses FY 2020 through FY
                2021 OFLC certification data. To include the most recent H-2A
                certification data (i.e., FY 2021) the Department simulated Q4 data
                based on FY 2016-2020 data, to produce a full year of certification
                data.\89\ For the most common SOC codes (45-2091; 45-2092; and 45-
                2093), the Department calculated the average certification growth rate
                form FY 2016 to FY 2020 by SOC and State, and then determined the
                average annual growth rate. In some cases, due to small numbers of
                certifications in certain States for a specific SOC in each year, the
                growth rates were unreasonably high or low (greater than 80% or less
                than -80% growth). In such cases, the Department applied the national
                growth rate for the applicable SOC. Next, the Department calculated the
                number of certifications that had work in the fourth quarter of 2020 by
                State, and SOC, and applied the applicable growth rate to Q4 to
                estimate FY 2021 quarter 4 certifications. For all other SOC codes, the
                Department took the average of the number of certifications for each
                SOC and State from FY 2016 to FY 2020. The Department also needed to
                estimate the period of need, number of workers per certification, and
                number of hours per certifications. For the three most common SOC
                codes, the Department calculated, by State and SOC code, the number of
                certifications that had work in one or two calendar years, and the
                average number of days that occurred in each year. For all other SOC
                codes, the Department used the national average from FY 2016 to FY 2020
                of the percentage of certifications with work in one or two calendar
                years, and the number of days in each year. For number of workers per
                certifications and number of hours, the average number of workers for
                each SOC code and State from FY 2016 to FY 2020 was applied. Total
                wages were then calculated using the simulated Q4 certifications and
                these estimated FY 2021 Q4 wage impacts were summed with the FY 2021 Q1
                to Q3 wage impacts to create an estimate of total wages for the
                entirety of FY 2021.
                ---------------------------------------------------------------------------
                 \89\ FY 2021 certification data only consists of three quarters
                of data as of the date of analysis for this proposed rule.
                ---------------------------------------------------------------------------
                 To produce a combined field and livestock AEWR using the OEWS, BLS
                provided the Department with the weighted average hourly wage for 45-
                2041, 45-2091, 45-2092, 45-2093, 53-7064, 45-2099 occupations at the
                State and national level using the OEWS May 2020 survey. The OEWS May
                2020
                [[Page 68194]]
                wages are applicable to work occurring between July 1, 2021 and June
                30, 2022. The FY 2020 and FY 2021 certification data includes work
                occurring as early as October of 2019. To determine the appropriate
                weighted average hourly wage for these six occupations between October
                of 2019 and the start of the OEWS May 2020 period, July 1, 2021, the
                Department estimated the weighted average hourly wage for OEWS May 2018
                and OEWS May 2019 datasets. Using public OEWS survey data, the
                Department calculated the average annual percent change for wages in
                these six SOC codes between OEWS May 2018 and OEWS May 2019 and between
                OEWS May 2019 and OEWS May 2020. To determine the weighted average
                hourly wage for the six SOC codes in OEWS May 2019, the Department used
                the percentage growth in the wages to adjust the BLS weighted average
                hourly wage.\90\
                ---------------------------------------------------------------------------
                 \90\ The Department divided the BLS calculated weighed average
                hourly wage rate in OEWS May 2020 by 1+ the average percent change.
                Similarly, the OEWS May 2018 weighted average hourly wage was
                determined by dividing the OEWS May 2019 weighted average hourly
                wage by 1+ the average percent change. The Department completed
                these calculations at the State and national level.
                ---------------------------------------------------------------------------
                 The Department calculated the impact on wages that would occur from
                the implementation of the revised AEWR methodology. For each H-2A
                certification in FY 2020 through FY 2021, the Department calculated
                total wages under the current AEWR baseline, i.e., pursuant to the 2010
                Final Rule, and total wages under the proposed AEWR methodology. Then,
                the Department determined the annual wage impact in calendar year (CY)
                2020 and CY 2021 by subtracting the AEWR baseline wage from the NPRM
                wage. The Department summed the wage impacts in each CY, converted the
                wage impact to 2020 dollars using the Employment Cost Index (ECI) \91\
                and took the average impact of CY 2020 and CY 2021.\92\ Wage impacts
                for 2022 to 2031 were estimated by applying the H-2A workers growth
                rate (5.6 percent) to account for that fact that the number of H-2A
                workers affected (and the total wage impact) will grow annually at 5.6
                percent. Because the proposed rule wage-setting methodology would not
                retroactively impact workers and OEWS wages in the May 2021 OEWS will
                not be applicable until July of 2022, the wage impact in 2022 is
                divided by 2 to account for the fact that only half the year of wages
                would be impacted.\93\
                ---------------------------------------------------------------------------
                 \91\ BLS, Employment Cost Index Archived News Releases, https://www.bls.gov/bls/news-release/eci.htm (last modified July 30, 2021).
                 \92\ While there were working days and therefore wage impacts in
                CY 2019 and CY 2022 in the FY 2020 and FY 2021 certification data,
                the Department did not include wage impacts in CY 2019 and CY 2022
                in the average annual impact calculations because a full CY of work
                is not captured in the FY 2020 and FY 2021 certification data for CY
                2019 and CY 2022.
                 \93\ The Department assumes in the economic analysis of the
                proposed rule that the final rule will not become effective until
                the second half of the year 2022.
                ---------------------------------------------------------------------------
                 The Department provides two examples illustrating the above wage
                calculation methodology for H-2A certifications. Exhibits 5 and 6
                illustrate how total wages are calculated for the proposed rule and
                baseline. The Department multiplied the number of certified workers by
                the number of hours worked each day, the number of days in a year that
                the employees worked, and the annual average hourly gross State AEWR
                wage for SOC codes set by the AEWR. In the example provided in Exhibit
                5, for agricultural equipment operators (SOC 45-2092, Farmworkers and
                Laborers, Crop, Nursery, and Greenhouse) the FLS AEWR wage is not
                available in Alaska and Puerto Rico, so the AEWR is set by the weighted
                average OEWS wage. For SOC codes set by the OEWS survey, the annual
                average hourly gross wage from the state-level OEWS-based wage for the
                appropriate SOC code and worksite state is used, or the national OEWS-
                based wage is used if the State-level wage is not available.
                 Exhibit 5--AEWR Wage Under the Proposed Rule
                 [Example case]
                --------------------------------------------------------------------------------------------------------------------------------------------------------
                 NPRM Number Number
                 ------------------------- Number of Basic of days of days Wage Wage Total AEWR Total AEWR
                 SOC code certified number of worked worked 2020 2021 wages 2020 wages 2021
                 Wage source workers hours in 2020 in 2021
                 (a) (b) (c) (d) (e) (f) (a*(b/5)*c*e) (a*(b/5)*d*f)
                --------------------------------------------------------------------------------------------------------------------------------------------------------
                45-2092.................... FLS AEWR (unavailable); 14 40 152 10 $15.15 $16.78 $257,913.60 $18,793.60
                 weighted average OEWS.
                13-1074.................... OEWS................... 10 35 280 50 25.45 29.84 498,820.00 104,440.00
                --------------------------------------------------------------------------------------------------------------------------------------------------------
                 After the total wages for the proposed rule were determined, the
                wage calculation under the baseline AEWR was calculated. The number of
                workers certified is multiplied by the number of hours worked each day,
                the number of days in a year that the employees worked, and the AEWR
                baseline for the year(s) in which the work occurred (Exhibit 6 provides
                an example of the calculation of the AEWR baseline for the same case as
                in Exhibit 5). In the example provided in Exhibit 6 for SOC code 45-
                2092, the AEWR baseline wage is not available, so the baseline wage is
                set by the public OEWS State wage.
                 Exhibit 6--AEWR Wage Under the Baseline
                 [Example case]
                --------------------------------------------------------------------------------------------------------------------------------------------------------
                 Number Number
                 Number of Basic of days of days Wage Wage Total AEWR Total AEWR
                 SOC code Baseline wage source certified number of worked worked 2020 2021 wages 2020 wages 2021
                 workers hours in 2020 in 2021
                 (a) (b) (c) (d) (e) (f) (a*(b/5)*c*e) (a*(b/5)*d*f)
                --------------------------------------------------------------------------------------------------------------------------------------------------------
                45-2092.................... FLS AEWR (unavailable); 14 40 152 10 $15.54 $15.72 $264,552.96 $17,606.40
                 OEWS State.
                13-1074.................... FLS AEWR............... 10 35 280 50 14.58 15.37 285,768.00 53,795.00
                --------------------------------------------------------------------------------------------------------------------------------------------------------
                [[Page 68195]]
                 The changes in wages constitute a transfer from H-2A employers to
                H-2A employees for SOC codes set by the OEWS survey. For SOC codes set
                by the FLS AEWR there is no wage impact, unless the worksite location
                is in Alaska or Puerto Rico where no AEWR currently exists because the
                FLS does not collect wage data covering these geographic areas.\94\ To
                account for the growth rate in H-2A workers the total transfers in each
                year are increased annually by the estimated growth rate of H-2A
                workers (5.6 percent).\95\ The results are average annual undiscounted
                transfers of $29.50 million. The total transfer over the 10-year period
                is estimated at $295.00 million undiscounted, or $254.20 million and
                $211.87 million at discount rates of 3 and 7 percent, respectively. The
                annualized transfer over the 10-year period is $29.80 million and
                $30.17 million at discount rates of 3 and 7 percent, respectively.
                ---------------------------------------------------------------------------
                 \94\ There is no FLS wage available for Alaska or Puerto Rico.
                Because of that, wages under the baseline are set by the public OEWS
                State data. Under the proposed rule, for SOC codes that have
                worksite locations in Alaska or Puerto Rico, the hourly wage would
                be set by the weighted average hourly wage rate calculated by BLS.
                Therefore, those certifications may have a wage impact under the
                proposed rule.
                 \95\ Total transfers in each year are increased with the
                following formula to account for an annual increase in the
                underlying population of H-2A workers:
                Transfer*(1.056[caret](Current year - Base year)).
                ---------------------------------------------------------------------------
                 The estimated transfers are likely on the high end of potential
                transfers. The Department does not make any adjustment to account for
                H-2A certifications that are made but do not end up in jobs with
                realized wages. In FY 2020, according to State Department data, there
                were 213,394 H-2A visas issued.\96\ In FY 2020 there were 275,430
                workers associated with H-2A certifications. The Department is unable
                to verify the specific H-2A certifications that do not end up in
                materialized jobs and so cannot adjust wage transfers to account for
                differences in regional, and by-SOC code, job materialization. Overall,
                the data on H-2A visas compared to workers associated with H-2A
                certifications indicates that about 80 percent of certified positions
                have associated H-2A visas. The remaining 20 percent could be jobs that
                did not materialize or were filled by U.S. workers.
                ---------------------------------------------------------------------------
                 \96\ U.S. Department of State, Nonimmigrant Visas Issued by
                Classification, Fiscal Years 2016-2020, available at https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2020AnnualReport/FY20AnnualReport-TableXVB.pdf.
                ---------------------------------------------------------------------------
                 The increase (or decrease) in the wage rates for H-2A workers also
                represents a wage transfer from employers to corresponding workers
                performing similar work for the employer, not just the H-2A workers
                employed under the work contract. The higher (or lower) wages paid to
                H-2A workers associated with the proposed rule's methodology for
                determining the AEWRs will also result in wage changes to corresponding
                workers. However, the Department does not collect or possess sufficient
                information about the number of corresponding workers affected and
                their wage payment structures to reasonably measure the transfers to
                corresponding workers. Employers are not required to provide the
                Department, on any application or report, the estimated or actual total
                number of workers in corresponding employment. Although each employer,
                as a condition of being granted a temporary labor certification, must
                provide the Department with a report of its initial recruitment efforts
                for U.S. workers, including the name and contact information of each
                U.S. worker who applied or was referred to the job, such information
                typically reflects only a very small portion of the total recruitment
                period, which runs through 50 percent of the certified work contract
                period, and does not account for any other workers who may be
                considered in corresponding employment and already working for the
                employer. And finally, the Department is also not able to estimate how
                much of the wage transfer stays in the U.S. economy. It is likely that
                a substantial portion of the wage transfer is from U.S. employers to
                the home economy of H-2A workers. Nonimmigrant foreign H-2A workers may
                spend wages earned in the U.S., spend the money outside of the U.S.,
                send the money outside of the U.S., or some combination. The Department
                invites comments regarding how these wage transfer impacts can be
                calculated.
                Qualitative Benefits
                 The proposed rule makes an important update to the AEWR to ensure
                that it protects U.S. workers in occupations where the existing wage
                methodology may adversely affect wages in certain occupations where the
                FLS does not adequately collect or consistently report wage data at a
                State or regional level (e.g., truck drivers, farm supervisors and
                managers, construction workers, and many occupations in contract
                employment). U.S. workers in these occupations would benefit from the
                protections afforded them by an AEWR determined using a more accurate
                data source.
                 The AEWR is the rate that the Department has determined is
                necessary to ensure the employment of H-2A foreign workers will not
                have an adverse effect on the wages of agricultural workers in the
                United States similarly employed. A more accurate AEWR for workers in
                occupations where the FLS is inadequate will guard against the
                potential for the entry of H-2A foreign workers to adversely affect the
                wages and working conditions of workers in the United States similarly
                employed in these occupations. The potential for the employment of
                foreign workers to adversely affect the wages of U.S. workers is
                heightened in the H-2A program because the H-2A program is not subject
                to a statutory cap on the number of foreign workers who may be admitted
                to work in agricultural jobs. Consequently, concerns about wage
                depression from the employment of foreign workers are particularly
                acute because access to an unlimited number of foreign workers in a
                particular labor market and occupation could cause the prevailing wage
                of workers in the United States similarly employed to stagnate or
                decrease.
                 Addressing the potential adverse effect that the employment of
                temporary foreign workers may have on the wages of agricultural workers
                in the United States similarly employed is particularly important
                because U.S. agricultural workers are, in many cases, especially
                susceptible to adverse effects caused by the employment of temporary
                foreign workers. As discussed in prior rulemakings, the Department
                continues to hold the view that ``U.S. agricultural workers need
                protection from potential adverse effects of the use of foreign
                temporary workers, because they generally comprise an especially
                vulnerable population whose low educational attainment, low skills, low
                rates of unionization and high rates of unemployment leave them with
                few alternatives in the non-farm labor market.'' \97\ As a result,
                ``their ability to negotiate wages and working conditions with farm
                operators or agriculture service employers is quite limited.'' \98\ The
                AEWR provides ``a floor below which wages cannot be negotiated, thereby
                strengthening the ability of this particularly vulnerable labor force
                to negotiate over wages with growers who are in a stronger economic and
                financial position in contractual negotiations for employment.'' \99\
                ---------------------------------------------------------------------------
                 \97 \ Proposed Rule, Temporary Agricultural Employment of H-2A
                Aliens in the United States, 74 FR 45905, 45911 (Sep. 4, 2009).
                 \98 \ Id.
                 \99\ Id.
                ---------------------------------------------------------------------------
                [[Page 68196]]
                Distributional Impact Analysis
                 E.O. 13985: Advancing Racial Equity and Support for Underserved
                Communities Through the Federal Government, seeks to advance equity in
                agency actions and programs. The term equity is defined as consistent
                and systematic fair, just, and impartial treatment of individuals,
                including individuals who belong to underserved communities, such as
                Black, Latino, and Indigenous and Native American persons, Asian
                Americans and Pacific Islands, and other persons of color, as well as
                members of religious minorities, lesbian, gay, bisexual, transgender,
                and queer (LGBTQ+) persons, persons with disabilities, persons who live
                in rural areas, and persons otherwise adversely affected by persistent
                poverty or inequality.
                 To assess the impact of the proposed rule on equity the Department
                used Current Population Survey (CPS) data from BLS \100\ to determine
                the ethnic and racial makeup of the most common SOC codes in the H-2A
                program. CPS only included data for three races, White, Black or
                African American, and Asian, and one ethnicity, Hispanic or Latino. The
                results of this analysis for the top ten H-2A SOC codes that experience
                wage impacts (SOC codes other than 45-2041, 45-2091, 45-2092, 45-2093,
                53-7064, 45-2099) is presented in Exhibit 7. These top 10 SOC codes
                \101\ account for over 90 percent of all the workers in the FY 2021
                certification data that experience wage impacts (certifications with
                wages set by the OEWS).
                ---------------------------------------------------------------------------
                 \100\ BLS, Labor Force Statistics from the Current Population
                Survey, Employed persons by occupation, race, Hispanic or Latino
                ethnicity, and sex, https://www.bls.gov/cps/tables.htm (last
                modified May 14, 2021).
                 \101\ Farm Labor Contractors are within the Top 10 impacted H-2A
                SOC codes, but because Farm Labor Contractor are employers it is
                excluded from Exhibit 7.
                 Exhibit 7--Racial/Ethnic Distribution of the Top 10 H-2A SOC Codes by Number of Workers With Wage Impacts
                --------------------------------------------------------------------------------------------------------------------------------------------------------
                 % of employed people Number of
                 ------------------------------------------------------------------------------------------------- FY 2021 Q1-
                 SOC code Description Black or African Q3 H-2A
                 White American Asian Hispanic or Latino workers
                --------------------------------------------------------------------------------------------------------------------------------------------------------
                45-0000................ Farming, fishing, 90..................... 4..................... 2..................... 43.................... (**)
                 and forestry
                 occupations.
                47-2061................ Construction 87..................... 8..................... 1..................... 46.................... 2,107
                 Laborers.
                53-3032................ Heavy and Tractor- 77..................... 17.................... 3..................... 23.................... 526
                 Trailer Truck
                 Drivers.
                45-1011................ First-Line 90..................... 5..................... 3..................... 28.................... 328
                 Supervisors of
                 Farming, Fishing,
                 and Forestry
                 Workers.
                47-3012................ Helpers--Carpenter Not available.......... Not available......... Not available......... Not available......... 104
                 s.
                45-4022................ Logging Equipment Not available.......... Not available......... Not available......... Not available......... 57
                 Operators.
                49-3041................ Farm Equipment 94..................... 4..................... 1..................... 19.................... 55
                 Mechanics and
                 Service
                 Technicians.
                47-2031................ Carpenters........ 88..................... 7..................... 2..................... 36.................... 30
                47-3019................ Helpers, Not available.......... Not available......... Not available......... Not available......... 18
                 Construction
                 Trades, All Other.
                47-2051................ Cement Masons and 83..................... 8..................... 1..................... 53.................... 16
                 Concrete
                 Finishers.
                --------------------------------------------------------------------------------------------------------------------------------------------------------
                * Not available indicates that racial/ethnic data for that SOC code was not reported in the CPS data.
                ** 45-2000 is included as a reference for the racial/ethnic distribution of agricultural workers generally.
                Note: Estimates for the above race groups (White, Black or African American, and Asian) do not sum to totals because data are not presented for all
                 races. Persons whose ethnicity is identified as Hispanic or Latino may be of any race.
                4. Summary of the Analysis
                 Exhibit 8 summarizes the estimated total costs and transfers of the
                proposed rule over the 10-year analysis period. The Department
                estimates the annualized costs of the proposed rule at $0.19 million
                and the annualized transfers (from H-2A employers to employees) at
                $30.17 million, at a discount rate of 7-percent.
                 Exhibit 8--Estimated Monetized Costs and Transfers of the Proposed Rule
                 [2020 $millions]
                ------------------------------------------------------------------------
                 Year Costs Transfers
                ------------------------------------------------------------------------
                2022.................................... $0.00 $11.86
                2023.................................... 0.00 25.05
                2024.................................... 0.00 26.45
                2025.................................... 0.00 27.93
                2026.................................... 0.00 29.50
                2027.................................... 0.00 31.15
                2028.................................... 0.00 32.90
                2029.................................... 0.00 34.74
                2030.................................... 0.00 36.68
                2031.................................... 0.00 38.74
                 -------------------------------
                 Undiscounted 10-Year Total.......... 0.45 295.00
                 10-Year Total with a Discount Rate 0.45 254.20
                 of 3%..............................
                 10-Year Total with a Discount Rate 0.45 211.87
                 of 7%..............................
                ------------------------------------------------------------------------
                10-Year Average......................... 0.045 29.50
                Annualized with a Discount Rate of 3%... 0.053 29.80
                Annualized with a Discount Rate of 7%... 0.064 30.17
                ------------------------------------------------------------------------
                [[Page 68197]]
                5. Regulatory Alternatives
                 The Department considered two alternatives to the proposal of using
                the FLS-based field and livestock worker (combined) average gross
                hourly wage, where USDA reports such as wage, as the sole source for
                establishing the AEWR in job opportunities classified under one of the
                following SOCs:
                 45-2041--Graders and Sorters, Agricultural Products
                 45-2091--Agricultural Equipment Operators
                 45-2092--Farmworkers and Laborers, Crop, Nursery and
                Greenhouse
                 45-2093--Farmworkers, Farm, Ranch, and Aquacultural Animals
                 53-7064--Packers and Packagers, Hand
                 45-2099--Agricultural Workers, All Other
                 For each alternative, job opportunities classified under any other
                SOC will have the AEWR set using the same methodology in the proposed
                rule: The AEWR for each occupation would be the statewide annual
                average hourly gross wage for that occupation as reported by the OEWS
                survey. If the statewide wage is not available, the AEWR would be set
                by the national annual average hourly wage for that occupation as
                reported by the OEWS survey.
                 Under the first regulatory alternative, the Department considered
                setting the AEWR for job opportunities classified under SOCs 45-2041,
                45-2091, 45-2092, 45-2093, 53-7064, and 45-2099, using the highest of
                the annual average hourly gross wage reported by the FLS or the
                weighted average hourly gross wage provided by the OEWS for these same
                occupations for the State or region. If a statewide annual average
                hourly gross wage in the State is not reported in the FLS or the OEWS
                survey, the AEWR for the occupation shall be determined using the
                national annual average hourly gross wage as reported by the FLS or the
                OEWS survey.
                 The total impact of the first regulatory alternative was calculated
                using the methodology described to calculate proposed wage impacts
                using FY 2020 to FY 2021 certification data. The Department estimated
                average annual undiscounted transfers of $103.30 million. The total
                transfer over the 10-year period was estimated at $1.03 billion
                undiscounted, or $890.12 million and $741.88 million at discount rates
                of 3 and 7 percent, respectively. The annualized transfer over the 10-
                year period was $104.35 million and $105.63 million at discount rates
                of 3 and 7 percent, respectively.
                 Under the second regulatory alternative, the Department would set
                the AEWR using only the OEWS average hourly wage for the SOC and State
                (i.e., use of FLS-based wages in establishing AEWRs under the H-2A
                program would be discontinued). When OEWS State data is not available,
                the Department would set the AEWR at the OEWS national average hourly
                wage for the SOC under this alternative. This alternative reflects the
                transfers that would occur if, for example, the USDA survey was
                discontinued or suspended and, as a result, the Department would set
                the AEWRs for each State using the OEWS data. For SOC codes 45-2041,
                45-2091, 45-2092, 45-2093, 53-7064, 45-2099, the weighted average
                hourly wage provided by BLS at the State and national level is applied.
                The Department again used the same method to calculate the total impact
                of the regulatory alternative and found that unlike the proposed rule
                and first regulatory alternative, the second regulatory alternative
                would result in transfers from H-2A employees to employers. The
                Department estimated average annual undiscounted transfers of $72.30
                million. The total transfer over the 10-year period was estimated at
                $723.03 million undiscounted, or $623.03 million and $519.28 million at
                discount rates of 3 and 7 percent, respectively. The annualized
                transfer over the 10-year period was $73.04 million and $73.93 million
                at discount rates of 3 and 7 percent, respectively.
                 Exhibit 9 summarizes the estimated transfers associated with the
                three considered revised wage structures over the 10-year analysis
                period. Transfers under the proposal and the first regulatory
                alternative are transfers from H-2A employers to H-2A employees and
                transfers under the second alternative are transfers from H-2A
                employees to H-2A employers.
                 Exhibit 9--Estimated Monetized Transfers and Costs of the Proposed Rule
                 [2020 $millions]
                ----------------------------------------------------------------------------------------------------------------
                 Regulatory Regulatory
                 Proposed rule alternative 1 alternative 2
                 (transfers from (transfers from (transfers from
                 employers to employers to employees to
                 employees) employees) employers)
                ----------------------------------------------------------------------------------------------------------------
                Total 10-Year Transfer................................. $295 $1,033 $723
                Total with 3% Discount................................. 254 890 623
                Total with 7% Discount................................. 212 742 519
                Annualized Undiscounted Transfer....................... 30 103 72
                Annualized Transfer with 3% Discount................... 30 104 73
                Annualized Transfer with 7% Discount................... 30 106 74
                ----------------------------------------------------------------------------------------------------------------
                 The Department prefers the chosen approach of the proposed rule
                because it allows specific OEWS wages for workers in higher paid
                agricultural occupations, such as supervisors of farmworkers and
                construction laborers on farms while maintaining the use of FLS data
                for occupations with the majority of H-2A workers. As the Department
                has stated previously, the FLS, which surveys directly hired
                agricultural workers, is the best source of wage data to set AEWRs for
                the vast majority of H-2A occupations. This is in part because the FLS
                is a more comprehensive source of farmworker wage date than the OEWS
                survey. The chosen approach also minimizes transfers compared to the
                two alternatives, and ensures greater stability in the wage obligations
                of employers by determining AEWRs, including annual adjustments, using
                the data source that best reflects the wages of workers in the United
                States similarly employed.
                B. Regulatory Flexibility Analysis and Small Business Regulatory
                Enforcement Fairness Act and Executive Order 13272: Proper
                Consideration of Small Entities in Agency Rulemaking
                 The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 et seq.,
                as amended by the Small Business Regulatory Enforcement Fairness Act of
                1996, Public Law 104-121 (March 29, 1996), hereafter jointly referred
                to as the RFA, initial regulatory flexibility analysis
                [[Page 68198]]
                (IRFA) when proposing, and a final regulatory flexibility analysis
                (FRFA) when issuing, regulations that will have a significant economic
                impact on a substantial number of small entities. The Department
                certifies that the proposed rule does not have a significant economic
                impact on a substantial number of small entities. The Department
                presents the basis for this conclusion in the analysis below.
                Definition of Small Entity
                 The RFA defines a ``small entity'' as a (1) small not-for-profit
                organization, (2) small governmental jurisdiction, or (3) small
                business. The Department used the entity size standards defined by the
                Small Business Administration (SBA), in effect as of August 19, 2019,
                to classify entities as small.\102\ SBA establishes separate standards
                for individual 6-digit NAICS industry codes, and standard cutoffs are
                typically based on either the average number of employees, or the
                average annual receipts. For example, small businesses are generally
                defined as having fewer than 500, 1,000, or 1,250 employees in
                manufacturing industries and less than $7.5 million in average annual
                receipts for nonmanufacturing industries. However, some exceptions do
                exist, the most notable being that depository institutions (including
                credit unions, commercial banks, and noncommercial banks) are
                classified by total assets (small defined as less than $550 million in
                assets). Small governmental jurisdictions are another noteworthy
                exception. They are defined as the governments of cities, counties,
                towns, townships, villages, school districts, or special districts with
                populations of less than 50,000 people.\103\
                ---------------------------------------------------------------------------
                 \102\ SBA, Table of Small Business Size Standards Matched to
                North American Industry Classification System Codes (Aug. 2019),
                https://www.sba.gov/document/support--table-size-standards.
                 \103\ See https://advocacy.sba.gov/resources/the-regulatory-flexibility-act for details.
                ---------------------------------------------------------------------------
                Number of Small Entities
                 The Department collected employment and annual revenue data from
                the business information provider Data Axle and merged those data into
                the H-2A disclosure data for FY 2020 and FY 2021. This process allowed
                the Department to identify the number and type of small entities in the
                H-2A disclosure data as well as their annual revenues. The Department
                determined the number of unique employers in the FY 2020 and FY 2021
                certification data based on the employer name and city. The Department
                identified 9,927 unique employers (excluding labor contractors). Of
                those 9,927 employers, the Department was able to obtain data matches
                of revenue and employees for 2,615 H-2A employers in the FY 2020 and FY
                2021 certification data. Of those 2,615 employers, the Department
                determined that 2,105 were small (80.5 percent).\104\ These unique
                small entities had an average of 11 employees and average annual
                revenue of approximately $3.62 million. Of these small unique entities,
                2,085 of them had revenue data available from Data Axle. The
                Department's analysis of the impact of this proposed rule on small
                entities is based on the number of small unique entities (2,085 with
                revenue data).
                ---------------------------------------------------------------------------
                 \104\ SBA, Table of Small Business Size Standards Matched to
                North American Industry Classification System Codes (Aug. 2019),
                https://www.sba.gov/document/support--table-size-standards.
                ---------------------------------------------------------------------------
                 To provide clarity on the agricultural industries impacted by this
                regulation, Exhibit 10 shows the number of unique H-2A small entities
                employers with certifications in the FY 2020 and FY 2021 certification
                data within each NAICS code at the 6-digit level.
                 Exhibit 10--Number of H-2A Small Employers by NAICS Code
                ----------------------------------------------------------------------------------------------------------------
                 Number of
                 6-Digit NAICS Description employers Percent
                ----------------------------------------------------------------------------------------------------------------
                111998................................... All Other Miscellaneous Crop Farming. 611 31
                444220................................... Nursery, Garden Center, and Farm 162 8
                 Supply Stores.
                561730................................... Landscaping Services................. 134 7
                445230................................... Fruit and Vegetable Markets.......... 127 6
                424480................................... Fresh Fruit and Vegetable Merchant 84 4
                 Wholesalers.
                111339................................... Other Noncitrus Fruit Farming........ 78 4
                112990................................... All Other Animal Production.......... 57 3
                424930................................... Flower, Nursery Stock, and Florists' 51 3
                 Supplies Merchant Wholesalers.
                424910................................... Farm Supplies Merchant Wholesalers... 41 2
                484230................................... Specialized Freight (except Used 39 2
                 Goods) Trucking, Long-Distance.
                ----------------------------------------------------------------------------------------------------------------
                Projected Impacts to Affected Small Entities
                 The Department has estimated the incremental costs for small
                entities from the baseline (i.e., the 2010 Final Rule: Temporary
                Agricultural Employment of H-2A Aliens in the United States; TEGL 17-
                06, Change 1; TEGL 33-10, and TEGL 16-06, Change 1) to this proposed
                rule. We estimated the costs of (a) time to read and review the
                proposed rule and (b) wage costs. The estimates included in this
                analysis are consistent with those presented in the E.O. 12866 section.
                 The Department estimates that small entities not classified as H-
                2ALCs, 1,946 unique small entities,\105\ would incur a one-time cost of
                $53.08 to familiarize themselves with the rule.\106\
                ---------------------------------------------------------------------------
                 \105\ The 1,946 unique small entities exclude all labor
                contractors.
                 \106\ $33.38 + $33.38(0.46) + $33.38(0.17) = $53.08.
                ---------------------------------------------------------------------------
                 In addition to the cost of rule familiarization above, each small
                entity will have an increase in the wage costs due to the revisions to
                the wage structure. To estimate the wage impact for each small entity
                we followed the methodology presented in the E.O. 12866 section. For
                each certification of a small entity the Department calculated total
                wage impacts of the proposed rule in CY 2020 and CY 2021. The
                Department estimates the total annualized cost at a discount rate of 7
                percent is $4,347 on average.
                 The Department determined the proportion of each small entity's
                total revenue that would be impacted by the costs of the proposed rule
                to determine if the proposed rule would have a significant and
                substantial impact on small entities. The cost impacts included
                estimated first year costs and the wage impact introduced by the
                proposed rule. The Department used a total cost estimate of 3 percent
                of revenue as the threshold for a significant individual impact and set
                a total of 15 percent of small entities incurring a significant impact
                as the threshold for a substantial impact on small entities.
                [[Page 68199]]
                 A threshold of 3 percent of revenues has been used in prior
                rulemakings for the definition of significant economic impact.\107\
                This threshold is also consistent with that sometimes used by other
                agencies.\108\
                ---------------------------------------------------------------------------
                 \107\ See, e.g., NPRM, Increasing the Minimum Wage for Federal
                Contractors, 79 FR 60634 (Oct. 7, 2014) (establishing a minimum wage
                for contractors); Final Rule, Discrimination on the Basis of Sex, 81
                FR 39108 (June 15, 2016).
                 \108\ See, e.g., Final Rule, Medicare and Medicaid Programs;
                Regulatory Provisions to Promote Program Efficiency, Transparency,
                and Burden Reduction; Part II, 79 FR 27106 (May 12, 2014)
                (Department of Health and Human Services rule stating that under its
                agency guidelines for conducting regulatory flexibility analyses,
                actions that do not negatively affect costs or revenues by more than
                three percent annually are not economically significant).
                ---------------------------------------------------------------------------
                 Exhibit 11 provides a breakdown of small entities by the proportion
                of revenue affected by the costs of the proposed rule. Of the 2,085
                unique small entities with revenue data in the FY 2020 and FY 2021
                certification data, 1.3 percent of employers had more than 3 percent of
                their total revenue impacted in the first year. Based on the findings
                presented in Exhibit 11, the proposed rule does not have a significant
                economic impact on a substantial number of small H-2A employers.
                 Exhibit 11--Cost Impacts as a Proportion of Total Revenue for Small Entities
                --------------------------------------------------------------------------------------------------------------------------------------------------------
                 2020, by NAICS code
                 Proportion of revenue impacted -------------------------------------------------------------------------------------------------
                 111998 444220 561730 445230 All other Total
                --------------------------------------------------------------------------------------------------------------------------------------------------------
                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
                --------------------------------------------------------------------------------------------------------------------------------------------------------
                5%................................................... 4 (0.7%) 0 (0.0%) 2 (1.5%) 2 (1.6%) 17 (1.6%) 25 (1.2%)
                 -------------------------------------------------------------------------------------------------
                 Total >3%......................................... 4 (0.7%) 0 (0.0%) 2 (1.5%) 2 (1.6%) 19 (1.8%) 27 (1.3%)
                --------------------------------------------------------------------------------------------------------------------------------------------------------
                C. Paperwork Reduction Act
                 The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501, et seq.,
                and its attendant regulations, 5 CFR part 1320, require the Department
                to consider the agency's need for its information collections and their
                practical utility, the impact of paperwork and other information
                collection burdens imposed on the public, and how to minimize those
                burdens. This proposed rule does not require a collection of
                information subject to approval by OMB under the PRA, or affect any
                existing collections of information.
                D. Unfunded Mandates Reform Act of 1995
                 The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among
                other things, to curb the practice of imposing unfunded Federal
                mandates on State, local, and tribal governments. Title II of UMRA
                requires each Federal agency to prepare a written statement assessing
                the effects of any Federal mandate in a proposed or final agency rule
                that may result in a $100 million or more expenditure (adjusted
                annually for inflation) in any one year by State, local, and tribal
                governments, in the aggregate, or by the private sector. The inflation-
                adjusted value equivalent of $100 million in 1995 adjusted for
                inflation to 2019 levels by the Consumer Price Index for All Urban
                Consumers (CPI-U) is approximately $168 million based on the Consumer
                Price Index for All Urban Consumers.\109\
                ---------------------------------------------------------------------------
                 \109\ See BLS, Historical Consumer Price Index for All Urban
                Consumers (CPI-U): U.S. City Average, All Items, By Month, https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202003.pdf (last visited Aug. 19, 2021).
                 Calculation of inflation: (1) Calculate the average monthly CPI-
                U for the reference year (1995) and the current year (2019); (2)
                Subtract reference year CPI-U from current year CPI-U; (3) Divide
                the difference of the reference year CPI-U and current year CPI-U by
                the reference year CPI-U; (4) Multiply by 100 = [(Average monthly
                CPI-U for 2019--Average monthly CPI-U for 1995)/(Average monthly
                CPI-U for 1995)] * 100 = [(255.657-152.383)/152.383] * 100 =
                (103.274/152.383) *100 = 0.6777 * 100 = 67.77 percent = 68 percent
                (rounded). Calculation of inflation-adjusted value: $100 million in
                1995 dollars * 1.68 = $168 million in 2019 dollars.
                ---------------------------------------------------------------------------
                 This proposed rule does not result in unfunded mandates for the
                public or private sector because private employers'' participation in
                the program is voluntary, and State governments are reimbursed for
                performing activities required under the program. The requirements of
                Title II of the UMRA, therefore, do not apply, and the Department has
                not prepared a statement under the UMRA.
                E. Executive Order 13132 (Federalism)
                 This proposed rule would not have substantial direct effects on the
                States, on the relationship between the national government and the
                States, or on the distribution of power and responsibilities among the
                various levels of government. Therefore, in accordance with section 6
                of E.O. 13132, it is determined that this proposed rule does not have
                sufficient federalism implications to warrant the preparation of a
                federalism summary impact statement.
                F. Executive Order 12988 (Civil Justice Reform)
                 This proposed rule meets the applicable standards set forth in
                sections 3(a) and 3(b)(2) of E.O. 12988.
                [[Page 68200]]
                G. Regulatory Flexibility Executive Order 13175 (Consultation and
                Coordination With Indian Tribal Governments)
                 This proposed rule does not have ``tribal implications'' because it
                does not have substantial direct effects on one or more Indian tribes,
                on the relationship between the Federal Government and Indian tribes,
                or on the distribution of power and responsibilities between the
                Federal Government and Indian tribes. Accordingly, E.O. 13175,
                Consultation and Coordination with Indian Tribal Governments, requires
                no further agency action or analysis.
                List of Subjects in 20 CFR Part 655
                 Administrative practice and procedure, Employment, Employment and
                training, Enforcement, Foreign workers, Forest and forest products,
                Fraud, Health professions, Immigration, Labor, Passports and visas,
                Penalties, Reporting and recordkeeping requirements, Unemployment,
                Wages, Working conditions.
                 For the reasons stated in the preamble, the Department of Labor
                proposes to amend 20 CFR part 655 as follows:
                PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED
                STATES
                0
                1. The authority citation for part 655 continues to read as follows:
                 Authority: Section 655.0 issued under 8 U.S.C.
                1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 8 U.S.C.
                1103(a)(6), 1182(m), (n), (p), and (t), 1184(c), (g), and (j), 1188,
                and 1288(c) and (d); sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099,
                2102 (8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat.
                4978, 5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102-232,
                105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103-
                206, 107 Stat. 2428; sec. 412(e), Pub. L. 105-277, 112 Stat. 2681 (8
                U.S.C. 1182 note); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316
                (8 U.S.C. 1182 note); 29 U.S.C. 49k; Pub. L. 107-296, 116 Stat.
                2135, as amended; Pub. L. 109-423, 120 Stat. 2900; 8 CFR
                214.2(h)(4)(i); and 8 CFR 214.2(h)(6)(iii); and sec. 6, Pub. L. 115-
                218, 132 Stat. 1547 (48 U.S.C. 1806).
                 Subpart A issued under 8 CFR 214.2(h).
                 Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c),
                and 1188; and 8 CFR 214.2(h).
                 Subpart E issued under 48 U.S.C. 1806.
                 Subparts F and G issued under 8 U.S.C. 1288(c) and (d); sec.
                323(c), Pub. L. 103-206, 107 Stat. 2428; and 28 U.S.C. 2461 note,
                Pub. L. 114-74 at section 701.
                 Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and
                (b)(1), 1182(n), (p), and (t), and 1184(g) and (j); sec. 303(a)(8),
                Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec.
                412(e), Pub. L. 105-277, 112 Stat. 2681; 8 CFR 214.2(h); and 28
                U.S.C. 2461 note, Pub. L. 114-74 at section 701.
                 Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and
                1182(m); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C.
                1182 note); Pub. L. 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).
                Subpart B--Labor Certification Process for Temporary Agricultural
                Employment in the United States (H-2A Workers)
                0
                2. Amend Sec. 655.103(b) by revising the definition of Adverse effect
                wage rate to read as follows:
                Sec. 655.103 Overview of this subpart and definition of terms.
                * * * * *
                 (b) * * *
                 Adverse effect wage rate (AEWR). The wage rate published by the
                OFLC Administrator in the Federal Register for non-range occupations as
                set forth in Sec. 655.120(b) and range occupations as set forth in
                Sec. 655.211(c).
                * * * * *
                0
                3. Amend Sec. 655.120 by revising paragraphs (b)(1)(i) through (iii)
                and (b)(5) to read as follows:
                Sec. 655.120 Offered wage rate.
                * * * * *
                 (b)(1) * * *
                 (i) For occupations included in the Department of Agriculture's
                (USDA) Farm Labor Survey (FLS) field and livestock workers (combined)
                category:
                 (A) If an annual average hourly gross wage in the State or region
                is reported by the FLS, that wage shall be the AEWR for the State; or
                 (B) If an annual average hourly gross wage in the State or region
                is not reported by the FLS, the AEWR for the occupations shall be the
                statewide annual average hourly gross wage in the State as reported by
                the Occupational Employment and Wage Statistics (OEWS) survey; or
                 (C) If a statewide annual average hourly gross wage in the State is
                not reported by the OEWS survey, the AEWR for the occupations shall be
                the national annual average hourly gross wage as reported by the OEWS
                survey.
                 (ii) For all other occupations:
                 (A) The AEWR for each occupation shall be the statewide annual
                average hourly gross wage for that occupation in the State as reported
                by the OEWS survey; or
                 (B) If a statewide annual average hourly gross wage in the State is
                not reported by the OEWS survey, the AEWR for each occupation shall be
                the national annual average hourly gross wage for that occupation as
                reported by the OEWS survey.
                 (iii) The AEWR methodologies described in paragraphs (b)(1)(i) and
                (ii) of this section shall apply to all job orders submitted, as set
                forth in Sec. 655.121, on or after January 31, 2022, including job
                orders filed concurrently with an Application for Temporary Employment
                Certification to the NPC for emergency situations under Sec. 655.134.
                For purposes of paragraphs (b)(1)(i) and (ii) of this section, the term
                State and statewide include the 50 States, the District of Columbia,
                Guam, Puerto Rico, and the U.S. Virgin Islands.
                * * * * *
                 (5) If the job duties on the Application for Temporary Employment
                Certification do not fall within a single occupational classification,
                the applicable AEWR shall be the highest AEWR for all applicable
                occupations.
                * * * * *
                Angela Hanks,
                Acting Assistant Secretary for Employment and Training, Labor.
                 [FR Doc. 2021-25803 Filed 11-30-21; 8:45 am]
                 BILLING CODE 4510-FP-P
                

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