[Federal Register Volume 85, Number 215 (Thursday, November 5, 2020)]
[Rules and Regulations]
[Pages 70445-70477]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-24544]


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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

[DOL Docket No. ETA-2019-0007]
RIN 1205-AB89


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

AGENCY: Employment and Training Administration, Department of Labor.

ACTION: Final rule.

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SUMMARY: The Department of Labor (Department or DOL) is amending its 
regulations governing the certification of agricultural labor or 
services to be performed by temporary foreign workers in H-2A 
nonimmigrant status (H-2A workers). Specifically, the Department is 
amending its regulations to revise the methodology by which it 
determines the hourly Adverse Effect Wage Rates (AEWRs) for non-range 
agricultural occupations using 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 
Statistics (OES) survey. This final rule improves the consistency and 
accuracy of the AEWRs based on the actual work being performed by H-2A 
workers, and establishes better stability and predictability for 
employers to comply with their wage obligations. These 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. While the Department intends to 
address all of the remaining proposals from the July 26, 2019 proposed 
rule in a subsequent, second final rule governing other aspects of the 
certification of agricultural labor or services to be performed by H-2A 
workers and enforcement of the contractual obligations applicable to 
employers of such nonimmigrant workers, the Department focused this 
final rule on the immediate need for regulatory action to revise the 
methodology by which it determines the hourly AEWRs for non-range 
agricultural occupations before the end of the calendar year.

DATES: This final rule is effective December 21, 2020.

FOR FURTHER INFORMATION CONTACT: For further information regarding 20 
CFR part 655, contact Brian Pasternak, Administrator, Office of Foreign 
Labor Certification, Employment and Training Administration, 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. Executive Summary

A. Purpose for the Regulatory Action

    The Department has determined that this rulemaking is necessary to 
ensure that employers can access legal agricultural labor, without 
undue cost or administrative burden, while maintaining the program's 
strong protections for the U.S. workforce. This rulemaking also 
promotes and advances the goals of Executive Order (E.O.) 13788, Buy 
American and Hire American.\1\ The ``Hire American'' directive of the 
E.O. articulates that it is a policy of the Executive Branch to 
rigorously enforce and administer the laws governing entry of 
nonimmigrant workers into the United States in order to create higher 
wages and employment rates for U.S. workers and to protect their 
economic interests.\2\ It directs Federal agencies, including the 
Department, to propose new rules and issue new guidance to prevent 
fraud and abuse in nonimmigrant visa programs, thereby protecting U.S. 
workers.\3\
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    \1\ See E.O. 13788 (Apr. 18, 2017), 82 FR 18837 (Apr. 21, 2017).
    \2\ Id. at sec. 2(b); see also DOL, U.S. Secretary of Labor 
Protects Americans, Directs Agencies to Aggressively Confront Visa 
Program Fraud and Abuse (June 6, 2017), https://www.dol.gov/newsroom/releases/opa/opa20170606.
    \3\ E.O. 13788, sec. 5.
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    Consistent with the E.O.'s principles and the goal of modernizing 
the H-2A program, this final rule amends the methodology by which the 
Department determines the hourly AEWRs for non-range agricultural 
occupations using wage data reported by the USDA FLS and the BLS OES 
survey. It also makes minor revisions related to the regulatory 
definition of the AEWR to conform to the methodology changes adopted in 
this final rule and to more clearly distinguish the hourly AEWRs 
applicable to non-range occupations from the monthly AEWR applicable to 
range occupations under 20 CFR 655.200 through 655.235.

[[Page 70446]]

    As discussed in more detail below, the FLS has been the only 
comprehensive survey of wages paid by farmers and ranchers and has 
enabled the Department to establish minimum hourly rates of pay for H-
2A job opportunities. However, the Department acknowledges the concerns 
expressed by many commenters about the unpredictability and volatility 
of the FLS wage data from year-to-year, which the Department believes 
is a sufficient reason to reconsider its sole reliance on annually 
produced wage data from the FLS as a means to establish the AEWRs, even 
were FLS wage data currently available or made available in the future. 
On the other hand, given the comprehensiveness and relevance of the FLS 
data, the Department has determined it is appropriate to use the 2020 
AEWRs,\4\ which were based on the results of the FLS published in 
November 2019, as the starting point to establish AEWRs for most H-2A 
job opportunities during calendar years 2021 and 2022 and, subject to 
annual adjustments, in subsequent years. Accordingly, the Department 
will use this FLS data as baseline wage rates for field and livestock 
worker occupations and adjust the wages annually beginning in 2023 
based on the change in the Employment Cost Index (ECI) for wages and 
salaries computed by the BLS. This two-year transition period during 
which the current wage rates will remain in effect provides employers 
with greater certainty and a reasonable amount of time to plan their 
labor needs and agricultural operations under the new wage baseline 
before new adjustments to the existing wage rates take effect. For all 
other occupations, the Department, as explained in Section II.B.5.b., 
will annually adjust and set the hourly AEWRs based on the statewide 
annual average hourly wage for the occupational classification, as 
reported by the OES survey. If the OES survey does not report a 
statewide annual average hourly wage for the occupation, the AEWR shall 
be the national annual average hourly wage reported by the OES 
survey.\5\
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    \4\ Notice, Labor Certification Process for the Temporary 
Employment of Aliens in Agriculture in the United States: 2020 
Adverse Effect Wage Rates for Non-Range Occupations, 84 FR 69774 
(Dec. 19, 2019).
    \5\ See BLS OES, Frequently Asked Questions (Explaining the OES 
may not report a wage for an occupation in a specific area ``for a 
number of reasons, including failure to meet BLS quality standards 
or the need to protect the confidentiality of our survey 
respondents.''), https://www.bls.gov/oes/oes_ques.htm.
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    In light of USDA's recent announcement regarding the FLS, the 
continued lack of any statutory or regulatory requirement that USDA 
conduct the FLS, and ongoing litigation over the announcement, the 
Department has also determined that the new hourly AEWR methodology is 
also appropriate in order to promote greater certainty in the setting 
of AEWRs in future years. On September 30, 2020, USDA publicly 
announced its intent to cancel the planned October data collection for 
the Agricultural Labor Survey and resulting Farm Labor reports (better 
known as the FLS).\6\ Consequently, NASS may not release its November 
2020 report containing the annual gross hourly wage rates for field and 
livestock workers (combined) for each state or region based on 
quarterly wage data collected from employers during calendar year 2020. 
Under the Department's current AEWR methodology, this annual report is 
used to establish and publish the hourly AEWRs for the next calendar 
year period on or before December 31, 2020. USDA is not legally 
required to produce the annual Farm Labor reports. The Department has 
previously recognized that ``USDA could terminate the survey at any 
time'' \7\ and it has suspended collection on at least two prior 
occasions.\8\ USDA's decision to cancel the October data collection and 
the release of the report planned for November 2020 cycle is the 
subject of ongoing litigation.\9\ That litigation challenges whether 
USDA provided adequate reasons for its decision to suspend data 
collection and whether it considered important aspects of its decision, 
and the district court recently ordered USDA to proceed with the 
collection of FLS data for 2020. The litigation does not challenge, 
however, USDA's discretion--if adequately explained--to terminate the 
FLS at any time. Therefore, regardless of whether USDA ultimately is 
successful in the ongoing litigation, it will remain the case that no 
statute or regulation requires that USDA perform the FLS. The 
Department has determined that this uncertainty regarding the near-term 
and long-term future of the FLS also weighs in favor of the Department 
establishing now a revised methodology for determining the AEWR, given 
its

[[Page 70447]]

importance to the Department's administration of the temporary 
agricultural labor certification requirement.
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    \6\ 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 Sept. 28, 2020); see also USDA, USDA NASS 
to Suspend the October Agricultural Labor Survey (Sept. 30, 2020), 
https://www.nass.usda.gov/Newsroom/Notices/2020/09-30-2020.php.
    In the public announcement suspending data collection and 
publication of the Farm Labor report in November, NASS noted that 
the public can access other sources for the data collected in the 
FLS. Specifically, NASS referred to the Agricultural Resources 
Management Survey (ARMS), Census of Agriculture (COA), American 
Community Survey (ACS), Quarterly Census of Employment and Wages 
(QCEW), National Economic Accounts (NEA), and the National 
Agricultural Workers Survey (NAWS) as examples of available data 
sources. While these are valuable resources for certain purposes, 
the Department did not propose using any of these surveys as a basis 
to set AEWRs in the NPRM. Similarly, the Department did not receive 
public comments in response to the NPRM suggesting the Department 
use these sources to determine the AEWRs. While these data sources 
may provide useful statistical data concerning the agricultural 
sector and farm labor, the Department does not consider these 
sources appropriate for setting the AEWRs. The Department 
acknowledges that the ARMS provides broad data on farm expenditures, 
but it does not include the type of specific, detailed occupational 
and geographical wage data that has been or is supplied under the 
FLS or OES. See USDA NASS, Farm Production Expenditures Methodology 
and Quality Measures (July 31, 2020), available at https://www.nass.usda.gov/Publications/Methodology_and_Data_Quality/Farm_Production_Expenditures/07_2020/fpxq0720.pdf. Similarly, the 
COA, which is conducted once every five years, also provides 
information on farm income and expenditures only broadly and does 
not include the detailed occupation-specific wage data necessary to 
develop AEWRs that protect against adverse effect on wages of 
workers in the United States similarly employed. USDA, Census of 
Agriculture, https://www.nass.usda.gov/AgCensus/ (last modified May 
19, 2020). Relatedly, and as explained in the Department's 2010 H-2A 
Final Rule, ACS data would entail an unacceptable time lag of over a 
year for each published AEWR and the data does not readily allow for 
calculation of hourly earnings. Final Rule, Temporary Agricultural 
Employment of H-2A Aliens in the United States, 75 FR 6883, 6899 
(Feb. 12, 2010) (2010 Final Rule). The QCEW is limited to 
approximately 52 percent of the workers in agricultural industries 
and does not publish data for specific occupations;\6\ and, while 
the NEA provides an estimate of total wages and salaries in an area, 
those estimates are generally derived from the QCEW and, 
accordingly, suffer from the same limitations as the QCEW data 
itself. U.S. Dept. of Commerce, Bureau of Economic Analysis, Local 
Area Personal Income Methods at II-1 (Nov. 2019), available at 
https://www.bea.gov/system/files/methodologies/LAPI2018.pdf; see 
also BLS, QCEW Handbook of Methods at 29 (May 7, 2020), available at 
https://www.bls.gov/opub/hom/cew/pdf/cew.pdf. These limitations make 
these two data sources less useful than the FLS data in establishing 
AEWRs--even with the admitted limitations to the FLS data, which 
this Rule aims to address. Lastly, the Department notes that the 
NAWS is an inappropriate data source because it is neither conducted 
on a regular schedule, nor at the state level, and also surveys 
small numbers of workers. DOL Employment and Training Administration 
(ETA), National Agricultural Workers Survey, https://www.dol.gov/agencies/eta/national-agricultural-workers-survey (last visited Oct. 
3, 2020). In contrast to the OES survey, the Department also cannot 
rely on these data sources to establish valid statewide average 
hourly rates of pay for the specific occupations outside of the 
field and livestock worker category, as is necessary to prevent 
adverse effect. Accordingly, the Department has determined that FLS 
data is the appropriate starting point for establishing the AEWRs 
for most occupations using the H-2A program.
    \7\ 73 FR 77110, 77173 (Dec. 18, 2008).
    \8\ 76 FR 28730 (May 18, 2011); 72 FR 5675 (Feb. 7, 2007).
    \9\ See United Farm Workers v. Perdue, No. 1:20-cv-01432-DAD-JLT 
(E.D. Cal. filed Oct. 13, 2020).
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    The Department intends to address all of the remaining proposals 
from the July 26, 2019 proposed rule in a subsequent, second final rule 
governing other aspects of the certification of agricultural labor or 
services to be performed by H-2A workers and enforcement of the 
contractual obligations applicable to employers of such nonimmigrant 
workers.\10\ The Department has focused in this final rule on the 
immediate need for regulatory action to revise the methodology by which 
it determines the hourly AEWRs for non-range agricultural occupations 
before the end of the calendar year, so as to ensure AEWRs for each 
state are published this calendar year as required by 20 CFR 655.120.
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    \10\ 84 FR 36168.
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    This final rule is a deregulatory action under E.O. 13771 because 
the Department expects the unquantified cost savings of this final rule 
will outweigh the total annualized costs associated with rule 
familiarization. The costs of the final rule are attributed to the need 
for employers to familiarize themselves with the new regulations; 
consequently, this will impose a one-time cost in the first year. The 
Department estimates that the final rule will have an annualized cost 
of $0.07 million and a total 10-year quantifiable cost of $0.46 million 
at a discount rate of 7 percent. In addition, the final rule is 
expected to have annualized transfer payments of $170.68 million and 
total 10-year transfer payments of $1.68 billion at a discount rate of 
7 percent. The Department also identified possible unquantifiable 
transfers associated with the final rule. The Department expects the 
final rule will provide qualitative benefits including better 
protection against adverse wage effects on an occupation basis. The 
Department believes that the final rule will have a significant 
economic impact on a substantial number of small entities. The 
Department used a total cost estimate of 3 percent of revenue as the 
threshold for significant impact to individual firms and a total of 15 
percent of small entities incurring a significant impact as the 
threshold for a substantial impact on small entities. The Department 
estimates that small entities (not classified as H-2A labor 
contractors) will incur a one-time cost of $53.57 to familiarize 
themselves with the rule.

B. Legal Authority

    The Immigration and Nationality Act (INA), as amended by the 
Immigration Reform and Control Act of 1986 (IRCA), establishes an ``H-
2A'' nonimmigrant visa classification for a worker ``having a residence 
in a foreign country which he has no intention of abandoning who is 
coming temporarily to the United States to perform agricultural labor 
or services . . . of a temporary or seasonal nature.'' 8 U.S.C. 
1101(a)(15)(H)(ii)(a); see also 8 U.S.C. 1184(c)(1), 1188.\11\ Among 
other things, a prospective H-2A employer must first apply to the 
Secretary for a certification that:
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    \11\ For ease of reference, sections of the INA are referred to 
by their corresponding section in the United States Code.
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     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.
    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.
    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).\12\ 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 assure employer compliance with the terms 
and conditions of employment under the H-2A program.\13\
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    \12\ See Secretary's Order 06-2010 (Oct. 20, 2010), 75 FR 66268 
(Oct. 27, 2019); 20 CFR 655.101.
    \13\ See Secretary's Order 01-2014 (Dec. 19, 2014), 79 FR 77527 
(Dec. 24, 2014).
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C. Current Regulatory Requirements

    Since 1987, the Department has operated the H-2A temporary labor 
certification program under regulations promulgated pursuant to the 
INA. The Department's current regulations governing the H-2A program 
were published in 2010.\14\ The standards and procedures applicable to 
the certification and employment of workers under the H-2A program are 
found in 20 CFR part 655, subpart B, and 29 CFR part 501.
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    \14\ Final Rule, Temporary Agricultural Employment of H-2A 
Aliens in the United States, 75 FR 6883 (Feb. 12, 2010) (2010 Final 
Rule).
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    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.\15\ 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.\16\ Currently, the 
AEWR is set by the Department and published annually as a single gross 
hourly rate for field and livestock workers (combined) from the FLS 
conducted by the USDA's NASS for each state or region and all 
occupational classifications. 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.\17\
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    \15\ 20 CFR 655.121.
    \16\ 20 CFR 655.120(a).
    \17\ 20 CFR 655.122(l).
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D. Background and Public Comments Received on the NPRM

    On July 26, 2019, the Department published an NPRM requesting 
public comments on proposals to modernize and streamline the process by 
which OFLC reviews employers' job orders and the applications for 
temporary agricultural labor certifications.\18\ The Department 
currently sets the AEWR for all agricultural workers in non-range 
occupations at the gross hourly rate for field and livestock workers 
(combined) from the FLS for each state or region. As part of this 
regulatory action, the Department proposed to establish hourly AEWRs 
for non-range occupations \19\ at the annual hourly gross rate for each 
agricultural occupation in the State or region, as reported by the FLS 
and the OES survey, so that each AEWR would be based on data more 
specific to the

[[Page 70448]]

agricultural services or labor being performed under the Standard 
Occupational Classification (SOC) system and, as a result, would better 
protect against adverse effect on the wages of workers in the United 
States similarly employed.\20\
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    \18\ 84 FR 36168.
    \19\ Range occupations are subject to a monthly AEWR as set 
forth in 20 CFR 655.211(c).
    \20\ See 84 FR 36168, 36171.
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    The NPRM invited written comments from the public on all aspects of 
the proposed amendments to the AEWR methodology regulations, including 
on the use of the FLS and OES survey to establish the AEWR, and any 
alternate methods or sources the Department might use to establish the 
AEWRs in the H-2A program.\21\ With respect to the use of the FLS to 
set AEWRs, the Department specifically sought comment on circumstances 
where the FLS did not produce wages for all occupations or geographic 
areas, including, but not limited to (1) whether the Department should 
use the separate field worker and livestock worker classifications from 
the FLS to set AEWRs for workers in occupations included in those 
classifications if a wage based on the SOC from the FLS is not 
available; (2) whether the Department should index past wage rates for 
a given SOC using the Consumer Price Index (CPI) or ECI if a wage 
cannot be reported for an SOC in a state or region in a given year 
based on the FLS but a wage was available in a previous year; (3) 
whether the Department should use the FLS national wage rate to set the 
AEWR for an SOC if the FLS cannot produce a wage at the state or 
regional level; and (4) whether the Department should consider any 
other methodology that would promote consistency and reliability in 
wage rates from year to year.\22\
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    \21\ Id. at 36184.
    \22\ Id. at 36182.
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    The NPRM also explained the Department does not have direct control 
over the FLS and further recognized that USDA could elect to 
discontinue the survey at some point, and, in fact, USDA had done so in 
the past due to budget constraints.\23\ Accordingly, the Department 
proposed and sought comment on the use of the OES survey in limited 
circumstances where the FLS does not produce data for a specific 
occupation or geographic area. Such proposals reflected the 
Department's concern that the current AEWR methodology may have an 
adverse effect on the wages of workers in higher-paid non-range 
agricultural occupations, such as supervisors of farmworkers and 
construction laborers on farms, whose wages may be inappropriately 
lowered by an AEWR based on the wages of field and livestock workers 
(combined).\24\ A 60-day comment period allowed for the public to 
review the proposed rule and provide comments through September 24, 
2019.
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    \23\ Id. at 36183.
    \24\ Id. at 36180-36185.
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    The Department also received requests for an extension of the 
comment period for the NPRM. While the Department appreciates the 
issues raised concerning the public's opportunity to review the rule 
and comment, the Department decided not to extend the comment period 
because it determined that a 60-day comment period was sufficient to 
allow the public to review the proposed rule and provide comments. This 
conclusion is supported by both the volume of comments received, and 
the wide variety of stakeholders that submitted comments within the 60-
day comment period.
    The Department received a total of 83,532 public comments in docket 
number ETA-2019-007 in response to the NPRM.\25\ Thousands of these 
comments specifically related to the proposed changes to the 
methodology for setting the AEWRs. The commenters represented a wide 
range of stakeholders interested in the H-2A program, including 
farmworkers, farm owners, agricultural and trade associations, Federal 
elected officials, state officials, SWAs, recruiting companies, law 
firms, immigration and worker advocacy groups, labor unions, academic 
institutions, public policy organizations, and other industry 
associations interested in immigration related issues. The Department 
received comments both in support of and in opposition to the proposed 
amendments to the AEWR methodology, which are discussed in greater 
detail below. These comments raised a variety of concerns, some general 
and some pertaining to specific provisions identified in the NPRM.
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    \25\ In addition, the Department received 128 comments in 
response to document WHD_FRDOC_0001-0070 prior to the comment 
submission deadline. These comments were incorporated into docket 
number ETA-2019-007, and each comment received a note on 
regulations.gov indicating that it was timely received.
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    The Department recognizes and appreciates the value of the 
comments, ideas, and suggestions from all commenters, and this final 
rule was developed only after review and careful consideration of all 
public comments timely received in response to the NPRM. The public may 
review all comments the Department received in the Federal Docket 
Management System (FDMS) at http://www.regulations.gov, docket number 
ETA-2019-007.

E. Implementation of this Final Rule

    The methodology implemented under this final rule will apply only 
to the review of job orders filed with the SWA serving the area of 
intended employment, as set forth in 20 CFR 655.121, on or after the 
effective date of the regulation, including job orders filed 
concurrently with an Application for Temporary Employment Certification 
to the OFLC National Processing Center (NPC) for emergency situations 
under 20 CFR 655.134. In order for employers to understand their wage 
obligations upon the effective date of this final rule, the Department 
has posted the AEWRs applicable to each occupational classification and 
geographic area contemporaneously with the publication of this final 
rule on the OFLC website at https://www.dol.gov/agencies/eta/foreign-labor/.
    When the OFLC Administrator publishes updates to the AEWRs in 
future calendar years, as required by 20 CFR 655.120(b)(2), and the 
AEWR is adjusted during a work contract period and is higher than the 
highest of the previous AEWR, the prevailing hourly wage rate, the 
prevailing piece rate, the agreed-upon collective bargaining wage, the 
Federal minimum wage rate, or the state minimum wage rate, the employer 
must pay that adjusted AEWR upon the effective date of the new rate, as 
provided in the future Federal Register Notice. See 20 CFR 655.122(l).

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

A. Revisions to 20 CFR 655.103(b), Definition of Adverse Effect Wage 
Rate

    The current regulation provides that the hourly AEWR is set at the 
annual weighted average hourly wage for field and livestock workers 
(combined) based on the annual USDA's FLS. To be consistent with the 
Department's decision to adjust the current hourly AEWR methodology 
discussed in detail below, the Department is making non-substantive 
conforming changes to the definition of AEWR in 20 CFR 655.103(b). In 
addition, the Department is making a minor technical revision to the 
definition of AEWR to clarify that the term AEWR applies to both the 
hourly rate for non-range occupations, as set forth in Sec.  
655.120(b), and the monthly rate for range occupations, as set forth in 
Sec.  655.211(c).
    One commenter opposed ``the change in the definition to include the 
term `gross' after the term hourly,'' stating that the change was 
designed to ensure the Department did not utilize new data being 
collected by the USDA through

[[Page 70449]]

revisions to the FLS. While the Department did not specifically propose 
to add the term ``gross'' to the definition of AEWR, it proposed to add 
the term ``gross'' after the term ``hourly'' in describing the wage 
rate from the FLS in 20 CFR 655.120(b), specifically because USDA was 
considering making changes to the FLS to report a ``base'' wage that 
would exclude certain types of incentive pay. As discussed in the NPRM, 
the Department stated that if it elected to use the new base wage as a 
source for the AEWR, it would first engage in new notice-and-comment 
rulemaking to adopt such a change. However, the USDA has announced it 
is canceling the planned October 2020 collection of wage data and will 
not publish the annual Farm Labor report in November 2020. Accordingly, 
any new data the USDA had planned to collect for that period is not 
available and the Department will not rely on this ``base'' wage data 
for purposes of the new AEWR methodology. Additionally, both the OES 
and the ECI collect and report data using straight-time, gross pay that 
include, for example, commission payments, production bonuses, cost-of-
living adjustments, piece rates, and other incentive-based pay.

B. Revisions to 20 CFR 655.120, Hourly AEWR Determinations

    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 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 the 2010 Final Rule, the Department explained that it 
met this statutory requirement, in part, by requiring an 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. In the NPRM, 
the Department proposed to modify the methodology by which the 
Department establishes the hourly AEWRs.
    Specifically, the Department proposed to establish hourly AEWRs for 
each agricultural occupation not subject to the monthly AEWR applicable 
to range occupations set forth pursuant to 20 CFR 655.211(c), as 
identified by the FLS and the OES survey, so that each AEWR was based 
on data more specific to the agricultural occupation of workers in the 
United States similarly employed and, as a result, would better protect 
against adverse effect on the wages of workers in the United States 
similarly employed. Accordingly, the Department proposed to revise its 
methodology so that the AEWR for a particular agricultural occupation 
would be based on the annual average hourly gross wage for that 
agricultural occupation in the state or region reported by the FLS when 
the FLS is able to report such a wage. If the FLS did not report a wage 
for an agricultural occupation in a state or region, the Department 
proposed to set the AEWR at the statewide annual average hourly wage 
for the SOC code from the OES survey conducted by BLS. If both the FLS 
could not produce an annual average hourly gross wage for that 
agricultural occupation in the state or region and the OES could not 
produce a statewide annual average hourly wage for the SOC, then the 
Department proposed to set the AEWR based on the national wage for the 
occupational classification from these sources.
    As part of its proposal to change to an occupation-specific hourly 
AEWR, the Department proposed that if the job duties on the H-2A 
application (including job order) did not fall within a single 
occupational classification, the Certifying Officer (CO) would 
determine the applicable AEWR at the highest AEWR for the applicable 
occupational classifications. The intent of this proposal was to reduce 
the potential for employers to misclassify workers and impose a lower 
recordkeeping burden than if the Department permitted employers to pay 
different AEWRs for job duties falling within different occupational 
classifications on a single H-2A application. This approach is also 
consistent with how the Department assigns prevailing wage rates for 
jobs that cover multiple occupational classifications in the H-2B 
program.
    The Department also proposed to continue to require the OFLC 
Administrator to 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 proposed 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 OES survey 
(i.e., effective on or about July 1), due to the different time periods 
for release of these two wage surveys.
    The Department received comments on all aspects of the proposed 
revisions to the AEWR methodology. After consideration of all comments 
concerning the proposed revisions to the AEWR methodology, and in light 
of continuing uncertainty regarding the ongoing immediate availability 
of FLS data, the Department retains the AEWR concept in this final rule 
with additional changes to the methodology, as discussed below.
1. The Need for an AEWR in the H-2A Program
    As explained above, and in prior rulemaking, requiring employers to 
pay the AEWR when it is the highest applicable wage is the primary way 
the Department meets its statutory obligation under section 218(a)(1) 
of the INA, 8 U.S.C. 1188(a)(1), to certify no adverse effect on 
workers in the United States similarly employed.
    Many commenters representing employers and trade associations 
expressed the view that the Department has failed to explain why an 
AEWR is required to avoid wage depression, and supported removing the 
concept of the AEWR from the H-2A regulations entirely. For example, 
four farm bureau organizations asserted that because ``American 
unemployment [is] below 4%, and the agriculture industry [is] 
continuing to experience extreme labor shortages . . . the concept of 
an adverse effect wage rate is not applicable to the H-2A program, and 
other wage setting methods should be implemented.'' Another commenter 
asserted that the ``AEWR is an artificial machination of the current H-
2A regulations . . . and a mandate without any tether to reality.''
    The Department understands the comments but declines to eliminate 
the AEWR. The Department is required by statute to ensure that the 
employment of H-2A foreign workers does not adversely affect the wages 
and working conditions of workers in the United States similarly 
employed. 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 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.'' \26\ The potential for

[[Page 70450]]

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 importation of foreign workers are 
particularly acute because access to an 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 workers in the United 
States similarly employed from the possibility of adverse effects on 
their wages and working conditions. 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 workers 
in the United States similarly employed.
---------------------------------------------------------------------------

    \26\ Interim Final Rule, Labor Certification Process for the 
Temporary Employment of Aliens in Agriculture and Logging in the 
United States, 52 FR 20496, 20505 (June 1, 1987).
---------------------------------------------------------------------------

    Addressing the potential adverse effect that employment of 
temporary foreign workers may have on the wages of 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. 
The Department still holds the view that ``U.S. agricultural workers 
need protection from the 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.'' \27\ As a 
result, ``their ability to negotiate wages and working conditions with 
farm operators or agriculture service employers is quite limited.'' 
\28\ The AEWR provides a floor below which wages of U.S. and foreign 
workers 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.'' \29\
---------------------------------------------------------------------------

    \27\ Proposed Rule, Temporary Agricultural Employment of H-2A 
Aliens in the United States, 74 FR 45905, 45911 (Sept. 4, 2009).
    \28\ Id.
    \29\ Id.
---------------------------------------------------------------------------

    The use of an AEWR, separate from a prevailing wage for a 
particular crop activity 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).'' \30\ The AEWR acts as ``a prevailing wage concept defined 
over a broader geographic or occupational field.'' \31\ Because the 
AEWR is generally based on data collected in a multi-state 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, 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 in local areas and agricultural activities.
---------------------------------------------------------------------------

    \30\ 75 FR 6883, 6892-6893.
    \31\ Id. at 6892.
---------------------------------------------------------------------------

    However, Congress did not ``define adverse effect and left it in 
the Department's discretion how to ensure that the importation of 
farmworkers met the statutory requirements,'' \32\ and the Department 
has discretion to determine the methodological approach that it 
believes best allows it to meet its statutory mandate.\33\ 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 DOL's judgment and expertise to strike the balance.'' \34\ 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 issues of uniformity, 
predictability, and other 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 has adopted an approach that it 
believes is reasonable and strikes an appropriate balance under the 
INA.
---------------------------------------------------------------------------

    \32\ AFL-CIO v. Dole, 923 F.2d 182, 184 (DC Cir. 1991).
    \33\ United Farm Workers v. Solis, 697 F. Supp. 2d 5, 8-11 
(D.D.C. 2010).
    \34\ Dole, 923 F.2d at 187.
---------------------------------------------------------------------------

2. Evidence of Current Wage Depression Is Not Needed
    Several comments submitted by employers and associations asserted 
that the Department should not or is not authorized by statute to 
require payment of an AEWR if it has not first determined that the 
employment of H-2A workers has adversely effected the wages of workers 
in the United States similarly employed in the area of employment. Some 
commenters believed that the shortage of U.S. workers is adequate 
evidence that no adverse effect exists. One commenter asserted that 
``if there is a lack of a sufficient domestic workforce to complete the 
farm work required, the presence of foreign guest labor cannot, by 
definition, `adversely affect' the inadequate supply of domestic 
labor.'' Some of these commenters urged the Department to include 
language in this final rule that would commit the Department to 
conducting adverse effect determinations annually.
    In response to these comments and irrespective of evidence 
regarding the existence of adverse effect, the Department believes that 
the statutory responsibility to workers in the United States ``will be 
discharged best by the adoption of an AEWR in order to protect against 
the possibility that the anticipated expansion of the H-2A program will 
itself create wage depression or stagnation.'' \35\ In addressing 
similar comments in prior rulemaking, the Department explained that the 
AEWR is not predicated on the existence of wage depression in the 
agricultural sector and has noted that it is not statutorily required 
to identify existing wage suppression prior to establishing and 
requiring employers to pay an AEWR.\36\ In 1989, the Department 
retained the AEWR despite finding that evidence regarding generalized 
wage depression in agricultural was inconclusive.\37\ In reaffirming 
its commitment to the AEWR in the 2010 rule, the Department explained 
that ``regardless of any past adverse effect that the use of low-
skilled

[[Page 70451]]

foreign labor may or may not have had on the wages'' of workers in the 
United States similarly employed, ``the Department considers the 
forward-looking need to protect U.S. workers whose low skills make them 
particularly vulnerable to even relatively mild--and thus very 
difficult to capture empirically--wage stagnation or deflation.'' \38\ 
In addition, a lack of empirical evidence concerning adverse effect 
would not itself support the conclusion that an AEWR is unnecessary, 
but instead ``may be evidence that the imposition of the AEWR 
heretofore has been successful in shielding domestic farm workers from 
the potentially wage depressing effects of overly large numbers of 
temporary foreign workers.'' \39\
---------------------------------------------------------------------------

    \35\ 75 FR 6883, 6,895; see also Final Rule, Labor Certification 
Process for the Temporary Employment of Aliens in Agriculture in the 
United States; Adverse Effect Wage Rate Methodology, 54 FR 28037 
(July 5, 1989).
    \36\ See 54 FR 28037, 28046-47 (explaining that the INA ``only 
requires that the AEWR prevent future adverse effect from the use of 
foreign workers, not compensate for past effect''); see also Dole, 
923 F.2d at 187 (noting that there is no ``statutory requirement to 
adjust for past wage depression'' and that where ``the data [on 
adverse effect] is inconclusive,'' the Department need only 
``identify the considerations it found persuasive in making its 
decision'' to revise the AEWR methodology).
    \37\ See 54 FR 28037.
    \38\ 75 FR 6883, 6893.
    \39\ Id.
---------------------------------------------------------------------------

    Moreover, the Department could not commit to annual adverse effect 
determinations because the Department is not aware of any reliable 
method available to make such a determination and no commenter 
suggested a method the Department could use to determine the existence 
of adverse effect. Such a method would need to demonstrate not only 
that the employment of foreign workers adversely affected the wages of 
workers in the United States in each particular locality and each 
particular occupation or agricultural activity, but also that the 
employment of H-2A workers was the cause of this adverse effect, as 
opposed to the employment of unauthorized workers, for example.
3. The Department Proposed To Determine the AEWRs Based on Occupation-
Specific Data That Better Reflects the Wage of Workers in the United 
States Similarly Employed
    The FLS, conducted by USDA's NASS, has aggregated and reported data 
in the major FLS occupational categories of field workers, livestock 
workers, field and livestock workers (combined), and all hired workers. 
The Department currently sets the AEWR at the gross hourly rate for 
field and livestock workers (combined) from the FLS for each state or 
region. This has produced a single AEWR for all agricultural workers in 
a given state or region, such that supervisors, agricultural 
inspectors, graders and sorters of animal products, agricultural 
equipment operators, construction laborers, and crop laborers were 
assigned the same AEWR. In the NPRM, the Department proposed a revised 
hourly AEWR methodology that would produce more tailored, occupation-
based AEWRs designed to better protect against adverse effect on 
workers in the United States similarly employed. Under the proposed 
methodology, the AEWR for a particular agricultural occupation would 
have been based on the annual average hourly gross wage for that 
agricultural occupation in the state or region reported by the FLS; the 
statewide annual average hourly wage for the SOC from the OES survey 
conducted by BLS, if the FLS did not report a statewide or regional 
average wage for the occupation; or the FLS or OES national annual 
average wage for the occupation, if both the FLS and OES did not 
produce an average wage for the occupation in the state or region.
    As expressed in the NPRM, the primary impetus for the proposed 
change was the Department's concern that the current AEWR methodology 
may have an adverse effect on the wages of workers in higher-paid 
agricultural occupations, such as construction laborers and supervisors 
of farmworkers on farms or ranches. Although the FLS collected data on 
the wages of supervisors, the wages of supervisors have been reported 
only in the all hired workers category and have not been included in 
the field and livestock workers (combined) category that the Department 
currently uses to establish the AEWR. Similarly, 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. Thus, the wages for these workers may be 
inappropriately lowered by an AEWR established from the wages of field 
and livestock workers (combined). In short, the Department expressed 
concern that using FLS wage data for field and livestock workers 
(combined) to establish the AEWR for all agricultural occupations could 
produce a wage rate that is not sufficiently tailored to the wage 
necessary to protect against adverse effect on workers in the United 
States similarly employed.
    The Department invited comments on all aspects of the proposed AEWR 
methodology. In particular, the Department solicited comments on the 
use of the FLS and OES survey; the conditions under which each survey 
should be used to establish the AEWR, including the proposal to 
calculate the AEWRs without FLS data in circumstances where such data 
was unavailable; and the proposal to depart from relying on the field 
and livestock workers (combined) wage from the FLS to instead establish 
AEWRs based on occupational classifications. The Department also 
invited comments on any alternative methodologies or wage sources the 
Department might use to establish the AEWRs in the H-2A program. More 
specifically, the Department requested comments on whether there are 
alternate methods or sources that it should use to set the AEWR, such 
as indexing past wage rates using the CPI or ECI and any other 
methodology that would promote consistency and reliability in wage 
rates from year to year.
4. General Comments Related to the Department's Proposed AEWR 
Methodology
    The Department received many comments from employers, agents, 
agricultural associations, farm bureaus, worker advocacy organizations, 
labor unions, individuals, state agencies, state and Federal elected 
officials, business advocacy organizations, and academic and public 
policy institutions. Many employers, associations, farm bureaus, and 
agents opposed the AEWR methodology in the 2010 Final Rule and agreed 
that a new AEWR methodology is necessary, most often due to concerns 
that the 2010 Final Rule methodology produced unsustainable wage 
increases for various reasons discussed below. An association stated 
that the current methodology makes planning and budgeting difficult 
because employers do not know what the AEWRs will be until they are 
published in the Federal Register late in the year. Another association 
expressed concern that regional AEWRs under the 2010 Final Rule 
``fluctuate wildly,'' and stated that ``[t]he total wage expenditure'' 
for a ``farm in the Cornbelt I region increased 8% from 2016 to 2017 
and then decreased by 1% from 2017 to 2018.'' Many of these commenters 
also asserted that the current AEWR methodology has resulted in 
significant wage inflation and unsustainable annual increases in the 
AEWR.
    Some commenters, including an association and an SWA, unequivocally 
supported the Department's proposed AEWR methodology as a way to retain 
the FLS, while ensuring accurate wages for all occupations through the 
use of the occupation-specific FLS data and supplementation of the FLS 
with the OES. Broadly, however, the overwhelming majority of commenters 
opposed the proposed methodology for a variety of reasons, including 
that it would be complex and difficult to administer, impose 
significant employee monitoring and recordkeeping burdens, produce 
unsustainably high AEWRs for some occupations and reduce AEWRs for 
others, and result in unpredictable AEWRs that vary from year to year 
and state to state, increased misclassification

[[Page 70452]]

of job opportunities, and payment of inaccurate wages.
    Many employers, associations, and farm bureaus expressed concerns 
that the proposed AEWR methodology would result in wage increases that 
would be unsustainable for employers in industries where labor costs 
constitute the most significant outlay--industries in which one 
association asserted employers increasingly ``revert to hiring 
undocumented workers'' because they are unable to afford H-2A wages 
under the 2010 Final Rule. Citing an analysis published in the UC Davis 
Rural Migration Blog, a business advocacy organization expressed 
concern that the proposed occupation-specific methodology would cause 
the AEWR to increase by greater than 50 percent in some cases, 
including an increase of up to 68 percent for Front-Line Supervisors in 
California, based on a comparison of the 2018 AEWR determined by the 
FLS field and livestock worker data and the proposed AEWR based on OES 
data for First-Line Supervisors.\40\
---------------------------------------------------------------------------

    \40\ Rural Migration News, The H-2A Program and AEWRs: FLS and 
OES (Sep. 9, 2019), https://migration.ucdavis.edu/rmn/blog/post/?id=2337.
---------------------------------------------------------------------------

    In contrast, most worker advocacy organizations, as well as several 
labor unions, SWAs, elected officials, and an international recruiting 
company, expressed concern the proposal would lower wages for many or 
most workers, while increasing uncertainty regarding farmworker wages. 
Many commenters, including immigration and worker advocacy 
organizations, expressed concern that the proposal would ``perpetuate a 
basic problem in the H-2A program where guestworkers, who generally 
lack bargaining power to negotiate for higher wages due to their 
temporary status, become concentrated in a sector because the system 
allows employers to reject as `unavailable' for work those U.S. workers 
who seek jobs but are unwilling to accept the H-2A wage rate.'' The 
commenters asserted that the Department's proposal would cause wages to 
stagnate and become depressed in real economic terms.
    Some SWAs acknowledged that disaggregation of wages would result in 
a higher wage for less common occupations like supervisors and 
agricultural equipment operators, but also expressed concern that 
disaggregation would reduce the wages of both H-2A workers and workers 
in the United States similarly employed in lower skilled farm laborer 
jobs that constitute the majority of H-2A job opportunities. One worker 
advocacy organization that opposed the Department's proposal generally 
supported a narrow use of the proposed occupation-specific AEWRs for 
particular occupations, noting that H-2A employers have increasingly 
utilized the program for occupations that should be paid a higher wage. 
This commenter also noted that job orders increasingly include several 
different types of jobs for which U.S. workers are paid different wage 
rates and thought that SOC-based AEWRs and use of the highest rate 
among applicable SOCs were necessary to ensure accurate wages.
    Several worker advocacy organizations noted that occupation-
specific AEWRs would be lower than the current FLS-based AEWR 
established using the combined field and livestock worker wage data and 
many asserted this would be inconsistent with the Department's 
statutory obligation to ensure employment of H-2A workers will not 
adversely affect the wages of workers in the United States similarly 
employed. For example, a worker advocacy organization comment included 
a chart that indicated the proposed occupation-specific FLS and OES 
AEWRs would result in wage reductions in many states for workers in 
SOCs 45-2041 and 45-2092 ranging from $.03 to $2.50 per hour. A 
forestry worker advocacy organization expressed concern that a ``change 
from using the mean of wages of workers `similarly employed' to hourly 
wages of SOCs will result in more volatility in wages from year to year 
as well as reductions in AEWRs'' and would result in ``downward 
pressure on wages of U.S. workers and foreign temporary workers in the 
reforestation and pine straw industries.''
5. The Department Will Base AEWRs on Data Using 2019 FLS Wages for the 
Most Common SOCs and Occupation-Specific OES Wages for All Other SOCs
    After careful consideration of the comments received, and the 
Department's own judgment as to what will best contribute to the sound 
administration of the H-2A program, the Department has decided to 
revise the hourly AEWR determination methodology in a way that will be 
more predictable, less volatile, and easier to understand, while also 
ensuring protection of U.S. workers' wages and accurate AEWRs for job 
opportunities in higher-skilled occupations. This approach is also 
appropriate in light of uncertainty about the immediate availability of 
FLS wage data.
    First, the Department will use the 2020 AEWRs, which were based on 
results from the FLS wage survey conducted by USDA's NASS and published 
in November 2019, as the baseline AEWR for the overwhelming majority of 
H-2A job opportunities going forward. As explained further below, 
adjustments to AEWRs for these workers will be made annually, starting 
at the beginning of calendar year 2023, based on the BLS ECI, Wages and 
Salaries--the same index the Department currently uses to adjust the 
monthly AEWRs for job opportunities in herding or the production of 
livestock on the range. Second, for all other occupations, the 
Department will determine the AEWRs as the annual statewide average 
hourly gross wage for the occupation in the state or region based on 
the OES survey or, where a statewide average hourly gross wage is not 
reported, the national average hourly gross wage for the occupation 
based on the OES survey. As discussed below, use of the OES survey will 
allow the Department to consistently establish occupation-specific 
AEWRs for these higher-skilled job opportunities to better protect 
against adverse effect on workers in the United States similarly 
employed.
    The Department has determined that this revised methodology best 
addresses commenters' concerns regarding the unpredictability and 
volatility of the AEWRs in recent years. The AEWRs have increased 
significantly compared to the rate of inflation or the rate at which 
compensation has increased for workers more generally in the U.S. 
economy. Large and unpredictable wage fluctuations can cause financial 
hardship to more labor-intensive agricultural operations, make it more 
difficult for them to plan, and ultimately discourage domestic 
agricultural production, which may result in fewer U.S. farmworker 
jobs. Furthermore, unlike other employment-based immigration programs, 
changes to the AEWRs--no matter how large--have a far greater impact on 
H-2A employers who have a regulatory obligation to pay the updated 
AEWR, if it remains the highest applicable wage, to all H-2A workers 
and workers in the United States similarly employed during any current 
work contract as well as future work contracts.
    For related reasons, the Department has decided to begin ECI-based 
adjustments to the AEWR in 2023. This provides for a period during 
which employers can rely on the current, 2020 AEWRs as they familiarize 
themselves with the new wage methodology, understand its likely impact 
on wages in future years, and plan accordingly. Providing for more 
immediate adjustments to current wages based on a wholly new 
methodology would, in

[[Page 70453]]

the Department's judgment, potentially exacerbate the very concerns it 
seeks to address about wage predictability and long term business 
planning that it seeks to address through the adoption of ECI-based 
wage adjustments. Similarly, even if more recent, 2020 FLS wage data 
were available, relying on it to set 2021 AEWRS would only serve to 
perpetuate the very wage volatility that the Department seeks to 
ameliorate through this rule. The 2020 AEWRs therefore provide 
appropriate wage rates for the immediate future, and a reasonable 
starting point from which future, ECI-based adjustments will be made.
    The Department also believes this methodology addresses other 
commenter concerns about unnecessary complexity and potential for 
significant wage reductions under the proposed occupation-specific OES-
based AEWRs, and strikes a reasonable balance between the statute's 
competing goals of providing employers with an adequate legal supply of 
agricultural labor while protecting the wages and working conditions of 
workers in the United States similarly employed. The Department 
understands that unpredictable changes in the AEWR can result in harm 
to U.S. workers by encouraging some employers to reduce employment 
opportunities and work hours and still others to hire undocumented 
foreign workers willing to accept employment at much lower wages and 
without the additional legal protections and benefits, including 
transportation, meals, and housing, that employers must provided to H-
2A workers.
    The methodology focuses on determining AEWRs using 2019 FLS data 
for job opportunities predominantly used by employers in the H-2A 
program--occupational classifications for field workers and livestock 
workers--while shifting AEWR determinations to the OES survey for all 
other occupations for which the FLS did not 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). 
Moreover, use of occupation-specific OES wages for job opportunities 
not covered by the FLS addresses the Department's concern that the 
current AEWR methodology may have an adverse effect on the wages of 
workers in higher-paid agricultural occupations, such as construction 
laborers and supervisors of farmworkers on farms or ranches. The wages 
for these workers may be inappropriately lowered by an AEWR established 
using FLS wage data derived from the wages of field and livestock 
workers (combined) because data from this FLS category does not include 
wages paid to construction laborers or supervisors of farmworkers, 
among other occupations.
    The Department recognizes that the revised methodology may result 
in some AEWR increases in those occupations for which the Department 
will use the OES survey, depending upon geographic location and 
agricultural occupation. While wages may change, the Department 
believes these changes are the result of the Department's use of more 
accurate occupational data that better reflect the actual wage paid, 
and thus the wage needed to protect against adverse effect.
    In addition, to further address concerns about predictability and 
clarity, the Department revised paragraph (b)(1) of Sec.  655.120 to 
add a transition provision. Although the new AEWR methodology in this 
final rule will be implemented on the effective date of this rule, the 
SWA and CO will review job orders and Applications for Temporary 
Employment Certification under 20 CFR 655.121 and 655.140 using the 
AEWR methodology in effect at the time the job order or Application for 
Temporary Employment Certification was filed. As a result, employers 
who have already received a temporary agricultural labor certification, 
or who have submitted a job order or Application for Temporary 
Employment Certification before the effective date of this final rule, 
will not be subject to wage obligations under the new AEWR methodology 
until the OFLC Administrator publishes the next AEWR adjustment 
applicable to the employer's job opportunity. In contrast, employers 
who submit a job order on or after the effective date of this final 
rule are subject to the new AEWR methodology for the job order and the 
related Application for Temporary Employment Certification. The 
Department has posted the AEWRs applicable to each occupational 
classification and geographic area contemporaneously with the 
publication of this final rule on the OFLC website at https://www.dol.gov/agencies/eta/foreign-labor/.
    As provided in paragraph (b)(2) of Sec.  655.120, the Department 
will publish notice of AEWR adjustments in the Federal Register. As the 
majority of H-2A applications under the revised methodology will 
involve AEWRs subject only to the FLS-based AEWR, commenters' concerns 
about the publication schedule for AEWR notices have been resolved as 
these job opportunities will be subject only to one annual ECI-based 
adjustment and the ECI generally increases at a stable and predictable 
rate. The Department will publish the ECI adjustments for field and 
livestock worker AEWRs annually with an effective date on or about 
January 1, based on the ECI publication cycle. Similarly, occupations 
other than those included in the FLS field workers and livestock 
workers (combined) category and all occupations in Alaska \41\ will be 
subject only to the OES-based AEWR and only that AEWR's adjustment 
cycle. The Department will publish OES-based AEWR adjustments annually 
with an effective date on or about July 1, based on the OES publication 
cycle. As explained below, only in the rare circumstance in which a job 
opportunity constitutes a combination of an FLS-based AEWR occupation 
and an OES-based AEWR occupation and the employer's certification 
period includes an FLS-based AEWR adjustment or an OES-based AEWR 
adjustment, and that adjustment changes which of the applicable AEWRs 
is higher, would an employer see a change in the AEWR applicable to a 
particular certification.
---------------------------------------------------------------------------

    \41\ There is no 2020 FLS-based AEWR for Alaska because the FLS 
does not collect data covering Alaska.
---------------------------------------------------------------------------

    The Department acknowledges the concerns of some commenters that 
fluctuating wages can be harmful to workers, and their concerns that 
changes to the methodology could result in stagnating or decreasing 
wages for farmworkers. The Department also recognizes the possibility 
that the revised methodology in this final rule 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 current 
methodology. However, as noted, the benefits of relying on the ECI to 
provide more stable and predictable wage increases are substantial, 
and, in the Department's judgment, ultimately benefit both employers 
and workers. Further, by setting the 2020 AEWR as the starting point 
from which future ECI adjustments will occur, the Department is 
ensuring that workers' wages will not be lower than their 2020 wages 
and will then adjust according to the ECI. The Department believes that 
this approach effectively balances concerns about wage volatility and 
adverse effects on workers. It also has the related virtue of ease of 
use.
    Further, the data for the current methodology may no longer be 
available to the Department.. Even if the data were available, or were 
to become available in subsequent years, the

[[Page 70454]]

Department sees tremendous benefit in moving to a new source of data 
that is unlikely to be discontinued and therefore does not suffer from 
the attendant uncertainty. The Department also believes that its new 
methodology meets the statutory requirement to protect workers in the 
United States similarly employed to H-2A workers from adverse wage 
effects. After a two-year transition period where the AEWRs are held 
constant, the methodology is likely to result in steady, predictable 
wage increases for farmworkers. While other methods could result in 
higher or lower AEWRs in any given year, the Department believes the 
methodology in this final rule will ensure the employment of H-2A 
workers does not adversely affect the wages of workers in the United 
States similarly employed by providing annual changes in wages 
consistent with the changes in wages and salaries in the broader 
economy, as explained further below.. This is especially so given that 
the Department is using a different methodology to more accurately 
calculate than before the wages of certain more highly skilled 
farmworkers, for which the Department has reason to believe the AEWRs 
have artificially depressed wages.
a. Use of ECI-Adjusted FLS Wage Data for Field and Livestock Workers
    The most common concern the Department received from employers, 
agents, associations, and business advocacy organizations was that the 
proposed methodology would be too complex and that the number of wage 
sources and potential wage rates would significantly increase wage 
volatility and uncertainty for employers. For example, one association 
stated it could not evaluate the potential impact of the proposal 
because, according to its estimates, the proposed methodology would 
result in at least 400,000 potential wage rates, based on a combination 
of 13 occupational categories and five potential wage sources (state/
national FLS or OES and the prevailing wage).
    Citing the Rural Migration Blog noted earlier, some associations 
and a business advocacy organization stated that under the proposed 
rule, wages may fluctuate significantly between years for some states 
and occupations, such as a 15 percent change in the AEWR for Graders 
and Sorters in Florida between 2017 and 2018. Similarly, a dairy 
association expressed concern regarding the year-to-year wage 
fluctuation for farmworkers tending to animals, asserting that in New 
York there would have been a 26 percent decrease from the 2016 AEWR 
based on the OES state data for SOC 45-2093 to the 2017 AEWR based on 
the regional FLS data. A farm bureau expressed concern that AEWRs would 
change at different times of the year based on the data source used and 
asserted this would further increase unpredictability and the potential 
for wage fluctuations in the same year, considering the employer will 
remain obligated to pay a higher wage if one is published during the 
contract period.
    A commenter from academia supported the Department's decision to 
rely primarily on the FLS and further recommended that, instead of 
using the OES survey when FLS data was unavailable, the Department 
should use the more general FLS field and livestock worker (combined) 
data because the FLS-based AEWR would be based on ``more accurate data 
inputs'' and would ``maintain a consistent data source from year to 
year, potentially alleviating some of the wage volatility the 
Department cites as a concern.'' The commenter also recommended the 
Department ``use the Employment Cost Index to calculate the appropriate 
AEWR based on prior years'' if the FLS is suspended and FLS data is 
unavailable, in order to ``promote accuracy and consistency between 
seasons.'' Finally, as discussed further in section II.B.6 below, 
several commenters suggested alternative methods to determine the AEWR, 
most of which did not involve reliance on OES or FLS data.
    Many commenters, including employers, associations, state farm 
bureaus, and a business advocacy organization, also asserted that the 
proposed occupational disaggregation would be unworkable because 
agricultural job opportunities often or by their nature require the 
performance of a variety of tasks that can fit into a number of 
occupational classifications. Many of these commenters expressed 
concern that occupational classifications would be unpredictable due to 
the number of potential wage sources and this would be unsustainable 
because employers would be unable to plan for labor input costs, which 
constitutes the highest expense for many employers. Some commenters 
asserted that the variety of tasks associated with agricultural jobs, 
combined with the variety of occupations and wage rates that could be 
assigned under the proposed rule, would result in unpredictable wage 
rates from year to year and ensure acceleration of wage rates.
    Several commenters asserted the proposal would require employers to 
``become human resources experts.'' Two Federal elected officials, as 
well as some employers and associations, believed the proposal would 
impose significant monitoring and recordkeeping burdens on employers, 
requiring them to monitor and maintain records of all duties performed 
at all times to ensure compliance with wage obligations. The elected 
officials asserted the proposal would ``make classification of work 
into a highly contentious issue,'' leading to litigation and disputes 
over occupation and wage assignments, and would require employers to 
develop familiarity with all potentially applicable occupational 
classifications.
    After consideration of comments, the Department has determined that 
use of the 2019 FLS wage data for field and livestock workers, adjusted 
annually by the percent change in the ECI, most reasonably addresses 
commenters' concerns regarding the complexity in the Department's 
proposal, as well as the volatility and unpredictability in the AEWRs, 
both recently and over the past several years, for the majority of H-2A 
occupations. The methodology is also consistent with the Department's 
broad statutory mandate to balance the competing goals of the statute 
to provide an adequate labor supply and to protect the wages and 
working conditions of workers in the United States similarly 
employed.\42\
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    \42\ See Rogers v. Larson, 563 F.2d 617, 626 (3d Cir. 1977); see 
also AFL-CIO v. Dole, 923 F.2d 182, 187 (D.C. Cir. 1991); United 
Farmworkers of Am. v. Chao, 227 F. Supp. 2d 102, 108 (D.D.C. 2002) 
(``In adopting an AEWR policy, DOL must balance the competing goals 
of the statute--providing an adequate labor supply to growers and 
protecting the jobs of domestic farmworkers.'').
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    The FLS field workers and livestock workers (combined) 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.'' \43\ The 
current SOC codes and titles associated with these workers, and which 
will be subject to this wage setting approach, are: 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; and 45-

[[Page 70455]]

2099--Agricultural Workers, All Other. Accordingly, through calendar 
year 2022, H-2A Applications for Temporary Employment Certification 
seeking workers to perform duties encompassed by one or more of these 
SOCs will continue to be subject to the 2020 AEWRs, which were based on 
the average annual gross hourly wage rate for field and livestock 
workers (combined) as reported for the state or region by the USDA FLS 
in November 2019, provided that the FLS reported a wage rate for the 
geographic area where the work will be performed. In areas where the 
November 2019 USDA FLS data did not report a wage rate, the AEWR will 
be the statewide annual average hourly gross wage for the occupation, 
if one is reported by the OES survey; or, the OES national annual 
average hourly gross wage, if the OES survey does not report a 
statewide wage.\44\ Beginning calendar year 2023, and annually 
thereafter, these FLS-based AEWRs will be adjusted by the percentage 
change in the BLS ECI, Wages and Salaries for private sector workers, 
for the preceding 12 month period.
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    \43\ USDA NASS, Crosswalk from the National Agricultural 
Statistics Services (NASS) Farm Labor Survey Occupations to the 2018 
Standard Occupational Classification System, available at https://www.nass.usda.gov/Surveys/Guide_to_NASS_Surveys/Farm_Labor/farm-labor-soc-crosswalk.
    \44\ For example, there is no 20120 FLS-based AEWR for Alaska 
because the FLS does not collect data covering Alaska.
---------------------------------------------------------------------------

i. Using the ECI to Annually Adjust the FLS Wage Data for Field and 
Livestock Workers, Beginning in 2023 After a Two-Year Transition 
Period, is Reasonable and More Appropriate Than Shifting to the OES 
Survey for These Particular Occupations
    In light of the substantial number of commenters concerned about 
the complexity of the proposed methodology, the unpredictable and often 
significant annual increases of FLS-based AEWRs, and the need to 
protect workers against adverse wage effects while also taking into 
account the need for a stable supply of legal labor, the Department has 
determined that the most reasonable AEWR determination methodology for 
field and livestock workers, particularly given uncertainty about the 
future of the FLS, is to use the recent combined FLS wage data as a 
starting point and use of the ECI to index for future years. This 
approach is consistent with an alternative suggested in the NPRM and 
recommended by a commenter from academia (as well as the current means 
by which the monthly AEWR is adjusted for range occupations).
    The ECI is a ``measure of the change in the price of labor, defined 
as compensation per employee hour worked'' based on data collected on 
``hourly straight-time wage rate[s]'' defined as ``total earnings 
before payroll deductions,'' \45\ that provides an accurate measure of 
annual increases in wages across the private sector and ``is 
particularly well suited as a vehicle to adjust wage rates to keep pace 
with what is paid by other employers.'' \46\ ECI-based adjustments to 
the AEWRs for these occupations will ensure field and livestock worker 
wages continue to rise apace with wages in the broader U.S. economy in 
a consistent and predicable manner.\47\ While the Department also 
suggested the CPI as an alternative data source, the Department has 
chosen the ECI rather than the CPI to adjust the FLS-based AEWRs 
because the Department views the CPI as less relevant to wage 
adjustments than the ECI, which measures changes in wages, rather than 
consumer prices. The Department believes indexing the AEWRs to the ECI 
will produce steadily increasing AEWRs for field and livestock workers 
that fulfill the statutory requirement to prevent adverse effect on the 
wages of workers in the United States similarly employed, while 
providing consistency and predictability to the agricultural economy.
---------------------------------------------------------------------------

    \45\ See, e.g., John W. Ruser, The Employment Cost Index: What 
Is It?, Monthly Labor Review (Sept. 2001), available at https://www.bls.gov/opub/mlr/2001/09/art1full.pdf.
    \46\ How to Use the Employment Cost Index for Escalation, BLS, 
available at https://www.bls.gov/ect/escalator.htm
    \47\ This approach is consistent with the approach used to 
establish the AEWR for range occupations. See 20 CFR 655.211(c); 80 
FR 62958, 62995 (Oct. 16, 2015) (``In order to prevent wage 
stagnation from again occurring, we have determined that the new 
base wage rate should be subject to an adjustment methodology. We 
agree with those commenters who recommended that we use the ECI for 
wages and salaries to address the potential for future wage 
stagnation. Our primary concern in setting the adjustment 
methodology for these occupations is to confirm that the wages for 
these occupations will continue to rise apace with wages across the 
U.S. economy. Although the Department has previously used the 
Consumer Price Index for All Urban Consumers (CPI-U) in other 
circumstances where adjustment for inflation is warranted, we 
conclude that it is reasonable to use the ECI for these occupations, 
given that housing and food must be provided by the employer under 
this Final Rule, making the cost of consumer goods less relevant 
than under circumstances in which workers are paying these costs 
themselves'').
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    The Department understands the common concern of a large number of 
employers, associations, and agents that OES-based AEWRs would, in some 
cases, result in dramatic wage increases, wage variability from year to 
year, or both, and further acknowledges the concerns of many commenters 
that the current FLS-based AEWRs have fluctuated widely from year to 
year and that employers have been subject to annual increases as high 
as 22 percent in some states.\48\ In setting the AEWR, the Department 
must balance the interests of workers and employers. Setting AEWRs that 
are ``too high in any given area . . . will harm U.S. workers 
indirectly by providing an incentive for employers to hire undocumented 
workers.'' \49\ The Department remains cognizant of the fact that the 
``clear congressional intent was to make the H-2A program usable, not 
to make U.S. producers non-competitive'' and that ``[u]nreasonably high 
AEWRs could endanger the total U.S. domestic agribusiness, because the 
international competitive position of U.S. agriculture is quite 
fragile.'' \50\
---------------------------------------------------------------------------

    \48\ See DOL, Historical State AEWRs, Adverse Effect Wage Rates 
by State from 2014 to Present, available at https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/2c.%20AEWR%20TRends%20in%20PDF_12.16.19.pdf.
    \49\ 73 FR 8538, 8550 (Feb. 13, 2008); See also 73 FR 77110, 
77171 (Dec. 18, 2008) (noting that wages above the market rate may 
``encourage employers to hire undocumented workers instead'' of U.S. 
or H-2A workers because ``many agricultural employers may be priced 
out of participating in the H-2A program'' and ``[w]hen employers 
cannot find U.S. workers'' and ``cannot afford H-2A workers because 
they are required to pay them above-market wage rates, some will 
inevitably end up hiring undocumented workers instead.'').
    \50\ 54 FR 28037, 28046 (Jul. 5, 1989).
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    The methodology in this final rule addresses these concerns by 
tethering the AEWRs to broad economic data on labor costs using the 
ECI, which the Department currently uses to make AEWR determinations 
for H-2A herding and livestock jobs on the range, and adjusting the 
AEWRs annually beginning in calendar year 2023.\51\ Based on private 
sector ECI data, the average annual adjustment over the last decade 
would have been 2.78 percent, in contrast to the much higher annual 
AEWR adjustments cited by many association commenters.\52\ Recent AEWR 
data shows significant fluctuation in the AEWR in many states, both 
upward and downward. Data shows that annual AEWR adjustments of 3 
percent, 4 percent, and 5 percent have not been uncommon, nor is it 
uncommon to see the AEWR increase one year, decrease the following, and 
then increase again in the third year.\53\ For example, in Arizona, 
wages

[[Page 70456]]

increased in 2016 by 6.3 percent, decreased in 2017 by 2.2 percent, 
decreased again in 2018 by 4.5 percent, and then increased a jarring 
14.7 percent in 2019.\54\ Further, the average difference between the 
highest and lowest change across all AEWRs in the state and regions was 
11 percent from 2014 to 2018. In 2019 and 2020, it was 23.4 percent and 
8.5 percent, respectively, further evidence of the year-to-year 
unpredictability in wage obligations employers face under current 
regulations. \55\
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    \51\ Since implementation of the 2015 H-2A Herder Rule, DOL has 
adjusted the AEWR applied to H-2A sheep and goat herding jobs using 
the ECI for wages and salaries published by the BLS for the 
preceding 12-month period (October-to-October).
    \52\ See BLS, Employment Cost Index, Historical Listing--Volume 
III at 8, National Compensation Survey (July 2020), available at 
https://www.bls.gov/web/eci/echistrynaics.pdf.
    \53\ See DOL, Historical State AEWRs, Adverse Effect Wage Rates 
by State from 2014 to Present, available at https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/2c.%20AEWR%20TRends%20in%20PDF_12.16.19.pdf.
    \54\ Id.
    \55\ Id.
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    The Department also understands the concerns raised by commenters 
regarding planning and budgeting difficulties when wage rates fluctuate 
widely, particularly in the context of the considerations a law firm 
noted about agricultural sector employers' obligations to fulfill 
multi-year contractual obligations, as well as a trade association's 
concerns surrounding longer-term workforce planning.\56\ The FLS-based, 
ECI-adjusted AEWR methodology in this final rule is, in the 
Department's judgment, the most effective available methodology that 
addresses the oft-cited concern among many commenters that under the 
proposed approach, AEWRs would be too unpredictable and based on a 
methodology that would be too complex. ECI-based adjustments are 
straightforward to calculate and, based on the substantial historical 
data available, predictable. Because the AEWR for these core 
occupations will be tied to the ECI and adjusted annually, the 
Department believes that the new methodology will reduce the 
significant fluctuations in AEWRs and address the concerns raised by 
commenters about the need for certainty. During the past decade, the 
fluctuation in the ECI from one year to the next has not exceeded more 
than half of one percent and the total range of increases over that 
period was 2.1 to 3.9 percent,\57\ in contrast to AEWRs that have 
fluctuated up or down within a much larger and less consistent or 
predictable range, as noted above.
---------------------------------------------------------------------------

    \56\ USDA ERS, Economic Information Bulletin No. 203, America's 
Diverse Family Farms at 7-9 (Dec. 2018), available at https://www.ers.usda.gov/webdocs/publications/90985/eib-203.pdf?v=2059.2 
(noting agricultural employers commonly use marketing contracts and 
their use of production contracts have ``ranged from 31 percent to 
41 percent over the past two decades--with no discernible trend--and 
averaged 37 percent''); USDA ERS, Agricultural Economic Report No. 
837, Contracts, Markets, and Prices: Organizing the Production and 
Use of Agricultural Commodities at 5 (Nov. 2004), available at 
https://www.ers.usda.gov/webdocs/publications/41702/14700_aer837_1_.pdf?v=41061 (``Many crop-production contracts hold 
for a growing season. Livestock contracts can range from one flock 
(less than 2 months) to 10 years, and some livestock contracts are 
automatically renewed unless cancelled.'').
    \57\ See BLS, Employment Cost Index, Historical Listing--Volume 
III at 8, National Compensation Survey (July 2020), available at 
https://www.bls.gov/web/eci/echistrynaics.pdf.
---------------------------------------------------------------------------

    The Department believes it is reasonable to make annual adjustments 
based on the ECI to reduce wage volatility from year to year, provide 
employers with greater stability and certainty regarding their wage 
obligations to workers, and address the concerns expressed by many 
commenters about the unpredictable increases in wages reported by the 
FLS in recent years. As noted above, the Department has determined it 
is best to utilize the current AEWRs for the next two years and adjust 
annually thereafter based on changes in the ECI for the most recent 
preceding 12 months to provide stability and predictability for future 
wages, and as an acknowledgement that immediate implementation may 
cause additional disruption of the kind this approach seeks to avoid. 
The Department believes this approach will serve the AEWR's intended 
purpose to 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 while addressing concerns 
raised by the commenters.
    Beginning the ECI adjustments for the FLS-based AEWRs in 2023 
addresses commenters' concerns that recent accelerations in the wage 
rates are, in their view, attributable to flawed survey results and 
have caused artificially surging wage increases, as well as the need to 
have time to engage in long range planning. For example, commenters 
note AEWR increases have averaged as much as 9.5 percent annually in 
recent years. While the Department disagrees with the commenters' 
suggestions that the FLS survey results were flawed, this transition 
period, during which employers may prepare for the new indexed wage 
rates that will apply to the majority of H-2A job opportunities, 
adequately balances commenters' concerns related to significant wage 
fluctuations with the Department's obligation to protect against 
adverse effects. Giving employers advance notice of the new approach 
before it begins to result in more predictable wage adjustments ensures 
that the new rule does not cause, through more immediate implementation 
of the new adjustment methodology, precisely the kind of unexpected 
wage changes that commenters expressed concerns about.
    This approach also addresses concerns from farmworker advocates 
about wage cuts, by using the ECI to ensure steady wage growth over 
time to 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. It also guards against the 
kind of immediate wage cuts that may have occurred in some cases under 
alternative methodologies by using the current, 2020 AEWR as the 
starting point from which future adjustments will be made.
    In addition, this approach addresses the concerns of many worker 
advocates, SWAs, and some Federal elected officials that the use of 
occupation-specific OES data proposed in the NPRM would have 
immediately, and in some cases significantly, reduced wages for many 
workers in the most common H-2A occupations (i.e., SOCs 45-2092, 45-
2093, and 45-2041). Although AEWRs for field and livestock workers will 
not increase or decrease annually under this final rule in the same 
manner as they had under AEWRs determined using previously available 
FLS data--in fact, the Department projects a slight reduction in wage 
growth relative to the previous methodology--the approach in this final 
rule will ensure consistent wage increases for field and livestock 
workers and ensure these workers' wages keep pace with wage changes 
among U.S. workers more broadly. And this approach may result in higher 
AEWRs than would be the case using OES data. The Department has 
considered that the use of occupation-specific OES AEWRs could 
potentially reduce the wages of significant numbers of agricultural 
workers in states with high H-2A usage, such as California and 
Washington, including single year reductions of 10.3 and 6.4 percent, 
respectively, for crop workers, and 12.6 and 15.4 percent, 
respectively, for graders and sorters.\58\ In contrast, AEWRs 
determined using the FLS wage data as a baseline and adjusted annually 
using the BLS ECI compensation data for all private sector workers, 
which has increased annually from 2.1 to 3.9 percent over the past 10 
years, will serve to protect against the wage depression suggested by 
these commenters, thus protecting against the possibility of the 
presence of H-2A workers adversely affecting the wages

[[Page 70457]]

and working conditions of workers in the United States similarly 
employed.\59\ It also may protect against absolute decreases in AEWRs, 
which have been seen in some years in some states under the FLS 
methodology, even during a robust economic expansion, in contrast to 
the ECI which is a less volatile data source that has registered 
increases during economic contractions and expansions.\60\ 
Additionally, in cases where the prevailing wage is higher than the 
AEWR adjusted based on the ECI, the employer will be required to pay 
the prevailing wage rate, and the Department proposed a revised 
prevailing wage determination methodology in the July 2019 NPRM, which, 
if adopted in the subsequent, second final rule, would likely affect 
the wages required to be paid to H-2A workers and may provide 
additional wage protection.
---------------------------------------------------------------------------

    \58\ This is based on a comparison of the 2020 AEWRs with the 
most recent OES data for SOCs 45-2092 and 45-2041 in these states, 
available at https://www.bls.gov/oes/current/oessrcst.htm.
    \59\ See BLS, Employment Cost Index, Historical Listing--Volume 
III at 8, National Compensation Survey (July 2020), available at 
https://www.bls.gov/web/eci/echistrynaics.pdf.
    \60\ See DOL, Historical State AEWRs, Adverse Effect Wage Rates 
by State from 2014 to Present, available at https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/2c.%20AEWR%20TRends%20in%20PDF_12.16.19.pdf.
---------------------------------------------------------------------------

ii. Using 2019 FLS Data Is a Reasonable Choice for Establishing an AEWR 
Baseline for the Most Common SOCs in the H-2A Program
    The Department has chosen to use as a baseline the 2020 AEWRs 
determined using the combined field and livestock worker FLS wage data 
after consideration of comments on potential data sources, and for 
reasons explained below and in prior rulemaking. The Department 
received many comments on the efficacy of the FLS and OES survey as 
data sources for AEWR determinations. Some commenters--primarily 
employers and associations--opposed the use of the FLS to determine the 
AEWR. Some associations and an agent supported a move away from the FLS 
because the survey was not limited to U.S. workers and aggregated the 
wages of workers in many different occupations. Similarly, a business 
advocacy organization opposed use of the combined FLS wage under the 
2010 Final Rule because it averaged the wages of lower-skilled farm 
workers with higher-skilled workers in, for example, supervisory and 
heavy machinery operator occupations, which the commenter asserted 
inflated wages and made it difficult to challenge AEWR determinations. 
Two associations and an employer opposed use of occupation-specific FLS 
data due to small sample sizes and opposed use of the FLS generally 
because it collected data on gross wages.
    In contrast, many commenters expressed general or conditional 
support for the use of the FLS as a primary or sole data source, 
including many worker advocacy organizations, as well as some 
associations and academic commenters. Several associations supported 
use of a modified and expanded FLS, while some employers and 
associations expressed a preference for retaining the 2010 Final Rule's 
methodology based on the combined FLS data, but only if the sole 
alternative was the proposed methodology. One association urged the 
Department to rely on the FLS as the primary source where a wage is 
available at any geographic level and to use the OES only in cases 
where no state or national FLS wage is available. Another commenter 
believed the Department should rely solely on USDA or states' 
departments of agriculture to determine the AEWR because these agencies 
have the best understanding of agricultural employment and the wage 
setting process for agricultural job opportunities. A Federal elected 
official urged the Department to rely on the FLS, rather than the OES 
survey, because the OES survey ``reflects earnings from farm labor 
contractor employees, who are among the nation's lowest paid 
farmworkers.'' Similarly, two Federal elected officials opposed use of 
the OES system because it ``less accurately capture[s] actual wages 
paid to farm employees, who comprise the bulk of the H-2A guest worker 
workforce, because the OES data do not actually capture farm employer 
data and instead only reflect information concerning `establishments 
that support farm production.' ''
    As noted in the NPRM and prior rulemaking, and as discussed below, 
the Department continues to believe the FLS is a useful source of wage 
data for establishing the AEWRs for the vast majority of H-2A job 
opportunities, and that alternative wage sources are, for most 
occupations, generally not superior to the FLS for the Department's 
purposes in administering the H-2A program. With the exception of a 
brief period under the 2008 Final Rule, the Department has established 
an AEWR using FLS data for each state in the multi-state or single-
state crop region to which the State belongs since 1987. One advantage 
of using a wage derived from the FLS as the baseline for these 
occupations is that the FLS surveyed farm and ranch employers and 
collected data on wages paid for field and livestock worker job 
opportunities common in the H-2A program.
    Another advantage of the FLS has been its broad geographic scope, 
which ``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,'' \61\ and ``reflects the view that farm 
labor is mobile across relatively wide areas.'' \62\
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    \61\ 84 FR 36168, 36182.
    \62\ Id.
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    Finally, using the combined FLS data as the baseline to set the 
AEWR for field and livestock workers is consistent with the 
Department's conclusion in the 2010 Final Rule that 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.'' \63\
---------------------------------------------------------------------------

    \63\ 75 FR 6883, 6899-6900.
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    However, as noted above, recent FLS data has introduced a 
substantial amount of variability in wages in the H-2A program, which 
has led the Department to consider alternatives that still meet its 
statutory obligations and the need for sound program administration. 
The reasons why this variability is problematic are discussed 
throughout this preamble, and include economic hardship to farmers, 
which may induce them to reduce production and thus the hiring of U.S. 
farmworkers--or to resort to using illegal aliens; the difficulties of 
long-term planning, with attendant costs that may be felt by both 
employers and farmworker employees; and the current methodology's 
artificial depression of wages for certain higher-skilled U.S. 
agricultural workers. The Department is also concerned about using a 
data source beyond its control and which is subject to an uncertain 
future, demonstrated by the recent suspension of data collection. The 
Department thus has decided to use ECI adjustments to these AEWRs 
moving forward.
    This does not mean that the Department has concluded that the wages 
established by the FLS data, including the 2020 AEWRs, were flawed. 
Rather, the Department has simply determined that greater certainty 
going forward is necessary, and the ECI provides a reasonable data 
source for measuring wage growth consistent with the Department's 
statutory mandate. Specifically, the Department has concluded, 
consistent with a commenter

[[Page 70458]]

from academia, that use of an FLS-based AEWR as the starting point rate 
to adjust annually based on the percentage change in the ECI is a 
reasonable approach for AEWR determinations. Using the 2019 data from 
the FLS as the starting point and adjusting the wages using the ECI 
will provide greater wage continuity and avoid the further volatility 
that might occur if future FLS data were relied on to make year-to-year 
wage adjustments, which is beneficial for both farmworkers and 
employers, making it the preferred approach, even if FLS publication 
were resumed.
    The Department has chosen not to use the OES survey to determine 
AEWRs for field and livestock worker job opportunities for several 
reasons. Most importantly, the OES survey does not include farm 
establishments that are directly engaged in the business of crop 
production and employ the majority of field and livestock workers. 
While establishments that support farm production participate in the H-
2A program and are included in the OES survey, they constitute a 
minority of establishments in the country employing workers engaged in 
agricultural labor or services, and so data reported by these 
establishments is generally not as useful for purposes of calculating 
the AEWR for field and livestock workers. In addition, the OES 
currently cannot produce a statewide or regional wage for both the 
field worker and livestock worker categories in every year, so a 
methodology using the OES for these job opportunities would require use 
of different wage sources from year to year. Thus, use of the OES would 
be contrary to the Department's goal of establishing greater 
consistency, reliability, and predictability in wages year to year.
    The decision to use the 2019 FLS wage data for field and livestock 
workers (combined) as the baseline to index future AEWRs for these 
occupations also addresses commenters' concerns regarding the 
complexity of the proposals related to disaggregated, occupation-
specific AEWRs. It addresses the common concern among employers that 
the disaggregation of the field and livestock workers classification 
into various occupations would impose significant recordkeeping burdens 
and create artificial boundaries for the labor force beyond what is 
functionally appropriate to support farming operations, especially 
smaller operations. Use of the combined FLS wage for field and 
livestock workers will reduce 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. Similarly, because the 
overwhelming majority of job opportunities will not be subject to a 
SOC-based OES AEWR, the new methodology also largely addresses SWA 
concerns that the Department's proposal would have required SWAs and 
OFLC to conduct more in-depth review of applications, focusing on the 
identified occupation and wage assigned, to ensure the employer is 
using the correct wage. For the same reason, it also serves to 
alleviate some of the concerns of worker advocates regarding CO and SWA 
authority to determine appropriate SOCs and issue notices of deficiency 
to ensure correct classification of job opportunities.
b. Use of OES Wage Data for All Other Occupations
    In the NPRM, the Department proposed to use the FLS to set the 
hourly AEWR except in limited circumstances where the FLS did not 
report a wage for an occupation or state or region. Under those 
circumstances, the Department proposed to use the statewide average 
hourly wage for the occupation using data from the OES survey, and 
noted that under the proposal, the OES statewide average hourly wage 
would be used to establish the AEWR if USDA ceased to conduct the FLS 
for budgetary or other reasons. After careful consideration of all 
comments received, and for the reasons explained below, the final rule 
requires that for all occupations other than field and livestock 
workers (combined), the hourly AEWRs will be annually adjusted and set 
by the statewide annual average hourly wage for the occupational 
classification, as reported by the OES survey. If the OES survey does 
not report a statewide annual average hourly wage for the SOC, the AEWR 
shall be the national annual average hourly wage reported by the OES 
survey.
    While some commenters supported the use of occupation-specific FLS 
and OES data to set AEWRs and believed the proposed methodology would 
produce more accurate wages, many commenters worried that the proposal 
was too complex and difficult to administer and that the number of wage 
sources and potential wage rates would result in unpredictable and 
volatile wages. The Department acknowledges that to the extent the FLS 
did not consistently report data in each SOC for a state or region, 
under the proposal, the wage source used to establish the AEWR would 
have varied from year to year, which could have resulted in a much 
higher degree of year-to-year variability in the AEWR than exists under 
the current methodology. As discussed above, the Department does not 
control the production of new wage data from the FLS in future years, 
and the Department will now use only one wage source--the OES survey--
to determine the AEWRs for occupations other than field and livestock 
workers (combined) and for geographic areas for which FLS did not 
report a state or regional wage for field and livestock workers 
(combined) in its November 2019 report. By using this wage source to 
set the AEWR for these occupations and geographic areas, employers will 
have certainty regarding the wage source that will be used to set the 
AEWRs and the Department will meet its statutory mandate to protect 
against adverse effect.
    Several commenters, including employers, associations, and worker 
advocacy organizations, were concerned about the Department's proposal 
to rely on OES data where the FLS did not report a statewide or 
regional average wage for the occupation. Some commenters expressed 
concern that the OES surveys nonfarm establishments that support farm 
production, and urged the Department to rely on the FLS. The Department 
acknowledges commenters' concerns; however, the Department does not 
control the production of new wage data from the FLS and recognizes the 
continued uncertainty about ongoing availability of FLS data. 
Furthermore, the Department declines to use the FLS as a baseline with 
annual ECI adjustments to set the AEWR for occupations other than field 
and livestock workers (combined). While the FLS-based approach is more 
accurate than the OES for field and livestock workers (combined), as 
noted above, the OES is more accurate than the FLS for other 
agricultural occupations, such as supervisors, that the FLS did not 
adequately survey, and occupations that are more often for contracted-
for services than farmer-employed (e.g., construction, equipment 
operators supporting farm production), therefore its use will better 
protect against adverse effect for those occupations for which the FLS 
did not provide valid wage data at a state or regional level. An AEWR 
based solely on the field and livestock worker (combined) wage may have 
the effect of depressing wages in higher-paid occupations. This aspect 
of the methodology under the 2010 Final Rule appears to cause an 
adverse effect on the wages of workers in the United States similarly 
employed, contrary to

[[Page 70459]]

the Department's statutory mandate.\64\ And, as explained above, the 
Department recognizes the continued uncertainty about ongoing 
availability of FLS data, including to set the 2021 AEWRs.
---------------------------------------------------------------------------

    \64\ 84 FR 36168, 36178; see also id. at 36182 (discussing the 
need to disaggregate ``wages of agricultural occupations that are 
dissimilar and that this may have the effect of inappropriately 
raising wages for lower-paid agricultural jobs while depressing 
wages in higher-paid occupations'').
---------------------------------------------------------------------------

    Furthermore, the OES is a reliable wage survey that consistently 
produces annual average wages for nearly all SOCs and is widely used in 
the Department's other foreign labor certification programs. 
Additionally, because ``each set of OES estimates is calculated from 
six panels of survey data collected over three years,'' the commenters' 
concerns regarding the volatility of the AEWRs and significant spikes 
in the FLS wages in recent years, leading the Department to implement 
annual ECI adjustments for those wages, are also greatly diminished for 
the SOCs that will shift to the OES-based methodology.
    Accordingly, the Department will use the statewide OES average 
hourly wage for occupations other than field and livestock workers 
(combined) or, if one is not available, the national OES average hourly 
wage reported for the SOC. One commenter was concerned that by 
factoring in wages in both non-metropolitan areas and metropolitan 
areas (where wages are higher because of a higher cost of living), the 
use of a statewide OES wage would mean that employers in non-
metropolitan areas would be required to pay inflated wages. Another 
commenter expressed a similar concern with respect to statewide or 
national AEWRs generally. In the H-2B program, the Department generally 
establishes prevailing wages based on the OES survey for the SOC in a 
metropolitan or non-metropolitan area. However, as explained in prior 
rulemakings, the concern about 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.\65\ 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.\66\ The use of a statewide wage also more closely 
aligns with the geographic areas from the FLS. For these reasons, the 
Department believes it is important to use the statewide OES wage where 
one exists for the particular occupation. 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.
---------------------------------------------------------------------------

    \65\ See, e.g., 75 FR 6883, 6895.
    \66\ Id. at 6899 (The Department ``consistently has set 
statewide AEWRs rather than substate [] AEWRs because of the absence 
of data from which to measure wage depression at the local level'' 
and use of surveys reporting data at a broader geographic level 
``immunizes the survey from the effects of any localized wage 
depression that might exist.'')
---------------------------------------------------------------------------

c. Job Opportunities Covering Multiple SOCs Will Be Assigned the 
Highest AEWR for All Applicable SOCs
    The Department also received many comments that expressed concerns 
about the proposal to require employers to pay the highest applicable 
wage if the job opportunity can be classified within more than one 
occupation. Several farm bureaus, associations, and agents asserted the 
policy would disproportionately impact small employers that may have no 
human resources personnel and must employ agricultural workers to 
perform a variety of similar, but distinct tasks on the farm to remain 
competitive. One small employer stated that use of separate 
occupational classifications would require the employer to hire more 
workers to perform distinct job duties and offer fewer hours to all 
workers. Another small employer noted that its U.S. workers perform 
duties ranging from driving tractors and operating forklifts to 
cleaning bathrooms. Some commenters asserted more generally that 
agricultural workers cannot be placed in ``silos'' because they are 
required to perform job duties outside of their job descriptions on 
occasion, not on a full-time basis, due to the nature of agricultural 
work or the need to respond to emergency situations and unforeseen 
circumstances. Some of these commenters expressed concern that the 
Department would classify jobs into the highest paid occupation in the 
particular state, leading to different occupational determinations in 
different states. An association commented that the states currently 
provide inconsistent occupation and wage determinations for similar job 
opportunities and expressed concern that occupation-based AEWRs would 
lead to inconsistent AEWRs from state-to-state for similar job 
opportunities.
    Two Federal elected officials stated that assignment of the highest 
wage among multiple applicable occupations would contradict the purpose 
of the proposal to provide more accurate wages. A worker advocacy 
organization expressed concern that the proposal to assign the wage of 
the highest paid occupation would result in employers misclassifying 
job opportunities into lower-paid occupations to avoid wage 
obligations. A second worker advocacy organization asserted the 
proposal would not prevent misclassification of workers because the 
rule does not require submission of a separate application for work 
performed in multiple distinct occupations or provide any limitation on 
the kinds of duties workers may be expected to perform. The commenter 
suggested the Department should require employers to post at the 
worksite the AEWR for each occupational classification so that workers 
will know when they are misclassified. An SWA expressed similar concern 
that occupation-based AEWRs may encourage employers to misclassify 
workers into lower-paid job opportunities. Another commenter believed 
the difficulty of classifying job opportunities into occupational 
classifications would result in confusion among workers regarding the 
wage they would be paid at additional worksites.
    Several commenters, including employers, associations, SWAs, and a 
worker advocacy organization, expressed concern or confusion regarding 
the method the Department would use to classify job opportunities into 
occupations within the SOC system. Noting that filing multiple 
applications under the current regulations has been burdensome and 
costly, three associations asked the Department to clarify whether 
employers will be required to file multiple applications for different 
job codes and urged the Department to permit an employer to list 
several SOC codes in one job order if they are all related to the same 
job opportunity. Many association commenters also sought clarification 
of the number of occupational categories the Department would use, 
including an association that noted the NPRM cited a different number 
of occupational categories for different states and did not mention 
some potential occupations, such as Pesticide Handlers and Sprayers 
(SOC 37-3012). Several commenters urged the Department to reduce the 
number of occupational categories it would consider, suggesting numbers 
ranging from four to six. Some associations and a State farm bureau 
specified five specific occupations: (1) Farmworkers and Laborers, 
Crop, Nursery, and

[[Page 70460]]

Greenhouse; (2) Farm Workers and Laborers, Farm, Ranch and Aquacultural 
Animals; (3) Agricultural Equipment Operators; (4) Graders and Sorters; 
and (5) Supervisors. Two associations specified the first four of the 
above categories and suggested supervisors could be a ``higher tier'' 
category derived from the others, such as ``packing-supervisor'' or 
``livestock-manager.''
    Most of these commenters urged the Department to ignore ``de 
minimis'' performance of duties or otherwise adopt some form of a 
primary or majority duties test, with some commenters suggesting the 
occupational classification should be based on work performed 51 or 75 
percent of the time or should apply only if workers perform 
``substantially the same'' duties as in the occupational description. 
An SWA asked if the proposal would separate workers into distinct 
agricultural occupations, such as agricultural carpentry as an 
occupation distinct from the general carpentry occupation and was 
concerned such a proposal would lower wages and disincentivize U.S. 
workers from applying for H-2A job opportunities. The SWA also 
expressed concern that OES wages for specific localities within a state 
would produce lower wages, disincentivize U.S. job seekers, and 
disadvantage workers who will have to commute longer distances for 
higher paid job opportunities in other parts of the state. A second SWA 
expressed concern that the occupation-specific wage proposal would 
require more in-depth review of H-2A applications by the SWAs and CO to 
determine that the appropriate occupation and wage are assigned.
    A worker advocacy organization expressed concern that the proposed 
rule would shift occupational classification responsibilities from the 
SWAs to the Certifying Officers (COs) and, functionally, primarily to 
employers themselves, with only minimal review by COs. The commenter 
believed this would result in manipulation of duties and 
misclassification by employers and urged the Department to rely on SWAs 
to determine the proper occupational classification and issue Notices 
of Deficiency (NODs) for misclassification because SWAs are most 
knowledgeable about agricultural job opportunities and industries in 
local areas. The commenter urged the Department to provide SWAs 
authority to issue NODs for misclassification under 20 CFR 
655.120(b)(5) and (d)(1) as proposed. The commenter also suggested 
revisions to the regulatory language proposed at 20 CFR 655.120(d)(1).
    A law firm and a public policy organization objected specifically 
to application of the construction laborer SOC and corresponding OES 
wage to H-2A job opportunities because the nature of the work is very 
different. The law firm acknowledged that agricultural construction 
workers may perform some of the same tasks as non-agricultural workers, 
but asserted agricultural construction work generally requires less-
skilled workers than non-agricultural construction work and the OES 
wage would not be representative of wages paid to agricultural 
construction workers. This commenter also asserted that immediate 
implementation of the OES wage rate would have ``catastrophic 
consequences'' for construction contractors because these employers 
typically operate under multiple year contracts. In contrast, a worker 
advocacy organization noted that contractors often employ 
nonagricultural workers in the H-2A program to construct, for example, 
livestock buildings for farmers at or near the AEWR. The commenter 
supported the proposal to provide an occupation-specific wage for 
agricultural construction job opportunities.\67\
---------------------------------------------------------------------------

    \67\ The commenter also asserted that the Department has 
provided no justification for inclusion of these job opportunities 
in the H-2A program when the employer is not a farm operator. That 
point is outside the scope of this aspect of the proposed rule being 
finalized.
---------------------------------------------------------------------------

    The Department has considered all of these comments and has decided 
to adopt the language of the NPRM as proposed. Under this final rule, 
if the job duties on the Application for Temporary Employment 
Certification do not fall within a single occupational classification, 
the CO 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 (e.g., an SOC occupation 
subject to the FLS-based AEWR and an SOC occupation subject to the OES 
AEWR, or two SOC occupations subject to different OES AEWRs), the 
Department will assign the highest AEWR among all applicable 
occupational classifications.
    For example, 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 FLS-based AEWR. In 
contrast, a job opportunity for workers to drive semi tractor-trailer 
trucks to and from specified destinations within 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 OES-based AEWR. In the 
event an employer seeks 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 FLS-based AEWR for SOC 45-2091 or the OES-based 
AEWR for SOC 53-3032, whichever is a higher rate per hour.
    As explained in the NPRM, determining the appropriate occupational 
classification is an important component of the Department's decision 
to move to occupation-specific wages. Use of the highest applicable 
wage in these cases reduces the potential for employers to misclassify 
workers and imposes a lower recordkeeping burden 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 policy is consistent with 
the way the Department determines prevailing wage rates for jobs that 
cover multiple SOCs in the H-2B program. Under the final rule, 
employers who currently file a single Application for Temporary 
Employment Certification covering multiple workers and a wide variety 
of duties might 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

[[Page 70461]]

Applications for Temporary Employment Certification.
    Many of the commenters' concerns regarding administrative burdens, 
impracticality, and complexity of the wage proposal have been addressed 
as a result of the changes to the proposed AEWR methodology discussed 
above, including assigning one AEWR for all of the SOC codes covered by 
the field and livestock workers (combined) category. The overwhelming 
majority of H-2A job opportunities will fall within the FLS field and 
livestock workers (combined) category, as reported in the USDA FLS data 
published in November 2019. Use of the combined FLS with ECI 
adjustments for field and livestock workers (combined) largely 
addresses commenters' concerns regarding the number of SOC occupations. 
However, the Department is not limiting the SOC codes applicable to job 
opportunities that fall outside of the field and livestock worker 
(combined) category to those suggested by commenters because the H-2A 
program is not limited to job opportunities classifiable within those 
occupations. Based on the statutory and regulatory framework governing 
the definition of what constitutes agricultural labor or services, the 
Department's experience is that a wide range of jobs within the U.S. 
agricultural economy, depending on the nature and location of work 
performed, could be eligible under the H-2A visa classification. Though 
the majority of job opportunities will be classifiable within a 
relatively small number of SOC codes, the Department has issued H-2A 
certifications to employers covering jobs classified in dozens of SOC 
codes, including more than three dozen in fiscal year 2019 alone.
    The Department declines to permit employers to pay an AEWR based on 
the SOC in which work is ``primarily'' performed (i.e., more than 50 
percent), where multiple SOCs are covered by the job opportunity. Doing 
so could encourage employers to intersperse higher-skilled, higher-
paying work among many workers so that the higher-paying work is never 
a duty ``primarily'' performed by any one employee. This would permit 
the employer to gain the benefit of that work without having to hire a 
U.S. worker at a higher wage to provide that work. The Department is 
also concerned with how this would work in practice. Such an approach 
would undermine the Department's goal of preventing the 
misclassification of workers and encourage employers to combine work 
from various SOCs. Ultimately, this approach runs an intolerable risk 
of adversely affecting the wages of workers in the United States 
similarly employed. Further, the Department believes commenters' 
concerns are overstated, because each SOC code encompasses a broad 
spectrum of job titles and covers a broad range of job duties.
    With respect to the worker advocates' concerns about the SWA's role 
in review of SOC assignment, this final rule does not alter the 
authority or role of the SWA. SWAs will continue to review job orders--
and SOCs therein--in the first instance following the ``SWA Review'' 
procedures in 20 CFR 655.121. Those procedures include an SWA-level NOD 
process, which the SWA may use to address wage offer, occupational 
classification, and other deficiencies the SWA identifies. The 
Department has not adopted the commenter's suggested regulatory 
revision, as the Department is not incorporating the language of 
proposed paragraph (d) into Sec.  655.120 in this final rule.
6. Alternative Methodologies Proposed
    The Department received many comments suggesting alternative 
methods of setting the AEWR that it chose not to adopt for the reasons 
explained below.
    Comments from employers, associations, agents, state farm bureaus, 
and business advocacy organizations urged the Department to adopt a 
simplified AEWR methodology, including suggestions to use the state or 
Federal minimum wage, the minimum wage plus a fixed percentage, an AEWR 
based on changes in indices like the CPI, or an AEWR calculated based 
on the price of the agricultural commodity involved. Several commenters 
urged the Department to eliminate the AEWR and instead require 
employers to pay the State or Federal minimum wage or some form of 
enhanced minimum wage, which the commenters believed would provide 
employers a simpler and more uniform, consistent, and predictable wage 
determination. Other commenters suggested setting the AEWR at some 
fixed percentage or dollar amount above the applicable minimum wage, 
with suggestions ranging from 3 to 15 percent or one to two dollars 
above the minimum wage. One of those commenters suggested the 
enhancement should be lower if the applicable rate is the state minimum 
wage because these wages often exceed the Federal minimum wage. A few 
commenters suggested using a minimum wage as a baseline and updating 
the wage annually based on changes in the CPI, which they believed 
would provide certainty about wages and eliminate administrative costs 
related to conducting multiple surveys to determine AEWRs. Many of 
these commenters also suggested a cap on annual wage increases to avoid 
the annually compounded wage inflation they believed resulted from use 
of the FLS.
    The Department declines to adopt these proposals. The Department 
establishes wages based on data related to actual wages paid to 
workers. For purposes of the AEWR, the Federal minimum wage does not 
sufficiently relate to the actual wages paid to similarly employed 
workers. The AEWR is meant to approximate the wage paid to workers in 
the United States similarly employed. Establishing a single national 
AEWR, either based on Federal minimum wage or applicable state minimum 
wage, that covers all occupations would not meet that purpose, as 
further demonstrated by how it would immediately and dramatically 
reduce the wages of both H-2A and similarly employed workers, 
particularly those performing work in dozens of states currently being 
paid a wage above the FY 2020 national AEWR based on the FLS. For 
similar reasons, the Department will not base the AEWR on a standard 
(e.g., Federal or state minimum wage) below which many U.S. farmworkers 
would be expected to accept employment, and, in many instances, 
possibly disconnected from wages actually paid in the area of 
employment. As the Department noted in prior rulemaking, ``a single 
national AEWR applicable to all agricultural jobs in all geographic 
locations would prove to be below market rates in some areas and above 
market rates in other areas, resulting in all of the associated adverse 
effects that have been previously discussed.'' \68\
---------------------------------------------------------------------------

    \68\ Proposed Rule, Temporary Agricultural Employment of H-2A 
Aliens in the United States; Modernizing the Labor Certification 
Process and Enforcement, 73 FR 8537, 8550 (Feb. 13, 2008) (2008 
NPRM).
---------------------------------------------------------------------------

    Further, a primary reason the Department has decided to use 
occupation-specific wage data for occupations like construction and 
farm labor supervisor is due to concern that the FLS combined field and 
livestock worker wage does not accurately reflect wages paid to higher-
paid occupations in agriculture. An AEWR methodology based on the 
Federal or state minimum wage, even one incorporating annual increases 
based on a broad index, is likely to create or perpetuate the potential 
wage disparities this final rule aims to avoid when applied to more 
highly paid occupations.
    For similar reasons, the Department declines to impose a cap on 
wage increases unrelated to actual wage data.

[[Page 70462]]

Wage increases under both the ECI and OES survey are based on data of 
actual wages paid or wages projected to be paid to workers and 
therefore protect against adverse effect on the wages of workers in the 
United States similarly employed by tracking the increase or decrease 
in wages. Commenters did not provide a sufficient economic rationale to 
impose a cap that is unrelated to employer costs. Such a cap would also 
produce wage stagnation, most significantly in years when the wages of 
U.S. workers are rising faster due to strong economic and labor market 
circumstances.
a. Use Two-Tier System That Permits Paying H-2A Workers Lower Wages
    An association suggested the Department should adopt a two-tiered 
wage system in which the Department would require employers to pay U.S. 
workers at least the AEWR, but would permit employers to pay H-2A 
workers a rate 25 percent below the AEWR. Similarly, a public policy 
organization suggested the Department should allow employers to pay 
foreign workers less than the currently required AEWR or prevailing 
wage if the employer agrees to pay U.S. workers 5 percent more than the 
required rate. The commenter believed that this would benefit U.S. 
workers because some employers would be willing to pay a higher wage to 
U.S. workers if the Department permitted them to pay less to H-2A 
foreign workers. A law firm suggested the Department should permit 
employers to pay the OES-determined rate to U.S. workers and pay the 
current FLS-based AEWR to foreign workers and increase penalties for 
failure to hire U.S. workers to ensure employers are not incentivized 
to prefer hiring H-2A workers.
    The Department declines to adopt a two-tiered system by which U.S. 
workers must be offered a higher wage rate than that offered to foreign 
workers. To do so would provide a disincentive to the hiring of U.S. 
workers by allowing employers to hire foreign workers at lower wages.
b. Use Four-Tiered, Skill-Based Wage Structure
    The public policy organization cited above also asserted that the 
statute, at 8 U.S.C. 1182(p)(4), ``foresees the possibility'' of a 
four-tiered wage structure and ``instructs'' the Department to 
establish wages at four wage levels based on experience, education, and 
the level of supervision. The commenter believed the Department should 
adopt this tiered wage structure even if not required by statute 
because this would more accurately reflect real-world wages, which are 
strongly correlated with a worker's level of skill.
    The commenter refers to the H-1B Visa Reform Act of 2004,\69\ which 
amended section 212(p) of the INA to provide that where the Secretary 
of Labor uses, or makes available to employers, a governmental survey 
to determine the prevailing wage, such survey shall provide at least 4 
levels of wages commensurate with experience, education, and the level 
of supervision.\70\ That provision further notes that where an existing 
government survey has only 2 levels, 2 intermediate levels may be 
created by dividing by 3 the difference between the two levels offered, 
adding the quotient thus obtained to the first level, and subtracting 
that quotient from the second level.\71\
---------------------------------------------------------------------------

    \69\ Consolidated Appropriations Act, 2005, Public Law 108-447, 
div. J, tit. IV, section 423; 118 Stat. 2809 (Dec. 8, 2004).
    \70\ 8 U.S.C. 1182(p)(4).
    \71\ 8 U.S.C. 1182(p)(4).
---------------------------------------------------------------------------

    The Department explained its reasons for not extending the tiered 
wage structure to the H-2A program in the 2010 Final Rule and has 
provided similar explanations in the H-2B rulemaking, most recently in 
the 2015 H-2B Wage Final Rule.\72\ In the 2010 H-2A rule, the 
Department determined that ``the notion of meaningful skill differences 
among agricultural workers is unfounded'' and that the most common H-2A 
agricultural 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.'' \73\ The 
Department eliminated the tiered wage structure in the H-2B program for 
the same reasons and noted that wage differentials among workers in an 
occupation can be the result of many factors other than skill 
differentials.\74\
---------------------------------------------------------------------------

    \72\ Final Rule, Wage Methodology for the Temporary Non-
Agricultural Employment H-2B Program, 80 FR 24146 (Apr. 29, 2015).
    \73\ 75 FR 6883, 6900.
    \74\ 80 FR 24146, 24159 (citing factors including, but not 
limited to, ``[s]ize of employer; seniority; rate of worker 
turnover; union status; gender, race, ethnicity, or nationality; 
work hour schedule; age; availability of benefits in the form of 
training opportunity, health insurance, paid time off, and other 
benefits; sub-location within the same area of intended employment; 
and pay structure (performance-based pay vs. fixed pay per hour)'') 
(citation omitted).
---------------------------------------------------------------------------

    Importantly, the Department's practical experience has demonstrated 
that use of a four-tiered wage structure in the H-2A program leads to 
the overwhelming majority of H-2A job opportunities being classified at 
a level I wage, well below the median wage for the occupation.\75\ The 
Department's experience using a tiered wage structure in the H-2B 
program led to a similar result and the Department ultimately 
determined that use of the tiered wage structure produced 
``artificially lower [wages] to a point that [they] no longer 
represent[ed] a market-based wage.'' \76\ The commenter above provided 
no evidence demonstrating the existence of meaningful skill 
differentials among workers within any particular H-2A occupation, much 
less a nexus between those differentials and wages paid to workers in 
the occupation that would necessitate the same four-tiered, skill-based 
wage structure in the H-2A program that the Department eliminated in 
prior rulemaking. Therefore, the Department declines to implement a 
tiered wage structure in this final rule.
---------------------------------------------------------------------------

    \75\ See 75 FR 6883, 6898 (noting that ``73 percent of 
applicants for H-2A workers specified the lowest available skill 
level--corresponding to the wage earned by the lowest paid 16 
percent of observations in the OES data'' while ``[o]nly 8 percent 
of applicants specified a skill level that translated in a wage 
above the OES median'').
    \76\ Final Rule, Wage Methodology for the Temporary Non-
agricultural Employment H-2B Program, 76 FR 3452, 3463 (Jan. 19, 
2011); see also 80 FR 24146, 24155.
---------------------------------------------------------------------------

c. Accounting for Perquisites, Removing Incentive Pay, and Other 
Suggestions To Reduce the AEWR
    Many commenters, including trade associations, an employer, a law 
firm, and agents, recommended that the Department take into account 
additional costs that employers cover for H-2A workers, such as 
housing, meals, transportation, and other benefits, when determining 
the AEWR. Commenters noted that U.S. workers cover these expenses out 
of their net pay, making the H-2A rate artificially inflated. Several 
commenters reasoned that if the purpose of the AEWR is to set a wage 
rate that measures and protects against adverse effect (e.g., by 
ensuring that employing H-2A workers is not less expensive than 
employing U.S. workers), considering the full cost of employing H-2A 
workers provides a more accurate picture of the expenses paid for H-2A 
workers than wages alone. One commenter objected, in particular, to the 
Department comparing H-2A AEWRs to H-2B prevailing wage rates for 
agricultural construction occupations, noting that the H-2B rates 
anticipate workers providing their own housing and transportation, 
while the H-2A program does not.
    Some commenters suggested how the Department could account for 
these

[[Page 70463]]

additional costs in relation to the AEWR. A trade association 
recommended the Department consider a ``wage credit'' to address the 
employer's housing costs, such as 10 percent of the worker's weekly 
earnings capped at not more than $75.00 per week with an annual 
adjustment using the same index as the Department uses to adjust the 
subsistence reimbursement minimum. An individual commenter suggested 
that housing provided to workers is worth about $2 per hour, without 
providing a basis for that figure, while an employer calculated its 
additional costs to employ H-2A workers at $5.61 per hour. An agent 
asked the Department to consider allowing the ``fair-market value of 
rent'' to count towards the required minimum wage in the H-2A program. 
An agent suggested the Department should allow a wage credit for the 
provision of food. An employer stated that the H-2A program needs an 
update because the wage rate they are assigned is 25 percent above the 
state minimum, and their expenses also include housing and 
transportation.
    Some commenters more generally expressed concern that use of data 
sources that include incentive pay, such as piece rates or bonuses, and 
overtime in AEWR determinations created unfairly inflated AEWRs. Some 
of these commenters expressed that including incentive pay and overtime 
in AEWR determinations resulted in ``double counting,'' and, because 
such payments are a reflection of individual worker productivity and 
performance, inclusion of these forms of compensation results in 
inaccurate AEWR determinations. A public policy organization urged the 
Department to require payment of the AEWR to workers in corresponding 
employment only if the worker was hired after the H-2A worker because 
payment of the AEWR to existing workers is not necessary to protect 
those workers' wages.
    The Department declines to adopt these suggestions because of its 
longstanding determination that such approaches would lead to an 
adverse effect on the wages of workers in the United States similarly 
employed in violation of the Department's statutory mandate. Requiring 
employers to guarantee an hourly AEWR based on a wage survey without 
adjustments for housing and other benefits costs has been the 
Department's interpretation of H-2A statutory requirements since the 
1980s. In addition, the statute contemplates a wage rate that accounts 
for the lower wages that the introduction of foreign workers causes, as 
well as no-cost housing and transportation for workers outside the 
local commuting area, which is intended to make agricultural jobs more 
attractive to U.S. workers.\77\ This suggestion by commenters fails to 
account for the fact that H-2A workers, and those U.S. workers who live 
outside of the normal commuting distance, do not permanently live in 
the area and presumably also have housing costs in their home 
community. Additionally, the presence of significant differences in the 
price/cost of housing, meals, transportation, and other benefits across 
the country would make establishing any ``wage credit'' impracticable. 
Finally, reducing the guaranteed hourly AEWR for all workers to account 
for the costs of housing and other benefits would unfairly penalize the 
wages of similarly employed workers in the United States who do not 
receive housing benefits.
---------------------------------------------------------------------------

    \77\ See, e.g., 8 U.S.C. 1188(c)(4) (requiring H-2A employers to 
``furnish housing in accordance with regulations'').
---------------------------------------------------------------------------

    The Department also declines to remove piece rates, bonuses, and 
other incentive-based pay from wage data used to determine the AEWR. As 
some agricultural jobs guarantee only the state or Federal minimum wage 
and otherwise pay based on a piece rate, advertising an hourly wage 
that does not include ``incentive pay'' is not a reasonable ``base 
rate'' for H-2A employers to advertise to U.S. workers. In addition, 
the approaches suggested would be inconsistent with the wage sources 
and approach the Department has adopted in the final rule. The OES 
survey collects wage data for straight-time, gross pay, exclusive of 
premium pay. Both the OES and the ECI measure of wages and salaries 
include, for example, commissions, production bonuses, piece rates, and 
other incentive-based pay.\78\
---------------------------------------------------------------------------

    \78\ See BLS, Handbook of Methods: National Compensation 
Measures (Dec. 15, 2017), available at https://www.bls.gov/opub/hom/ncs/pdf/ncs.pdf; BLS, Occupational Employment Statistics Frequently 
Asked Questions, https://www.bls.gov/oes/oes_ques.htm (last modified 
Apr. 15, 2020).
---------------------------------------------------------------------------

d. Application of Collective Bargaining Agreement Wages
    An association recommended the Department permit employers to use a 
wage established in a bona fide collective bargaining agreement (CBA), 
even where the AEWR or prevailing wage rate is higher. The Department 
declines to permit employers to pay a wage below the AEWR based on a 
CBA. As explained above, the AEWR is the minimum rate the Department 
has determined is necessary to ensure the employment of H-2A workers 
does not adversely affect the wages of agricultural workers in the 
United States. As the Department noted in the 2010 Final Rule, due to 
relatively ``[l]ow educational attainment, low skills, . . . and high 
rates of unemployment, agricultural workers have limited ability to 
negotiate wages and working conditions with farm operators or 
agricultural services employers.'' \79\ While collective bargaining may 
improve these workers' positions, it may not do so enough to prevent 
downward pressure on workers in the United States similarly employed. 
The Department continues to share the concern of worker advocacy 
organization commenters recognizing the limited bargaining power of 
agricultural workers even when unionized. The AEWR provides a floor 
below which wages cannot be negotiated, providing necessary protections 
for this particularly vulnerable labor force.\80\
---------------------------------------------------------------------------

    \79\ 75 FR 6883, 6894.
    \80\ 74 FR 45906, 45911.
---------------------------------------------------------------------------

e. Use Median, Not Mean
    A few commenters objected to the Department's use of the mean wage 
rate to calculate the AEWR. A trade association and an employer 
suggested that the Department calculate the AEWR using the median wage 
rate, instead of the mean wage rate, which they explained would prevent 
``outliers'' on both the low and high end from unduly influencing the 
AEWR, and therefore produce a more representative wage rate. As noted 
in prior rulemaking, the Department believes use of the OES mean best 
meets the Department's obligation to protect against adverse effect and 
is the most appropriate wage to avoid immigration-induced labor market 
distortions.\81\ The Department has a long-standing practice of using 
the average or mean wage, within the FLS and OES wage distributions, to 
determine the AEWR in the H-2A program and prevailing wages for other 
employment-based visa programs.
---------------------------------------------------------------------------

    \81\ See 80 FR 24146, 24159-24160; see also Interim Final Rule, 
Wage Methodology for the Temporary Non-Agricultural Employment H-2B 
Program, Part 2, 78 FR 24047, 24058 (Apr. 24, 2013).
---------------------------------------------------------------------------

    The Department declines to use the median because it does not 
represent the most predominant wage across a distribution, but instead 
represents only a midpoint. The mean is the best measure of central 
tendency for a normally distributed sample and provides equal weight to 
the wage rate received by each worker in the occupation across the wage 
spectrum. In low-skilled occupations, the mean represents the average 
wage paid to

[[Page 70464]]

unskilled workers to perform jobs in the occupation. Setting the AEWR 
below the mean in the relatively low-skill agricultural occupations 
that predominate in the H-2A program would have a depressive effect on 
wages of workers in the United States similarly employed.
f. Establish the AEWRs Using Highest Among All Available Wage Sources
    One worker advocacy organization urged the Department to require 
the highest of the FLS, OES, or other ``valid source'' wage rate for 
the area of intended employment, asserting that use of the FLS wage 
where a higher wage from the OES or another valid source is available 
would be indefensible. Similarly, a second worker advocacy organization 
suggested the Department require employers to pay the highest wage rate 
from among all available sources of wage data at all levels of 
geographic detail (e.g., SWA prevailing wage survey data; state, 
regional, and national FLS data; and local, state, and national OES 
data). The commenter noted that the local wage is what U.S. workers 
expect to earn in a ``healthy market'' and asserted that sole reliance 
on state or regional FLS data would not take into consideration local 
wage differences that result from ``market or crop specialty factors.'' 
The commenter asserted that use of a lower wage rate based on broader 
surveys when a higher local OES rate is available would permit H-2A 
employers to undercut wages and would force other employers to lower 
wages to compete. The commenter suggested the Department revise Sec.  
655.120(b) to require the AEWR to be set at the annual average hourly 
gross wage for the occupational classification in the state or region 
as reported by the USDA's FLS, ``unless the statewide annual average 
hourly wage, or applicable regional annual mean hourly wage for the 
[SOC] reported in the OES survey is a higher average hourly rate, in 
which case the OES State or OES Metropolitan and Nonmetropolitan Area 
data rate, whichever is higher, will be the AEWR.''
    This commenter also suggested the Department ensure that AEWRs will 
not be reduced in the future based on the proposed methodology and 
recommended revising Sec.  655.120(b)(1)(ii) to provide that if an 
annual average hourly gross wage for the occupational classification in 
the state or region is not reported by the FLS, the AEWR for the 
occupational classification and state shall be the statewide annual 
average hourly wage for the SOC if one is reported by the OES survey 
with respect to any H-2A applications filed within following the 
effective date of this regulation, the AEWR shall be no lower than the 
applicable AEWR established for that region or state in 2019.
    The Department declines to implement the commenter's proposal to 
retain the current AEWR methodology, while simultaneously instituting a 
new AEWR methodology and requiring employers to pay the highest of all 
wage sources across the current and proposed methodologies, as this 
would result in an exceedingly complex and confusing set of minimum 
wage guarantees. The Department must set the AEWR in a way that 
reasonably balances the needs and interests of workers in the United 
States similarly employed and employers and results in a wage that is a 
reasonable approximation of wages paid to workers in the United States 
similarly employed. Requiring payment of the highest wage rate among 
all available sources at all levels of geographic specificity, 
regardless of the occupation and area of intended employment, would in 
many cases require an employer to pay an enhanced wage untethered to 
actual wages paid to similarly employed workers in the area. This would 
not only unreasonably increase the labor costs of H-2A employers in 
those cases, but could reduce agricultural job opportunities and place 
upward pressure on wages in order for employers to attract a sufficient 
number of available workers. This result would be inconsistent with the 
twin purposes of the H-2A program to ``assure [employers] an adequate 
labor force on the one hand and to protect the jobs of citizens on the 
other.'' \82\
---------------------------------------------------------------------------

    \82\ 54 FR 28037, 28044 (citations omitted).
---------------------------------------------------------------------------

    The Department also declines to require employers to pay the local 
OES wage rate for the occupation if this rate is higher than rate 
determined by the applicable source under this final rule. For the 
reasons stated in the NPRM and above, the FLS should be used as the 
baseline to set the AEWR for field and livestock worker (combined) job 
opportunities--such as those requiring crop, nursery, and greenhouse 
workers (SOC 45-2092) and workers attending to farm or ranch animals 
(SOC 45-2093)--which constitute the overwhelming majority of employer 
requests for H-2A workers. The FLS is the preferred wage source for 
establishing the AEWR in these occupational classifications for the 
reasons discussed above. All other AEWRs will be established by using 
the OES survey, including in the unique circumstance that a wage rate 
for these occupations is not available from the FLS.
    Regarding the use of local OES data, the Department is retaining 
use of geographically broader data sets for reasons explain above. The 
Department is using a statewide, or in some cases national, OES-based 
AEWR both to more closely align with the geographic areas from the FLS 
and to protect against the potential for wage depression from a large 
influx of nonimmigrant workers that is most likely to occur at the 
local level. The Department ``consistently has set statewide AEWRs 
rather than substate [ ] AEWRs because of the absence of data from 
which to measure wage depression at the local level'' and use of 
surveys reporting data at a broader geographic level ``immunizes the 
survey from the effects of any localized wage depression that might 
exist.'' \83\ As explained above and in prior rulemaking, use of a 
broader geographic scope to determine the AEWR is consistent with the 
statute and addresses the unique nature of the agricultural labor force 
and the migratory pattern of employment and AEWRs. Data from a broader 
geographic span ``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 importation of foreign 
labor on an ongoing basis.'' \84\
---------------------------------------------------------------------------

    \83\ See 75 FR 6883, 6899.
    \84\ Id.
---------------------------------------------------------------------------

    Further, the use of local OES wages would introduce significant 
complexities in establishing the offered wage. For example, 
agricultural associations filing master applications that cover members 
and worksites across two states or other occupations engaged in 
itinerant work across multiple states would have to keep pace with 
literally dozens of different minimum wage rates and the potential 
adjustments to each of those during the course of a work contract 
period. The wage payment, recordkeeping, and compliance burden 
associated with that kind of AEWR methodology would be substantial and 
unjustifiable. Finally, as noted above, the Department also proposed a 
revised prevailing wage determination methodology in the NPRM, which, 
if adopted in a separate final rule, would likely impact the number of 
prevailing wages that are established for H-2A job opportunities. 
Employers are currently required to pay the prevailing wage if higher 
than the AEWR and this wage rate is specifically tailored to crop or 
agricultural activities and geographic areas, as it may be based on a 
sub-state area when appropriate.

[[Page 70465]]

7. Comments Beyond the Scope of This Rulemaking
    The Department also received several comments that were beyond the 
scope of this rulemaking. Some comments were specifically related to 
reforestation employers, and were not addressed because the definition 
of agricultural labor or services at 20 CFR 655.103(c), and the 
Department's proposal to incorporate reforestation and pinestraw 
activities into the H-2A program, is not included in this final rule. 
Some commenters expressed concerns about housing obligations. Several 
comments related to AEWRs for job opportunities in the herding and 
production of livestock and suggested the Department revisit the wage 
rate methodology at 20 CFR 655.211(c). For example, one commenter 
suggested that the monthly AEWR should account for commodity pricing. 
Another commenter objected to the Department's annual adjustment of the 
monthly AEWR for range occupations governed by the procedures in 
Sec. Sec.  655.200 through 655.235 using the ECI, noting that employers 
of such workers are required to provide all food, housing, tools and 
equipment without cost to the worker. The commenter requested the 
Department permit a ``wage credit'' for the provision of food both to 
mitigate the combined impact of the ECI and the ``consumer price 
index'' on such employers' costs and for consistency with the 
requirements placed on H-2A employers outside of range herding 
occupations. However, these comments are outside the scope of this 
rulemaking.
    A state agency expressed concern that the use of the AEWR for a 
particular occupation at an annual average hourly gross wage was not 
inclusive of service agricultural positions, and suggested that BLS 
work closely with the sheep-shearing industry before completing the 
OES, with careful consideration of how an hourly gross wage would 
negatively impact industries paying workers piece rates. Two commenters 
recommended the Department expand the wage data used to calculate AEWRs 
to include H-2A workers' wages in areas where more than 10 percent of 
the agricultural workforce is composed of H-2A workers and workers in 
corresponding employment. These commenters stated that H-2A wage 
requirements, whether due to the AEWR or prevailing wage rate, drive up 
non-H-2A wages and skew survey results in areas where H-2A workers 
represent a substantial percentage of the agricultural workforce. 
Further, these commenters requested the FLS continue to include the 
wages of U.S. workers in corresponding employment in states that meet 
the 10 percent threshold they recommended the Department employ for the 
AEWR.
    These comments are beyond the scope of this rulemaking and the 
Department's authority, as they recommend changes to the methodology of 
the surveys the Department proposed to use to determine hourly AEWRs. 
As the Department noted in the NPRM with respect to potential changes 
to the FLS, the Department would engage in notice-and-comment 
rulemaking before implementing significant changes to AEWR data 
collection and reporting methods.\85\
---------------------------------------------------------------------------

    \85\ See 84 FR 36168, 36179, n.30 (Jul. 26, 2019).
---------------------------------------------------------------------------

III. Administrative Information

A. Executive Order 12866: Regulatory Planning and Review; Executive 
Order 13563 and Improving Regulation and Regulatory Review; Executive 
Order 13771; and the Congressional Review Act

    Under E.O. 12866, the Office of Management and Budget's (OMB) 
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.\86\ 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.\87\ 
This final rule is an economically significant regulatory action under 
this section and was reviewed by OIRA. This final rule is a 
deregulatory action under E.O. 13771 because the Department expects the 
unquantified cost savings of this final rule will outweigh the total 
annualized costs associated with rule familiarization.
---------------------------------------------------------------------------

    \86\ E.O. 12866 of Sept. 30, 1993), 58 FR 51735 (Oct. 4, 1993).
    \87\ Id. at 51738.
---------------------------------------------------------------------------

    Pursuant to the Congressional Review Act (5 U.S.C. 801, et seq.), 
OIRA has designated this rule as a ``major rule,'' as defined by 5 
U.S.C. 804(2). Under the Congressional Review Act (CRA), a major rule 
ordinarily takes effect 60 days after the date it is published.\88\ An 
exception to the delay in a rule's effective date exists, however, in 
cases where ``an agency for good cause finds . . . that notice and 
public procedure thereon are impracticable, unnecessary, or contrary to 
the public interest.'' \89\ Because the full 60-day waiting period from 
the date this rule is published to the date it becomes effective is 
unnecessary and would result in the very kind of disruption to the 
conduct of regulated entities that the rule is meant, in some degree, 
to ameliorate, the Department has determined that there exists good 
cause under the CRA to have this rule take effect less than 60 days 
from the date of publication. In the Department's judgment 45 days is 
sufficient time, given the nature of this rule, to allow Congress and 
the regulated community an opportunity to review and assess the rule 
before it becomes operative, and is the appropriate delayed effective 
period in light of the significant potential for confusion and 
disruption among affected parties if the rule were to have a later 
effective date.
---------------------------------------------------------------------------

    \88\ 5 U.S.C. 801(a)(3).
    \89\ 5 U.S.C. 808.
---------------------------------------------------------------------------

    The Department has determined that a 60-day waiting period between 
publication and the effective date of this rule would result in serious 
disruption and uncertainty for regulated parties. The Department's 
regulations require that it ``publish, at least once in each calendar 
year, on a date to be determined by the OFLC Administrator, the AEWRs 
for each State as a notice in the Federal Register.'' 20 CFR 655.120. 
The Department has not yet published notice of new AEWRs for calendar 
year 2021, and therefore must do so before January 1st to avoid 
violating its own regulations. If this rule were not in effect in time 
to allow the Department to publish AEWRs calculated under the new 
methodology, the Department would have to publish AEWRs determined 
according to the methodology in the 2010 Final Rule.
    Even assuming data from the FLS were available to calculate AEWRs 
under the prior methodology, doing so would likely lead to significant 
confusion for affected parties given that, shortly after this calendar 
year's notice is published, a new methodology resulting from this rule 
would be in effect, and the Department would again adjust the AEWRs to 
ensure they align with what the Department has determined is the 
appropriate wage rate

[[Page 70466]]

for the H-2A program. These kinds of disruptive and nearly 
contemporaneous changes in the obligations the Department imposes on 
regulated entities engenders the precise kind of instability and 
unpredictability in the wages employers must pay to workers that the 
Department seeks to reduce through this rulemaking. Avoiding such 
disruption is sufficient grounds for shortening the delay between 
publication and when the rule becomes effective.\90\
---------------------------------------------------------------------------

    \90\ See Buckeye Cablevision, Inc. v. F.C.C., 387 F.2d 220, 228 
n.34 (D.C. Cir. 1967).
---------------------------------------------------------------------------

    Moreover, the purpose of delaying the effective date of a 
regulation is, generally speaking, ``to give affected parties a 
reasonable time to adjust their behavior before the final rule takes 
effect.'' \91\ Relatedly, the CRA ``provides for a 60-day waiting 
period before the agency may enforce the major rule so that Congress 
has the opportunity to review the regulation.'' \92\ By delaying the 
effective date for a specified period after the contents of the rule 
have been made public, the CRA gives both Congress and the public an 
opportunity to assess and understand the rule before its operation 
requires changes in the behavior of regulated entities.
---------------------------------------------------------------------------

    \91\ Omnipoint Corp. v. F.C.C., 78 F.3d 620, 630 (D.C. Cir. 
1996); See also Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 
1485 (9th Cir. 1992) (``Unlike the notice and comment requirements, 
which are designed to ensure public participation in rulemaking, the 
30-day waiting period is intended to give affected parties time to 
adjust their behavior before the final rule takes effect.'').
    \92\ Liesegang v. Sec'y of Veterans Affairs, 312 F.3d 1368, 1375 
(Fed. Cir. 2002); See also Office of Mgmt. & Budget, Exec. Office of 
the President, Guidance on Compliance with the Congressional Review 
Act 2 (2019).
---------------------------------------------------------------------------

    Here, the effective date of the rule will not precipitate an 
immediate impact on the interests or obligations of affected parties. A 
60-day delay in the rule's effectiveness is therefore unnecessary. As 
explained above, for the overwhelming majority of job opportunities 
covered by the new AEWR methodology, the rule maintains, for the next 
two years, the existing wage rates currently in effect. This preserves 
the status quo for an extended period to give regulated entities 
sufficient opportunity to prepare for the new manner in which wage 
rates will be adjusted.
    Similarly, if new wage rates were calculated and published under 
the prior methodology before the end of this calendar year, they would 
not become applicable until after a 14-day delay under the Department's 
customary practices.\93\ That means that, even if the effective date of 
this rule were delayed by the full 60 days, wage rates calculated under 
the prior methodology likely would not alter the wages to which U.S. 
and foreign workers are entitled before the new methodology would 
become effective early next year, at which point the Department could 
adjust the wage rates accordingly. There would be no practical effect 
on the wages paid, even while, as noted above, the issuance of two 
separate sets of AEWRs, published only weeks apart, would sow the type 
of confusion and uncertainty that this rule is meant to prevent.
---------------------------------------------------------------------------

    \93\ See, e.g., Labor Certification Process for the Temporary 
Employment of Aliens in Agriculture in the United States: 2020 
Adverse Effect Wage Rates for Non-Range Occupations, 84 FR 69774 
(Dec. 19, 2019).
---------------------------------------------------------------------------

    Thus, the rule taking effect does not meaningfully alter, in the 
short term, the status quo, meaning the full 60-day delay between 
publication and when the rule becomes operative is not necessary to 
satisfy the purposes of the CRA.\94\ Because the rule gives parties 
time to assess and understand the rule even after it takes effect, 
shortening the period between the rule's publication and its effective 
date is consistent with the delayed effectiveness required by the 
CRA.\95\
---------------------------------------------------------------------------

    \94\ See Nat. Res. Def. Council v. Abraham, 355 F.3d 179, 202 
(2d Cir. 2004).
    \95\ Cf. Black v. Pritzker, 121 F. Supp. 3d 63, 81 (D.D.C. 
2015).
---------------------------------------------------------------------------

    For these reasons, the Department has determined it has good cause 
to shorten the lapse under the CRA by 15 days between when the rule is 
published and when it takes effect. The Department has typically 
published AEWR notices in mid-to-late December, and, in the 
Department's experience, there can be as much as a week's delay between 
when the Department finalizes such notices and when they are actually 
published. In light of these considerations, and given that the new 
methodology must be effective this calendar year to avoid the 
disruption described above, the Department has determined that 
shortening the CRA waiting period by 15 days is necessary to the 
effective administration of the H-2A program. Because this rule is 
being published in early November, a waiting period of 45 days is, in 
the Department's judgment, appropriate as it leaves adequate time for 
the Department to establish AEWRs under the new methodology before the 
end of the calendar year, while not shortening the CRA waiting period 
beyond what is necessary to avoid the kinds of disruption that the full 
60-day waiting period would entail.
    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.\96\ 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 
qualitatively values that are difficult or impossible to quantify, 
including equity, human dignity, fairness, and distributive 
impacts.\97\
---------------------------------------------------------------------------

    \96\ E.O. 13563 (Jan. 18, 2011), 76 FR 3821 (Jan. 21, 2011).
    \97\ Id.
---------------------------------------------------------------------------

Outline of the Analysis
    Section III.A.1 describes the need for the final rule, and section 
III.A.2 describes the process used to estimate the costs of the rule 
and the general inputs used, such as wages and number of affected 
entities. Section III.A.3 explains how the provisions of the final rule 
will result in quantifiable costs and transfer payments and presents 
the calculations the Department used to estimate them. In addition, 
section III.A.3 describes the unquantified transfer payments of the 
final rule. Section III.A.4 summarizes the estimated first-year and 10-
year total and annualized costs and transfer payments of the final 
rule. Finally, section III.A.5 describes the regulatory alternatives 
that were considered during the development of the final rule.
Summary of the Analysis
    The Department estimates that the final rule will result in costs 
and transfer payments. As shown in Exhibit 1, the final rule is 
expected to have an annualized cost of $70 thousand and a total 10-year 
quantifiable cost of $460 thousand at a discount rate of 7 percent.\98\ 
The final rule is estimated to result in annual transfer payments from 
H-2A employees to H-2A employers of $170.68 million and total 10-year 
transfer payments of $1.68 billion at a discount rate of 7 percent.\99\
---------------------------------------------------------------------------

    \98\ The final rule will have an annualized cost of $0.05 
million and a total 10-year cost of $0.46 million at a discount rate 
of 3 percent in 2020 dollars.
    \99\ The final rule will have annualized transfer payments from 
H-2A employees to H-2A employers of $169.10 million and a total 10-
year transfer payments of $1.44 billion at a discount rate of 3 
percent in 2020 dollars.

[[Page 70467]]



   Exhibit 1--Estimated Monetized Costs, Cost Savings, Net Costs, and
                   Transfer Payments of the Final Rule
                            [2020 $millions]
------------------------------------------------------------------------
                                                             Transfer
                                               Costs         payments
------------------------------------------------------------------------
Undiscounted 10-Year Total..............           $0.46       $1,677.61
10-Year Total with a Discount Rate of 3%            0.46        1,442.50
10-Year Total with a Discount Rate of 7%            0.46        1,198.77
10-Year Average.........................            0.05          167.76
Annualized at a Discount Rate of 3%.....            0.05          169.10
Annualized with at a Discount Rate of 7%            0.07          170.68
------------------------------------------------------------------------
   Perpetuated Net Costs * with a Discount Rate of 7% (2016$ Millions)
------------------------------------------------------------------------
* Net Cost Savings = [Total Cost Savings] - [Total Costs].

    The total cost of the final rule is associated with rule 
familiarization. Transfer payments are the results of changes to the 
methodology for determining the AEWRs. See the costs and transfer 
payments subsections of section III.A.3 (Subject-by-Subject Analysis) 
below for a detailed explanation.
    The Department was unable to quantify some transfer payments of the 
final rule. The Department describes them qualitatively in section 
III.A.3 (Subject-by-Subject Analysis).
1. Need for Regulation
    The Department has determined that this rulemaking is necessary to 
ensure that employers can access legal agricultural labor, without 
undue cost or administrative burden, while maintaining the program's 
strong protections for the U.S. workforce. Consistent with the goal of 
modernizing the H-2A program, this final rule amends the methodology by 
which the Department determines the hourly AEWRs for non-range 
agricultural occupations using wage data reported by the USDA FLS and 
the BLS OES survey. It also makes minor revisions related to the 
regulatory definition of the AEWR to conform to the methodology changes 
adopted in this final rule and to more clearly distinguish the hourly 
AEWRs applicable to non-range occupations from the monthly AEWR 
applicable to range occupations under 20 CFR 655.200 through 655.235.
    As discussed above, the FLS has been the only comprehensive survey 
of wages paid by farmers and ranchers and has enabled the Department to 
establish minimum hourly rates of pay for H-2A job opportunities. 
However, the Department acknowledges the concerns expressed by many 
commenters about the unpredictability and volatility of the wage data 
from year-to-year, which the Department believes is a sufficient reason 
to reconsider its sole reliance on annually produced wage data from the 
FLS as a means to establish the AEWRs, even were FLS data currently 
available or made available in the future. On the other hand, given the 
comprehensiveness and relevance of the FLS data, the Department has 
determined it is appropriate to use the 2020 AEWRs,\100\ which were 
based on the results of the FLS published in November 2019, to 
establish AEWRs for most H-2A job opportunities during calendar years 
2021 and 2022 and, as the starting point, subject to annual 
adjustments, to establish most AEWRs in subsequent years. Accordingly, 
the Department will freeze wage rates for field and livestock worker 
occupations at based on November 2019 FLS data and adjust these wages 
annually beginning in 2023 based on the change in the ECI for wages and 
salaries computed by the BLS. This two-year transition period provides 
employers with a reasonable amount of time to plan their labor needs 
and agricultural operations under the new wage requirements. Using the 
current, 2020 AEWRs as the starting point also ensures that employers 
will not be subject to further volatility in wage adjustments when this 
rule takes effect because the Department will be relying on the wage 
rates that employers are already paying. For all other occupations, the 
Department, as explained in Section II.B.5.b., will annually adjust and 
set the hourly AEWRs based on the statewide annual average hourly wage 
for the occupational classification, as reported by the OES survey. If 
the OES survey does not report a statewide annual average hourly wage 
for the occupation, the AEWR shall be the national annual average 
hourly wage reported by the OES survey.
---------------------------------------------------------------------------

    \100\ Notice, Labor Certification Process for the Temporary 
Employment of Aliens in Agriculture in the United States: 2020 
Adverse Effect Wage Rates for Non-Range Occupations, 84 FR 69774 
(Dec. 19, 2019).
---------------------------------------------------------------------------

    On September 30, 2020, USDA publicly announced its intent to cancel 
the October 2020 data collection and resulting publication of the Farm 
Labor report.\101\ Consequently, NASS may not release its November 2020 
report containing the annual gross hourly rates for field and livestock 
workers (combined) for each State or region based on quarterly wage 
data collected from employers during calendar year 2020. Under the 
Department's current AEWR methodology, this annual report is used to 
establish and publish the hourly AEWRs for the next calendar year 
period on or before December 31, 2020. NASS is not legally required to 
produce the annual Farm Labor reports has suspended collection on at 
least two prior occasions.\102\ USDA's decision to suspend data 
collection and the release of the report planned for November 2020 has 
been challenged in litigation.\103\ That litigation challenges whether 
USDA provided adequate reasons for its decision to suspend data 
collection and whether it considered important aspects of its decision, 
and USDA was recently ordered to proceed with the collection of FLS 
data for 2020. The litigation does not challenge, however, USDA's 
discretion--if adequately explained--to terminate the FLS at any time. 
Therefore, regardless of whether USDA is ultimately successful in the 
ongoing litigation, it will remain the case that no statute or 
regulation requires that USDA perform the FLS. The Department has 
determined that this uncertainty regarding the near- and long-term 
future of the FLS also weighs in favor of the Department establishing 
now a revised methodology for

[[Page 70468]]

determining the AEWR, given its importance to the Department's 
administration of the labor certification requirement. Accordingly, the 
Department has determined it is necessary to issue this final rule to 
establish the new hourly AEWR methodology, and to do so before the end 
of the calendar year in order to ensure there is no disruption in 
setting the AEWRs for calendar year 2021.
---------------------------------------------------------------------------

    \101\ 85 FR 61719; see also USDA, USDA NASS to Suspend the 
October Agricultural Labor Survey (Sept. 30, 2020), https://www.nass.usda.gov/Newsroom/Notices/2020/09-30-2020.php.
    \102\ 76 FR 28730 (May 18, 2011); 72 FR 5675 (Feb. 7, 2007).
    \103\ See United Farm Workers v. Perdue, No. 1:20-cv-01432-DAD-
JLT (E.D. Cal. filed Oct. 13, 2020).
---------------------------------------------------------------------------

    As discussed in this final rule, the Department believes that the 
FLS data is the most appropriate wage source for establishing AEWRs for 
the majority of H-2A job opportunities. For example, the FLS has been 
the only comprehensive survey of wages paid by farmers and ranchers 
that has enabled the Department to establish hourly rates of pay for H-
2A opportunities. Because doing so will be more predictable, less 
volatile, and easier to understand, while also ensuring protection of 
U.S. workers' wages and accurate AEWRs for job opportunities in higher-
skilled occupations not adequately represented or reported by USDA in 
the current FLS data, and given that it may no longer be possible for 
the Department to rely on new wage data from the FLS, and that, even if 
such data were available, relying on it to make new adjustments to the 
AEWRs would likely cause, in some cases, the kinds of volatile and 
unpredictable wage fluctuations the Department seeks to avoid going 
forward, the Department has determined it is appropriate to use the 
2020 AEWRs, which were based on the results from the FLS published in 
November 2019, as the foundation to establish AEWR for most H-2A job 
opportunities. Accordingly, the Department will use this FLS data for 
the specified SOCs and adjust the wages based on the ECI computed by 
the BLS.
2. Analysis Considerations
    The Department estimated the costs and transfer payments of the 
final rule relative to what would happen in the absence of the rule 
(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). 
Ordinarily, there are some uncertainties in predicting the future, but 
this is particularly problemmatic because the regulatory provision that 
is being replaced required use of the USDA's FLS, which has been 
suspended for October 2020. Therefore, what would have happened in the 
absense of this rule is speculative. Here, we have assumed that in the 
absense of this rule the AEWRs would continue to increase at the same 
rate that it would have in previous years. However, other outcomes 
could also have occurred. For example, employers might have concluded 
that in the absense of an updated FLS they would be subject to the 
previously existing AEWRs. This would be quite similar to the policy 
adopted for 2021 and 2022 in the final rule and so under this approach 
the final rule would be estimated to have substantially smaller 
transfers than we have estimated here.
    In accordance with the regulatory analysis guidance articulated in 
OMB's Circular A-4 and consistent with the Department's practices in 
previous rulemakings, this regulatory analysis focuses on the likely 
consequences of the final rule (i.e., costs and transfer payments that 
accrue to entities affected). The analysis covers 10 years (from 2021 
through 2030) to ensure it captures costs and transfer payments that 
accrue over time. The Department expresses all quantifiable impacts in 
2020 dollars and uses discount rates of 3 and 7 percent, pursuant to 
Circular A-4.
    Exhibit 2 presents the number of entities that are expected to be 
affected by the final rule. The number of affected entities is 
calculated using OFLC certification data from 2016 through 2019. The 
Department provides this estimate and uses it to estimate the costs of 
the final rule.

             Exhibit 2--Number of Affected Entities by Type
                         [FY 2016-2019 average]
------------------------------------------------------------------------
                      Entity type                             Number
------------------------------------------------------------------------
Unique H-2A Applicants.................................           8,050
------------------------------------------------------------------------

Growth Rate
    The Department estimated growth rates for applications processed 
and certified H-2A workers based on FY 2012-2019 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
------------------------------------------------------------------------

    The geometric growth rate for certified H-2A workers using the 
program data in Exhibit 3 is calculated as 17.2 percent. This growth 
rate, applied to the analysis time-frame of 2021 to 2030, would result 
in more H-2A certified workers than projected Bureau of Labor 
Statistics (BLS) workers in the relevant H-2A SOC codes.\104\ 
Therefore, to estimate realistic growth rates for the analysis, the 
Department applied an autoregressive integrated moving average (ARIMA) 
model to the FY 2012-2019 H-2A program data to

[[Page 70469]]

forecast workers and applications, and estimate geometric growth rates 
based on the forecasted data.
---------------------------------------------------------------------------

    \104\ Extrapolating BLS 2029 projections for combined 
agricultural workers and comparing with a 17.2 percent growth rate 
of H-2A workers, yields estimated H-2A workers that are about 115 
percent larger than extrapolated BLS 2029 projections to 2030. The 
projection of workers for the agricultural sector was 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.
---------------------------------------------------------------------------

    The Department ran 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.\105\ Multiple models yielded indistinctive measures 
of goodness of fit. Therefore, each model was used to project workers 
and applications through 2030. 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 
6.2 percent for both H-2A applications and H-2A certified workers. The 
estimated growth rates for applications (6.2 percent) and workers (6.2 
percent) were applied to the estimated costs and transfer payments of 
the final rule to forecast employer participation in the H-2A program.
---------------------------------------------------------------------------

    \105\ The Department estimated models with different lags for 
autoregressive and moving averages, and orders of integration: 
ARIMA(0,2,0); (0,2,1); (0,2,2); (1,2,1); (1,2,2); (2,2,2). For each 
model we used the Akaike Information Criteria (AIC) goodness of fit 
measure.
---------------------------------------------------------------------------

Estimated Number of Workers and Change in Hours
    The Department presents the estimated average number of applicants 
and the change in burden hours required for rule familiarization in 
section III.A.3 (Subject-by-Subject Analysis).
Compensation Rates
    In section III.A.3 (Subject-by-Subject Analysis), the Department 
presents the costs, including labor, associated with the implementation 
of the provisions of the final rule. Exhibit 4 presents the hourly 
compensation rates for the occupational categories expected to 
experience a change in the number of hours necessary to comply with the 
final rule. The Department used the mean hourly wage rate for private 
sector human resources specialists.\106\ 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 \107\ and a fringe benefits rate 
based on the ratio of average total compensation to average wages and 
salaries in 2019. For the private sector employees, we use a fringe 
benefits rate of 43 percent.\108\ 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.
---------------------------------------------------------------------------

    \106\ BLS, Occupational Employment and Wages, May 2019: 13-1071 
Human Resources Specialist, https://www.bls.gov/oes/current/oes131071.htm (last modified July 6, 2020). Because the OES wage 
rate is in 2019 dollars, the Department inflated to 2020 dollars 
using the ECI to be consistent with the rest of the analysis which 
is in 2020 dollars.
    \107\ 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.
    \108\ BLS, Employer Costs for Employee Compensation, https://www.bls.gov/news.release/ecec.toc.htm (last modified Sept. 17, 2020) 
(ratio of total compensation to wages and salaries for all private 
industry workers).

                                                              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           $33.52      $14.35 ($33.52 x 0.43)      $5.70 ($33.52 x 0.17)            $53.57
--------------------------------------------------------------------------------------------------------------------------------------------------------

3. Subject-by-Subject Analysis
    The Department's analysis below covers the estimated costs and 
transfer payments of the final rule. In accordance with Circular A-4, 
the Department considers transfer payments as payments from one group 
to another that do not affect total resources available to society. 
This final rule maintains the methodologies for estimating the cost of 
rule familiarization and the transfer payments associated with the AEWR 
wage structure from the NPRM. However, the AEWR wage structure proposed 
in the NPRM has been replaced with a wage structure for the final rule 
that is substantively different and is discussed in more detail in the 
estimation of transfer payments.
Costs
    The following section describes the costs of the final rule.
Quantifiable Costs
a. Rule Familiarization
    When the final rule takes effect, H-2A employers will need to 
familiarize themselves with the new regulations. Consequently, this 
will impose a one-time cost in the first year.
    To estimate the first-year cost of rule familiarization, the 
Department applied the growth rate of H-2A applications (6.2 percent) 
to the number of unique H-2A applicants (8,050) to determine the number 
of unique H-2A applicants impacted in the first year. The number of 
unique H-2A applicants in the first year (8,551) was multiplied by the 
estimated amount of time required to review the rule (one hour).\109\ 
This number was then multiplied by the hourly compensation rate of 
Human Resources Specialists ($53.57 per hour). This calculation results 
in a one-time undiscounted cost of $458,099 in the first year after the 
final rule takes effect. This one-time cost yields a total average 
annual undiscounted cost of $45,810. The annualized cost over the 10-
year period is $53,703 and $65,223 at discount rates of 3 and 7 
percent, respectively.
---------------------------------------------------------------------------

    \109\ This estimate reflects the nature of the final rule. As a 
rulemaking to amend to parts of an existing regulation, rather than 
to create a new rule, the one-hour estimate assumes a high number of 
readers familiar with the existing regulation.
---------------------------------------------------------------------------

Transfer Payments
    The following section describes the transfer payments of the final 
rule.
Quantifiable Transfer Payments
    This section discusses the quantifiable transfer payments related 
to revisions to the wage structure.
a. Revisions to the AEWR Methodology
    Section 218(a)(1) of the INA, 8 U.S.C. 1188(a)(1), provides that an 
H-2A

[[Page 70470]]

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 meets this statutory requirement 
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 in detail earlier in this 
preamble, the Department has carefully considered public comments 
related to the proposed changes to the methodology by which it 
establishes the AEWRs, and has made substantive revisions in this final 
rule.
    Public Comment: The Department received one comment on the NPRM 
transfer payments from the proposed wage option. One commenter said the 
Department had underestimated the transfer of debt burden to workers 
because of a discrepancy in the number of certified H-2A workers for 
2018 used in the Department's calculations in the NPRM, citing OFLC 
data and the Department of State's data on the number of non-immigrant 
visas issue in fiscal year (FY) 2018.
    As explained in the NPRM, the total number of certified workers is 
based on the average number of H-2A workers in FY 2016 and FY 2017. 
Based on the Department's NPRM estimate for H-2A workers' certified 
growth rate of 0.19, the estimated number of certified workers for FY 
2018 is 223,411, which is closer to the figure provided by OFLC. 
Transfer payments computed under this final rule are reflective of the 
changes adopted to the AEWR methodology and are substantively different 
from transfer payments presented in the NPRM.
    This final rule revises the AEWR methodology so that it is based on 
data more specific to the agricultural occupation of workers in the 
United States similarly employed. The Department currently sets the 
AEWR at the annual average hourly gross wage for field and livestock 
workers (combined) for the state or region from the FLS conducted by 
the USDA's NASS, which results in a single AEWR for all agricultural 
workers in a state or region. As discussed in depth in the preamble, 
the Department is concerned that this AEWR methodology may have an 
adverse effect on the wages of workers in higher paid agricultural 
occupations, such as construction laborers on farms, whose wages may be 
inappropriately lowered by an AEWR established from the wages of field 
and livestock workers (combined), an occupational category from the FLS 
that does not include those supervisory workers.
    The Department will set the AEWR under this final rule based on the 
USDA 2019 FLS 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

    Beginning on the effective date of the final rule through calendar 
year 2022, the wages for Field Workers and Livestock Workers 
(combined), as reported for the state or region by the USDA 2019 FLS, 
shall continue to be the AEWRs where the agricultural services or labor 
is classified under the above SOC codes. Beginning calendar year 2023 
and annually thereafter, the AEWRs based on FLS will be adjusted by the 
percent change in the BLS ECI for the preceding 12 months.
    For all other SOC codes, the Department will annually set the AEWRs 
based on the statewide annual average gross hourly wage reported by the 
BLS OES survey. If the OES survey does not report a statewide annual 
average gross hourly wage for the SOC, the AEWR shall be the national 
annual average gross hourly wage reported by the OES survey.
    To estimate wage impacts, the Department uses FY2016 through FY2020 
OFLC labor certification data. To include the most recent H-2A 
certification data (FY2020) the Department simulated Q3 and Q4 data 
based on FY2016-FY2019 data, to produce a full year of certification 
data.\110\ For the most common SOC codes (45-2091, 45-2092, and 45-
2093), the Department calculated the average certification growth rate 
from FY2016 to FY2019 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 percent or 
less than 80 percent 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 each quarter 
of 2019 by state, and SOC, and applied the applicable growth rate to 
quarters three and four to estimate FY2020 quarters three and four 
certifications. For all other SOC codes, the Department took the 
average of the number of certifications for each SOC and state from 
FY2016 to FY2019. The Department also needed to estimate the period of 
need, number of workers per certification, and number of hours per 
certifications.
---------------------------------------------------------------------------

    \110\ FY2020 certification data consists of only two quarters of 
data as of the date of analysis for this final rule.
---------------------------------------------------------------------------

    For the three most common SOC codes used in the H-2A program, 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 FY2016 to FY2019 
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 
certification and number of hours, the average number of workers for 
each SOC code and state from FY2016 to FY2019 was applied. Total wages 
were then calculated using the simulated Q3 and Q4 certifications and 
these estimated FY2020 Q3 to Q4 wage impacts were summed with the 
FY2020 Q1 to Q2 wage impacts to create an estimate of total wages for 
the entirety of FY2020.
    The Department calculated the impact on wages that would occur from 
the implementation of the revised AEWR methodology. For each H-2A 
certification in FY2016 through FY2020, the Department calculated total 
wages under the previously existing AEWR baseline methodology and total 
wages under the revised AEWR methodology. We assume that in the absense 
of this rule the AEWRs would continue to increase at the same rate that 
it would have in previous years. Then, the Department averaged total 
wages by SOC code across FY2016 through FY2020 to produce an annual 
average wage under the baseline and final rule. Total wages were 
projected for SOC codes that are updated annually beginning in 2023 
with the most recent 12-month ECI by calculating the nominal wage in 
each year from 2021 through 2030 using an average of annual September 
to September ECI growth rates since 2016 (2.89 percent).\111\

[[Page 70471]]

Nominal wages were then converted to real wages by deflating each year 
by the same ECI growth rate.\112\
---------------------------------------------------------------------------

    \111\ September to September growth rates are used to reflect 
the month vintage of ECI data that will be used to update the AEWR. 
For the Department to process and release the bi-annual ECI updated 
AEWR wages in January, the latest ECI value that will be available 
is the released September value. The ECI is available and released 
at https://www.bls.gov/news.release/eci.toc.htm.
    \112\ Each year's estimated wages were deflated using the 
formula: Wage/(1 + 0.289)-(Year-Base year).
---------------------------------------------------------------------------

    The Department provides two illustrative examples illustrating the 
above methodology. Exhibits 5 and 6 illustrate how total wages are 
calculated for the final rule and baseline. The Department multiplied 
the number of certified workers by the number of hours worked each 
week, the number of weeks in a given year that the employees worked, 
and the annual average hourly gross state AEWR wage for SOC codes set 
by the AEWR. For SOC codes set by OES the annual average hourly gross 
wage from the state-level OES by SOC code for the work performed, or 
national OES if the state-level wage is not available. Exhibit 5 
includes an example for each case set by the AEWR and OES.

                                                        Exhibit 5--AEWR Wage Under the Final Rule
                                                                     [Example case]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         Number of   Number of
                               Final rule wage   Number of     Basic       days        days                                Total AEWR       Total AEWR
           SOC code                 source       certified   number of   worked in   worked in   Wage 2016   Wage 2017     wages 2016       wages 2017
                                                  workers      hours       2016        2017
                                                       (a)         (b)         (c)         (d)         (e)         (f)    (a*b*(c/7)*e)    (a*b*(d/7)*f)
--------------------------------------------------------------------------------------------------------------------------------------------------------
45-2091......................  FLS AEWR.......          14          35         306          10      $11.74      $12.02      $251,470.80        $8,414.00
53-7062......................  OES............          10          40         280          50       12.76       13.08       204,160.00        37,371.43
--------------------------------------------------------------------------------------------------------------------------------------------------------

    After the total wages for the final rule was determined, the wage 
calculation under the baseline AEWR was calculated. The methodology is 
similar to that used to estimate the projected AEWR under the final 
rule: The number of workers certified is multiplied by the number of 
hours worked each week, the number of weeks in a given 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).

                                                         Exhibit 6--AEWR Wage Under the Baseline
                                                                     [Example case]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         Number of   Number of
                                Baseline wage    Number of     Basic       days        days                                Total AEWR       Total AEWR
           SOC Code                 source       certified   number of   worked in   worked in   Wage 2016   Wage 2017     wages 2016       wages 2017
                                                  workers      hours       2016        2017
                                                       (a)         (b)         (c)         (d)         (e)         (f)    (a*b*(c/7)*e)    (a*b*(d/7)*f)
--------------------------------------------------------------------------------------------------------------------------------------------------------
45-2091......................  FLS AEWR.......          14          35         306          10      $11.74      $12.02      $251,470.80        $8,414.00
53-7062......................  FLS AEWR.......          10          40         280          50       11.74       12.02       187,840.00        34,342.86
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The total wages for every certification from FY2016 through FY2020 
were calculated using the method in Exhibit 5 and Exhibit 6. Wages for 
each year were converted to 2020 dollars using the ECI, summed by SOC 
code, then averaged to produce the average annual total wages by SOC 
code. To simulate the final rule wage methodology of annually updating 
the AEWR for SOC codes set by FLS, beginning in 2023, the Department 
provides an illustrative example in Exhibit 7 for the 45-2091 SOC code.
---------------------------------------------------------------------------

    \113\ The growth rate for each year represents the final rule 
AEWR for SOC codes 45-2091, 45-2092, 45-2093, 45-2041, 45-2099, and 
53-7064. They have a 0 percent growth rate from the prior year in 
years which wages are held constant (e.g., 2021 and 2022). Beginning 
in 2023 they are updated annually based on the most recent 12-month 
ECI, which for the purposes of this analysis is 2.89 percent.
    \114\ 2020 nominal wage is the average of total wages for 45-
2091 from FY2016-FY2020 data.

                              Exhibit 7--Example Projected Total Wages for 45-2091
----------------------------------------------------------------------------------------------------------------
                                         FLS AEWR growth       Total wages                         Total wages
                                            rate \113\      (nominal dollars)   Deflator (ECI)   (2020 dollars)
----------------------------------------------------------------------------------------------------------------
2020 \114\............................                N/A                 $235               1              $235
2021..................................               0(%)                  235           0.972               228
2022..................................                  0                  235           0.945               222
2023..................................               2.89                  242           0.918               222
2024..................................               2.89                  249           0.892               222
2025..................................               2.89                  256           0.867               222
2026..................................               2.89                  263           0.843               222
2027..................................               2.89                  271           0.819               222
2028..................................               2.89                  279           0.796               222
2029..................................               2.89                  287           0.774               222
2030..................................               2.89                  295           0.752               222
----------------------------------------------------------------------------------------------------------------


[[Page 70472]]

    Once the total wages for the AEWR baseline and final rule were 
obtained for each SOC code, the Department estimated the wage impact of 
the revised AEWR by subtracting the baseline AEWR total wages from the 
final rule total wages in each year from 2021 through 2030 to determine 
the final rule wage impact. The resulting difference between final rule 
wages and baseline wages are presented in Exhibit 8.

                             Exhibit 8--Difference Between Final Rule Wages and Baseline Wages by SOC Code [2020 $millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                              Year                                 45-2091    45-2092    45-2093    45-2041    45-2099    53-7064   All other    Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
2021............................................................        -$7       -$61        -$4         $0        -$1         $0        $18       -$54
2022............................................................        -13       -120         -8          0         -1          0         18       -124
2023............................................................        -13       -120         -8          0         -1          0         18       -124
2024............................................................        -13       -120         -8          0         -1          0         18       -124
2025............................................................        -13       -120         -8          0         -1          0         18       -124
2026............................................................        -13       -120         -8          0         -1          0         18       -124
2027............................................................        -13       -120         -8          0         -1          0         18       -124
2028............................................................        -13       -120         -8          0         -1          0         18       -124
2029............................................................        -13       -120         -8          0         -1          0         18       -124
2030............................................................        -13       -120         -8          0         -1          0         18       -124
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The changes in wages constitute a transfer payment from H-2A 
employees to H-2A employers for SOC codes set by the FLS AEWR and 
annually updated. For all other SOC codes set by OES, and updated 
annually, the change in wages constitutes a transfer from H-2A 
employers to H-2A employees. In total, there is a transfer from 
employees to employers. To account for the growth rate in H-2A workers 
the total transfers in each year from Exhibit 8 are increased annually 
by the estimated growth rate of H-2A workers (6.2 percent).\115\ The 
results are average annual undiscounted transfers of $167.76 million. 
The total transfer over the 10-year period is estimated at $1.68 
billion undiscounted, or $1.44 billion and $1.20 billion at discount 
rates of 3 and 7 percent, respectively. The annualized transfer over 
the 10-year period is $169.10 million and $170.68 million at discount 
rates of 3 and 7 percent, respectively.
---------------------------------------------------------------------------

    \115\ 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*(1.062[caret](Current year-Base year)).
---------------------------------------------------------------------------

Unquantifiable Transfer Payments
a. Revisions to Wage Structure
    The decrease (or increase) in the wage rates for H-2A workers 
represents an important transfer from non-H-2A workers in corresponding 
employment to agricultural employers, not just H-2A workers to 
agricultural employers. The lower (or higher) wages for H-2A workers 
associated with the final rule's methodology for determining the 
monthly AEWR will also result in wage changes to workers in 
corresponding employment. However, the Department does not have 
sufficient information about the number of workers in corresponding 
employment affected and their wage structure to reasonably measure the 
wage transfer to or from these workers.
    The program has experienced a substantial increase in the number of 
certified H-2A applications and worker positions in the last 10 years 
that generally reflects the improving economy and lack of a sufficient 
number of domestic agricultural workers during the period (see Exhibit 
3). The new AEWR methodology may further encourage U.S. employers to 
use more H-2A workers for field and livestock work in the absence of 
available U.S. workers; however, we cannot measure the potential 
increase in the number of H-2A workers attributable to the new AEWR 
methodology due to data limitations.
4. Summary of the Analysis
    Exhibit 9 summarizes the estimated total costs and transfer 
payments of the final rule over the 10-year analysis period.
    The Department estimates the annualized costs of the final rule at 
$0.07 million and the annualized transfer payments (from workers to H-
2A employers) at $170.68 million, at a discount rate of 7 percent.

   Exhibit 9--Estimated Monetized Costs, Cost Savings, Net Costs, and
                   Transfer Payments of the Final Rule
                            [2020 $millions]
------------------------------------------------------------------------
                                                             Transfer
                  Year                         Costs         payments
------------------------------------------------------------------------
2021....................................           $0.46          $57.09
2022....................................            0.00          139.71
2023....................................            0.00          148.41
2024....................................            0.00          157.65
2025....................................            0.00          167.46
2026....................................            0.00          177.89
2027....................................            0.00          188.96
2028....................................            0.00          200.72
2029....................................            0.00          213.22
2030....................................            0.00          226.49
Undiscounted 10-Year Total..............            0.46        1,677.61
10-Year Total with a Discount Rate of 3%            0.46        1,442.50
10-Year Total with a Discount Rate of 7%            0.46        1,198.77
10-Year Average.........................            0.05          167.76
Annualized with a Discount Rate of 3%...            0.05          169.10

[[Page 70473]]

 
Annualized with a Discount Rate of 7%...            0.07          170.68
------------------------------------------------------------------------

5. Regulatory Alternatives
    The Department considered two alternatives to the chosen approach 
of establishing the AEWR at the annual average hourly gross wage for 
the state or region and SOC from the FLS where USDA reports such a 
wage. First, the Department considered using the current FLS 
occupational classifications of field and livestock workers for each 
state or region to set a separate AEWR for field workers and another 
AEWR for livestock workers at the annual average hourly gross wage from 
the FLS for workers covered by those classifications. Under this 
alternative, the Department would use the OES average hourly wage for 
the SOC and state if either (1) the occupation covered by the job order 
is not included in the current FLS occupational classifications of 
field or livestock workers; \116\ or (2) workers within the occupations 
classifications of field or livestock workers but in a region or state 
where USDA cannot produce a wage for that classification, which is 
expected to occur only in Alaska. Finally, under this alternative where 
both OES state data is not available, and the work performed is not 
covered by the field or livestock worker categories of the FLS, the 
Department would use the OES national average hourly wage for the SOC.
---------------------------------------------------------------------------

    \116\ Among the workers excluded from the field and livestock 
worker categories of the FLS are workers in the following SOCs: 
Farmers, Ranchers and Other Agricultural Managers (SOC 11-9013) and 
First Line Supervisors of Farm Workers (SOC 45-1011), Forest and 
Conservation Workers (SOC 45-4011), Logging Workers (SOC 45-4020), 
and Construction Laborers (SOC 47-2061).
---------------------------------------------------------------------------

    The total impact of the first regulatory alternative was calculated 
in the same manner as the revised wage using FY2016 to FY2020 
certification data. The Department estimated average annual 
undiscounted transfers of $18.48 million. The total transfer over the 
10-year period was estimated at $184.76 million undiscounted, or 
$159.97 million and $132.37 million at discount rates of 3 and 7 
percent, respectively. The annualized transfer over the 10-year period 
was $18.75 million and $19.12 million at discount rates of 3 and 7 
percent, respectively.
    Under the second regulatory alternative considered by the 
Department, the Department would set the AEWR using the OES average 
hourly wage for the SOC and State. When OES state data is not 
available, the Department would set the AEWR at the OES national 
average hourly wage for the SOC under this alternative. The Department 
again used the same method to calculate the total impact of the 
regulatory alternative. The Department estimated average annual 
undiscounted transfers of $66.36 million. The total transfer over the 
10-year period was estimated at $663.56 million undiscounted, or 
$574.51 million and $482.21 million at discount rates of 3 and 7 
percent, respectively. The annualized transfer over the 10-year period 
was $67.35 million and $68.66 million at discount rates of 3 and 7 
percent, respectively.
    Exhibit 10 summarizes the estimated transfer payments associated 
with the three considered revised wage structures over the 10-year 
analysis period. Transfer payments under the final rule are transfers 
from H-2A employees to H-2A employers and transfers under both 
alternatives are transfers from H-2A employers to H-2A employees. The 
Department prefers the current approach because it allows specific OES 
wages for workers in higher-paid agricultural occupations, such as 
supervisors of farmworkers and construction laborers on farms, while 
simplifying the AEWR for SOC codes set by the FLS AEWR and tying it to 
the ECI index. The Department prefers the chosen approach to the second 
regulatory alternative: The Department finds benefits to maintaining 
the FLS AEWR for some SOC codes, which is a superior wage source to the 
OES for those occupations. The FLS directly surveys farmers and 
ranchers and the FLS is recognized by the BLS as the authoritative 
source for data on agricultural wages. The chosen approach maintains 
the second regulatory alternative advantage of using OES for SOC codes 
where wages may be underestimated by the FLS AEWR.

   Exhibit 10--Estimated Monetized Wage Structure Transfer Payments and Costs of the Final Rule, Undiscounted
                                                [2020 $millions]
----------------------------------------------------------------------------------------------------------------
                                                                                   Regulatory       Regulatory
                                                                  Final rule     alternative 1    alternative 2
----------------------------------------------------------------------------------------------------------------
Total 10-Year Transfer........................................          $1,678             $185             $664
Total with 3% Discount........................................           1,442              160              575
Total with 7% Discount........................................           1,199              134              482
Annualized Undiscounted Transfer..............................             168               18               66
Annualized Transfer with 3% Discount..........................             169               19               67
Annualized Transfer with 7% Discount..........................             171               19               69
----------------------------------------------------------------------------------------------------------------


[[Page 70474]]

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, hereafter jointly referred to as the RFA, 
requires a final regulatory flexibility analysis (FRFA) when issuing 
regulations that will have a significant economic impact on a 
substantial number of small entities. The agency is also required to 
respond to public comment on the NPRM.\117\ The Chief Counsel for 
Advocacy of the Small Business Administration did not submit public 
comments on the NPRM.
---------------------------------------------------------------------------

    \117\ See 5 U.S.C. 604.
---------------------------------------------------------------------------

    The Department believes that this final rule will have a 
significant economic impact on a substantial number of small entities 
and therefore the Department publishes this FRFA. The Department 
invited interested persons to submit comments on the following 
estimates, including the number of small entities affected by the 
proposed rule, the compliance cost estimates, and whether alternatives 
exist that will reduce the burden on small entities while still 
remaining consistent with the objectives of the proposed rule.
1. Objectives of and Legal Basis for the Final Rule
    The Department is amending current regulations related to the H-2A 
program in a manner that modernizes and eliminates inefficiencies in 
the process by which employers obtain a temporary agricultural labor 
certification for use in petitioning DHS to employ a nonimmigrant 
worker in H-2A status. Sections 101(a)(15)(H)(ii)(a) and 218(a)(1) of 
the INA, 8 U.S.C. 1101(a)(15)(H)(ii)(a) and 1188(a)(1), establish the 
H-2A nonimmigrant worker visa program which enables U.S. agricultural 
employers to employ foreign workers to perform temporary or seasonal 
agricultural labor or services where the Secretary of DOL certifies (1) 
there are not sufficient U.S. workers who are able, willing, and 
qualified, and who will be available at the time and place needed to 
perform the labor or services involved in the petition; and (2) the 
employment of the aliens in such labor or services will not adversely 
affect the wages and working conditions of workers in the United States 
similarly employed. The standard and procedures for the certification 
and employment of workers under the H-2A program are found in 20 CFR 
part 655 and 29 CFR part 501.
    The Secretary has delegated the authority to issue temporary 
agricultural labor certifications to the Assistant Secretary, ETA, who 
in turn has delegated that authority to ETA's OFLC. Secretary's Order 
06-2010 (Oct. 20, 2010). In addition, the Secretary has delegated to 
WHD the responsibility under section 218(g)(2) of the INA, 8 U.S.C. 
1188(g)(2), to assure employer compliance with the terms and conditions 
of employment under the H-2A program. Secretary's Order 01-2014 (Dec. 
19, 2014).
2. The Agency's Response to Public Comments
    The Department received one comment on the IRFA. One commenter 
stated that, in their view, the proposed rule would fail to protect 
farmworkers and would disproportionately favor larger farming 
operations at the expense of smaller operations.
    The Department does not believe that the final rule will have a 
disproportionally detrimental impact on small farms as the wage impacts 
on small entities are primarily a cost decrease. In fact, the 
Department estimates that more than 99 percent of small entities will 
receive a reduction in wage obligations. Additionally, the Department 
believes that the proposed changes to the wage rates reasonably 
implement the statute's requirement that the wages of workers in the 
United States similarly employed not be adversely affected by the 
employment of H-2A foreign workers.
3. Response to Comments by the Chief Counsel for Advocacy of the Small 
Business Administration
    The Department did not receive comments from the Chief Counsel for 
Advocacy of the Small Business Administration.
4. Description of the Number of Small Entities To Which the Final Rule 
Will Apply
a. 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 SBA, 
in effect as of August 19, 2019, to classify entities as small.\118\ 
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 non-commercial banks) are classified by total assets 
(``small'' is defined as less than $550 million in assets). Small 
governmental jurisdictions are another noteworthy exception. They are 
defined as the governments of cities, counties, towns, townships, 
villages, school districts, or special districts with populations of 
less than 50,000 people.\119\
---------------------------------------------------------------------------

    \118\ Small Business Administration, Table of Small Business 
Size Standards Matched to North American Industry Classification 
System Codes (Aug. 2019), available at https://www.sba.gov/sites/default/files/2019-08/SBA%20Table%20of%20Size%20Standards_Effective%20Aug%2019%2C%202019_Rev.pdf.
    \119\ See http://www.sba.gov/advocacy/regulatoryflexibility-act 
for details.
---------------------------------------------------------------------------

b. 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 FYs 2015, 2016, 2017, 2018, and 2019. 
Disclosure data for 2015 was included for cases that have certified 
workers in both 2015 and 2016. 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 identified 23,045 
unique cases. Of those 23,045 cases, the Department was able to obtain 
data matches of revenue and employees for 6,135 H-2A cases with work in 
any year between 2016 and 2019. Because a single entity can apply for 
temporary H-2A workers multiple times, unique entities had to be 
identified. Additionally, duplicate cases that appeared multiple times 
within the dataset were removed (i.e., the same employer applying for 
the same number of workers in the same occupation, in the same state, 
during the same work period). Based on employer name, city, and state, 
the Department identified 2,627 unique entities with work in a year 
between 2016 and 2019, and of those determined that 1,990 (75.8 
percent) were small.\120\ These individual small entities had an 
average

[[Page 70475]]

of 11 employees and average annual revenue of approximately $3.31 
million. Of these entities, 1,946 of them had revenue data available 
from Data Axle. The Department's analysis of the impact of this final 
rule on small entities is based on the number of small individual 
entities (1,946 with revenue data).
---------------------------------------------------------------------------

    \120\ Small Business Administration, Table of Small Business 
Size Standards Matched to North American Industry Classification 
System Codes (Aug. 2019), available at https://www.sba.gov/sites/default/files/2019-08/SBA%20Table%20of%20Size%20Standards_Effective%20Aug%2019%2C%202019_Rev.pdf.
---------------------------------------------------------------------------

    To provide clarity on the agricultural industries impacted by this 
regulation, Exhibit 11 shows the number of individual H-2A small 
entities employers with certifications in any year between 2016 and 
2019 within each NAICS code at the 6-digit and 4-digit level.

                             Exhibit 11--Number of H-2A Small Entities by NAICS Code
----------------------------------------------------------------------------------------------------------------
                                                                                     Number of
              6-Digit NAICS                             Description                  employers        Percent
----------------------------------------------------------------------------------------------------------------
111998...................................  All Other Miscellaneous Crop Farming.             625              31
444220...................................  Nursery, Garden Center, and Farm                  144               7
                                            Supply Stores.
445230...................................  Fruit and Vegetable Markets..........             124               6
561730...................................  Landscaping Services.................             125               6
111339...................................  Other Noncitrus Fruit Farming........              92               5
424480...................................  Fresh Fruit and Vegetable Merchant                 78               4
                                            Wholesalers.
112990...................................  All Other Animal Production..........              76               4
115210...................................  Support Activities for Animal                      43               2
                                            Production.
424930...................................  Flower, Nursery Stock, and Florists'               37               2
                                            Supplies Merchant Wholesalers.
312130...................................  Wineries.............................              35               2
Other NAICS..............................  .....................................             611              31
----------------------------------------------------------------------------------------------------------------


 
                                                                                     Number of
              4-Digit NAICS                             Description                  employers        Percent
----------------------------------------------------------------------------------------------------------------
1119.....................................  Other Crop Farming...................             632              32
4442.....................................  Lawn and Garden Equipment and                     147               7
                                            Supplies Stores.
4452.....................................  Specialty Food Stores................             133               7
5617.....................................  Services to Buildings and Dwellings..             125               6
1113.....................................  Fruit and Tree Nut Farming...........             109               5
4244.....................................  Grocery and Related Product Merchant               97               5
                                            Wholesalers.
1129.....................................  Other Animal Production..............              84               4
4249.....................................  Miscellaneous Nondurable Goods                     73               4
                                            Merchant Wholesalers.
1151.....................................  Support Activities for Crop                        49               2
                                            Production.
1152.....................................  Support Activities for Animal                      43               2
                                            Production.
Other NAICS..............................  .....................................             498              25
----------------------------------------------------------------------------------------------------------------

c. 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 final rule. 
We estimated the costs of (a) time to read and review the final rule 
and (b) wage cost savings (or 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-2A 
labor contractors, 1,946 unique small entities,\121\ would incur a one-
time cost of $53.57 to familiarize themselves with the rule.\122\
---------------------------------------------------------------------------

    \121\ The 1,946 unique small entities excludes all labor 
contractors.
    \122\ $53.57 = 1hr x $53.57, where $53.57 = $33.52 + ($33.52 x 
43%) + ($33.52 x 17%).
---------------------------------------------------------------------------

    In addition to the cost of rule familiarization above, each small 
entity will have a decrease (or increase) in the wage costs (or cost-
savings) 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, we 
calculated total wage impacts by projecting total wages for 10 years 
under the baseline and 10 years under the final rule. If a small entity 
had a certification in multiple years in the historical data (e.g., 
both 2016 and 2017) then we took an average of the projected 10-year 
wage impacts for each certification to avoid double-counting.
    The Department determined the proportion of each small entities' 
total revenue that would be impacted by the cost savings (or costs) of 
the final rule to determine if the final rule would have a significant 
and substantial impact on small entities. The cost impacts included 
estimated first year costs and the wage impact introduced by the final 
rule. The Department used a total cost estimate of 3 percent of revenue 
as the threshold for a significant individual impact and set a total of 
15 percent of small entities incurring a significant impact as the 
threshold for a substantial impact on small entities.
    A threshold of 3 percent of revenues is consistent with the 
threshold in the NPRM and has been used in prior rulemakings for the 
definition of significant economic impact.\123\ This threshold is also 
consistent with that sometimes used by other agencies.\124\ The 
Department used a threshold of 15 percent of small entities in the NPRM 
and has used 15 percent in prior rulemakings for the definition of 
substantial number of small entities.\125\
---------------------------------------------------------------------------

    \123\ See, e.g., Final Rule, Establishing a Minimum Wage for 
Contractors, 79 FR 60634 (October 7, 2014); Final Rule, 
Discrimination on the Basis of Sex, 81 FR 39108 (June 15, 2016).
    \124\ See, e.g., Final Rule, Medicare and Medicaid Programs; 
Regulatory Provisions to Promote Program Efficiency, Transparency, 
and Burden Reduction; Part II, 79 FR 27106 (May 12, 2014) 
(Department of Health and Human Services rule stating that under its 
agency guidelines for conducting regulatory flexibility analyses, 
actions that do not negatively affect costs or revenues by more than 
3 percent annually are not economically significant).
    \125\ See, e.g., 79 FR 60634.
---------------------------------------------------------------------------

    Exhibit 12 provides a breakdown of small entities by the proportion 
of revenue affected by the costs of the final rule. Of the 1,946 unique 
small entities with work occurring in any year from 2016 to 2019 and 
revenue data, 8.2 percent of employers had more than 3 percent of their 
total revenue impacted in the first year. In the 10th year, 42.3 
percent are estimated to have more than

[[Page 70476]]

3 percent of their total revenue impacted in the first year. Although a 
substantial number of small entities have a significant economic impact 
in the 10th year, more than 99 percent of small entities have an 
economic impact that is a cost savings due to declines in wages 
associated with the annual ECI update for the SOC codes set by FLS 
AEWR.

                  Exhibit 12--Cost Impacts as a Proportion of Total Revenue for Small Entities
----------------------------------------------------------------------------------------------------------------
         Proportion of revenue impacted              1st Year       1st Year--%      10th Year     10th Year--%
----------------------------------------------------------------------------------------------------------------
<1%.............................................           1,462            75.1             620            31.9
1%-2%...........................................             239            12.3             273            14.0
2%-3%...........................................              85             4.4             229            11.8
3%-4%...........................................              45             2.3             153             7.9
4%-5%...........................................              28             1.4             126             6.5
>5%.............................................              87             4.5             545            28.0
Total >3%.......................................             160             8.2             824            42.3
----------------------------------------------------------------------------------------------------------------

5. Projected Reporting, Recordkeeping, and Other Compliance 
Requirements of the Final Rule
    The final rule does not have any reporting, recordkeeping, or other 
compliance requirements impacting small entities.
6. Steps the Agency Has Taken To Minimize the Significant Economic 
Impact on Small Entities
    The final rule will result in net cost savings to most (more than 
99 percent of) small entities because the wage cost savings outweigh 
the trivial rule familiarization cost. Therefore, the Department did 
not consider alternatives to reduce the burden on small entities 
because there is no net cost imposed on small entities by this final 
rule.

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 final 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) (Pub. L. 104-4, 
codified at 2 U.S.C. 1501 et seq.) is intended, among other things, to 
curb the practice of imposing unfunded Federal mandates on state, 
local, and tribal governments. UMRA requires Federal agencies to assess 
a regulation's effects on state, local, and tribal governments, as well 
as on the private sector, except to the extent the regulation 
incorporates requirements specifically set forth in law. Title II of 
the UMRA requires each Federal agency to prepare a written statement 
assessing the effects of any regulation that includes any Federal 
mandate in a proposed or final agency rule that may result in $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. A Federal mandate is any provision in a 
regulation that imposes an enforceable duty upon state, local, or 
tribal governments, or upon the private sector, except as a condition 
of Federal assistance or a duty arising from participation in a 
voluntary Federal program.
    This final 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 final 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 Executive Order 13132, it is determined that this final rule does 
not have sufficient federalism implications to warrant the preparation 
of a federalism summary impact statement.

F. Executive Order 13175, Consultation and Coordination With Indian 
Tribal Governments

    The Department has reviewed this final rule in accordance with E.O. 
13175 and has determined that it does not have tribal implications. 
This final rule 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 
amends 20 CFR part 655 as follows:

Title 20--Employees' Benefits

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); 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).

[[Page 70477]]

    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).


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 removing paragraph (c), redesignating 
paragraph (b) as paragraph (c), and adding a new paragraph (b) to read 
as follows:


Sec.  655.120   Offered wage rate.

* * * * *
    (b)(1) Except for occupations governed by the procedures in 
Sec. Sec.  655.200 through 655.235, the OFLC Administrator will 
determine the AEWRs as follows:
    (i) If the occupation and geographic area were included in the 
Department of Agriculture's (USDA) Farm Labor Survey (FLS) for wages 
paid to field and livestock workers (combined) as reported for November 
2019:
    (A) For the period from December 21, 2020 through calendar year 
2022, the AEWR shall be the annual average hourly gross wage for field 
and livestock workers (combined) in effect on January 2, 2020; and
    (B) Beginning calendar year 2023, and annually thereafter, the AEWR 
shall be adjusted based on the Employment Cost Index (ECI) for wages 
and salaries published by the Bureau of Labor Statistics (BLS) for the 
most recent preceding 12 months.
    (ii) If the occupation or geographic area was not included in the 
USDA FLS for wages paid to field and livestock workers (combined) as 
reported for November 2019:
    (A) The AEWR shall be the statewide annual average hourly gross 
wage for the occupation if one is reported by the Occupational 
Employment Statistics (OES) survey; or
    (B) If no statewide wage for the occupation and geographic area is 
reported by the OES survey, the AEWR shall be the national average 
hourly gross wage for the occupation reported by the OES 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 December 21, 2020, including job 
orders filed concurrently with an Application for Temporary Employment 
Certification to the NPC for emergency situations under Sec.  655.134.
    (2) The OFLC Administrator will publish a notice in the Federal 
Register, at least once in each calendar year, on a date to be 
determined by the OFLC Administrator, establishing each AEWR.
    (3)-(4) [Reserved]
    (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 
occupational classifications.
* * * * *

John Pallasch,
Assistant Secretary for Employment and Training, Labor.
[FR Doc. 2020-24544 Filed 11-3-20; 4:15 pm]
BILLING CODE 4510-FP-P