[Federal Register Volume 87, Number 241 (Friday, December 16, 2022)]
[Notices]
[Pages 77141-77142]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-27333]


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DEPARTMENT OF LABOR

Employment and Training Administration


Labor Certification Process for the Temporary Employment of 
Foreign Workers in Agriculture in the United States: Adverse Effect 
Wage Rate for Range Occupations in 2023

AGENCY: Employment and Training Administration, Department of Labor.

ACTION: Notice.

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SUMMARY: The Employment and Training Administration of the Department 
of Labor (DOL) is issuing this notice to announce the 2023 Adverse 
Effect Wage Rate (AEWR) for the employment of temporary or seasonal 
nonimmigrant foreign workers (H-2A workers) to perform herding or 
production of livestock on the range. AEWRs are the minimum wage rates 
DOL has determined must be offered and paid by employers to H-2A 
workers and workers in corresponding employment to help ensure the 
Department meets its statutory obligation to certify that the 
employment of H-2A foreign workers will not have an adverse effect on 
the agricultural wages of workers in the United States (U.S.) similarly 
employed will not be adversely affected. In this notice, DOL announces 
the annual update of the AEWR for workers engaged in the herding or 
production of livestock on the range, as required by the methodology 
previously established in 2015.

DATES: The rate is effective January 1, 2023.

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

SUPPLEMENTARY INFORMATION: The U.S. Citizenship and Immigration 
Services of the Department of Homeland Security will not approve an 
employer's petition for the admission of H-2A nonimmigrant temporary 
and seasonal agricultural workers in the U.S. unless the petitioner has 
received an H-2A labor certification from DOL. The H-2A labor 
certification provides that (1) there are not sufficient U.S. workers 
who are able, willing, and qualified and who will be available at the 
time and place needed to perform the labor or services involved in the 
petition; and (2) the employment of the foreign worker(s) in such labor 
or services will not adversely affect the wages and working conditions 
of workers in the U.S. similarly employed. See 8 U.S.C. 
1101(a)(15)(H)(ii)(a), 1184(c)(1), and 1188(a); 8 CFR 214.2(h)(5); 20 
CFR 655.100.

Adverse Effect Wage Rate for 2023

    DOL's H-2A regulations covering the herding or production of 
livestock on the range, published in the Federal Register as the 
Temporary Agricultural Employment of H-2A Foreign Workers in the 
Herding or Production of Livestock on the Range in the United States, 
80 FR 62958 (Oct. 16, 2015), provide that employers must offer, 
advertise in recruitment, and pay each worker employed under 20 CFR 
655.200 through 655.235 a wage that is at least the highest of (1) the 
monthly AEWR, (2) the agreed-upon collective bargaining wage, or (3) 
the applicable minimum wage imposed by Federal or State law or judicial 
action. See 20 CFR 655.210(g); 655.211(a)(1). Further, when the monthly 
AEWR is adjusted during a work contract and is higher than both the 
agreed-upon collective bargaining wage and the applicable minimum wage 
imposed by Federal or State law or judicial action in effect at the 
time the work is performed, the employer must pay that adjusted monthly 
AEWR upon publication by DOL in the Federal Register. See 20 CFR 
655.211(a)(2).
    As provided in 20 CFR 655.211(c)(2), the monthly AEWR for range 
occupations in all States for a calendar year is based on the monthly 
AEWR for the previous calendar year ($1,807.23), adjusted by the 
Employment Cost Index (ECI) for wages and salaries published by the 
Bureau of Labor Statistics for the preceding annual period. The 12-
month change in the ECI for wages and salaries of private industry 
workers between September 2021 and September 2022 was 5.2 percent, 
resulting in a monthly AEWR for range occupations in effect for 2023 of 
$1,901.21.\1\ The national monthly AEWR rate for all range occupations 
in the H-2A program in 2023 is calculated by multiplying the monthly 
AEWR for calendar year 2022 by the October 2022 ECI adjustment 
($1,807.23 x 1.052 = $1,901.21) or $1,901.21. Accordingly, any employer 
certified or seeking certification for range workers must pay each 
worker a wage that is at least the highest of the

[[Page 77142]]

monthly AEWR of $1,901.21, the agreed-upon collective bargaining wage, 
or the applicable minimum wage imposed by Federal or State law or 
judicial action at the time work is performed on or after the effective 
date of this notice.
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    \1\ The regulation at 20 CFR 655.211(c)(2) states that the 
monthly AEWR is calculated based on the ECI for wages and salaries 
``for the preceding October-October period.'' This regulatory 
language was intended to identify the Bureau of Labor Statistics' 
(BLS) October publication of ECI for wages and salaries, which 
presents data for the September to September period. Accordingly, 
the most recent 12-month change in the ECI for private sector 
workers published on October 28, 2022, by BLS was used for 
establishing the monthly AEWR under the regulations. See https://www.bls.gov/news.release/archives/eci_10282022.pdf. The ECI for 
private sector workers was used rather than the ECI for all civilian 
workers given the characteristics of the H-2A herder workforce.
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    Authority: 20 CFR 655.211(b).

Brent Parton,
Acting Assistant Secretary for Employment and Training, Labor.
[FR Doc. 2022-27333 Filed 12-15-22; 8:45 am]
BILLING CODE 4510-FP-P