Quiero saber acerca de...

68176

Federal Register / Vol. 86, No. 228 / Wednesday, December 1, 2021 / Proposed Rules
Statistics Service NASS.10 The current methodology produces a single AEWR
for all agricultural workers in a given State or region, without regard to occupational classification, and no AEWR in geographic areas not surveyed by NASS e.g., Alaska. At the time of submitting the job order, the employer must agree to pay at least the AEWR, the prevailing hourly wage rate, the prevailing piece rate, the agreed-upon collective bargaining rate, or the Federal or state minimum wage rate, in effect at the time work is performed, whichever is highest, and pay that rate to workers for every hour or portion thereof worked during a pay period.11

lotter on DSK11XQN23PROD with PROPOSALS1

B. The Role of AEWRs in the H2A
Program As explained in prior rulemakings, requiring employers to pay the AEWR
when it is the highest applicable wage is the primary way the Department meets its statutory obligation to certify no adverse effect on workers in the United States similarly employed. The AEWR is the rate that the Department has determined is necessary to ensure the employment of H2A foreign workers will not have an adverse effect on the wages of agricultural workers in the United States similarly employed.
Specifically, the AEWR is intended to guard against the potential for the entry of H2A foreign workers to adversely affect the wages and working conditions of agricultural workers in the United States similarly employed. As the Department noted shortly after the creation of the modern H2A program, a basic Congressional premise for temporary foreign worker programs . . .
is that the unregulated use of nonimmigrant foreign workers in agriculture would have an adverse impact on the wages of U.S. workers, absent protection. 12 The potential for the employment of foreign workers to adversely affect the wages of U.S.
workers is heightened in the H2A
program because the H2A program is not subject to a statutory cap on the number of foreign workers who may be admitted to work in agricultural jobs.
Consequently, concerns about wage depression from the employment of foreign workers are particularly acute 10 Final Rule, Temporary Agricultural Employment of H2A Aliens in the United States, 75 FR 6883 Feb. 12, 2010 2010 Final Rule;
Interim Final Rule, Labor Certification Process for the Temporary Employment of Aliens in Agriculture and Logging in the United States, 52 FR 20496 Jun.
1, 1987 1987 IFR.
11 20 CFR 655.120l.
12 Interim Final Rule, Labor Certification Process for the Temporary Employment of Aliens in Agriculture and Logging in the United States, 52 FR
20496, 20505 Jun. 1, 1987.

VerDate Sep<11>2014

16:56 Nov 30, 2021

Jkt 256001

because employers access to a potentially unlimited number of foreign workers in a particular labor market and crop activity or agricultural activity could cause the prevailing wage of workers in the United States similarly employed to stagnate or decrease. The Department continues to believe that the use of an AEWR is necessary in order to effectuate its statutory mandate of protecting agricultural workers in the United States similarly employed from the possibility of adverse effects on their wages and working conditions.
Addressing the potential adverse effect that the employment of temporary foreign workers may have on the wages of agricultural workers in the United States similarly employed is particularly important because U.S. agricultural workers are, in many cases, especially susceptible to adverse effects caused by the employment of temporary foreign workers. As discussed in prior rulemakings, the Department continues to hold the view that U.S. agricultural workers need protection from potential adverse effects of the use of foreign temporary workers, because they generally comprise an especially vulnerable population . . . with few alternatives in the non-farm labor market. 13 As a result, their ability to negotiate wages and working conditions with farm operators or agriculture service employers is quite limited. 14
The AEWR provides a floor below which wages cannot be negotiated, thereby strengthening the ability of this particularly vulnerable labor force to negotiate over wages with growers who are in a stronger economic and financial position in contractual negotiations for employment. 15
The use of an AEWR, separate from a prevailing wage for a particular crop or agricultural activity, is most relevant in cases in which the local prevailing wage is lower than the wage considered over a larger geographic area within which the movement of domestic labor is feasible or over a broader occupation/
crop/activity definition within which reasonably ready transfer of skills is feasible. 16 The AEWR acts as a prevailing wage concept defined over a broader geographic or occupational field. 17 The AEWR is generally based on data collected in a multistate agricultural region and an occupation broader than a particular crop activity or agricultural activity, while the
prevailing wage is commonly determined based on a particular crop activity or agricultural activity at the State or sub-State level. Therefore, the AEWR protects against localized wage depression that might occur in prevailing wage rates. The AEWR is complemented by the prevailing wage determination process, which serves a related, but distinct purpose. The prevailing wage, as determined under current Departmental guidance, provides an additional safeguard against wage depression that could arise in the performance of specific crop or agricultural activities within a regional or local geographic area.
Congress, however, did not define adverse effect and left it in the Departments discretion how to ensure that the employment of farmworkers met the statutory requirements. 18
Thus, the Department has discretion to determine the methodological approach that best allows it to meet its statutory mandate.19 The INA requires that the Department serve the interests of both farmworkers and growerswhich are often in tension. That is why Congress left it to the Departments judgment and expertise to strike the balance. 20
There is no statutory requirement that the Department set the AEWR at the highest conceivable point, nor at the lowest, so long as it serves its purpose.
The Department may also consider factors relating to the sound administration of the H2A program in deciding how to set the AEWR. For the reasons discussed below, the Department is proposing an approach that is reasonable and strikes an appropriate balance under the INA.

13 Proposed Rule, Temporary Agricultural Employment of H2A Aliens in the United States, 74 FR 45905, 45911 Sep. 4, 2009.
14 Id.
15 Id.
16 75 FR 6883, 68926893.
17 Id. at 6893.

18 AFL-CIO, et al. v. Dole, 923 F.2d 182, 184 D.C.
Cir. 1991.
19 United Farmworkers v. Solis, 697 F. Supp. 2d 5, 811 D.D.C. 2010.
20 Dole, 923 F.2d at 187.
21 Range occupations are subject to a monthly AEWR, as set forth in 20 CFR 655.211c.

PO 00000

Frm 00011

Fmt 4702

Sfmt 4702

C. Recent Rulemaking As part of a comprehensive H2A
program notice of proposed rulemaking 2019 NPRM published on July 26, 2019, the Department proposed to adjust the methodology used to establish the AEWRs in the H2A program. That approach would have provided occupation-specific hourly AEWRs for non-range occupations 21 i.e., all occupations other than herding and production of livestock on the range in each State using data reported by FLS
for the occupation, if available, or data reported by the OES now OEWS
survey for the occupation in the State,
E:FRFM01DEP1.SGM

01DEP1