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Federal Register / Vol. 86, No. 228 / Wednesday, December 1, 2021 / Proposed Rules
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if FLS data was not available.22 The Department explained that establishing AEWRs based on data more specific to the agricultural services or labor being performed under the Standard Occupational Classification SOC
system would better protect against adverse effect on the wages of workers in the United States similarly employed.
For example, the Department expressed concern that the AEWR methodology under the 2010 Final Rule may have an adverse effect on the wages of workers in higher paid non-range occupations, such as supervisors of farmworkers and construction laborers, whose wages may be inappropriately lowered by use of a single hourly AEWR based on the wages collected for occupations covering field and livestock workers.23
The Department received thousands of comments on the proposed changes to the methodology for setting the AEWRs in the 2019 NPRM. The commenters represented a wide range of stakeholders interested in the H2A
program, and the Department received comments both in support of and in opposition to the proposed changes to establish occupation-specific hourly AEWRs for non-range occupations. A
detailed discussion of the public comments as well as further background on the 2019 NPRM, specifically related to the hourly AEWR determinations, is available in the Departments 2020
AEWR Final Rule and will not be restated here.24
On September 30, 2020, USDA
publicly announced its intent to cancel the planned October data collection and November publication of the Agricultural Labor Survey ALS and Farm Labor reports better known as the FLS.25 The 2020 AEWR Final Rule revised the AEWR methodology to account for public comments received on the 2019 NPRM proposals and the USDA announcement that NASS did not plan to release its November 2020
report containing the annual gross hourly wage rates for field and livestock workers combined, which was necessary for the Department to 22 See Proposed Rule, Temporary Agricultural Employment of H2A Nonimmigrants in the United States, 84 FR 36168, 36171 July 26, 2019 2019
NPRM.
23 Id. at 3618036185.
24 See 85 FR 70445, 7044770465.
25 Notice of Revision to the Agricultural Labor Survey and Farm Labor Reports by Suspending Data Collection for October 2020, 85 FR 61719
Sept. 30, 2020; USDA NASS, Guide to NASS
Surveys: Farm Labor Survey, https
www.nass.usda.gov/Surveys/Guide_to_NASS_
Surveys/Farm_Labor last modified Dec. 10, 2020;
see also USDA NASS, USDA NASS to Suspend the October Agricultural Labor Survey Sept. 30, 2020, https www.nass.usda.gov/Newsroom/Notices/
2020/09-30-2020.php.

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establish and publish the hourly AEWRs for the next calendar year period on or before December 31, 2020, under the existing 2010 Final Rule methodology.
In revising the AEWR methodology in the 2020 AEWR Final Rule, the Department acknowledged that USDA
had suspended FLS data collection on at least two prior occasions, and the USDA
decision to cancel the October data collection and release of the report planned for November 2020 was the subject of ongoing litigation.26 Given the uncertainty regarding the future of the FLS and to ensure AEWRs for each State were published before the end of calendar year 2020, the Department published the 2020 AEWR Final Rule on November 5, 2020, with an effective date of December 21, 2020.
The 2020 AEWR Final Rule set the 2021 AEWR for field and livestock worker occupations at the 2020 AEWR
rates, which were based on results from the FLS wage survey published in November 2019, and provided for those AEWRs to adjust annually, starting at the beginning of calendar year 2023, using the BLS Economic Cost Index ECI, Wages and Salaries. For all other occupations, and for geographic areas not included in the FLS, the 2020
AEWR Final Rule set the 2021 AEWR at the statewide annual average hourly gross wage for the occupation reported by the OEWS survey or, where a statewide average hourly gross wage is not reported, the national average hourly gross wage for the occupation reported by the OEWS survey, to be adjusted annually based on the OEWS
survey.
D. Need for New Rulemaking On October 28, 2020, the U.S. District Court for the Eastern District of California in United Farm Workers, et al. v. Perdue, et al., No. 20cv01452
E.D. Cal. filed Oct. 13, 2020, preliminarily enjoined USDA from giving effect to its decision to suspend the October 2020 FLS data collection and cancel its November 2020
publication of the FLS.27 Additionally, on December 23, 2020, in United Farm Workers v. Dept of Labor, No. 20cv 01690 E.D. Cal. filed Nov. 30, 2020, the same court issued an order enjoining the Department from further implementing the 2020 AEWR Final Rule.28 On 26 85

FR 70445, 70446.
Farm Workers v. Perdue, 2020 WL
6318432 E.D. Cal. Oct. 28, 2020; see also United Farm Workers v. Perdue, 2020 WL 6939021 E.D.
Cal. Nov. 25, 2020 denying USDAs motion to modify or dissolve the inunction.
28 Order Granting Plaintiffs Motion for a Preliminary Injunction, United Farm Workers, et al.
27 United
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January 12, 2021, the court issued a supplemental order requiring the Department to publish the AEWRs for 2021 in the Federal Register on or before February 25, 2021, using the methodology set forth in the 2010 Final Rule, and to make those AEWRs effective upon their publication.29 After NASS completed its data collection, USDA published the FLS report on February 11, 2021.30 Shortly thereafter, the Department published the 2021
AEWRs on February 23, 2021, with an immediate effective date, pursuant to the courts January 12, 2021
supplemental order.31
In the litigation challenging the Departments 2020 AEWR Final Rule, the court recognized that the Department has broad discretion in determining the methodology for setting the AEWR so long as the Departments approach is sufficiently explained.32
However, the court ultimately granted the plaintiffs Motion for Preliminary Injunction, concluding that the plaintiffs were likely to succeed on their claim that the Department failed to justify freezing wages for two years prior to indexing wages using the ECI.33
According to the court, while the Department recognized the importance of the AEWR reflecting the market rate throughout the 2020 AEWR Final Rule,34 it failed to adequately explain a departure from its longstanding use of the FLS to set AEWRs for field and livestock workers to ensure that U.S.
workers receive the greatest potential protection from adverse effects on their wages and working conditions, including the adverse effect of being denied access to the opportunity to earn a higher equilibrium wage that would have resulted as the market perhaps slowly adjusted in the absence of the v. U.S. Dept of Labor, et al., No. 20cv1690 E.D.
Cal., ECF No. 37.
29 Supplemental Order Regarding Preliminary Injunctive Relief, United Farm Workers, et al. v.
U.S. Dept of Labor, et al., No. 20cv1690 E.D. Cal.
Jan. 12, 2021, ECF No. 39.
30 See USDA, Farm Labor Report Feb. 11, 2021, https downloads.usda.library.cornell.edu/usdaesmis/files/x920fw89s/f7624565c/9k420769j/
fmla0221.pdf; see also Notice of Reinstatement of the Agricultural Labor Survey Previously Scheduled for October 2020, 85 FR 79463 Dec. 10, 2020.
31 See Labor Certification Process for the Temporary Employment of Aliens in Agriculture in the United States: 2021 Adverse Effect Wage Rates for Non-Range Occupations, 86 FR 10996 Feb. 23, 2021.
32 Order Granting Plaintiffs Motion for a Preliminary Injunction, United Farm Workers, et al.
v. U.S. Dept of Labor, et al., No. 20cv1690 E.D.
Cal., ECF No. 37 at 17 n.5.
33 Id. at 17.
34 Id.

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