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Federal Register / Vol. 86, No. 228 / Wednesday, December 1, 2021 / Proposed Rules
the skills of many farm laborers are adaptable across a relatively wide range of crop or livestock activities and occupations because these activities and occupations involve skills that are readily learned in a very short time on the job, skills peak quickly, rather than increasing with long-term experience, and skills related to one crop or activity are readily transferred to other crops or activities. 45 It also is consistent with the approach taken in the 2020 AEWR
Final Rule in response to the significant number of comments 46 opposing the Departments proposal in the 2019
NPRM to use an occupation-specific AEWR for occupations in this category, using the FLS where available, and using the OEWS survey where the FLS
does not report a wage for the occupation in the State or region.47 In the 2020 AEWR Final Rule, the Department retained use of the FLS field and livestock workers combined category to determine the AEWR
applicable to all field and livestock worker job opportunities in each State, rather than occupation-specific AEWRs for occupations encompassed by the FLS field and livestock workers combined category.
The Department proposes to continue using a single gross hourly AEWR
applicable to all H2A job opportunities covered by the occupations in the field and livestock category combined in each State, because this approach strikes a reasonable balance between the interests of employers and workers and ensures employment of foreign workers in the vast majority of H2A job opportunities will not adversely affect agricultural workers in the United States similarly employed. Continuing to use this approach will provide continuity and a reasonable level of predictability and flexibility for employers using the 45 75

FR 6883, 68996900.
85 FR 70445, 7045170458 Addressing comments that occupation-specific field and livestock worker wages would reduce wages in common occupations, increase complexity and unpredictability, increase employer recordkeeping burdens and the Departments administrative burden, and create artificial boundaries between similar occupations..
47 The Department explained in that NPRM that it could use the FLS to establish an occupationspecific AEWR for many States and regions for SOCs 452092 Farmworkers and Laborers, Crop, Nursery, and Greenhouse and 452093
Farmworkers, Farm, Ranch, and Aquacultural Animals, but an FLS-based AEWR could only be established in some States and regions for several other occupations, including SOCs 452041
Graders and Sorters, Agricultural Products, 45
2091 Agricultural Equipment Operators, 452099
Agricultural Workers, All Other, 537064 Packers and Packagers, Hand, 119013 Farmers, Ranchers and Other Agricultural Managers, and 451011
First-Line Supervisors of Farm Workers based on NASS data. 84 FR at 36182.

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H2A program while reducing the complexities and business impacts associated with greater occupationspecific determinations, including combination of occupation determinations, on the AEWR
applicable to an employers job opportunity in the vast majority of cases. This approach also provides continuity and a reasonable level of predictability and protection to workers who may move between the occupations in the field and livestock category combined. In addition, as each of the field and livestock occupations encompass a broad variety of duties, resulting in areas of overlap between the occupations, a workers duties within a single workday may fall under multiple field and livestock occupations. The proposed approach helps both employers and workers by simplifying the process each uses to ensure that work is correctly compensated. Use of a single AEWR in each State applicable to this occupational grouping will minimize recordkeeping burdens, especially in cases where workers are needed to perform a variety of field and livestock duties, as employers will be required to pay such workers the same wage rate for all of those duties.
2. Use of FLS Data for Field and Livestock Workers Combined The Department proposes to use the FLS field and livestock worker combined wage data as the primary source for determining the AEWRs for this grouping of six occupations for several reasons. As noted in prior rulemaking, the FLS is the best available information for determining the AEWRs because it is the only wage survey that collects data from farm and ranch employers.48 Since 1987, the Department primarily has established an AEWR using the FLS for each State in the multistate or single-State crop region to which the State belongs. The Department continues to believe the FLS is the best available wage source for establishing AEWRs covering the vast majority of H2A job opportunities, whenever such data is available.
In addition, the Department considers the broad geographic scope of the survey an advantage of the FLS. The FLS consistently collects sufficient data to generate a wage finding for field and livestock workers combined in each State or region surveyed, making it a reliable source of wage data year to year.
48 See, e.g., 84 FR 36168, 3618036182. USDA
NASS provides additional information about the procedures used to collect, analyze, estimate, and disseminate the Farm Labor Survey at https
www.nass.usda.gov/Publications/Methodology_and _Data_Quality/Farm_Labor.

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As explained in the 2019 NPRM, the geographic scope of the FLS, covering California, Florida, and Hawaii, and 15
multistate groupings for other States, and the statewide and regional wages issued provides protection against wage depression that is most likely to occur in particular local areas where there is a significant influx of foreign workers. 49 The broad geographic scope of the FLS is also consistent with both the nature of agricultural employment and the statutory intent of the H2A
program, reflecting the migratory pattern of employment of many farmworkers over a large region and Congresss recognition of this unique characteristic of the agricultural labor market with its statutory requirement that employers recruit for labor in multistate regions as part of their labor market before receiving a labor certification . . . . 50 As the Department noted in the 2010 Final Rule, by providing a prevailing wage defined over a broader geographic area and over a broader occupational span all field and livestock workers, rather than a narrow crop or job description, use of the FLS provides a check on the expansion of the employment of foreign labor . . . to prevent undermining job opportunities and wages for domestic farm workers and reflects the view that farm labor is mobile across relatively wide areas. 51
For similar reasons, the Department explained that the FLS-based AEWR
may serve to mobilize domestic farm labor in neighboring counties and States to enter the subject labor market over the longer term and obviate the need to rely on . . . foreign labor on an ongoing basis. 52
3. Use of OEWS Data for Field and Livestock Workers Combined The Department proposes using the OEWS wage data to determine a statewide AEWR for field and livestock workers in the event the FLS cannot report wages to establish a statewide AEWR for the field and livestock workers combined category. By using the FLS report as the sole source for establishing AEWRs under the 2010
final rules methodology, the Department cannot establish an AEWR
in all geographic locations where employers may seek to employ H2A
workers e.g., Alaska or Puerto Rico due to limitations in the FLSs methodology and estimation procedures. In addition, as it has previously noted, the 49 84
50 75

FR 36168, 36182.
FR 6883, 6899.

51 Id.
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