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Federal Register / Vol. 86, No. 228 / Wednesday, December 1, 2021 / Proposed Rules
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used for the OEWS survey. However, it does not currently report wage data by SOC. Instead, the FLS aggregates and reports data in four major FLS
occupational categories: Field workers, livestock workers, field and livestock workers combined, and all hired workers. In collaboration with the Department and the OMB, USDA
established and implemented a crosswalk from the major FLS categories to the SOC categories.60 Although the FLS collects data on the wages of supervisors, the FLS has not been able to report a statistically valid wage result for the major FLS category of supervisors.61 As a result, the wages of supervisors are currently only reported in the all hired workers category and are not included in the field and livestock workers combined category that the Department uses to establish the AEWR. The FLS also collects data on other workers, 62 though the FLS has not been able to report a statistically valid wage result for this FLS category, and, as a result, 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. Because the FLS
does not consistently report data in all States or regions for each SOC outside of the field and livestock workers category, use of the FLS to determine wages for these occupations would require frequent use of the OEWS
survey or another wage source, varying sources from year to year, and resulting in a much higher degree of year-to-year variability in the AEWR than if the OEWS survey is used at the outset for job opportunities not included in the field and livestock workers combined category, and this lack of variability will provide greater year-over-year certainty to both workers and employers.
The OEWS survey is a reliable and comprehensive wage survey that consistently produces annual average 60 See Crosswalk from the National Agricultural Statistics Service NASS Farm Labor Survey FLS
Occupations to the 2018 Standard Occupational Classification SOC System, available at https
www.nass.usda.gov/Surveys/Guide_to_NASS_
Surveys/Farm_Labor/farm-labor-soc-crosswalk last visited Aug. 19, 2021.
61 Included within the major FLS category of supervisors are Farmers, Ranchers, and Other Agricultural Managers SOC 119013; and FirstLine Supervisors of Farm Workers SOC 451011.
62 Included in the other workers category are Agricultural Inspectors SOC 452011, Animal Breeders 452021, Pest Control Workers 37
2021, and any other agricultural worker not fitting into the categories above, including mechanics, shop workers, truck drivers, accountants, bookkeepers, and office workers who fall within a variety of SOCs and have a wide variety of job duties. Contract and custom workers are excluded from the FLS sample population.

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wages for nearly all SOC outside of the field and livestock workers occupational category. The OEWS survey is among the largest ongoing statistical survey programs of the Federal Government, producing wage estimates for over 800
occupations, and it is used as the primary wage source for prevailing wage determinations in the H2B temporary non-agricultural labor certification program, as well as other nonimmigrant and immigrant programs. The OEWS
program surveys approximately 200,000
establishments every 6 months and over a 3-year period collects the full sample of 1.2 million establishments, accounting for approximately 57 percent of employment in the United States.63
Every 6 months, the oldest data from the 3-year cycle is removed from the sample, and new data is added. The wages reported in the older data are adjusted by the ECI, which is a BLS
index that measures the change in labor costs for businesses. The OEWS survey is primarily conducted by mail, with follow up by phone to nonrespondents or if needed to clarify data.64 The OEWS
average 65 hourly wage reported includes all straight-time, gross pay, exclusive of premium pay, but including piece rate pay.
Similarly to state or regional FLSbased AEWRs for field and livestock workers, the use of an OEWS-based statewide AEWR addresses the Departments concern that the potential for localized wage depression is more pronounced in the H2A program than in the H2B program due to both the economic position of agricultural workers and the fact that the H2A
program is not subject to a statutory cap, which allows an unlimited number of nonimmigrant workers to enter a given local area.66 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. 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. In addition, and as with the FLS, the OEWS survey also 63 See BLS, Occupational Employment and Wage Statistics Frequently Asked Questions, https
www.bls.gov/oes/oes_ques.htm last modified Aug.
13, 2021.
64 Id.
65 The OEWS uses the term mean. However, for purposes of this regulation the Department uses the term average because the two terms are synonymous, and the Department has traditionally used the term average in setting the AEWR from the FLS.
66 See, e.g., 75 FR 6883, 6895.

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reports a wage that covers activities above a crop activity level, which, as discussed above, is where wage depression from an influx of foreign workers could be most acute.
Shifting AEWR determinations to the OEWS survey for those occupations for which the FLS does not report statistically reliable wage data at a State or regional level also addresses the Departments concern that use of the combined field and livestock worker FLS data to determine the AEWR for all occupations may have an adverse effect on the wages of workers in higher paid agricultural occupations, including truck drivers, farm supervisors and managers, construction workers, and many occupations primarily in contract employment, because OEWS data will provide an occupation-specific wage that does not include data for lower wage occupations and because OEWS
data includes farm labor contractor wage data. For example, a worker performing construction labor on a farm under the H2A program in Ohio must currently be paid at least the AEWR of $15.31 per hour because the workers wage is determined based on the field and livestock workers combined wage, which reflects neither wages paid to agricultural workers engaged in duties typically performed by a construction worker nor wages of workers who perform contract work, which an agricultural construction laborer in the H2A program is likely to perform. In contrast, if the same construction worker performed identical job duties at a location other than a farm and, therefore, fell under the H2B program, the required prevailing wage rate based on OEWS data would be approximately $22.73 per hour.67 This same variance is seen across other non-field and livestock occupations for which H2A
workers are used. For example, the OEWS mean wage in Ohio for first-line supervisors SOC 451011 in 2020 was $27.83, in contrast to the AEWR of $15.31. Given the disparity in wages between the FLS and OEWS survey for these occupations, using the FLS to establish the AEWR for non-field and livestock occupations may cause an adverse effect on the wages of workers in the United States similarly employed, contrary to the Departments statutory mandate. An OEWS-based AEWR based on an occupational classification that accounts for significantly different job duties, but remains broader than a particular crop activity or agricultural 67 This is the current statewide OEWS wage for the category of Construction Laborer, SOC 472061, in Ohio. Under the H2B program, a local wage for that occupation would be used if available.

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