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Federal Register / Vol. 86, No. 228 / Wednesday, December 1, 2021 / Proposed Rules
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is slowly shrinking, but still substantial, noting that the average farmworker wage in 1990 was just over half the average real wage in the nonfarm economy for private-sector nonsupervisory occupations, but rose to 60% of the non-farmworker wage by 2019, indicating the wage gap decreased by less than 10% over three decades.69
The ERS data also indicates that labor costs as a share of total gross farm income has not risen significantly over the past two decades, with the ERS
concluding that although farm wages are rising in nominal and real terms, the impact of these rising costs on farmers incomes has been offset by rising productivity and/or output prices, and adding that labor costs as a share of gross cash income do not show an upward trend for the industry as a whole over the past 20 years. 70
AEWR increases above historical averages in recent years also are consistent with a growing agricultural labor shortage that is evidenced by an exponential increase in use of the H2A
program since 2015, USDA data, and recurrent statements by employers and associations that it is increasingly difficult to find U.S. workers for their job opportunities.71 As the Department has explained in prior rulemaking, basic economic theory holds that, under conditions of an emerging labor shortage . . . wage adjustments would occur over time and the observed wage would increase by an amount sufficient to attract more workers until supply and demand were met in equilibrium. 72 However, labor shortages that would normally drive wages up may become distorted by the availability of foreign 69 USDA Economic Research Services, Farm Labor, https www.ers.usda.gov/topics/farmeconomy/farm-labor last modified Aug. 18, 2021.
70 Id. The ERS found that for all farms, labor costs including contract labor, and cash fringe benefit costs averaged 10.4 percent of gross cash income during 201618, compared with 10.7
percent for 199698. At the commodity level, the ERS found that labor cost shares have fallen slightly over the past 20 years for the more laborintensive fruit and vegetable sectors . . . ..
71 See, e.g., Steven Zhaniser et al., Rising Wages Point to a Tighter Farm Labor Market in the United States, Amber Waves Feb 15, 2019, https
www.ers.usda.gov/amber-waves/2019/february/
rising-wages-point-to-a-tighter-farm-labor-marketin-the-united-states noting that rising real inflation-adjusted farm wages in the past four years is a prominent indicator of a tighter farm labor market and that greater employment of nonimmigrant, foreign-born farmworkers through the H2A program is another indicator.
72 75 FR 6883, 6891; see also Final Rule, Wage Methodology for the Temporary Non-Agricultural Employment H2B Program, 80 FR 24146, 24159
24160 Apr. 29, 2015 noting that if employers experience a shortage of available workers in a particular region or occupation, compensation should rise as needed to attract workers.

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workers . . . . 73 The AEWR
methodology in the 2010 Final Rule and the similar FLS-based methodology proposed here provide a wage floor distinct from the local prevailing wage and are intended to compute an AEWR to approximate the equilibrium wage that would result absent an influx of temporary foreign workers . . .
serving to put incumbent farm workers in the position they would have been in but for the H2A program. 74
III. Request for Comments The Department invites comments on all aspects of the proposed AEWR
methodology. Because the 2020 AEWR
Final Rule has been preliminarily enjoined, and there is uncertainty as to whether that rule will be vacated prior to the issuance of a final rule, the Department seeks comment on all proposals to mirror provisions found in the 2020 rule. In addition, the Department is interested in comments on the use of the FLS and OEWS survey and the conditions under which each survey should be used to establish the AEWR. For example, the Department is interested in comments on the continued use of a single statewide hourly AEWR for field and livestock worker occupations combined, rather than occupation-specific statewide AEWRs for each occupation comprising the field and livestock workers combined category covered by the FLS. In addition, the Department is interested in comments on use of the OEWS survey to establish the AEWR for field and livestock worker occupations combined in the absence of the FLS or where the FLS does not report a wage finding for these occupations in a particular geographic area, as well as the use of the OEWS to establish AEWRs for all job opportunities that do not fall within the FLS field and livestock workers combined category.
Commenters may address the existence or role of the AEWR, but the Department encourages commenters to focus on the methodology used to determine the AEWR. The Department is not considering eliminating the AEWR or changing the AEWRs role in determinations of an employers required minimum wage rate in the H
2A program, for reasons explained at length in prior rulemakings, including in the 2020 AEWR Final Rule and 2010
Final Rule.
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FR 24146, 2415824159.
FR 6883, 6891.

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IV. Administrative Information A. Executive Order 12866: Regulatory Planning and Review; and Executive Order 13563: Improving Regulation and Regulatory Review Under E.O. 12866, the OMBs Office of Information and Regulatory Affairs OIRA determines whether a regulatory action is significant and, therefore, subject to the requirements of the E.O.
and review by OMB. 58 FR 51735.
Section 3f of E.O. 12866 defines a significant regulatory action as an action that is likely to result in a rule that: 1 Has an annual effect on the economy of $100 million or more, or adversely affects in a material way a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities also referred to as economically significant; 2 creates serious inconsistency or otherwise interferes with an action taken or planned by another agency; 3 materially alters the budgetary impacts of entitlement grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or 4 raises novel legal or policy issues arising out of legal mandates, the Presidents priorities, or the principles set forth in the E.O. Id. OIRA reviewed this proposed rule and has determined that it is a significantbut not economically significantregulatory action under E.O. 12866.
E.O. 13563 directs agencies to propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs; the regulation is tailored to impose the least burden on society, consistent with achieving the regulatory objectives; and in choosing among alternative regulatory approaches, the agency has selected those approaches that maximize net benefits. E.O. 13563
recognizes that some benefits are difficult to quantify and provides that, where appropriate and permitted by law, agencies may consider and discuss qualitative values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.
Outline of the Analysis Section VI.A.1 describes the need for the proposed rule, and section VI.A.2
describes the process used to estimate the costs of the rule and the general inputs used, such as wages and number of affected entities. Section VI.A.3
explains how the provisions of the proposed rule will result in quantifiable costs and transfers and presents the calculations the Department used to estimate them. In addition, section
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