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Federal Register / Vol. 86, No. 228 / Wednesday, December 1, 2021 / Proposed Rules
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workers in higher paid agricultural occupations, such as supervisors of farmworkers and construction laborers on farms, whose wages may be inappropriately lowered by an AEWR
established from the wages of the FLS
field and livestock workers combined occupational category, which does not include those workers.
Under this proposed rule the Department would modify the AEWR
methodology so that it is based on data more specific to the agricultural occupation of workers in the United States similarly employed. Both the FLS
and OEWS survey provide data tailored to U.S. agricultural workers and the States and regions where these workers are employed, making these sources effective in ensuring that the temporary employment of foreign workers in field and livestock job opportunities will not adversely affect the wages of workers in the United States similarly employed. In addition, OEWS data includes employment and gross hourly wage data from employer establishments that support farm production activities.
Although they do not represent fixedsite farms and ranches, these establishments employ workers engaged in similar agricultural labor or services as those workers who are directly employed by farms and ranches.
As explained above, these types of employer establishments i.e., farm labor contractors participate in the H
2A program and represent an increasing share of the worker positions certified by the Department on H2A
applications both in the predominant field and livestock workers combined occupational group and in occupations that are less common in the H2A
program. While the labor demanded from H2ALCs i.e., farm labor contractors using the H2A program for employment in non-range occupations has significantly increased in recent years, they only represented approximately 16 percent of all certified H2A applications in FY 2020.87
Individual employers and agricultural associations filing for one or more individual association members, which 87 Based on an analysis of H2A labor certification data for FY 2020, the Department issued 12,491 temporary labor certifications covering 272,610 worker positions for non-range employment. Of this total, the Department certified 2,052 H2A applications covering 116,479 worker positions submitted by, or on behalf of, H2ALCs;
1,669 H2A applications covering 34,236 worker positions submitted by agricultural associations by, or on behalf of, one of more individual association members; and 8,770 H2A applications covering 121,895 worker positions submitted by individual employers i.e., fixed-site agricultural businesses.
See ETA, Performance Data, https www.dol.gov/
agencies/eta/foreign-labor/performance last visited Sept. 29, 2021.

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generally hire workers directly for employment, constituted approximately 84 percent of all of H2A applications.88
Using the FLS, which surveys directly hired agricultural workers, to set AEWRs therefore is more accurate and reasonable because, in addition to being a comprehensive source of farmworker wage date, it also surveys the agricultural employers which make up a significant majority of H2A
applications.
Under this proposed rule the Department would use the AEWR
methodology set forth in the 2010 Final Rule, i.e., setting the annual AEWRs using the gross average hourly wage rate for field and livestock workers combined in the State or region, as reported by the FLS, when that data is available, for the following SOC codes:
452041Graders and Sorters, Agricultural Products 452091Agricultural Equipment Operators 452092Farmworkers and Laborers, Crop, Nursery and Greenhouse 452093Farmworkers, Farm, Ranch, and Aquacultural Animals 537064Packers and Packagers, Hand 452099Agricultural Workers, All Other If the annual gross average hourly wage in the State or region is not reported by the FLS, the Department proposes to set the annual AEWR for these occupations 452041, 452091, 452092, 452093, 537064, 452099
using the statewide gross average hourly wage rate reported by the OEWS survey.
If the annual statewide gross average hourly wage is not reported by the OEWS survey, the Department proposes to set the AEWR for these occupations by using the annual national gross average hourly wage as reported by the OEWS survey. To produce an equivalent AEWR for field and livestock worker job opportunities using the OEWS survey under the proposed rule, BLS will compute an annual weighted average hourly wage using the establishment data reported for these occupations at the State and national level.
For all other SOC codes the Department proposes to annually set the AEWR for agricultural services or labor based on the statewide annual average hourly wage reported by the OEWS
survey. If the OEWS survey does not report a statewide annual average hourly wage for the SOC code, the Department proposes to set the AEWR
based on the national/annual average hourly wage reported by the OEWS
survey.
88 Id.

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To estimate wage impacts the Department uses FY 2020 through FY
2021 OFLC certification data. To include the most recent H2A
certification data i.e., FY 2021 the Department simulated Q4 data based on FY 20162020 data, to produce a full year of certification data.89 For the most common SOC codes 452091; 452092;
and 452093, the Department calculated the average certification growth rate form FY 2016 to FY 2020 by SOC and State, and then determined the average annual growth rate. In some cases, due to small numbers of certifications in certain States for a specific SOC in each year, the growth rates were unreasonably high or low greater than 80% or less than 80%
growth. In such cases, the Department applied the national growth rate for the applicable SOC. Next, the Department calculated the number of certifications that had work in the fourth quarter of 2020 by State, and SOC, and applied the applicable growth rate to Q4 to estimate FY 2021 quarter 4 certifications. For all other SOC codes, the Department took the average of the number of certifications for each SOC and State from FY 2016 to FY 2020. The Department also needed to estimate the period of need, number of workers per certification, and number of hours per certifications. For the three most common SOC codes, the Department calculated, by State and SOC code, the number of certifications that had work in one or two calendar years, and the average number of days that occurred in each year. For all other SOC codes, the Department used the national average from FY 2016 to FY 2020 of the percentage of certifications with work in one or two calendar years, and the number of days in each year. For number of workers per certifications and number of hours, the average number of workers for each SOC code and State from FY 2016 to FY 2020 was applied. Total wages were then calculated using the simulated Q4
certifications and these estimated FY
2021 Q4 wage impacts were summed with the FY 2021 Q1 to Q3 wage impacts to create an estimate of total wages for the entirety of FY 2021.
To produce a combined field and livestock AEWR using the OEWS, BLS
provided the Department with the weighted average hourly wage for 45
2041, 452091, 452092, 452093, 53
7064, 452099 occupations at the State and national level using the OEWS May 2020 survey. The OEWS May 2020
89 FY 2021 certification data only consists of three quarters of data as of the date of analysis for this proposed rule.

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