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Federal Register / Vol. 86, No. 228 / Wednesday, December 1, 2021 / Proposed Rules AEWR as set forth in the 2020 AEWR
Final Rule.
The 2010 Final Rule defined the AEWR as the annual weighted average hourly wage for field and livestock workers combined in the States or regions as published annually by the U.S. Department of Agriculture USDA based on its quarterly wage survey. In the 2019 NPRM, to be consistent with the Departments proposal to adjust the AEWR
methodology for non-range occupations, the Department proposed to revise the definition of AEWR to include both the FLS and OEWS survey as sources for determining the AEWR and to reference the new AEWR methodology provision at 655.120b. The revised definition in the 2020 AEWR Final Rule clarified that the term AEWR applies to both the hourly rate for non-range occupations, as set forth in 655.120b, and to the monthly rate for range occupations, as set forth in 655.211c. Second, rather than identifying particular data sources, the revised definition stated that the AEWR is the rate that the OFLC
Administrator publishes in the Federal Register in accordance with the AEWRsetting methodology and procedural provisions at 655.120b and 655.211c. Finally, the Department made additional nonsubstantive technical revisions to 655.103b in the 2020 AEWR Final Rule for clarity.
In 655.120b, for the vast majority of H2A job opportunities represented by six occupations comprising the field and livestock worker combined category within the FLS, the Department proposes to utilize the AEWR
methodology set forth in the 2010 Final Rule, which set a single AEWR using the annual average gross hourly wage for field and livestock workers combined for the State or region, as determined by the USDAs NASS FLS
report, whenever such data is available.
For this occupational grouping, the Department proposes to use OEWS wage data in limited circumstances.
Specifically, the AEWR would be set using OEWS wage data in circumstances where FLS wage data is unavailable or insufficient to generate a State or regional wage finding. For example, in Alaska and Puerto Rico, where the FLS
is not currently conducted and, accordingly, NASS does not report wage data for field and livestock workers combined, the Department proposes using OEWS wage data to determine the statewide or statewide equivalent for the District of Columbia and U.S.
territories 43 AEWR for that 43 OEWS collects wage date from all fifty states as well as the District of Columbia, Puerto Rico,
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combination of field and livestock worker occupations, using statewide data, if available, or nationwide data, if the OEWS survey does not report a statewide annual average gross hourly wage for those occupations. Finally, in the event FLS wage data becomes unavailable for the State or region due to future changes in methodology or the surveys suspension or termination, the Department proposes to immediately use OEWS wage data for this occupational grouping to establish the AEWR.
For all other occupations, the Department proposes to use the methodology previously set forth in the 2020 AEWR Final Rule, under which the AEWR will be the statewide annual average gross hourly wage for the occupational classification, as reported by the OEWS survey, or the national annual average hourly wage for the occupational classification reported by the OEWS survey, if the OEWS survey does not report a statewide annual average gross hourly wage for the occupation.
As with the 2020 AEWR Final Rule, the Department proposes to require that if the job duties on the H2A
application including the job order do not fall within a single occupational classification, and the occupations involved are subject to different AEWRs, the Department will determine the applicable AEWR at the highest AEWR
for the applicable occupational classifications.
Also as with the 2020 AEWR Final Rule, the Department proposes to require that the OFLC Administrator publish, at least once in each calendar year, on a date to be determined by the OFLC Administrator, an update to each AEWR via a notice in the Federal Register. The Department will update the AEWRs through two separate announcements in the Federal Register, one for the AEWRs based on the FLS, and a second for the AEWRs based on the OEWS survey, due to the different time periods for release of these two wage surveys. As discussed below, if a job opportunity may be classified within more than one occupational Guam, and the Virgin Islands. See BLS, Occupational Employment and Wage Statistics Overview, https www.bls.gov/oes/oes_emp.htm last modified Mar. 31, 2021 The OEWS survey is a federal-state cooperative program between BLS and State Workforce Agencies SWAs. BLS
provides the procedures and technical support, draws the sample, and produces the survey materials, while the SWAs collect the data. SWAs from all fifty states, plus the District of Columbia, Puerto Rico, Guam, and the Virgin Islands participate in the survey. Occupational employment and wage rate estimates at the national level are produced by BLS using data from the fifty states and the District of Columbia..

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classification or SOC code, making that job opportunity subject to both FLSand OEWS-based AEWRs, the employer must pay the highest applicable wage as of the effective date of that AEWR.
B. The Department Proposes To Use the FLS To Establish the AEWR for Field and Livestock Worker Job Opportunities in Most Cases The Department proposes to use the average gross hourly wage rate for the field and livestock workers combined category from the FLS for the State or region to determine the AEWR for field and livestock worker job opportunities, when that data is available.
1. Use of a Single Field and Livestock Workers Combined Occupational Category The FLS field and livestock workers combined category encompasses the vast majority of temporary agricultural job opportunities offered in the H2A
program. According to NASS, wage data reported for this category includes workers who plant, tend, pack, and harvest field crops, fruits, vegetables, nursery and greenhouse crops, or other crops or tend livestock, milk cows, or care for poultry, including those who operate farm machinery while engaged in these activities. 44 The FLS field and livestock worker category reports aggregate wage data covering the following Standard Occupational Classification SOC titles and codes:
Farmworkers and Laborers, Crop, Nursery and Greenhouse Workers 45
2092; Farmworkers, Farm, Ranch, and Aquacultural Animals 452093;
Agricultural Equipment Operators 45
2091; Packers and Packagers, Hand 537064; Graders and Sorters, Agricultural Products 452041; and All Other Agricultural Workers 45
2099. Depending on the agricultural product reported by the employer, wage data collected under the All Other Agricultural Workers occupational classification are assigned to either the livestock worker or field worker major category of the FLS.
Determining AEWRs using a single gross hourly wage for this group of occupations, rather than occupationspecific AEWRs for each occupation encompassed in the field and livestock worker combined category, is consistent with the Departments conclusion in the 2010 Final Rule that 44 USDA NASS, Crosswalk from the National Agricultural Statistics Services NASS Farm Labor Survey Occupations to the 2018 Standard Occupational Classification System, https
www.nass.usda.gov/Surveys/Guide_to_NASS_
Surveys/Farm_Labor/farm-labor-soc-crosswalk last visited Aug. 19, 2021.

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