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Federal Register / Vol. 86, No. 228 / Wednesday, December 1, 2021 / Proposed Rules AEWRs for non-range occupations i.e., all occupations other than herding and production of livestock on the range using a combination of wage data reported by the U.S. Department of Agricultures USDA Farm Labor Survey FLS and the Departments Bureau of Labor Statistics BLS
Occupational Employment and Wage Statistics OEWS survey, formerly the Occupational Employment Statistics OES survey prior to March 31, 2021.
For the vast majority of H2A job opportunities represented by six occupations comprising the field and livestock worker combined wages reported by USDA, the proposed regulations will rely on the FLS to establish the AEWRs for these occupations in accordance with the methodology used by the Department for nearly all of the last 30 years. For all other occupations and to address circumstances in which the FLS does not report wage data for the field and livestock worker occupations, the Department proposes to use the OEWS
survey to establish the AEWRs for each occupation. These proposed regulations are consistent with the Secretary of Labors Secretary statutory responsibility to certify that the employment of H2A workers will not adversely affect the wages and working conditions of workers in the United States similarly employed. The Department believes the proposed methodology will strike a reasonable balance between the statutes competing goals of providing employers with an adequate legal supply of agricultural labor and protecting the wages and working conditions of workers in the United States similarly employed.
DATES: Interested persons are invited to submit written comments on the proposed rule on or before January 31, 2022.
ADDRESSES: You may submit comments electronically by the following method:
Federal eRulemaking Portal: https
www.regulations.gov. Follow the instructions on the website for submitting comments.
Instructions: Include the agencys name and docket number ETA2021
0006 in your comments. All comments received will become a matter of public record and will be posted without change to https www.regulations.gov.
Please do not include any personally identifiable or confidential business information you do not want publicly disclosed.
FOR FURTHER INFORMATION CONTACT:
Brian Pasternak, Administrator, Office of Foreign Labor Certification, Employment and Training
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Administration, U.S. Department of Labor, 200 Constitution Avenue NW, Room N5311, Washington, DC 20210, telephone: 202 6938200 this is not a toll-free number. Individuals with hearing or speech impairments may access the telephone numbers above via TTY/TDD by calling the toll-free Federal Information Relay Service at 1 877
8895627.
SUPPLEMENTARY INFORMATION:

I. Background A. Statutory and Regulatory Framework The Immigration and Nationality Act INA, as amended by the Immigration Reform and Control Act of 1986 IRCA, establishes an H2A nonimmigrant visa classification for a worker having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform agricultural labor or services . . . of temporary or a seasonal nature. 8 U.S.C. 1101a15Hiia;
see also 8 U.S.C. 1184c1, 1188.1
Among other things, a prospective H
2A employer must first apply to the Secretary for a certification that 1 there are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed to perform the labor or services involved in the petition, and 2 the employment of the H2A workers in such services or labor will not adversely affect the wages and working conditions of workers in the United States similarly employed. 8
U.S.C. 1188a1. The INA prohibits the Secretary from issuing this certificationknown as a temporary labor certificationunless both of the above referenced conditions are met and none of the conditions in 8 U.S.C.
1188b apply concerning strikes or lock-outs, labor certification program debarments, workers compensation assurances, and positive recruitment.
The Secretary has delegated the authority to issue temporary agricultural labor certifications to the Assistant Secretary, Employment and Training Administration ETA, who in turn has delegated that authority to ETAs Office of Foreign Labor Certification OFLC.2
In addition, the Secretary has delegated to the Wage and Hour Division WHD
the responsibility under section 218g2 of the INA, 8 U.S.C. 1188g2, to ensure employer compliance with the 1 For ease of reference, sections of the INA are referred to by their corresponding section in the United States Code.
2 See Secretarys Order 062010 Oct. 20, 2010, 75 FR 66268 Oct. 27, 2010; 20 CFR 655.101.

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terms and conditions of employment under the H2A program.3
Since 1987, the Department has operated the H2A temporary labor certification program under regulations promulgated pursuant to the INA. The standards and procedures applicable to the certification and employment of workers under the H2A program are found in 20 CFR part 655, subpart B, and 29 CFR part 501.
An employer seeking H2A workers generally initiates the temporary labor certification process by filing an H2A
Agricultural Clearance Order, Form ETA790/790A job order, with the State Workforce Agency SWA in the area where it seeks to employ H2A
workers.4 In preparing the job order and to comply with its wage obligations under 20 CFR 655.122l, the employer is required to offer, advertise in its recruitment, and pay a wage that is the highest of the AEWR, the prevailing wage, the agreed-upon collective bargaining wage, the Federal minimum wage, or the State minimum wage.5
With the exception of brief periods under the 2008 Final Rule 6 and 2020
AEWR Final Rule,7 discussed in more detail below, the Department has established an AEWR using FLS data for each State in the multistate or singleState crop region to which the State belongs since 1987.8 Currently, pursuant to the 2010 Final Rule,9 the AEWR for each State or region is published annually as a single average hourly gross wage that is set using the field and livestock workers combined data from the FLS, which is conducted by the USDAs National Agricultural 3 See Secretarys Order 012014 Dec. 19, 2014, 79 FR 77527 Dec. 24, 2014.
4 20 CFR 655.121.
5 20 CFR 655.120a.
6 Final Rule, Temporary Agricultural Employment of H2A Aliens in the United States; Modernizing the Labor Certification Process and Enforcement, 73
FR 77110 Dec. 18, 2008 2008 Final Rule.
7 As discussed in subsequent sections of this preamble, a federal court in United Farm Workers v. Dept of Labor, No. 20cv01690 E.D. Cal. Dec.
23, 2020, enjoined the Department from further implementing the 2020 AEWR Final Rule, Adverse Effect Wage Rate Methodology for the Temporary Employment of H2A Nonimmigrants in Non-Range Occupations in the United States, 85 FR 70445
Nov. 5, 2020 2020 AEWR Final Rule two days after its effective date of December 21, 2020.
8 The FLS collects data for workers directly hired by U.S. farms and ranches in each of 15 multistate labor regions, and the single-State regions of California, Florida, and Hawaii. The FLS does not collect data in other locations, for example, Alaska and Puerto Rico, where an employer may seek to employ H2A workers.
9 As discussed more fully below, the Department has utilized the methodology set forth in the 2010
Final Rule since March 15, 2010, except for the twoday period of December 2122, 2020.

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