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Federal Register / Vol. 86, No. 228 / Wednesday, December 1, 2021 / Proposed Rules
lotter on DSK11XQN23PROD with PROPOSALS1

guest workers. 35 The court rejected the Departments explanation that the new AEWR methodology, as applied to the field and livestock workers, was justified, at least in part, by continued uncertainty about the long-term availability of the FLS, as demonstrated by USDAs decision to suspend the October 2020 data collection. The court determined the USDAs FLS
Suspension Notice should not factor into this equation, at least with regard to setting the 2021 AEWRs, because the court enjoined that decision and new FLS data should therefore be available in a timely fashion. 36 Accordingly, the court ruled that despite claiming that it concluded on balance that use of the FLS was not appropriate in this context, the Department has not in fact addressed the impact that freezing wages would have on field and livestock workers.37
As the court noted, the Department has previously stated that the FLS is the only annually available data source that actually uses information sourced directly from farm employers, and its broader geographic scope makes the FLS more consistent with both the nature of agricultural employment and the statutory intent of the H2A
program. 38 Given that USDA has resumed FLS data collection,39 and plans to release the next annual data in November 2021,40 and given the Departments longstanding reliance on the FLS to establish the AEWR, the Department has decided it is appropriate to reassess its decision to no longer rely on annual FLS data for the vast majority of H2A job opportunities.
Additionally, while the 2020 AEWR
Final Rule would have led to higher wages for certain higher skilled workers, the rule also acknowledged that the revised methodology may result in the AEWRs for field workers and livestock workers being set at slightly lower levels in future years than would be the case under the 2010 Rules methodology. 41 The courts order found that, given the Departments 35 Id. at 18 quoting 85 FR 70445, 70453
However, the closest that the Final Rule gets to addressing the intentional departure from accurate market wages is its statement that even if more recent, 2020 FLS wage data were available, relying on it to set 2021 AEWRs would only serve to perpetuate the very wage volatility that the Department seeks to ameliorate through this rule. .
36 Id.
37 Id. internal citations omitted.
38 Id. at 4.
39 USDA NASS, Farm Labor report, https
usda.library.cornell.edu/concern/publications/
x920fw89s?locale=en last modified May 26, 2021.
40 Id.
41 Id. at 14.

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statutory mandate to prevent adverse effects, it was likely that plaintiffs would succeed on their claim that the 2020 AEWR Final Rule failed to provide adequate justification for a methodology that could lead to lower wages for field and livestock workers than the wages that would have be produced under the 2010 methodology.42 Although nominal wages for field and livestock were expected not to decline under the 2020
methodology, the Department acknowledged that the 2021 AEWRs, set pursuant to the 2010 methodology and the FLS published in February 2021, will result in higher wages for the majority of H2A workers in 2021.
Consistent with the courts decision, the Department believes adjustment of the methodology used to establish the required wage rate for the H2A
program will better enable the Department to meet its statutory obligation regarding adverse effect.
The Department has also reviewed the policy underlying the 2020 AEWR Final Rule in light of its statutory mandate, and has determined that two major aspects of the 2020 AEWR Final Rule do not adequately protect against adverse impact: 1 The imposition of a 2-year wage freeze for field and livestock workers at a wage level based on the FLS survey published in November 2019, and 2 the use of the BLS ECI, Wages and Salaries, to annually adjust AEWRs for field and livestock workers annually thereafter. These policy decisions represent a significant departure from how minimum or prevailing wage determinations are issued to employers in other employment-based visa programs administered by the Department, and from how the Department has established the AEWR in the H2A
program for more than 30 years. The Department considers actual, current wage data to be the best source of information for determining prevailing wages, when an appropriate data source is available, and has consistently relied upon such information in determining minimum or prevailing wages in the other employment-based visa programs it administers. Using a methodology other than actual, current wage data increases the likelihood of permitting employers to pay wages that are not reflective of market wages, which undermines the Departments mandate to prevent an adverse effect on the wages of workers in the United States similarly employed.
However, as discussed above, the Department remains concerned that the use of a single AEWR for all workers in 42 Id.

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the H2A program may adversely affect wages in certain occupations. Therefore, the Department proposes utilizing the bifurcated approach set forth in the 2020 rule that set a single AEWR based on the FLS for the vast majority of job opportunities used by employers in the H2A programoccupational classifications for field workers and livestock workerswhile shifting AEWR determinations to the OEWS
survey for all other occupations for which the FLS does not adequately collect or consistently report wage data at a State or regional level e.g., truck drivers, farm supervisors and managers, construction workers, and many occupations in contract employment.
Because these other, typically higher paid occupations are not reported in the FLS field and livestock workers combined category, an OEWS-based AEWR will better protect against adverse effect. Additionally, as AEWR
determinations become more occupation specific, the Department also believes it is appropriate to require that employers pay the highest applicable wage if the job opportunity can be classified within more than one occupation to reduce the potential for employers to misclassify workers and establish greater consistency with prevailing wage determinations in the H2B program.
Accordingly, the Department has determined these policies must be reconsidered and proposes revisions in this notice of proposed rulemaking NPRM. The Department has determined that the proposals outlined below reflect an approach that allows the Department to meet its statutory mandate to ensure that workers in the United States are provided an adequate level of wage protection in their employment. The Department took into account the regulations promulgated in 2010, as well as the significant revision of the AEWR provisions in the 2020
AEWR Final Rule, in order to arrive at the approach described below. The Department believes the methodology described below is reasonable and strikes an appropriate balance under the INA.
II. Proposed Changes to the AEWR
Determination Methodology A. Summary of Proposed Revisions The Department proposes to use the definition of AEWR found in the 2020
AEWR Final Rule. Because that 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 the proposal to define the
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