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Federal Register / Vol. 86, No. 228 / Wednesday, December 1, 2021 / Proposed Rules Department does not have direct control over the FLS, and USDA could elect to terminate the survey at some point in the future. USDA has announced its intention to suspend the survey on three occasions, including in 2020,53 as noted above, and in 2007 54 and 2011 55 due to budget constraints. Thus, in order to ensure continuity in establishing statewide AEWRs, to address situations where the FLS does not currently report a wage,56 to protect against the possibility of a future decision by USDA
to suspend or discontinue collection of the FLS, and other potential circumstances in which FLS wage data may not be available to set an AEWR for the State or region at least once annually, the Department proposes to use a second source of occupational wage datathe OEWS surveyto determine the statewide AEWRs for this grouping of occupations in circumstances where FLS does not report a State or regional wage finding or is otherwise not available.
Although the Department generally prefers to establish AEWRs based on the FLS for this group of occupations for the reasons discussed above, the OEWS
survey would become the best available source of wage data to establish AEWRs for field and livestock workers combined if the FLS is not available.
OEWS survey data is the only other comprehensive and statistically valid set of wage data collected from employers engaged in agricultural activities, tailored to geographic areas and occupations common in the H2A
program, and is most consistent with the occupation-based wage collection of the FLS. Within the agricultural sector of the U.S. economy, the OEWS survey collects employment and gross hourly wage data from employer establishments that support farm production activities. Although they do not represent fixed-site 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. In addition, these types of employer establishments i.e., farm labor contractors participate in the H
2A program and represent an increasing 53 85

FR 61719.
of Intent to Suspend the Agricultural Labor Survey and Farm Labor Reports, 72 FR 5675
Feb. 7, 2007.
55 Notice of Intent to Suspend the Agricultural Labor Survey and Farm Labor Reports, 76 FR 28730
May 18, 2011.
56 This situation is rare. The Departments H2A
disclosure data for FY 2020 includes two applications submitted for job opportunities in Alaska and two for job opportunities in Puerto Rico, while disclosure data for FY 2019 includes three for job opportunities in Alaska and one in Puerto Rico.

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share of the worker positions certified by the Department on H2A
applications in this grouping of occupations,57 so data reported by these types of establishments represents the best information available for purposes of establishing the AEWRs where FLS
data is unavailable for the occupation.
BLS has the capability of providing a single annual average gross hourly wage for field and livestock workers combined, in this grouping of occupations that mirrors the FLS, at the statewide level based on the OEWS
survey data, which the Department will make accessible to the public online.
Specifically, BLS can leverage its existing survey standards and estimation procedures to compute statewide and national average gross hourly wages across this grouping of occupations based on employer establishments across industries.58
Finally, to further address potential data gaps, the Department proposes that in the event neither the FLS nor the OEWS survey report a statewide annual average hourly gross wage for field and livestock workers combined in a particular State, the District of Columbia, or U.S. Territory, the AEWR
will be the national annual average hourly gross wage for field and livestock workers combined in that State or equivalent district/territory, as reported by the OEWS survey. Given the anticipated scenarios in which such a data gap may occur, the Department does not propose to use the FLSs national data to establish the AEWR for field and livestock workers combined in the event a statewide annual average hourly gross wage for those workers in a particular State is unavailable.
Whenever the FLS has published, it consistently reports annual average hourly gross wage findings for field and livestock workers combined in 15
multistate and three single-State regions, covering 49 States. The Department anticipates that a national rate would be needed for field and livestock workers combined in these 49 States only in the unexpected event the FLS is broadly not available e.g., due to suspension or termination of the 57 For example, the proportion of all H2A worker positions certified by DOL for employment in nonrange occupations with employers qualifying as H
2A Labor Contractors i.e., farm labor contractors has increased significantly from 33.1 percent in FY
2016 54,787 positions out of 165,741 positions to 42.3 percent in FY 2020 116,472 positions out of 275,430 total positions.
58 An overview of the OEWS survey methodology is available at https www.bls.gov/oes/current/
oes_tec.htm. A more detailed explanation of the survey standards and estimation procedures is available at https www.bls.gov/opub/hom/oews/
pdf/oews.pdf.

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entire survey. In addition, as discussed above, the FLS does not survey Alaska and other geographic areas in which employers may seek to employ H2A
workers. As a result, the FLS national wage findings do not include wage data for workers in these geographic areas, whereas the OEWS survey consistently reports wage data for these geographic areas. For these reasons, the Department proposes to use the OEWS surveys national annual average hourly gross wage for field and livestock workers combined as the AEWR, if neither the FLS nor the OEWS survey report a statewide annual average hourly gross wage for field and livestock workers combined in a particular State.
B. The Department Proposes To Use the OEWS Survey To Establish OccupationSpecific AEWRs for All Other Job Opportunities For job opportunities that do not fall within the FLS field and livestock workers combined category, the Department proposes adopting the OEWS-based, occupation-specific AEWR methodology explained in the 2020 AEWR Final Rule. Under this methodology, the AEWR for all occupations other than field and livestock workers will be the statewide annual average hourly wage for the occupational classification, as reported by the OEWS survey. If the OEWS
survey does not report a statewide annual average hourly wage for the SOC, the AEWR for that State will be the national annual average hourly wage for the SOC, as reported by the OEWS
survey.
The Department is proposing to utilize the OEWS-based methodology for these occupations for the reasons explained below and in the 2020 AEWR
Final Rule.59 In part, while the FLS is the most accurate and comprehensive wage source to determine the AEWRs for field and livestock workers, as noted above, the OEWS survey is a more accurate data source for other agricultural occupations, such as supervisors, that the FLS does not adequately or consistently survey. In addition, the OEWS survey includes occupations that are more often contracted-for services than farmeremployed e.g., construction, equipment operators supporting farm production, which makes the OEWS data collection from farm labor contractors a better data source for determining AEWRs and protecting against adverse effect for these occupations.
Since 2014, the FLS has collected data by SOCthe same taxonomy that is 59 85

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FR 70445, 70453, 7045870459.

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