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Federal Register / Vol. 86, No. 228 / Wednesday, December 1, 2021 / Proposed Rules
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activity in a local area, will thus not only provide greater predictability but also better protect workers in the United States in occupations other than field and livestock occupations.
C. The Department Proposes To Assign the Highest AEWR for All SOCs Applicable to Job Opportunities Covering Multiple SOCs The Department proposes to require that employers pay the highest applicable wage if the job opportunity can be classified within more than one occupation, when those occupations are subject to different AEWRs, as proposed in the 2019 NPRM and adopted in the 2020 AEWR Final Rule.
This requirement would address scenarios in which the combination of duties an employer requires involves different AEWRs. The Department best protects against adverse effect by setting the AEWR applicable to the job opportunity at the highest of the applicable AEWRs. Under this proposal, if the job duties on the H2A
application including the job order do not fall within the field and livestock worker combined occupational grouping, the Department will determine the applicable AEWR based on the highest AEWR for all applicable occupational classifications. In the event an employers job opportunity requires the performance of duties encompassed by two or more distinct occupational classifications subject to different AEWRs e.g., a field and livestock worker combined occupation and an SOC occupation not encompassed in the field and livestock worker combined occupational group, or two SOC occupations both of which are not encompassed in the field and livestock worker combined occupational group, the Department will assign the highest AEWR among all applicable occupational classifications to reduce the potential for job misclassification by the employer and effectuate the purpose of the AEWR i.e., prevent adverse effect to the wages of workers in the United States similarly employed.
The proposal, discussed above, to determine a single statewide AEWR for all job opportunities in the field and livestock workers combined occupational grouping will minimize use of this provision because a job opportunity involving a combination of occupations that are all encompassed within the field and livestock workers combined will be subject to a single AEWR, regardless of which of the particular SOCs applicable to the field and livestock workers combined occupational category may be involved.

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For example, a job opportunity involving duties properly classified under SOC 452091 Agricultural Equipment Operators and duties properly classified under SOC 452093
Farmworkers, Farm, Ranch, and Aquacultural Animals would be subject only to the field and livestock workers combined AEWR and the provision regarding combination of occupations with different AEWRs would not be relevant, as a single AEWR applies to the job opportunity.
Under this proposal, the SWA will continue to review job ordersand SOCs thereinin the first instance and determine the appropriate SOC code for the job opportunity when it reviews an employers job order for compliance with 20 CFR part 653, subpart F, and 20
CFR part 655, subpart B. The SWA will enter the SOC code assigned to the employers job opportunity in Section I, Items 4 and 5, of the Form ETA790, Agricultural Clearance Order. After the employer files its H2A Application for Temporary Employment Certification, the OFLC Certifying Officer CO will review the employers application and job order, including SOC coding. The CO may determine a different SOC
coding is necessary, for example, based on additional information received during processing. The CO evaluates each job opportunity on a case-by-case basis, considering the totality of the information in an H2A application and job order, to determine the appropriate SOC code. In making a determination, the CO compares the duties of the employers job opportunity with SOC
definitions and tasks that are listed in the Departments Occupational Information Network ONET. Where similar tasks appear in more than one SOC code e.g., driving or maintenance and repair of farm equipment, the CO
considers other factual information in the employers application and job order. For example, for job opportunities involving driving duties, the CO will look at factors such as the type of equipment involved e.g., pickup trucks, custom combine machinery, or semi tractor-trailer trucks; makes and models of machines to be used, the location where the work will be performed e.g., on a farm or off, and the qualifications and requirements for the job opportunity in order to determine the most appropriate SOC
code to assign to the employers job opportunity.
Generally, a job opportunity corresponds with a single SOC code if all of the duties fall within a single occupation and the qualifications, requirements, and other factors are consistent with that occupation. For
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example, a job opportunity for workers to solely perform hand harvesting activities would match with a single occupation, SOC code 452092
Farmworkers and Laborers, Crop, Nursery, and Greenhouse, absent factors indicating other SOCs e.g., a required machinery repair certification.
In the event the job opportunity cannot be classified within a single SOC, the CO will assign a combination of occupationsmore than one SOC
codeto the employers job opportunity. As noted above, the Department anticipates that the majority of H2A job opportunities will be classifiable in one of the SOC
occupations associated with the FLS
field workers and livestock workers combined category, or a combination of those SOCs, since the H2A program requires that job opportunities constitute agricultural labor or services, as defined by the Fair Labor Standards Act and Internal Revenue Code. Jobs classified within one of these codes or a combination of these codes will receive the AEWR applicable to field and livestock workers combined. If different AEWRs apply to the SOCs, the CO will use the highest AEWR of the applicable AEWRs.
As explained in the 2020 AEWR Final Rule, a job opportunity involving driving duties may be properly classified under SOC 452091
Agricultural Equipment Operators, SOC 533032 Heavy and TractorTrailer Truck Drivers, or a combination of the two, depending on the duties described in the employers job order. A
job opportunity for workers to drive tractors and other mechanized, electrically powered or motor-driven equipment on farms to plant, cultivate, and harvest a crop including driving tractors in and out of fields carrying bins and driving forklifts to transfer and stack bins of full product onto trailers, which requires 12 months of experience operating such equipment, would be properly classified under SOC 452091
and subject to the field and livestock worker combined FLS-based AEWR. In contrast, a job opportunity for workers to drive semi tractor-trailer trucks to and from specified destinations within an area of intended employment including maneuvering trucks into and out of loading and unloading positions as well as driving in both on-road paved and off-road conditions, which requires 12
months of experience operating such equipment and a valid Class A CDL or equivalent, would be properly classified under SOC 533032 and subject to the OEWS-based, occupation-specific AEWR. In the event an employer seeks
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