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Federal Register / Vol. 86, No. 228 / Wednesday, December 1, 2021 / Proposed Rules
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workers to both drive tractors and other mechanized, electrically powered or motor-driven equipment on farms and semi tractor-trailer units, as described above, the employers job opportunity constitutes a combination of SOC 45
2091 and SOC 533032, subject to either the field and livestock worker combined FLS-based AEWR applicable to SOC 452091 or the OEWS-based, occupation-specific AEWR applicable to SOC 533032, whichever is a higher rate per hour.
As noted in the 2019 NPRM and 2020
AEWR Final Rule, determining the appropriate occupational classification is an important component of the Departments decision to move to occupation-specific wages for job opportunities not classifiable within the field and livestock combined occupational grouping. Use of the highest applicable wage in these cases reduces the potential for employers to misclassify workers than if the Department permitted employers to pay different AEWRs for job duties falling within different occupational classifications on a single Application for Temporary Employment Certification. This proposal also reduces an employers recordkeeping burdens with respect to wages. Under the proposal, for example, employers who currently file a single Application for Temporary Employment Certification covering multiple workers and a wide variety of duties might instead choose to file separate Applications for Temporary Employment Certification and limit the duties of the job opportunities in each Application for Temporary Employment Certification to a single occupational classification. The employer would then pay a separate wage rate based on the duties of each job opportunity included in the separate Applications for Temporary Employment Certification, which reduces the potential for misclassification and lowers recordkeeping burdens, as employers would only need to track the highest wage among distinct occupational classifications, if applicable. This policy is also consistent with the way the Department determines prevailing wage rates for jobs that cover multiple SOCs in other employment-based visa programs.
D. The Department Proposes To Publish FLS-Based AEWRs and OEWS-Based AEWRs Coinciding With Those Surveys Publication Schedules As with the 2020 AEWR 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

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Administrator, an update to each AEWR
as a notice in the Federal Register. The Department proposes to make the updated AEWRs effective through two announcements in the Federal Register, one for the AEWRs based on the FLS
i.e., effective on or about January 1, and a second for the AEWRs based on the OEWS survey i.e., effective on or about July 1, due to the different time periods for release of these two wage surveys.
The Department anticipates that only one of the two AEWR adjustment notifications may impact an employers wage obligations during the work contract period. Given the Departments proposal to determine the AEWR for the majority of H2A job opportunities using the field and livestock worker combined wage reported by FLS, most H2A certifications would be subject only to the FLS-based AEWR
adjustment in January. Further, due to the seasonal nature of temporary agricultural labor or services, many H
2A employment periods begin and end between FLS-based AEWR adjustments.
Only in the circumstance in which a job opportunity constitutes a combination of occupations that involves both an FLS-based AEWR and an OEWS-based AEWR would two AEWR adjustment notices potentially impact an employers wage obligations.
E. The Departments Decision Not To Use ECI-Adjusted AEWRs In proposing to annually adjust the AEWRs based on the annual publication of new FLS and OEWS data, the Department is proposing not to use the ECI to adjust AEWRs as the 2020 AEWR
Final Rule had done, and is not contemplating use of a similar index for several reasons. First, the FLSthe Departments preferred wage source for establishing the AEWR for field and livestock workersis again available, eliminating the Departments primary impetus for electing to use the ECI to adjust AEWRs in future years under the 2020 AEWR Final Rule. Second, the Department proposes to leverage OEWS
survey data for this group of occupations instead of using of the ECI, as OEWS data is more consistent with the FLS data category used to set the AEWRs. As noted above, BLS now will provide the Department wage data for field and livestock workers combined, based on the OEWS survey, to determine the AEWR for these occupations in each State or region where the FLS is not available or does not report wage data for workers in a particular geographic area. In those cases where the FLS is not available, the Department believes that using the
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OEWS survey rather than the ECI best allows the Department to prevent adverse effect as required under the INA
because the OEWS survey provides data more specifically tailored to geographic areas and occupations common in the H2A program and is more consistent with the FLS. In particular, though the ECI provides a stable measure of annual increases in the wages of private sector workers generally, the ECI does not report the annual change in wages of field and livestock workers specifically, and does not provide wage data for agricultural workers in particular geographic areas. Both the FLS and OEWS survey provide data more specifically tailored to U.S. agricultural workers and the States and regions where these workers are employed, making these sources more effective in ensuring that the temporary employment of foreign workers in field and livestock job opportunities will not adversely affect the wages of workers in the United States similarly employed. In addition, OEWS data includes wage data from farm labor contractors, who increasingly provide labor or services to growers both in the predominant field and livestock workers combined occupational group and in occupations that are less common in the H2A
program.
While the Department remains sensitive to concerns of employers regarding increases in the FLS-based AEWRs, the Department believes, for the reasons discussed above, that the approach proposed in this rulemaking best allows the Department to fulfill its statutory mandate. The concerns about AEWR increases also appear overstated when considering long-term historical trends in agricultural worker wages and the agricultural labor market. Long-term data on growth in the AEWRs shows that with the exception of the AEWRs for Hawaii, Oregon, and Washington, growth in the AEWRs from 2010
through 2019 was lower than growth from 2000 to 2010 and substantially lower in many States. Considering top user States as examples, the total AEWR
increase from 2010 through 2019
compared to 2000 through 2010 was lower in four of the five top States.68
Moreover, despite higher-than-average wage increases in some recent years, farmworkers remain among the lowest paid workers in the United States. The USDA Economic Research Service ERS
recently reported that the gap between farmworker and non-farmworker wages 68 3.95% lower in California, 3.07% lower in Florida, 8.34% lower in Georgia, 6.07% lower in North Carolina, and 6.07% higher in Washington, based on an average of annual changes in the AEWR
over the past two decades.

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