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Federal Register / Vol. 86, No. 228 / Wednesday, December 1, 2021 / Proposed Rules
VI.A.3 describes the unquantified costs of the proposed rule, a description of qualitative benefits, and presents an analysis of distributional impacts of the rule. Section VI.A.4 summarizes the estimated first-year and 10-year total and annualized costs and transfers of the proposed rule. Finally, section VI.A.5 describes the regulatory
alternatives that were considered during the development of the proposed rule.
Summary of the Analysis The Department estimates that the proposed rule will result in costs and transfers. As shown in Exhibit 1, the proposed rule is expected to have an annualized cost of $0.064 million and a
total 10-year quantifiable cost of $0.45
million at a discount rate of 7 percent.75
The proposed rule is estimated to result in annual transfers from H2A
employers to H2A employees of $30.17
million and total 10-year transfers of $211.87 million at a discount rate of 7
percent.76

EXHIBIT 1ESTIMATED MONETIZED COSTS AND TRANSFERS OF THE PROPOSED RULE
2020 $millions Costs Undiscounted 10-Year Total
10-Year Total with a Discount Rate of 3%
10-Year Total with a Discount Rate of 7%

$0.45
0.45
0.45

$295.00
254.20
211.87

10-Year Average
Annualized at a Discount Rate of 3%
Annualized with at a Discount Rate of 7%

0.45
0.53
0.064

29.50
29.80
30.17

The total cost of the proposed rule is associated with rule familiarization.
Transfers are the results of changes to the AEWR methodology and, more specifically, in H2A job opportunities where the FLS does not adequately collect or consistently report wage data at a State or regional level. See the costs and transfers subsections of section VI.A.3 Subject-by-Subject Analysis below for a detailed explanation.
The Department was unable to quantify some costs and benefits of the proposed rule. The Department describes them qualitatively in section VI.A.3 Subject-by-Subject Analysis and seek input from the public to help us to reasonably quantify them in the final rule.

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Transfers
1. Need for Regulation As discussed above, court-issued injunctions prevented USDA from suspending FLS data collection for calendar year 2020 and prevented the Department from further implementing the 2020 AEWR Final Rule on December 23, 2020, resulting in a return to the 2010 Final Rule AEWR methodology.
Under the 2010 Final Rule, the FLS
wage data is used to determine the AEWRs for all H2A job opportunities.
However, the Department remains concerned that the use of a single AEWR
for all job opportunities in the H2A
program may adversely affect the wages of workers in the United States similarly employed in certain occupations where the FLS does not adequately collect or consistently report wage data at a State or regional level. Therefore, the 75 The proposed rule will have an annualized cost of $0.18 million and a total 10-year cost of $1.54
million at a discount rate of 3 percent in 2020
dollars.

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Department proposes using the bifurcated approach set forth in the 2020 AEWR Final Rule that set a single AEWR based on the FLS for the vast majority of job opportunities used by employers in the H2A programsix occupational classifications covering field workers and livestock workers while 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. As AEWR determinations become more occupation specific, the Department believes it is appropriate to continue requiring that employers pay the highest applicable wage if the job opportunity can be classified within more than one occupational classification to reduce the potential for employers to misclassify workers and establish greater consistency with prevailing wage determinations in the H2B program.
The Department has also determined that two major aspects of the 2020
AEWR Final Rule are inconsistent with the Departments statutory mandate to protect the wages of workers in the United States similarly employed against adverse effect: 1 The imposition of a 2-year wage freeze for field and livestock workers at a wage level based on the FLS published in November 2019, and 2 using the BLS
ECI solely to adjust AEWRs annually thereafter. Accordingly, the Department
has determined these policies must be reconsidered and proposes revisions in this NPRM that better meet the statutes twin goals to ensure that employers can access legal agricultural labor while maintaining an adequate level of wage protection for workers in the United States similarly employed.

76 The proposed rule will have annualized transfer payments from H2A employers to H2A
employees of $29.80 million and a total 10-year
transfer payments of $254.20 million at a discount rate of 3 percent in 2020 dollars.

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2. Analysis Considerations The Department estimated the costs and transfers of the proposed rule relative to the existing baseline i.e., the current practices for complying, at a minimum, with the H2A program as currently codified at 20 CFR part 655, subpart B. This existing baseline is consistent with the 2010 Final Rule because the 2020 AEWR Final Rule has been preliminarily enjoined by a federal district court, as explained above, and there is uncertainty as to whether the 2020 AEWR Final Rule rule will be vacated prior to the issuance of this final rule.
In accordance with the regulatory analysis guidance articulated in OMBs Circular A4 and consistent with the Departments practices in previous rulemakings, this regulatory analysis focuses on the likely consequences of the proposed rule i.e., costs and transfers that accrue to entities affected.
The analysis covers 10 years from 2022
through 2031 to ensure it captures major costs and transfers that accrue over time. The Department expresses all quantifiable impacts in 2020 dollars and uses discount rates of 3 and 7 percent, pursuant to Circular A4.

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