[Federal Register Volume 77, Number 42 (Friday, March 2, 2012)]
[Rules and Regulations]
[Pages 12723-12724]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-5201]

Rules and Regulations
                                                Federal Register

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Federal Register / Vol. 77, No. 42 / Friday, March 2, 2012 / Rules 
and Regulations

[[Page 12723]]


Employment and Training Administration

20 CFR Part 655

Labor Certification Process for the Temporary Employment of 
Aliens in Agriculture in the United States; Announcement of Non-
Material Change to the Farm Labor Survey Used for Determining the 
Adverse Effect Wage Rate

AGENCY: Employment and Training Administration, Department of Labor.

ACTION: Announcement of non-material change.


SUMMARY: Under the Department of Labor's (we or the Department) H-2A 
temporary labor certification program, Adverse Effect Wage Rates 
(AEWRs) are the minimum wage rates the Department has determined must 
be offered and paid by employers to H-2A workers and workers in 
corresponding employment for a particular occupation and area such that 
the wages of similarly employed United States (U.S.) workers will not 
be adversely affected. 20 CFR 655.100(b). AEWRs are derived from the 
Farm Labor Survey (FLS) issued by the U.S. Department of Agriculture's 
(USDA) National Agricultural Statistics Service (NASS). In the interest 
of government transparency, we are publishing this document to announce 
a non-material change in the frequency of establishment surveys under 
the FLS (and its accompanying publication) beginning in 2012.

DATES: This announcement is effective March 2, 2012.

Administrator, Office of Foreign Labor Certification, Employment and 
Training Administration, U.S. Department of Labor, 200 Constitution 
Avenue NW., Room C-4312, Washington, DC 20210; Telephone (202) 693-3010 
(this is not a toll-free number). Individuals with hearing or speech 
impairments may access the telephone number above via TTY calling the 
toll-free Federal Information Relay Service as 1-877-889-5627 (TTY/

SUPPLEMENTARY INFORMATION: The U.S. Citizenship and Immigration 
Services of the Department of Homeland Security will not approve an 
employer's petition for the admission of H-2A nonimmigrant temporary 
agricultural workers in the U.S. unless the petitioner has received 
from the Department an H-2A labor certification. The labor 
certification provides that: (1) There are not sufficient U.S. workers 
who are able, willing, and qualified and who will be available at the 
time and place needed to perform the labor or services involved in the 
petition; and (2) the employment of the foreign worker(s) in such labor 
or services will not adversely affect the wages and working conditions 
of workers in the U.S. similarly employed. 8 U.S.C. 
1101(a)(15)(H)(ii)(a), 1184(c)(1), and 1188(a); 8 CFR 214.2(h)(5).
    The Department's H-2A regulations at 20 CFR 655.120(a) provide that 
employers must pay their H-2A workers and workers in corresponding 
employment at least the highest of: (i) The AEWR; (ii) the prevailing 
wage; (iii) the prevailing piece rate; (iv) the agreed-upon collective 
bargaining wage, if applicable; or (v) the Federal or State minimum 
wage, in effect at the time the work is performed. The H-2A regulations 
define the AEWR as ``[t]he annual weighted average hourly wage for 
field and livestock workers (combined) in the States or regions as 
published annually by the U.S. Department of Agriculture (USDA) based 
upon its quarterly wage survey.'' 20 CFR 655.103(a) and (b).
    NASS historically has conducted the FLS on which the AEWR is based. 
The FLS provides quarterly statistics on the number of agricultural 
workers; hours worked, and wage rates. We have relied upon the FLS 
since 1987 \1\ as the basis for setting the AEWR. We explain our 
reasons in great detail in the preamble of the ``Temporary Agricultural 
Employment of H-2A Aliens in the United States; Final Rule'', 75 FR 
6884, 6891-6901, Feb. 12, 2010 (the 2010 H-2A Rule). However, we are 
publishing several clarifications in light of recent changes to the 
method by which the FLS is conducted.

    \1\ There a brief period of deviation beginning January 17, 2009 
through March 14, 2010, where we decided to use the Bureau of Labor 
Statistics Occupational Employment Statistics Survey rather than the 
FLS to set the AEWR. See ``Temporary Agricultural Employment of H-2A 
Aliens in the United States; Modernizing the Labor Certification 
Process and Enforcement, Final Rule'', 73 FR 77110, Dec. 18, 2008.

    We stated in the preamble to the 2010 H-2A Final Rule that

[t]he FLS is conducted each year in January, April, July and 
October, and results are published the following month.

    We also stated in the preamble that:

    The FLS and publication schedule provide timely data for 
purposes of calculating the relevant State AEWRs. Specifically, the 
FLS is routinely available and published within 1 month of the 
survey date. The quarterly gathering of data ensures that the annual 
averages are more accurately reflective of the fluctuations of farm 
labor patterns, which are by definition seasonal and thus more 
subject to fluctuation than other occupations.

    However, beginning calendar year 2012, NASS will conduct the FLS 
semi-annually and collect data for January and April during April and 
collect data for July and October during October. In other words, NASS 
will continue to collect data from all four quarters but will only 
survey the establishments twice a year, with publication of the results 
the following month. Other than this change in frequency in which 
establishments are surveyed, and the accompanying publication of the 
results, the FLS remains the same as described in the preamble to the 
2010 H-2A Rule. NASS will continue to include its annual average 
estimate for wage rates, based on data collected from all four quarters 
of the year, in the October FLS report which is published in November.
    The change in how frequently establishments are surveyed (and the 
accompanying publication of those results) does not change the 
statistical validity of the FLS. In the fall of 2011, NASS conducted an 
internal review and found that there was not enough evidence to 
conclude that collecting quarterly data at 3 months after the 
estimation period resulted in a statistically significant recall bias. 
Accordingly, the definition of AEWR at

[[Page 12724]]

20 CFR 655.103(b) \2\ and the justification for returning to the FLS as 
the basis for the AEWR continue to apply and are not materially 
affected by this procedural change.

    \2\ Although the definition of AEWR refers to ``quarterly 
surveys,'' we do not believe that it is necessary to replace that 
reference with ``semi-annual surveys,'' as the NASS will continue to 
collect wage data from all four quarters and the annual weighted 
average hourly wage for field and livestock workers (combined) in 
the States or regions would continue to be based upon that quarterly 
wage data.

    Signed in Washington, DC, this 28th day of February, 2012.
Jane Oates,
Assistant Secretary, Employment and Training Administration.
[FR Doc. 2012-5201 Filed 2-29-12; 4:15 pm]