[Federal Register Volume 85, Number 241 (Tuesday, December 15, 2020)]
[Notices]
[Page 81221]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-27468]


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DEPARTMENT OF LABOR

Employment and Training Administration


Labor Certification Process for the Temporary Employment of 
Aliens in Agriculture in the United States: Adverse Effect Wage Rate 
for Range Occupations in 2021

AGENCY: Employment and Training Administration (ETA), Labor.

ACTION: Notice.

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SUMMARY: The Employment and Training Administration (ETA) of the 
Department of Labor (Department) is issuing this notice to announce the 
2021 Adverse Effect Wage Rate (AEWR) for the employment of temporary or 
seasonal nonimmigrant foreign workers (H-2A workers) to perform herding 
or production of livestock on the range. 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 so 
that the wages and working conditions of workers in the United States 
(U.S.) similarly employed will not be adversely affected. In this 
notice, the Department announces the annual update of the AEWR for 
workers engaged in the herding or production of livestock on the range, 
as required by the methodology established in the Temporary 
Agricultural Employment of H-2A Foreign Workers in the Herding or 
Production of Livestock on the Range in the United States, 80 FR 62958, 
63067-63068 (Oct. 16, 2015); 20 CFR 655.211.

DATES: The rate is effective January 1, 2021.

FOR FURTHER INFORMATION CONTACT: Brian Pasternak, Administrator, Office 
of Foreign Labor Certification, Employment and Training Administration, 
Department of Labor, N-5311, 200 Constitution Ave. NW, Washington, DC 
20210, Telephone: (202) 513-7350 (this is not a toll-free number). 
Individuals with hearing or speech impairments may access the telephone 
number above via TTY by calling the toll-free Federal Information Relay 
Service at 1-877-889-5627 (TTY/TDD).

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 
and seasonal agricultural workers in the U.S. unless the petitioner has 
received an H-2A labor certification from the Department. The H-2A 
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); 20 
CFR 655.100.

Adverse Effect Wage Rate for 2021

    The Department's H-2A regulations covering the herding or 
production of livestock on the range (H-2A Herder Rule) at 20 CFR 
655.210(g) and 655.211(a)(1) provide that employers must offer, 
advertise in recruitment, and pay each worker employed under 20 CFR 
655.200-655.235 a wage that is at least the highest of (1) the monthly 
AEWR, (2) the agreed-upon collective bargaining wage, or (3) the 
applicable minimum wage imposed by federal or state law or judicial 
action. Further, when the monthly AEWR is adjusted during a work 
contract and is higher than both the agreed-upon collective bargaining 
wage and the applicable minimum wage imposed by federal or state law or 
judicial action in effect at the time the work is performed, the 
employer must pay that adjusted monthly AEWR upon publication by the 
Department in the Federal Register. 20 CFR 655.211(a)(2).
    As provided in 20 CFR 655.211(c)(2) of the H-2A Herder Rule, the 
monthly AEWR for range occupations in all states for a calendar year is 
based on the monthly AEWR for the previous calendar year, adjusted by 
the Employment Cost Index (ECI) for wages and salaries published by the 
Bureau of Labor Statistics for the preceding annual period. The 12-
month change in the ECI for wages and salaries of private industry 
workers between September 2019 and September 2020 was 2.7 percent, 
resulting in a monthly AEWR for range occupations in effect for 2021 of 
$1,727.75.\1\ The national monthly AEWR rate for all range occupations 
in the H-2A program in 2021 is calculated by multiplying the monthly 
AEWR for calendar year 2020 by the October 2020 ECI adjustment 
($1,682.33 x 1.027 = $1,727.75) or $1,727.75. Accordingly, any employer 
certified or seeking certification for range workers must pay each 
worker a wage that is at least the highest of the monthly AEWR of 
$1,727.75, the agreed-upon collective bargaining wage, or the 
applicable minimum wage imposed by federal or state legislation or 
judicial action at the time work is performed on or after the effective 
date of this notice.
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    \1\ The regulation at 20 CFR 655.211(c)(2) states that the 
monthly AEWR is calculated based on the ECI for wages and salaries 
``for the preceding October--October period.'' This regulatory 
language was intended to identify the Bureau of Labor Statistics' 
October publication of ECI for wages and salaries, which presents 
data for the September--September period. Accordingly, the most 
recent 12-month change in the ECI for private sector workers 
published on October 30, 2020, by the Bureau of Labor Statistics was 
used for establishing the monthly AEWR under the regulations. See 
https://www.bls.gov/news.release/archives/eci_10302020.pdf. The ECI 
for private sector workers was used rather than the ECI for all 
civilian workers given the characteristics of the H-2A herder 
workforce.

John Pallasch,
Assistant Secretary for the Employment and Training Administration.
[FR Doc. 2020-27468 Filed 12-14-20; 8:45 am]
BILLING CODE 4510-FP-P