2013-00115. Labor Certification Process for the Temporary Employment of Aliens in Agriculture in the United States: Prevailing Wage Rates for Certain Occupations Processed Under H-2A Special Procedures

AGENCY:

Employment and Training Administration, Labor.

ACTION:

Notice.

SUMMARY:

The Department of Labor (we or the Department) is issuing this notice to announce new prevailing wage and piece rates covering the employment of temporary or seasonal nonimmigrant foreign workers (H-2A workers) and corresponding employees to perform agricultural labor or services in certain occupations with special procedures established under 20 CFR 655.102 in the H-2A program, including open range production of livestock, itinerant animal shearing, sheepherding, goatherding, and custom combine operations. The new prevailing wages are based on surveys conducted by State Workforce Agencies (SWA) of employers and transmitted to the Department between May 1, 2012 and June 1, 2012 in accordance with the Department's Training and Employment Guidance Letters (TEGLs) for these occupations. For open range production of livestock, sheepherding, and goatherding occupations, which are characterized by other than a reasonably regular workday or workweek, the prevailing wage results, reflected as monthly or daily prevailing wage rates, are deemed to be the Adverse Effect Wage Rates (AEWR) for those occupations.

DATES:

This notice is effective January 8, 2013.

FOR FURTHER INFORMATION CONTACT:

For further information, contact William L. Carlson, Ph.D., 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 [phone] (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 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

The H-2A nonimmigrant worker visa program enables United States (U.S.) agricultural employers to employ foreign workers on a temporary basis to perform agricultural labor or services. Section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act (INA or the Act), 8 U.S.C. 1101(a)(15)(H)(ii)(a); see also 8 U.S.C. 1184(c)(1) and 1188. The INA authorizes the Secretary of the Department of Homeland Security (DHS) to permit employers to import foreign workers to perform temporary agricultural labor or services of a temporary or seasonal nature if the Secretary of the U.S. DOL (Secretary) certifies 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. 1188(a)(1). 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 hourly wage or piece rate; (iii) the agreed-upon collective bargaining wage, if applicable; or (iv) the Federal or State minimum wage, in effect at the time the work is performed, except where a special procedure has been approved for use in an occupation or specific class of agricultural employment.

On June 14, 2011, the Department issued four TEGLs revising special procedures for occupations involved in the open range production of livestock, itinerant animal shearing, sheepherding and goatherding, and custom combine operations in the H-2A program. TEGL No. 15-06, Change 1, Special Procedures: Labor Certification Process for Occupations Involved in the Open Range Production of Livestock under the H-2A Program; TEGL No. 17-06, Change 1, Special Procedures: Labor Certification Process for Employers in the Itinerant Animal Shearing Industry under the H-2A Program; TEGL No. 32-10: Special Procedures: Labor Certification Process for Employers Engaged in Sheepherding and Goatherding Occupations under the H-2A Program; and TEGL No. 16-06, Change 1, Special Procedures: Labor Certification Process for Multi-State Custom Combine Owners/Operators under the H-2A Program. These revised special procedures clarified the process for establishing the annual prevailing wage and/or piece rates for those occupations, but largely continued industry-specific variances to the offered wage requirement. For example, since occupations involving the open range production of livestock, sheepherding and/or goatherding are characterized by other than a reasonably regular workday or workweek, the Department has continued a special variance to the offered wage requirements contained at 20 CFR 655.120(a) by permitting an employer to offer, advertise in the course of its recruitment, and pay the daily, monthly, weekly, or semi-monthly prevailing wage established by the Department for each State in an approved itinerary. As provided in the H-2A regulations at 20 CFR 655.102, for open range production of livestock, sheepherding, and goatherding occupations, which are characterized by other than a reasonably regular workday or workweek, the prevailing wage results, reflected as monthly or daily prevailing wage rates, are deemed to be the Adverse Effect Wage Rates (AEWR) for those occupations.

As described in each of the TEGLs, the Department continues to use findings from prevailing wage surveys conducted by the SWAs in accordance with the procedures in the ET Handbook No. 385, Domestic Agricultural In-Season Wage Finding Process, to determine the prevailing wage and/or piece rates for these occupations. The SWAs transmit their findings for occupations covered by the special procedures to the Office of Foreign Labor Certification (OFLC) between May 1st and June 1st of each calendar year. Upon receipt of the wage findings and review of the SWA-reported survey results, the OFLC publishes the new prevailing rates with an immediate effective date.^[1] For occupations involving the open range production of livestock, animal shearing, sheepherding and/or goatherding where the SWA survey results were insufficient to establish a prevailing wage rate for an occupation, due to inadequate sample size or another valid reason, the applicable TEGL's wage setting procedures allow the Department to issue a prevailing wage or piece rate for that State based on the wage rate findings submitted by an adjoining or proximate SWA for the same or similar agricultural activity. The applicability of one State's wage rate finding for a specific occupation to another State may vary from year to year, depending on which SWAs are able to produce wage rate findings for specific occupations for the reporting year.

OFLC used three main principles in establishing the prevailing wage rates for States that had no official wage rate findings,: (1) Where a State directly borders a State with a wage rate finding, that wage rate finding is assigned to the adjoining (bordering) State; (2) where a State borders more than one State with wage rate findings, the findings of the State that is more adjoining (i.e., more shared geographic characteristics, including a longer shared border) are applied to the State with no wage rate finding; and (3) where a State does not directly border a State with a wage rate finding but is within a U.S. Department of Agriculture (USDA) farm production region that includes another State either with its own wage rate finding or to which findings were applied consistent with one of the other principles, that wage rate finding is applied to the State with no wage rate finding. Using a prevailing wage rate finding, which is also deemed to be an AEWR under the circumstances described above, from an adjoining or proximate State, or from another State within the same USDA farm production region, enables the Department to comply with its obligation to certify that the employment of 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.

Accordingly, the new AEWRs and prevailing wage rates for agricultural occupations covered by special procedures are set forth in the tables below. These wages are in effect as of the date of this Notice and will remain in effect until the issuance of the next annual publication of AEWRs and prevailing wage rates. For open range production of livestock, sheepherding, and goatherding occupations, which are characterized by other than a reasonably regular workday or workweek, the prevailing wage results, reflected as monthly or daily prevailing wage rates, are deemed to be the AEWRs for those occupations.

Table 1—Prevailing Wage Rates for the Open Range Production of Livestock Occupations

State	Prevailing wage rates for open range cattlehand/calver
Colorado	$875.00 Per Month Plus Room and Board.
Idaho	$1,500.00 Per Month Plus Housing.2
Montana	$1,500.00 Per Month Plus Housing.2
North Dakota	$1,500.00 Per Month Plus Housing.2
Oklahoma	$125.00 Per Day Plus Meals.2
South Dakota	$1,500.00 Per Month Plus Housing.2
Texas
Region 1	$125.00 Per Day Plus Meals.
Region 2	$125.00 Per Day Plus Meals.
Region 3	$90.00 Per Day.
Region 4	$90.00 Per Day.2
Utah	$875.00 Per Month Plus Room and Board.2
Wyoming	$1,500.00 Per Month Plus Housing.

 

This year, the methodology applied to establish prevailing wage rates for the open range production of livestock resulted in increased wages in Texas and Oklahoma, and decreased wages in South Dakota. These wage changes are due to a change in the availability of source wages, including wage information from adjoining or proximate States. For example, a change in the method of payment in Texas, from monthly and weekly wage rates to a daily rate, resulted in an increase of the prevailing wage rate not only in Texas but also in Oklahoma, an adjoining State. The Utah monthly wage rate was established using the wage finding from the adjoining state of Colorado instead of the other adjoining State, Wyoming, because Utah shares more geographic characteristics with Colorado, including a full border, than it does with Wyoming. Finally, the prevailing wage rate for Wyoming was applied to South Dakota, an adjoining State, and secondarily to North Dakota because South Dakota is part of the same USDA farm production (Northern Plains) region as North Dakota.

Table 2—Prevailing Wage Rates for Sheepherding and Goatherding Occupations

State	Prevailing wage rates for sheep/goat herder
Arizona	$1,422.52 Per Month Plus Room and Board.3
California	$1,422.52 Per Month Plus Room and Board.
Colorado	$750.00 Per Month Plus Room and Board.
Idaho	$750.00 Per Month Plus Room and Board.3
Montana	$750.00 Per Month Plus Room and Board.3
Nevada	$1,422.52 Per Month Plus Room and Board.3
New Mexico	$750.00 Per Month Plus Room and Board.3
North Dakota	$750.00 Per Month Plus Room and Board.3
Oklahoma	$750.00 Per Month Plus Room and Board.3
Oregon	$1,422.52 Per Month Plus Room and Board.3
Texas	$750.00 Per Month Plus Room and Board.3
Utah	$750.00 Per Month Plus Room and Board.3
Washington	$1,422.52 Per Month Plus Room and Board.3
Wyoming	$750.00 Per Month Plus Room and Board.3

 

This year, the methodology applied to establish wages for sheepherding and goatherding resulted in increased wage rates for sheepherding job opportunities in Arizona, Nevada, Oregon, and Washington, and in decreased wage rates in New Mexico, Oklahoma, and Texas. The wage increases are due to a change in the availability of source wages, including wages from adjoining and proximate States or within the same USDA farm production region. For example, the monthly prevailing wage rate, deemed the AEWR for this occupation, increased for job opportunities in Arizona, Washington, Nevada, and Oregon.

TABLE 3—Itinerant Animal Shearing Occupations

State	Prevailing wage rates
Arizona	Sheep, Ewe—Shearer: $2.00 Per Head.4
	Sheep, Wool Packer: No Finding.5
	Sheep, Wool Gatherer: $8.00 Per Hour.4
	Sheep, Wool Grader: No Finding.5
California. 6	Sheep, Ewe—Shearer: $2.00 Per Head.
	Sheep, Wool Packer: No Finding.5
	Sheep, Wool Gatherer: $8.00 Per Hour.
	Sheep, Wool Grader: No Finding.5
Colorado	Sheep, Ewe—Shearer: $2.00 Per Head.4
	Sheep, Feedlot Lamb—Shearer: $1.50 Per Head.4
	Sheep, Replacement Lamb—Shearer: $1.90 Per Head.4
	Sheep, Buck/Ram—Shearer: $4.00 Per Head.4
	Ewe—Wool Fleece Grader: $0.17 Per Head.4
	Buck/Ram—Wool Fleece Grader: $0.34 Per Head.4
Idaho	Sheep, Ewe—Shearer: $2.00 Per Head.4
	Sheep, Feedlot Lamb—Shearer: $1.50 Per Head.4
	Sheep, Replacement Lamb—Shearer: $1.90 Per Head.4
	Sheep, Buck/Ram—Shearer: $4.00 Per. Head.4
	Ewe—Wool Fleece Grader: $0.17 Per Head.4
	Buck/Ram—Wool Fleece Grader: $0.34 Per Head.4
Montana	Sheep, Ewe—Shearer: $2.00 Per Head.4
	Sheep, Feedlot Lamb—Shearer: $1.50 Per Head.4
	Sheep, Replacement Lamb—Shearer: $1.90 Per Head.4
	Sheep, Buck/Ram—Shearer: $4.00 Per Head.4
	Ewe—Wool Fleece Grader: $0.17 Per Head.4
	Buck/Ram—Wool Fleece Grader: $0.34 Per Head.4
Nevada	Sheep, Ewe—Shearer: $2.00 Per Head.4
	Sheep, Wool Packer: No Finding.5
	Sheep, Wool Gatherer: $8.00 Per Hour.4
	Sheep, Wool Grader: No Finding.5
New Mexico	Sheep, Ewe—Shearer: $2.00 Per Head.4
	Sheep, Feedlot Lamb—Shearer: $1.50 Per Head.4
	Sheep, Replacement Lamb—Shearer: $1.90 Per Head.4
	Sheep, Buck/Ram—Shearer: $4.00 Per Head.4
	Ewe—Wool Fleece Grader: $0.17 Per Head.4
	Buck/Ram—Wool Fleece Grader: $0.34 Per Head.4
North Dakota	Sheep, Ewe—Shearer: $2.00 Per Head.4
	Sheep, Feedlot Lamb—Shearer: $1.50 Per Head.4
	Sheep, Replacement Lamb—Shearer: $1.90 Per Head.4
	Sheep, Buck/Ram—Shearer: $4.00 Per Head.4
	Ewe—Wool Fleece Grader: $0.17 Per Head.4
	Buck/Ram—Wool Fleece Grader: $0.34 Per Head.4
Oklahoma	Sheep, Ewe—Shearer: $2.00 Per Head.4
	Sheep, Feedlot Lamb—Shearer: $1.50 Per Head.4
	Sheep, Replacement Lamb—Shearer: $1.90 Per Head.4
	Sheep, Buck/Ram—Shearer: $4.00 Per Head.4
	Ewe—Wool Fleece Grader: $0.17 Per Head.4
	Buck/Ram—Wool Fleece Grader: $0.34 Per Head.4
Oregon	Sheep, Ewe—Shearer: $2.00 Per Head.4
	Sheep, Wool Packer: No Finding.5
	Sheep, Wool Gatherer: $8.00 Per Hour.4
	Sheep, Wool Grader: No Finding.5
South Dakota	Sheep, Ewe—Shearer: $2.00 Per Head.4
	Sheep, Feedlot Lamb—Shearer: $1.50 Per Head.4
	Sheep, Replacement Lamb—Shearer: $1.90 Per Head.4
	Sheep, Buck/Ram—Shearer: $4.00 Per Head.4
	Ewe—Wool Fleece Grader: $0.17 Per Head.4
	Buck/Ram—Wool Fleece Grader: $0.34 Per Head.4
Texas	Sheep, Ewe—Shearer: $2.00 Per Head.4
	Sheep, Feedlot Lamb—Shearer: $1.50 Per Head.4
	Sheep, Replacement Lamb—Shearer: $1.90 Per Head.4
	Sheep, Buck/Ram—Shearer: $4.00 Per Head.4
	Ewe—Wool Fleece Grader: $0.17 Per Head.4
	Buck/Ram—Wool Fleece Grader: $0.34 Per Head.4
Utah	Sheep, Ewe—Shearer: $2.00 Per Head.4
	Sheep, Feedlot Lamb—Shearer: $1.50 Per Head.4
	Sheep, Replacement Lamb—Shearer: $1.90 Per Head.4
	Sheep, Buck/Ram—Shearer: $4.00 Per Head.4
	Ewe—Wool Fleece Grader: $0.17 Per Head.4
	Buck/Ram—Wool Fleece Grader: $0.34 Per Head.4
Washington	Sheep, Ewe—Shearer: $2.00 Per Head.4
	Sheep, Wool Packer: No Finding.5
	Sheep, Wool Gatherer: $8.00 Per Hour.4
	Sheep, Wool Grader: No Finding.5
Wyoming	Sheep, Ewe—Shearer: $2.00 Per Head.
	Sheep, Feedlot Lamb—Shearer: $1.50 Per Head.
	Sheep, Replacement Lamb—Shearer: $1.90 Per Head.
	Sheep, Buck/Ram—Shearer: $4.00 Per Head.
	Ewe—Wool Fleece Grader: $0.17 Per Head.
	Buck/Ram—Wool Fleece Grader: $0.34 Per Head.

 

 

 

Table 4—Custom Combine Occupations

State	Prevailing wage rates
Arizona	Wheat Harvest, Custom Combine Operator: $8.50 Per Hour.
	Wheat Harvest, Grain Truck Driver: No Finding. 7
California	Wheat Harvest, Custom Combine Operator: $9.20 Per Hour.
	Wheat Harvest, Grain Truck Driver: No Finding. 7
Colorado	Wheat Harvest, Custom Combine Operator: No Finding. 7
	Wheat Harvest, Grain Truck Driver: No Finding. 7
Kansas	Wheat Harvest, Custom Combine Operator: No Finding. 7
	Wheat Harvest, Grain Truck Driver: No Finding.4 7
Minnesota	Wheat Harvest, Custom Combine Operator: No Finding. 7
	Wheat Harvest, Grain Truck Driver: No Finding. 7
Montana	Wheat Harvest, Custom Combine Operator: $2,000 Per Month Plus Room and Board.
	Wheat Harvest, Grain Truck Driver: $2,000 Per Month Plus Room and Board.
Nebraska	Wheat Harvest, Custom Combine Operator: $1,800 Per Month.
	Wheat Harvest, Grain Truck Driver: $1,800 Per Month.
	Wheat Harvest, Grain Cart Driver: $15.00 Per Hour.
New Mexico	Wheat Harvest, Custom Combine Operator: No Finding. 7
	Wheat Harvest, Grain Truck Driver: No Finding. 7
North Dakota	Wheat Harvest, Custom Combine Operator: $3,000 Per Month Plus Room and Board.
	Wheat Harvest, Grain Truck Driver: $2,500 Per Month.
Oklahoma	Wheat Harvest, Custom Combine Operator: $8.50 Per Hour.
	Wheat Harvest, Grain Truck Driver: $7.50 Per Hour.
South Dakota	Wheat Harvest, Custom Combine Operator: $2,200 Per Month Plus Room and Board.
	Wheat Harvest, Grain Truck Driver: $2,200 Per Month Plus Room and Board.
Texas	Wheat Harvest, Custom Combine Operator: $2,100 Per Month.
	Wheat Harvest, Grain Truck Driver: $11.00 Per Hour.
Wisconsin	Wheat Harvest, Custom Combine Operator: No Finding. 7
	Wheat Harvest, Grain Truck Driver: No Finding. 7
Wyoming	Wheat Harvest, Custom Combine Operator: No Finding. 7
	Wheat Harvest, Grain Truck Driver: No Finding. 7

 

These prevailing wage rates will be in effect for all work that is performed on or after the effective date of this Notice and until the issuance of the next annual publication of new prevailing wage rates for these occupations.

Signed in Washington this 28th day of December, 2012.

Jane Oates,

Assistant Secretary, Employment and Training Administration.

Footnotes

1.  In accordance with ET Handbook 385, the SWAs only report the wage findings for occupations that are present in the wage reporting area; prevailing wage rates are established only for those States where the activity subject to the special procedure is actually performed.

2.  In accordance with TEGL 15-06, a wage survey capable of producing a prevailing wage finding for the occupation in this State was determined insufficient due to an inadequate sample size (i.e., number of domestic workers and/or employers employing domestic workers in the occupation) or another valid reason. Therefore, the prevailing wage finding for this State is based on the prevailing wage findings submitted by an adjoining or proximate SWA for the same or similar agricultural activities to ensure that the wages of similarly employed workers are not adversely affected. This principle was extended to regions within specific States that have historically produced separate findings but did not do so during the current reporting period.

Where OFLC could not establish a prevailing wage rate based on a finding from an adjoining or proximate State, OFLC established the prevailing wage rate based on the wage finding applicable to one or more States within the same USDA farm production region. See: http://webarchives.cdlib.org/​sw1vh5dg3r/​ http://www.ers.usda.gov/​Briefing/​ARMS/​resourceregions/​resourceregions.htm#older.

The States used to establish the prevailing wage determinations for open range production of livestock occupations are:

Idaho—based on Wyoming

Montana—based on Wyoming

North Dakota—based on Wyoming

Oklahoma—based on Texas Region 1

South Dakota—based on Wyoming

Texas Region 4—based on Texas Region 3

Utah—based on Colorado

3.  In accordance with TEGL 32-10, a wage survey capable of producing a prevailing wage finding for the occupation in this State was determined insufficient due to an inadequate sample size (i.e., number of domestic workers and/or employers employing domestic workers in the occupation) or another valid reason. Therefore, the prevailing wage finding for this State is based on the prevailing wage findings submitted by an adjoining or proximate SWA for the same or similar agricultural activities to ensure that the wages of similarly employed workers are not adversely affected. Where OFLC could not establish a prevailing wage rate based on the findings from an adjoining or proximate State, OFLC established the prevailing wage rate based on the wage finding applicable to one or more States within the same USDA farm production region. See: http://webarchives.cdlib.org/​sw1vh5dg3r/​http://www.ers.usda.gov/​Briefing/​ARMS/​resourceregions/​resourceregions.htm#older.

The States used to establish the prevailing wage determinations for sheepherding and goatherding occupations are:

Arizona—based on California

Idaho—based on Colorado

Montana—based on Colorado

New Mexico—based on Colorado

Nevada—based on California

North Dakota—based on Colorado

Oklahoma—based on Colorado

Oregon—based on California

Texas—based on Colorado

Utah—based on Colorado

Washington—based on California

Wyoming—based on Colorado

4.  In accordance with TEGL 17-06, a wage survey capable of producing a prevailing wage finding for the occupation in this State was determined insufficient due to an inadequate sample size (i.e., number of domestic workers and/or employers employing domestic workers in the occupation) or another valid reason. Therefore, the prevailing wage finding for this State is based on the prevailing wage findings submitted by an adjoining or proximate SWA for the same or similar agricultural activities to ensure that the wages of similarly employed workers are not adversely affected. This principle was extended to regions within specific States that have historically produced separate findings but did not do so during the current reporting period.

Where OFLC could not establish a prevailing wage rate based on the findings from an adjoining or proximate State, OFLC established the prevailing wage rate based on the wage finding applicable to one or more States within the same USDA farm production region. See: http://webarchives.cdlib.org/​sw1vh5dg3r/​http://www.ers.usda.gov/​Briefing/​ARMS/​resourceregions/​resourceregions.htm#older.

In all instances where a prevailing wage or piece rate for an occupation involved in itinerant animal shearing could not be established, an employer must offer, advertise in its recruitment and pay the highest of the AEWR, the agreed-upon collective wage, or the Federal or State minimum wage in effect at the time the work is performed and for each State listed in an approved itinerary.

The States used to establish the prevailing wage determinations for itinerant animal shearing are:

Arizona—based on California

Colorado—based on Wyoming

Idaho—based on Wyoming

Montana—based on Wyoming

New Mexico—based on Wyoming

Nevada—based on California

North Dakota—based on Wyoming

Oklahoma—based on Wyoming

Oregon—based on California

South Dakota—based on Wyoming

Texas—based on Wyoming

Utah—based on Wyoming

Washington—based on California

5.  With respect to each H-2A job order and application for itinerant animal shearing processed under special procedures, where a prevailing wage determination results in a “No Finding” for the occupation or agricultural activity, the employer must offer, advertise in the course of its recruitment, and pay a wage that is the highest of the AEWR, the agreed-upon collective bargaining wage, or the Federal or State minimum wage, in effect at the time animal shearing work is performed and for each State listed in an approved itinerary.

6.  California prevailing wage rates were established based on surveys conducted in the Sacramento Valley, San Joaquin Valley, and Desert Area.

7.  With respect to each H-2A job order and application for custom combine operations processed under special procedures, where OFLC was unable to establish a prevailing wage as indicated by a “No Finding” notation for the occupation or agricultural activity, the employer must offer, advertise in the course of its recruitment, and pay a wage that is the highest of the AEWR, the agreed-upon collective bargaining wage, or the Federal or State minimum wage, in effect at the time custom combine work is performed and for each State listed in an approved itinerary.