2024-26481. Employer-Provided Survey Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program

Exhibit 1—Estimated Monetized Costs and Cost Savings of the Proposed Rule

[2023 $]

	Costs	Cost savings	Net cost savings
1st Year	$12,850	$5,359	−$7,492
Undiscounted Annual	1,285	5,359	4,074
Annualized with at a Discount Rate of 2%	1,431	5,359	4,535

The total cost of the proposed rule is associated with rule familiarization and the new requirements that the surveyor must continue to accept responses for at least 14 calendar days after receiving the third employer response to the survey request. In addition, the surveyor must include no fewer than three contacts with non-respondents, using the same method of contact initially used, and at least two other active methods of contact across different business days and times that are most likely to receive the most response. Cost savings are the results of the elimination of the Form ETA-9165, Employer-Provided Survey Attestations to Accompany H-2B Prevailing Wage Determination Request Based on a Non-OES Survey. See the costs and cost savings subsections of Section IV.A.3 (Subject-by-Subject Analysis).

1. Need for Regulation

As discussed further in Section II.F, supra, this NPRM is required by a court ruling that, in promulgating the 2015 Wage Rule, the agencies failed to comply with the APA's notice-and-comment requirements. Williams v. Walsh, 648 F. Supp. 3d 70 (D.D.C. 2022). Consequently, the court remanded the rule “for further consideration consistent with” its opinion. Id. at 99. Additionally, in light of issues raised (although not decided) in that litigation, OFLC is proposing to revise the data and methodological criteria for employer-provided wage surveys.

2. Analysis Considerations

The Department estimated the costs and the cost savings of the proposed rule relative to the existing baseline ( i.e., the current practices for complying, at a minimum, with the H-2B program as currently codified at 20 CFR part 655).

In accordance with the regulatory analysis guidance articulated in OMB's Circular A-4 and consistent with the Department's practices in previous rulemakings, this regulatory analysis focuses on the likely consequences of the proposed rule ( i.e., costs, cost savings, and qualitative benefits). The analysis covers 10 years (from 2025 through 2034) to ensure it captures major costs, cost savings, and qualitative benefits that accrue over time. The Department expresses all quantified impacts in 2023 dollars and uses undiscounted annuals and a discount rate of 2 percent, pursuant to Circular A-4.

Exhibit 2 shows the total number of H-2B PWD requests and the number of submissions requesting a survey wage for FYs 2020—2023. The Department used this information to estimate the costs and cost savings of the proposed rule.

Exhibit 2—Number of Unique Submissions for H-2B Survey Requests *

FY	Number of H-2B PWD requests	Number of H-2B wage survey requests	% of total submissions requesting survey wage
2020	11,629	77	0.7
2021	14,748	161	1.1
2022	24,914	378	1.5
2023	24,715	267	1.1
Average	19,002	221	1.1
* Data source: OFLC performance data for FY2020-2023.

a. Compensation Rates

In Section IV.A.3 (Subject-by-Subject Analysis), the Department presents the costs, including labor, associated with the implementation of the provisions of the proposed rule. Exhibit 3 presents the hourly compensation rates for the occupational categories expected to experience a change in the number of hours necessary to comply with the proposed rule. The Department used the mean hourly wage rate for private sector human resources (HR) specialists (SOC code 13-1071).^[64] Wage rates are adjusted to reflect total compensation, which includes nonwage factors such as overhead and fringe benefits ( e.g., health and retirement benefits). We use an overhead rate of 17 percent ^[65] and a fringe benefits rate based on the ratio of average total compensation to average wages and salaries in 2023. For private sector employees, we use a fringe benefits rate of 42 percent.^[66] We then multiply the loaded wage factor and the overhead rate by the wage rate to calculate an hourly compensation rate. The Department used the hourly compensation rates presented in Exhibit 3 throughout this analysis to estimate the labor costs for each provision.

( print page 90659)

Exhibit 3—Compensation Rates

[2023 Dollars]

Position	Grade level	Base hourly wage rate	Loaded wage factor	Overhead costs	Hourly compensation rate
		(a)	(b)	(c)	(d) = a + b + c
HR Specialist	N/A	$36.573	$15.36 ($36.57 × 0.42)	$6.22 ($36.57 × 0.17)	$58.15

3. Subject-by-Subject Analysis

The Department's analysis below covers the costs, cost savings, and qualitative benefits of the proposed rule. This proposed rule includes the quantified cost of rule familiarization, the unquantified cost of additional survey requirements, and the quantified cost savings of elimination of the Form ETA-9165, and qualitative discussion of benefits.

a. Costs

The following section describes the quantified and unquantified costs of the proposed rule.

i. Rule Familiarization

If the proposed rule takes effect, H-2B employers who are submitting an employer-provided survey would need to familiarize themselves with the new regulations. Consequently, this would impose a one-time cost in the 1st year.

To estimate the 1st-year cost of rule familiarization, the number of unique H-2B employers who are submitting an employer-provided survey (221) was multiplied by the estimated amount of time required to review the rule (1 hour). The Department requests public comments and inputs regarding this estimate. This number was then multiplied by the hourly compensation rate of HR specialists ($58.15 per hour). This calculation results in a one-time undiscounted cost of $12,850 in the 1st year after the proposed rule takes effect. The annualized cost over the 10-year period is $1,431 at a discount rate of 2 percent. An undiscounted annual cost over the 10-year period is $1,285.

ii. Additional Survey Requirements

The Department proposes in the NPRM to revise the data and methodological criteria for employer-provided wage surveys to require that a survey must continue to accept responses for at least 14 calendar days after receiving the minimum number of required responses from at least 3 employers that together include wages for at least 30 workers. In addition, the surveyor must include no fewer than three contacts with non-respondents, using the same method of contact initially used, and at least two other active methods of contact across different business days and times that are most likely to generate responses. The Department expects these new requirements may add a small compliance cost to surveyors, but we cannot quantify it due to the data limitations. The Department seeks public comments and inputs that will help us to quantify this cost impact to surveyors.

b. Cost Savings

The following section describes the cost savings of the proposed rule.

i. Elimination of the Form ETA-9165

The Department proposes to eliminate the Form ETA-9165, Employer-Provided Survey Attestations to Accompany H-2B Prevailing Wage Determination Request Based on a Non-OES Survey. Each employer would have spent 25 minutes to fill out the attestation form if it had not been eliminated. To estimate the cost savings per year, the number of unique H-2B employers who are expected to submit an employer-provided survey (221) was multiplied by the estimated amount of time required to fill out the attestation form (25 minutes or 0.417 hours). This number was then multiplied by the hourly compensation rate of HR specialists ($58.15 per hour). This calculation results in an annual cost savings of $5,359 after the proposed rule takes effect. The annualized cost savings over the 10-year period is $5,359 at a discount rate of 2 percent and undiscounted annual cost savings at $5,359.

c. Qualitative Benefits Discussion

The following section describes the benefits of the proposed rule.

i. Improved Accuracy in Prevailing Wage Data

The Department's proposal would benefit H-2B workers and workers in corresponding employment by adding a new condition to § 655.10(f)(4)(i) that at least three follow-up attempts be made to contact non-respondents. This proposed requirement that the surveyor make no fewer than three contacts with non-respondents, first using the same method of contact initially used, and subsequently two other active methods of contact across different business days and times that are most likely to generate responses, is intended to reduce sampling bias and, therefore, yield more accurate survey results.

Additionally, under the proposed rule, as a new requirement, surveyors would have to continue accepting employer responses for at least 14 calendar days from the date the third notification in proposed paragraph (f)(4)(i) is sent, even after receiving responses from 3 employers including the wages of 30 workers. This additional 14-calendar day period would maximize the opportunity to include as much data as possible in the survey so that it is as accurate and representative as possible. Also, the additional 14-day calendar period would prevent: (1) the skewing of results that could occur should the survey conclude as soon as the minimum number of responses are received; and (2) the exclusion of available data from the survey.

ii. Greater Efficiency in Employer-Provided Survey Process

An additional benefit of this proposal would be an increase in efficiency in the employer-provided survey process. Employers would be required to submit the survey with the Form ETA-9141 when an employer requests a survey-based H-2B prevailing wage from the NPWC and such survey should contain the necessary information about the survey methodology ( e.g., sample size and source, sample selection procedures, and survey job descriptions). This would reduce the need for the NPWC to routinely issue Requests for Information in most cases involving employer-provided surveys. Efficiency is inherently valuable as a principle of good government and provides benefits to the public at large, including reducing the need to routinely issue Requests for Information necessary for the Department's analyses.

4. Summary of the Analysis

Exhibit 4 summarizes the estimated total costs and cost savings of the proposed rule over the 10-year analysis period. The Department estimates the ( print page 90660) annualized costs of the proposed rule at $1,431 for rule familiarization, the annualized cost savings at $5,359 for eliminating the Form ETA-9165 and the annualized net cost savings at $4,535, each at a discount rate of 2 percent. Unquantified costs include the new requirements that the surveyor must continue to accept responses for at least 14 calendar days from the date the third notification is sent even if responses have been received from 3 employers including the wages of 30 workers. The surveyor must also include no fewer than three contacts with non-respondents, using the same method of contact initially used, and at least two other active methods of contact across different business days and times that are most likely to receive the most response. Unquantified benefits include improved accuracy in prevailing wage surveys due to permitting employer-provided surveys in instances where OEWS data is unavailable or insufficient, and increased transparency in the employer survey process.

Exhibit 4—Estimated Monetized Costs and Cost Savings of the Proposed Rule

[2023 $]

Year	Costs	Cost savings	Net cost savings
2025	$12,850	$5,359	$7,492
2026		5,359	5,359
2027		5,359	5,359
2028		5,359	5,359
2029		5,359	5,359
2030		5,359	5,359
2031		5,359	5,359
2032		5,359	5,359
2033		5,359	5,359
2034		5,359	5,359
Undiscounted annual	1,285	5,359	4,074
Annualized with a Discount Rate of 2%	1,431	5,359	4,535