H-2A AEWR NPRM

Dear Administrator Pasternak: The Northwest Horticultural Council (NHC) writes today to provide comment regarding the proposed rule published in the U.S. Federal Register by the U.S. Department of Labor (DOL) in Docket No. ETA-ETA-2021-006, entitled "Temporary Agricultural Employment of the H-2A Nonimmigrants in the United States." The NHC represents the growers, packers, and shippers of apples, pears, and cherries in Washington, Oregon, and Idaho. Our growers produce approximately 69 percent of the apples (supplying 76 percent of the U.S. fresh market), 87 percent of the fresh pears, and 84 percent of the fresh sweet cherries grown in the United States. Use of the H-2A program has skyrocketed in the last five years. Even during periods of record low unemployment within the last five years, tree fruit growers in the Pacific Northwest have been compelled to increasingly turn to the H-2A program to secure the workforce they need to grow and harvest their crops. The number of H-2A workers brought to Washington state alone increased by a third in just one year, from just shy of 18,800 in 2017 to approximately 25,000 in 2018. This trend has continued through the COVID-19 pandemic, with approximately 29,000 worker positions being filled in 2021. This rapid escalation in use of the H-2A program occurred during a period when H-2A wages were 20 percent or more above the state minimum wage – not counting the substantial costs H-2A employers pay associated with filing the application and paying for visas, housing, and transportation of workers. Especially with corresponding employment requirements, the decision to enter the H-2A program is far too costly to be anything but a last resort. Washington state has one of the highest minimum wages in the nation, set at $14.49 in 2022 – higher than the AEWR in 13 states. The AEWR has increased an average of 5.9 percent per year over the last decade – a rate that far outpaces wage growth in the region or country as whole. To put this into context, the highest Employment Cost Index annual increase since 2004 was 3.7 percent, which was met in the third quarter of 2021. DOL states that "the potential for localized wage depression is more pronounced in the H-2A program than in the H-2B program due to both the economic position of agricultural workers and the fact that the H-2A program is not subject to a statutory cap." (86 FR 68182) While a plausible presumption, the exact opposite has been true: growth in the number of H-2A workers has caused increases in wages above market rates. In Washington state, these artificial wage pressures not only affect H-2A employers, but neighboring farmers as well. As more employers turn to the H-2A program, competition increases for the few available domestic workers (who have guaranteed access to the above-market H-2A wages and benefits through corresponding worker contracts). Thus, the H-2A wage rate has become a de-facto wage floor for all growers and packers in the area. With labor often constituting 60-70 percent of a tree fruit grower's input costs, these artificial escalating wage pressures are unsustainable and quite literally driving H-2A and non-H-2A growers out of business. While the Notice of Proposed Rulemaking (NPRM) states that DOL is not considering eliminating the AEWR or changing its role in determination of an employer's required minimum wage rate in the H-2A program, we reiterate from our previous comments issued to the federal docket DOL Docket No. ETA-2019-0007 that the AEWR does not prevent adverse effects of H-2A workers on the domestic workforce. These adverse effects have not in fact been found to exist by DOL. In fact, by driving growers out of business, it is reducing the number of employers that domestic workers may go to for job opportunities. We encourage DOL to reconsider the use of the AEWR to meet the statutory objective of preventing adverse effect to the domestic workforce. Additionally, DOL aptly no…