[Federal Register Volume 68, Number 38 (Wednesday, February 26, 2003)]
[Notices]
[Pages 8929-8930]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-4500]



[[Page 8929]]

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DEPARTMENT OF LABOR

Employment and Training Administration


Labor Certification Process for the Temporary Employment of 
Aliens in Agriculture and Logging in the United States: 2003 Adverse 
Effect Wage Rates, Allowable Charges for Agricultural and Logging 
Workers' Meals, and Maximum Travel Subsistence Reimbursement

AGENCY: Employment and Training Administration, Labor.

ACTION: Notice of adverse effect wage rates (AEWRs), allowable charges 
for meals, and maximum travel subsistence reimbursement for 2003.

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SUMMARY: The Employment and Training Administration (ETA), announces 
2003 adverse effect wage rates (AEWRs) for employers seeking 
nonimmigrant alien (H-2A) workers for temporary or seasonal 
agricultural labor or services, the allowable charges employers seeking 
nonimmigrant alien workers for temporary or seasonal agricultural labor 
or services or logging work may levy upon their workers when they 
provide three meals per day, and the maximum travel subsistence 
reimbursement which a worker with receipts may claim in 2003.
    AEWRs are the minimum wage rates which the Department of Labor has 
determined must be offered and paid to U.S. and alien workers by 
employers of nonimmigrant alien agricultural workers (H-2A 
visaholders). AEWRs are established to prevent the employment of these 
aliens from adversely affecting wages of similarly employed U.S. 
workers.
    The Department of Labor also announces the new rates which covered 
agricultural and logging employers may charge their workers for three 
daily meals.
    Under specified conditions, workers are entitled to reimbursement 
for travel subsistence expense. The minimum reimbursement is the charge 
for three daily meals as discussed above. The Department of Labor here 
announces the current maximum reimbursement for workers with receipts.

EFFECTIVE DATE: February 26, 2003.

FOR FURTHER INFORMATION CONTACT: Mr. Dale M. Ziegler, Chief, Division 
of Foreign Labor Certification, U.S. Department of Labor, Room C-4318, 
200 Constitution Avenue, NW., Washington, DC 20210. Telephone: 202-693-
2942 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION: The Attorney General may not approve an 
employer's petition for admission of temporary alien agricultural (H-
2A) workers to perform agricultural labor or services of a temporary or 
seasonal nature in the United States unless the petitioner has applied 
to the Department of Labor (DOL) for an H-2A labor certification. The 
labor certification must show 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 alien in such labor or 
services will not adversely affect the wages and working conditions of 
workers in the United States similarly employed. 8 U.S.C. 
1101(a)(15)(H)(ii)(a), 1184(c), and 1188.
    DOL's regulations for the H-2A program require that covered 
employers offer and pay their U.S. and H-2A workers no less than the 
applicable hourly adverse effect wage rate (AEWR). 20 CFR 
655.102(b)(9); see also 20 CFR 655.107. Reference should be made to the 
preamble to the July 5, 1989, final rule (54 FR 28037), which explains 
in great depth the purpose and history of AEWRs, DOL's discretion in 
setting AEWRs, and the AEWR computation methodology at 20 CFR 
655.107(a). See also 52 FR 20496, 20502-20505 (June 1, 1987).

A. Adverse Effect Wage Rates (AEWRs) for 2003

    Adverse effect wage rates (AEWRs) are the minimum wage rates which 
DOL has determined must be offered and paid to U.S. and alien workers 
by employers of nonimmigrant (H-2A) agricultural workers. DOL 
emphasizes, however, that such employers must pay the highest of the 
AEWR, the applicable prevailing wage or the statutory minimum wage, as 
specified in the regulations. 20 CFR 655.102(b)(9). Except as otherwise 
provided in 20 CFR Part 655, Subpart B, the regionwide AEWR for all 
agricultural employment (except those occupations deemed inappropriate 
under the special circumstances provisions of 20 CFR 655.93) for which 
temporary alien agricultural labor (H-2A) certification is being 
sought, is equal to the annual weighted average hourly wage rate for 
field and livestock workers (combined) for the region as published 
annually by the U.S. Department of Agriculture (USDA does not provide 
data on Alaska). 20 CFR 655.107(a).
    The regulation at 20 CFR 655.107(a) requires the Assistant 
Secretary, Employment and Training Administration, to publish USDA 
field and livestock worker (combined) wage data as AEWRs in a Federal 
Register notice. Accordingly, the 2003 AEWRs for work performed on or 
after the effective date of this notice, are set forth in the table 
below:

              Table--2003 Adverse Effect Wage Rates (AEWRs)
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                           State                              2003 AEWR
------------------------------------------------------------------------
Alabama....................................................        $7.49
Arizona....................................................         7.61
Arkansas...................................................         7.13
California.................................................         8.44
Colorado...................................................         8.07
Connecticut................................................         8.53
Delaware...................................................         7.97
Florida....................................................         7.78
Georgia....................................................         7.49
Hawaii.....................................................         9.29
Idaho......................................................         7.70
Illinois...................................................         8.65
Indiana....................................................         8.65
Iowa.......................................................         8.91
Kansas.....................................................         8.53
Kentucky...................................................         7.20
Louisiana..................................................         7.13
Maine......................................................         8.53
Maryland...................................................         7.97
Massachusetts..............................................         8.53
Michigan...................................................         8.70
Minnesota..................................................         8.70
Mississippi................................................         7.13
Missouri...................................................         8.91
Montana....................................................         7.70
Nebraska...................................................         8.53
Nevada.....................................................         8.07
New Hampshire..............................................         8.53
New Jersey.................................................         7.97
New Mexico.................................................         7.61
New York...................................................         8.53
North Carolina.............................................         7.75
North Dakota...............................................         8.53
Ohio.......................................................         8.65
Oklahoma...................................................         7.29
Oregon.....................................................         8.71
Pennsylvania...............................................         7.97
Rhode Island...............................................         8.53
South Carolina.............................................         7.49
South Dakota...............................................         8.53
Tennessee..................................................         7.20
Texas......................................................         7.29
Utah.......................................................         8.07
Vermont....................................................         8.53
Virginia...................................................         7.75
Washington.................................................         8.71
West Virginia..............................................         7.20
Wisconsin..................................................         8.70
Wyoming....................................................         7.70
------------------------------------------------------------------------

B. Allowable Meal Charges

    Among the minimum benefits and working conditions which DOL 
requires employers to offer their alien and U.S. workers in their 
applications for temporary logging and H-2A agricultural labor 
certification is the provision of three meals per day or free and 
convenient cooking and kitchen facilities. 20 CFR 655.102(b)(4) and 
655.202(b)(4). Where the employer provides meals, the job offer must 
state

[[Page 8930]]

the charge, if any, to the worker for meals.
    DOL has published at 20 CFR 655.102(b)(4) and 655.111(a) the 
methodology for determining the maximum amounts covered H-2A 
agricultural employers may charge their U.S. and foreign workers for 
meals. The same methodology is applied at 20 CFR 655.202(b)(4) and 
655.211(a) to covered H-2 logging employers. These rules provide for 
annual adjustments of the previous year's allowable charges based upon 
Consumer Price Index (CPI) data.
    Each year the maximum charges allowed by 20 CFR 655.102(b)(4) and 
655.202(b)(4) are changed by the same percentage as the twelve-month 
percent change in the CPI for all Urban Consumers for Food (CPI-U for 
Food) between December of the year just past and December of the year 
prior to that. Those regulations and 20 CFR 655.111(a) and 655.211(a) 
provide that the appropriate Regional Administrator (RA), Employment 
and Training Administration, may permit an employer to charge workers 
no more than a higher maximum amount for providing them with three 
meals a day, if justified and sufficiently documented. Each year, the 
higher maximum amounts permitted by 20 CFR 655.111(a) and 655.211(a) 
are changed by the same percentage as the twelve-month percent change 
in the CPI-U for Food between December of the year just past and 
December of the year prior to that. The regulations require the 
Department of Labor to make the annual adjustments and to cause a 
notice to be published in the Federal Register each calendar year, 
announcing annual adjustments in allowable charges that may be made by 
covered agricultural and logging employers for providing three meals 
daily to their U.S. and alien workers. The 2002 rates were published in 
a notice on May 17, 2002 at 67 FR 35150.
    DOL has determined the percentage change between December of 2001 
and December of 2002 for the CPI-U for Food was 1.8 percent.
    Accordingly, the maximum allowable charges under 20 CFR 
655.102(b)(4), 655.202(b)(4), 655.111, and 655.211 were adjusted using 
this percentage change, and the new permissible charges for 2003 are as 
follows: (1) For 20 CFR 655.102(b)(4) and 655.202(b)(4), the charge, if 
any, shall be no more than $8.59 per day, unless the RA has approved a 
higher charge pursuant to 20 CFR 655.111 or 655.211(b); for 20 CFR 
655.111 and 655.211, the RA may permit an employer to charge workers up 
to $10.64 per day for providing them with three meals per day, if the 
employer justifies the charge and submits to the RA the documentation 
required to support the higher charge.

C. Maximum Travel Subsistence Expense

    The regulations at 20 CFR 655.102(b)(5) establish that the minimum 
daily subsistence expense related to travel expenses, for which a 
worker is entitled to reimbursement, is the employer's daily charge for 
three meals or, if the employer makes no charge, the amount permitted 
under 20 CFR 655.104(b)(4). The regulation is silent about the maximum 
amount to which a qualifying worker is entitled.
    The Department, in Field Memorandum 42-94, established that the 
maximum is the meals component of the standard CONUS (continental 
United States) per diem rate established by the General Services 
Administration (GSA) and published at 41 CFR Ch. 301. The CONUS meal 
component is now $30.00 per day.
    Workers who qualify for travel reimbursement are entitled to 
reimbursement up to the CONUS meal rate for related subsistence when 
they provide receipts. In determining the appropriate amount of 
subsistence reimbursement, the employer may use the GSA system under 
which a traveler qualifies for meal expense reimbursement per quarter 
of a day. Thus, a worker whose travel occurred during two quarters of a 
day is entitled, with receipts, to a maximum reimbursement of $15.00. 
If a worker has no receipts, the employer is not obligated to reimburse 
above the minimum stated at 20 CFR 655.102(b)(4) as specified above.

    Signed at Washington, DC, this 21st day of February, 2003.
Emily Stover De Rocco,
Assistant Secretary, Employment and Training Administration.
[FR Doc. 03-4500 Filed 2-25-03; 8:45 am]
BILLING CODE 4510-30-P