[Federal Register Volume 69, Number 42 (Wednesday, March 3, 2004)]
[Notices]
[Pages 10063-10065]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-4731]


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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: 2004 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 (AEWR's), allowable charges 
for meals, and maximum travel subsistence reimbursement for 2004.

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SUMMARY: The Employment and Training Administration (ETA) announces 
2004 adverse effect wage rates for employers seeking nonimmigrant alien 
(H-2A) workers for temporary or seasonal agricultural labor or services 
and logging; the allowable charges employers seeking nonimmigrant alien 
(H-2A) workers for temporary or seasonal agricultural labor or services 
and 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 2004.
    AEWR's are the minimum wage rates the Department of Labor has 
determined must be offered and paid to U.S. and 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 expenses. The minimum reimbursement is the 
charge for three daily meals as discussed above. The Department of 
Labor (DOL) also announces the current maximum reimbursement for 
workers with receipts.

EFFECTIVE DATE: March 3, 2004.

FOR FURTHER INFORMATION CONTACT: William Carlson, Chief, Division of 
Foreign Labor Certification, U.S. Department of Labor, Room C-4318, 200 
Constitution Avenue, NW., Washington, DC 20210. Telephone: 202-693-3010 
(this is not a toll-free number).

SUPPLEMENTARY INFORMATION: The U.S. Citizenship and Immigration 
Services 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 received from the DOL an H-2A labor 
certification. Approved labor certifications attest (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 U.S. similarly employed. 8 U.S.C. 
1101(a)(15)(H)(ii)(a), 1184(c), and 1188.

[[Page 10064]]

    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. 20 CFR 655.102(b)(9); see 
also 20 CFR 655.107. Reference should be made to the preamble of the 
July 5, 1989, Final Rule (54 FR 28037), which explains in great depth 
the purpose and history of AEWR's, DOL's discretion in setting AEWR's, 
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 for 2004

    Adverse effect wage rates 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 region-wide 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). 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 AEWR's in a Federal 
Register notice. Accordingly, the 2004 AEWR's for work performed on or 
after the effective date of this notice, are set forth in the table 
below:

                  Table--2004 Adverse Effect Wage Rates
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                           State                              2004 AEWR
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Alabama....................................................        $7.88
Arizona....................................................         7.54
Arkansas...................................................         7.38
California.................................................         8.50
Colorado...................................................         8.36
Connecticut................................................         9.01
Delaware...................................................         8.52
Florida....................................................         8.18
Georgia....................................................         7.88
Hawaii.....................................................         9.60
Idaho......................................................         7.69
Illinois...................................................         9.00
Indiana....................................................         9.00
Iowa.......................................................         9.28
Kansas.....................................................         8.83
Kentucky...................................................         7.63
Louisiana..................................................         7.38
Maine......................................................         9.01
Maryland...................................................         8.52
Massachusetts..............................................         9.01
Michigan...................................................         9.11
Minnesota..................................................         9.11
Mississippi................................................         7.38
Missouri...................................................         9.28
Montana....................................................         7.69
Nebraska...................................................         8.83
Nevada.....................................................         8.36
New Hampshire..............................................         9.01
New Jersey.................................................         8.52
New Mexico.................................................         7.54
New York...................................................         9.01
North Carolina.............................................         8.06
North Dakota...............................................         8.83
Ohio.......................................................         9.00
Oklahoma...................................................         7.73
Oregon.....................................................         8.73
Pennsylvania...............................................         8.52
Rhode Island...............................................         9.01
South Carolina.............................................         7.88
South Dakota...............................................         8.83
Tennessee..................................................         7.63
Texas......................................................         7.73
Utah.......................................................         8.36
Vermont....................................................         9.01
Virginia...................................................         8.06
Washington.................................................         8.73
West Virginia..............................................         7.63
Wisconsin..................................................         9.11
Wyoming....................................................         7.69
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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 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 prior 
year. 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 prior year. The regulations require the DOL to make the annual 
adjustments and to publish a notice 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 2003 rates were 
published in a Notice on February 26, 2003 at 68 FR 8929.
    DOL has determined the percentage change between December of 2002 
and December of 2003 for the CPI-U for Food was 2.2 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 2004 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 $8.78 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 $10.88 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.

[[Page 10065]]

    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 17th day of February, 2004.
Emily Stover DeRocco,
Assistant Secretary for Employment and Training.
[FR Doc. 04-4731 Filed 3-2-04; 8:45 am]
BILLING CODE 4510-30-U