[Federal Register Volume 70, Number 40 (Wednesday, March 2, 2005)]
[Notices]
[Pages 10152-10153]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E5-824]



[[Page 10152]]

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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: 2005 Adverse 
Effect Wage Rates, Allowable Charges for Agricultural and Logging 
Workers' Meals, and Maximum Travel Subsistence Reimbursement

AGENCY: Employment and Training Administration, Department of Labor.

ACTION: Notice of Adverse Effect Wage Rates (AEWRs), allowable charges 
for meals, and maximum travel subsistence reimbursement for 2005.

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SUMMARY: The Employment and Training Administration (ETA) of the 
Department of Labor (Department or DOL) is issuing this notice to 
announce: the 2005 AEWRS for employers seeking to employ temporary or 
seasonal nonimmigrant alien workers to perform agricultural labor or 
services (H-2A workers) or logging (H-2 logging workers); the allowable 
charges for 2005 that employers seeking H-2A workers and H-2 logging 
workers may levy upon their workers when three meals a day are provided 
by the employer; and the maximum travel subsistence reimbursement which 
a worker with receipts may claim in 2005.
    AEWRs are the minimum wage rates the Department has determined must 
be offered and paid to U.S. and alien workers by employers of H-2A 
workers or H-2 logging workers. AEWRs are established to prevent the 
employment of these aliens from adversely affecting wages of similarly 
employed U.S. workers. The Department announces the AEWRs for 2005.
    The Department also announces the new rates for 2005 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 noted above. The Department also 
announces the current maximum reimbursement that may be claimed in 2005 
by workers with receipts.

EFFECTIVE DATE: March 2, 2005.

FOR FURTHER INFORMATION CONTACT: William Carlson, Chief, Division of 
Foreign Labor Certification, U.S. Department of Labor, Room C-4312, 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 H-2A 
workers or H-2 logging workers in the United States unless the 
petitioner has received from DOL an H-2A or H-2 labor certification, as 
appropriate. 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.
    DOL's regulations for the H-2A and H-2 program require covered 
employers to offer and pay their U.S., H-2A, and H-2 workers no less 
than the applicable hourly AEWR in effect at the time the work is 
performed. 20 CFR 655.102(b)(9) and 655.202(b)(9). See also 20 CFR 
655.107 and 655.207. Reference should be made to the preamble of the 
final rule, 54 FR 28037 (July 5, 1989), 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 for 2005

    AEWRs are the minimum wage rates which DOL has determined must be 
offered and paid to U.S. and alien workers by employers of H-2A workers 
or H-2 logging workers. DOL emphasizes, however, that employers of H-2A 
workers must pay the highest of (i) the AEWR in effect at the time the 
work is performed, (ii) the applicable prevailing wage, or (iii) the 
statutory minimum wage, as specified in the regulations. 20 CFR 
655.102(b)(9). Employers of H-2 logging workers must pay at least the 
AEWR. 20 CFR 655.202(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 circumstance 
provisions of 20 CFR 655.93) for which temporary 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). 20 CFR 
655.107(a). USDA does not provide data on Alaska.
    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 2005 AEWRs for agricultural work performed by U.S. and 
H-2A workers on or after the effective date of this notice are set 
forth in the table below:

                     2005 Adverse Effect Wage Rates
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                            State                              2005 AEWR
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Alabama.....................................................       $8.07
Arizona.....................................................        7.63
Arkansas....................................................        7.80
California..................................................        8.56
Colorado....................................................        8.93
Connecticut.................................................        9.05
Delaware....................................................        8.48
Florida.....................................................        8.07
Georgia.....................................................        8.07
Hawaii......................................................        9.75
Idah........................................................        8.20
Illinois....................................................        9.20
Indiana.....................................................        9.20
Iowa........................................................        8.95
Kansas......................................................        9.00
Kentucky....................................................        8.17
Louisiana...................................................        7.80
Maine.......................................................        9.05
Maryland....................................................        8.48
Massachusetts...............................................        9.05
Michigan....................................................        9.18
Minnesota...................................................        9.18
Mississippi.................................................        7.80
Missouri....................................................        8.95
Montana.....................................................        8.20
Nebraska....................................................        9.00
Nevada......................................................        8.93
New Hampshire...............................................        9.05
New Jersey..................................................        8.48
New Mexico..................................................        7.63
New York....................................................        9.05
North Carolina..............................................        8.24
North Dakota................................................        9.00
Ohio........................................................        9.20
Oklahoma....................................................        7.89
Oregon......................................................        9.03
Pennsylvania................................................        8.48
Rhode Island................................................        9.05
South Carolina..............................................        8.07
South Dakota................................................        9.00
Tennessee...................................................        8.17
Texas.......................................................        7.89
Utah........................................................        8.93
Vermont.....................................................        9.05
Virginia....................................................        8.24
Washington..................................................        9.03
West Virginia...............................................        8.17
Wisconsin...................................................        9.18
Wyoming.....................................................        8.20
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    The AEWRs for all logging employment shall be the prevailing wage 
rates in the area of intended employment. 20 CFR 655.207(a).

B. Allowable Meal Charges

    Among the minimum benefits and working conditions which DOL 
requires

[[Page 10153]]

employers to offer their U.S., H-2A, and H-2 logging workers are three 
meals a 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 that 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 adjusted 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 concluded and December of the 
year prior to that. ETA may permit an employer to charge workers no 
more than the higher maximum amount set forth in 20 CFR 655.111(a) and 
655.211(a), as applicable, 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 concluded and December of the 
year prior to that. The program's regulations require 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 2004 rates were 
published in the Federal Register notice, 69 FR 10063, (March 3, 2004).
    DOL has determined the percentage change between December of 2003 
and December of 2004 for the CPI-U for Food was 3.4 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 2005 are as follows: (1) 
Charges under 20 CFR 655.102(b)(4) and 655.202(b)(4) shall be no more 
than $9.08 per day, unless ETA has approved a higher charge pursuant to 
20 CFR 655.111 or 655.211; (2) charges under 20 CFR 655.111 and 655.211 
shall be no more than $11.25 per day, if the employer justifies the 
charge and submits to ETA 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 equivalent to 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 the maximum 
meals component of the standard continental United States (CONUS) per 
diem rate established by the General Services Administration (GSA) and 
published at 41 CFR part 301. The CONUS meal component is now $31.00 
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 $15.50. 
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 in Washington, DC, this 22nd day of February, 2005.
Emily Stover DeRocco,
Assistant Secretary, Employment and Training Administration.
[FR Doc. E5-824 Filed 3-1-05; 8:45 am]
BILLING CODE 4510-30-P