[Federal Register Volume 73, Number 38 (Tuesday, February 26, 2008)]
[Notices]
[Pages 10288-10290]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-3567]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF LABOR

Employment and Training Administration


Labor Certification Process for the Temporary Employment of 
Aliens in Agriculture and Logging in the United States: 2008 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, allowable charges for 
meals, and maximum travel subsistence reimbursement for 2008.

-----------------------------------------------------------------------

SUMMARY: The Employment and Training Administration (ETA) of the 
Department of Labor (Department or DOL) is issuing this Notice to 
announce: The 2008 Adverse Effect Wage Rates (AEWRs) for employers 
seeking to employ temporary or seasonal nonimmigrant foreign workers to 
perform agricultural labor or services (H-2A workers) or logging (H-2B 
logging workers); the allowable charges for 2008 that employers seeking 
H-2A workers and H-2B 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 
2008.
    AEWRs are the minimum wage rates the Department has determined must 
be offered and paid by employers of H-2A workers or H-2B logging 
workers to U.S. and foreign workers for a particular occupation and/or 
area so that the wages of similarly employed U.S. workers will not be 
adversely affected (20 CFR 655.100(b) and 655.200(b)). In this Notice 
the Department announces the AEWRs for 2008. The Department also 
announces the new rates for 2008 which agricultural and logging 
employers may charge their workers for three daily meals, and the 
minimum and maximum charge of travel subsistence expenses a worker may 
claim in 2008.

EFFECTIVE DATE: February 26, 2008.

FOR FURTHER INFORMATION CONTACT: William L. Carlson, Ph.D., 
Administrator, Office 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 of the Department of Homeland Security may not approve an 
employer's petition for the admission of H-2A nonimmigrant temporary 
agricultural workers or H-2B nonimmigrant temporary logging workers in 
the United States unless the petitioner has received from DOL an H-2A 
or H-2B 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 foreign worker 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), 
1101(a)(15)(H)(ii)(b), 1184(c), and 1188(a); 8 CFR 214.2(h)(5) and 
(6)).
    DOL's regulations for the H-2A and H-2B logging programs require 
employers to offer and pay their U.S., H-2A, and H-2B logging workers 
no less than the appropriate 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, 20 CFR 655.207 \1\).
---------------------------------------------------------------------------

    \1\ For additional information regarding the AEWR, see the 
preamble of the Final Rule, 54 FR 28037-28047 (July 5, 1989), which 
explained in depth the purpose and history of AEWR, DOL's policy in 
setting the AEWR, 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 2008

    AEWRs are the minimum wage rates which must be offered and paid to 
U.S. and foreign workers by employers of H-2A workers or H-2B logging 
workers (20 CFR 655.100(b) and 20 CFR 655.200(b)). Employers of H-2A 
workers must pay the highest of (i) the AEWR, in effect, at the time 
the work is performed; (ii) the

[[Page 10289]]

applicable prevailing wage; or (iii) the statutory minimum wage, as 
specified in the regulations (20 CFR 655.102(b)(9)). As U.S. Department 
of Agriculture (USDA) regional surveys are not available for logging 
occupations, employers of H-2B logging workers must pay at least the 
prevailing wage in the area of intended employment, which is deemed to 
be the AEWR (20 CFR 655.202(b)(9); 20 CFR 655.207(a)).
    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 USDA (20 CFR 655.107(a)). USDA does not provide data on 
Alaska.
    20 CFR 655.107(a) requires the Administrator of the Office of 
Foreign Labor Certification to publish USDA field and livestock worker 
(combined) wage data as AEWRs in a Federal Register Notice. 
Accordingly, the 2008 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:

                  Table--2008 Adverse Effect Wage Rates
------------------------------------------------------------------------
                                                                  2008
                            State                                AEWRs
------------------------------------------------------------------------
Alabama......................................................      $8.53
Arizona......................................................       8.70
Arkansas.....................................................       8.41
California...................................................       9.72
Colorado.....................................................       9.42
Connecticut..................................................       9.70
Delaware.....................................................       9.70
Florida......................................................       8.82
Georgia......................................................       8.53
Hawaii.......................................................      10.86
Idaho........................................................       8.74
Illinois.....................................................       9.90
Indiana......................................................       9.90
Iowa.........................................................      10.44
Kansas.......................................................       9.90
Kentucky.....................................................       9.13
Louisiana....................................................       8.41
Maine........................................................       9.70
Maryland.....................................................       9.70
Massachusetts................................................       9.70
Michigan.....................................................      10.01
Minnesota....................................................      10.01
Mississippi..................................................       8.41
Missouri.....................................................      10.44
Montana......................................................       8.74
Nebraska.....................................................       9.90
Nevada.......................................................       9.42
New Hampshire................................................       9.70
New Jersey...................................................       9.70
New Mexico...................................................       8.70
New York.....................................................       9.70
North Carolina...............................................       8.85
North Dakota.................................................       9.90
Ohio.........................................................       9.90
Oklahoma.....................................................       9.02
Oregon.......................................................       9.94
Pennsylvania.................................................       9.70
Rhode Island.................................................       9.70
South Carolina...............................................       8.53
South Dakota.................................................       9.90
Tennessee....................................................       9.13
Texas........................................................       9.02
Utah.........................................................       9.42
Vermont......................................................       9.70
Virginia.....................................................       8.85
Washington...................................................       9.94
West Virginia................................................       9.13
Wisconsin....................................................      10.01
Wyoming......................................................       8.74
------------------------------------------------------------------------

    For all logging employment, the AEWR shall be the prevailing wage 
rate in the area of intended employment, and the employer is required 
to pay at least that rate (20 CFR 655.207(a)).

B. Allowable Meal Charges

    Among the minimum benefits and working conditions which DOL 
requires employers to offer their U.S., H-2A, and H-2B logging workers 
are three meals a day or free and convenient cooking and kitchen 
facilities (20 CFR 655.102(b)(4); 655.202(b)(4)). When 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 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 H-2B 
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). 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. 
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 
agricultural and logging employers for providing three meals daily to 
their U.S. and foreign workers. The 2007 rates were published in the 
Federal Register at 72 FR 7909 (February 21, 2007).
    DOL has determined the percentage change between December of 2006 
and December of 2007 for the CPI-U for Food was 4.0 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 2008, are as follows: (1) 
Charges under 20 CFR 655.102(b)(4) and 655.202(b)(4) shall be no more 
than $9.90 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 $12.27 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 travel subsistence expense, 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 655.102(b)(4). The regulation is silent about the maximum amount 
to which a qualifying worker is entitled.
    The Department 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, Appendix A. The CONUS meal component is now $39.00 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 $19.50. 
If a worker has no receipts, the employer is not

[[Page 10290]]

obligated to reimburse above the minimum stated at 20 CFR 655.102(b)(4) 
as specified above.

    Signed in Washington, DC, this 20th day of February, 2008.
Douglas F. Small,
Deputy Assistant Secretary, Employment and Training Administration.
[FR Doc. E8-3567 Filed 2-25-08; 8:45 am]
BILLING CODE 4510-FP-P