[Federal Register Volume 74, Number 102 (Friday, May 29, 2009)]
[Notices]
[Pages 26016-26017]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-12434]



  Federal Register / Vol. 74, No. 102 / Friday, May 29, 2009 / 
Notices  

[[Page 26016]]


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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: 2009 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 2009.

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SUMMARY: The Employment and Training Administration (ETA) of the 
Department of Labor (Department) is issuing this Notice to announce: 
The 2009 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 2009 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 
2009. 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).\1\ These rates 
will apply to applications for H-2A labor certification and H-2B 
logging certifications filed after June 29, 2009.
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    \1\ The references to 20 CFR 100 et seq. are to the H-2A and 
logging regulations in place prior to January 17, 2009. As discussed 
in section A, these regulations have been reinstated in the Final 
Suspension Rule published on May 29, 2009 which suspends the Final 
Rule published December 18, 2008, 73 FR 77110 (the ``December 2008 
Rule''). These regulations are being used by the Department to avoid 
a regulatory vacuum in light of the suspension of the December 2008 
Rule for a period of 9 months, and give rise to the need for this 
Notice.

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DATES: Effective Date: June 29, 2009.

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 (USCIS) 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 
into the United States unless the petitioner has received from the 
Department 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)(1), and 1188(a); 
8 CFR 214.2(h)(5) and (6).
    The Department's regulations that will be in effect on and after 
June 29, 2009 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.\2\
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    \2\ For additional information about the AEWR, see the preamble 
of the Final Rule, 54 FR 28037-28047, Jul. 5, 1989, which explains 
in great depth the purpose and history of AEWR, the Department's 
policy in setting AEWR, and the AEWR computation methodology at 20 
CFR 655.107(a). See also 52 FR 20496, 20502-20505, Jun. 1, 1987. For 
more information concerning recent regulatory actions giving rise to 
the publication of this AEWR, see Section A, infra.
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    On February 13, 2008, the Department proposed significant changes 
to the H-2A program, including using an alternate methodology for 
calculating the AEWR. 73 FR 8538, February 13, 2008. The December 2008 
Rule, incorporating the new AEWR methodology, became effective January 
17, 2009. 73 FR 77110, Dec. 18, 2008. As a result of concerns regarding 
implementation, the Department has suspended the December 2008 Rule in 
order to provide the Department with an opportunity to review and 
reconsider the new requirements in light of issues that have arisen 
since the publication of the December 2008 Rule. The final rule 
suspending the December 2008 Rule is found elsewhere in this issue of 
the Federal Register. In order to ensure continued functioning of the 
H-2A program during the period of suspension, the Department has 
reinstated the previous regulations that were in effect prior to 
January 17, 2009. Id. Accordingly, the calculation of the AEWR, and the 
obligation to pay it, will revert to that prior regulation for 
applications filed after the effective date of the Final Suspension of 
the December 2008 H-2A Final Rule.

A. Adverse Effect Wage Rates for 2009

    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 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 applicable prevailing wage; or (iii) the statutory 
Federal or State minimum wage, as specified in the regulations. 20 CFR 
655.102(b)(9) Currently, because 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).
    Therefore, 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; H-2A employers in that state must accordingly pay the highest 
of the following three wage sources; the applicable prevailing wage, 
the statutory Federal or State minimum wage.
    The regulation at 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 2009 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--2009 Adverse Effect Wage Rates
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                           State                              2009 AEWRs
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Alabama....................................................        $8.77
Arizona....................................................         9.82

[[Page 26017]]

 
Arkansas...................................................         8.92
California.................................................        10.16
Colorado...................................................         9.88
Connecticut................................................        10.20
Delaware...................................................         9.50
Florida....................................................         9.08
Georgia....................................................         8.77
Hawaii.....................................................        11.06
Idaho......................................................         9.64
Illinois...................................................        10.45
Indiana....................................................        10.45
Iowa.......................................................        10.77
Kansas.....................................................        10.39
Kentucky...................................................         9.41
Louisiana..................................................         8.92
Maine......................................................        10.20
Maryland...................................................         9.50
Massachusetts..............................................        10.20
Michigan...................................................        10.63
Minnesota..................................................        10.63
Mississippi................................................         8.92
Missouri...................................................        10.77
Montana....................................................         9.64
Nebraska...................................................        10.39
Nevada.....................................................         9.88
New Hampshire..............................................        10.20
New Jersey.................................................         9.50
New Mexico.................................................         9.82
New York...................................................        10.20
North Carolina.............................................         9.34
North Dakota...............................................        10.39
Ohio.......................................................        10.45
Oklahoma...................................................         9.27
Oregon.....................................................        10.12
Pennsylvania...............................................         9.50
Rhode Island...............................................        10.20
South Carolina.............................................         8.77
South Dakota...............................................        10.39
Tennessee..................................................         9.41
Texas......................................................         9.27
Utah.......................................................         9.88
Vermont....................................................        10.20
Virginia...................................................         9.34
Washington.................................................        10.12
West Virginia..............................................         9.41
Wisconsin..................................................        10.63
Wyoming....................................................         9.64
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    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 the 
Department 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.
    The Department 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). The OFLC 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 12-month percent change in the CPI-U for 
Food. The program's regulations require the Department 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 2008 rates were 
published in the Federal Register at 73 FR 10288, Feb. 26, 2008.
    The Department has determined the percentage change between 
December of 2007 and December of 2008 for the CPI-U for Food was 5.6 
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 2009, are 
as follows: (1) Charges under 20 CFR 655.102(b)(4) and 655.202(b)(4) 
shall be no more than $10.45 per day, unless OFLC 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 $12.96 per day, if the 
employer justifies the charge and submits to OFLC 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 41 CFR 
301-11.101(a). 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 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 May, 2009.
Douglas F. Small,
Deputy Assistant Secretary, Employment and Training Administration.
[FR Doc. E9-12434 Filed 5-28-09; 8:45 am]
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