[Federal Register: May 29, 2009 (Volume 74, Number 102)]
[Notices]
[Page 26016-26017]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29my09-150]
[[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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