Federal Register / Vol. 74, No. 57 / Thursday, March 26, 2009 / Notices 13261 

duties respecting the plan solely in the 

interest of the participants and 

beneficiaries of the plan and in a 

prudent fashion in accordance with 

section 404(a)(1)(b) of the Act; nor does 

it affect the requirement of section 

401(a) of the Code that the plan must 

operate for the exclusive benefit of the 

employees of the employer maintaining 

the plan and their beneficiaries; 

(2) Before an exemption may be 

granted under section 408(a) of the Act 

and/or section 4975(c)(2) of the Code, 

the Department must find that the 

exemption is administratively feasible, 

in the interests of the plan and of its 

participants and beneficiaries, and 

protective of the rights of participants 

and beneficiaries of the plan; 

(3) The proposed exemptions, if 

granted, will be supplemental to, and 

not in derogation of, any other 

provisions of the Act and/or the Code, 

including statutory or administrative 

exemptions and transitional rules. 

Furthermore, the fact that a transaction 

is subject to an administrative or 

statutory exemption is not dispositive of 

whether the transaction is in fact a 

prohibited transaction; and 

(4) The proposed exemptions, if 

granted, will be subject to the express 

condition that the material facts and 

representations contained in each 

application are true and complete, and 

that each application accurately 

describes all material terms of the 

transaction which is the subject of the 

exemption. 

Signed at Washington, DC, this 20th day of 

March, 2009. 

Ivan Strasfeld, 

Director of Exemption Determinations, 

Employee Benefits Security Administration, 

U.S. Department of Labor. 

[FR Doc. E9–6619 Filed 3–25–09; 8:45 am] 

BILLING CODE 4510–29–P 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

Wage and Hour Division 

Withdrawal of Interpretation of the Fair 

Labor Standards Act Concerning 

Relocation Expenses Incurred by H–2A 

and H–2B Workers 

AGENCY: Employment and Training 

Administration, Department of Labor in 

concurrence with the Wage and Hour 

Division, Employment Standards 

Administration, Department of Labor. 

ACTION: Notice of withdrawal of 

interpretation. 

SUMMARY: The Department of Labor 

(DOL or the Department) withdraws for 

further consideration an interpretation 

of the Fair Labor Standards Act (FLSA) 

published on December 18 and 19, 

2008. The interpretation, which was 

published at 73 FR 77148–52 (H–2A 

program) and 73 FR 78039–41 (H–2B 

program), articulated an opinion that 

the FLSA and its implementing 

regulations do not require employers to 

reimburse workers under the H–2A and 

H–2B nonimmigrant visa programs, 

respectively, for relocation expenses 

even when such costs result in the 

workers being paid less than the 

minimum wage. This interpretation is 

hereby withdrawn for further 

consideration by the Department and 

may not be relied upon as a statement 

of agency policy. 

DATES: Effective Date: March 26, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Richard Brennan, Director of Office of 

Interpretations and Regulatory Analysis, 

Wage and Hour Division, Employment 

Standards Administration, U.S. 

Department of Labor, 200 Constitution 

Avenue, NW., Room S–3506, 

Washington, DC 20210; Telephone (202) 

693–0051 (this is not a toll-free 

number). Individuals with hearing or 

speech impairments may access the 

telephone numbers above via TTY by 

calling the toll-free Federal Information 

Relay Service at 1–800–877–8339. 

SUPPLEMENTARY INFORMATION: The Fair 

Labor Standards Act (FLSA), 29 U.S.C. 

201 et seq., requires covered employers 

to pay their nonexempt employees a 

federal minimum wage and overtime 

premium pay of time and one-half the 

regular rate of pay for hours worked in 

excess of 40 in a week. The agency 

responsible for administration of the 

FLSA is the Wage and Hour Division, 

Employment Standards Administration, 

of the Department of Labor. The FLSA 

and its regulations prohibit an employer 

from either deducting from an 

employee’s pay or imposing an expense 

upon an employee for costs that are 

primarily for the benefit of the 

employer, if to do so results in an 

employee receiving less than the 

minimum wage. 29 U.S.C. 203(m); 29 

CFR part 531. Thus, during the first 

workweek, workers must be 

compensated at a rate that would bring 

their wages up to minimum wage, 

taking into account pre-employment 

expenses that primarily benefit the 

employer. In Arriaga v. Florida Pacific 

Farms, L.L.C., 305 F.3d 1228 (11th Cir. 

2002), the U.S. Court of Appeals for the 

Eleventh Circuit held that, under the 

FLSA regulations, the transportation 

from Mexico to Florida and visa costs of 

temporary nonimmigrant workers 

coming to the U.S. under the H–2A visa 

program, see 8 U.S.C. 

1101(a)(15)(H)(ii)(a), were primarily for 

the grower’s benefit because such costs 

were necessary and incident to the 

employment of such workers. A number 

of U.S. district courts have extended the 

Arriaga holding regarding the FLSA 

requirements to temporary 

nonimmigrant workers admitted into 

the U.S. under the H–2B visa program, 

8 U.S.C. 1101(a)(15)(H)(ii)(b). See, e.g., 

De Leon-Granados v. Eller & Sons Trees 

Inc., 2008 WL 4531813 (N.D. Ga., Oct. 

7, 2008); Rosales v. Hispanic Employee 

Leasing Program, 2008 WL 363479 

(W.D. Mich. Feb. 11, 2008); Rivera v. 

Brickman Group, 2008 WL 81570 (E.D. 

Pa. Jan. 7, 2008); Recinos-Recinos v. 

Express Forestry Inc., 2006 WL 197030 

(E.D. La. Jan. 24, 2006); but see 

Castellanos-Contreras v. Decatur Hotels 

LLC, No. 07–30942 (5th Cir. Feb. 11, 

2009), pet. for reh’g filed (Mar. 11, 

2009), rev’g, 488 F. Supp. 2d 565 (E.D. 

La. 2007). 

On December 18, 2008, DOL 

published final regulations revising the 

procedures for the issuance of labor 

certifications to employers sponsoring 

H–2A nonimmigrants for admission to 

perform temporary agricultural labor or 

services and the procedures for 

enforcing compliance with attestations 

made by those employers. 73 FR 77110. 

The H–2A Final Rule became effective 

on January 17, 2009. The preamble 

accompanying the H–2A Final Rule 

included a discussion of the Arriaga 

issue, concluding that the Eleventh 

Circuit’s decision was wrongly decided 

and that inbound travel expenses of H– 

2A workers do not primarily benefit 

their employers. 73 FR 77148–52. DOL 

characterized this discussion as an 

interpretation of the FLSA, 73 FR 77151, 

and did not seek public comment on the 

issue when it issued the H–2A Notice of 

Proposed Rulemaking, 73 FR 8538 (Feb. 

13, 2008). Prior to the issuance of the 

preamble discussion, courts uniformly 

had held that relocation expenses were 

primarily for the benefit of employers. 

On December 19, 2008, DOL 

published final regulations revising the 

procedures for the issuance of labor 

certifications to employers sponsoring 

H–2B nonimmigrants for admission to 

perform temporary nonagricultural labor 

or services and the procedures for 

enforcing compliance with attestations 

made by those employers. 73 FR 78019. 

The Final Rule became effective on 

January 18, 2009. The preamble 

accompanying the Final H–2B Rule 

included a discussion of the Arriaga 

issue, concluding that the Eleventh 

Circuit’s decision and the district court 

13262 Federal Register / Vol. 74, No. 57 / Thursday, March 26, 2009 / Notices 

1On March 17, 2009, DOL proposed to suspend 

the H–2A Final Rule. 74 FR 11408. The proposed 

suspension is open to public comment, but 

regardless of the outcome of the notice of proposed 

rulemaking, the Department withdraws for further 

consideration the interpretation of the FLSA that 

appeared in the preamble to the H–2A Final Rule. 

decisions that followed its reasoning in 

the H–2B context were wrongly decided 

and that inbound travel expenses of H– 

2B workers do not primarily benefit 

their employers. 73 FR 78039–41. DOL 

characterized this discussion as an 

interpretation of the FLSA, 73 FR 78041, 

and did not seek public comment on the 

issue when it issued the H–2B Notice of 

Proposed Rulemaking, 73 FR 29941 

(May 22, 2008). Prior to the issuance of 

the preamble discussion, courts 

uniformly had held that relocation 

expenses were primarily for the benefit 

of employers. 

This matter concerns important issues 

as to whether various pre-employment 

expenses incurred by workers lawfully 

may result in workers’ weekly wages 

being reduced below the minimum 

wage. Because of the reach of FLSA 

coverage, any interpretation of FLSA 

regulations has wide-ranging effects; the 

interpretation of section 203(m) of the 

FLSA and its regulations in the 

preamble of the H–2A and H–2B Final 

Rules may have ramifications well 

beyond the workers and employers 

subject to the H–2A and H–2B rules. 

Indeed, the H–2A and H–2B preamble 

interpretation of the FLSA is not 

codified in any regulatory requirement 

set out in the H–2A and H–2B rules, and 

DOL did not seek public comment on 

the issue from the H–2A and H–2B 

regulated communities. DOL is 

especially sensitive to potential adverse 

impacts an interpretation, which was 

included in the preamble in order to 

state a policy position of the prior 

Administration, might have on our 

Nation’s most vulnerable workers, 

including low-wage U.S. workers and 

foreign guest workers. For these reasons, 

DOL believes that this issue warrants 

further review. Consequently, in 

accordance with authority granted 

under the FLSA, 29 U.S.C. 203(m) and 

259, as well as the INA, 8 U.S.C. 

1101(a)(15)(h)(ii)(a), 

1101(a)(15)(h)(ii)(b), 1103(a)(6), 1184(c), 

1188; 8 CFR 214.2(h); and 20 CFR 

655.50(a), DOL withdraws the FLSA 

interpretation at 73 FR 77148–52 and at 

73 FR 78039–41 for further 

consideration and the interpretation 

may not be relied upon as a statement 

of agency policy for purposes of the 

Portal-to-Portal Act, 29 U.S.C. 259 or 

otherwise.1 After reconsideration of this 

issue, DOL will provide the public with 

interpretive guidance through a 

mechanism established for 

disseminating the Department’s 

opinions and interpretations of the 

FLSA. 

Signed in Washington, DC, this 20th day of 

March 2009. 

Douglas F. Small, 

Deputy Assistant Secretary, Employment and 

Training Administration. 

Shelby Hallmark, 

Acting Assistant Secretary, Employment 

Standards Administration. 

[FR Doc. E9–6623 Filed 3–25–09; 8:45 am] 

BILLING CODE 4510–FP–P 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

Workforce Investment Act; Lower 

Living Standard Income Level 

AGENCY: Employment and Training 

Administration, Labor. 

ACTION: Notice of Determination of 

Lower Living Standard Income Level. 

SUMMARY: Under Title I of the Workforce 

Investment Act (WIA) of 1998 (Pub. L. 

105–220), the Secretary of Labor 

annually determines the Lower Living 

Standard Income Level (LLSIL) for uses 

described in the law. WIA defines the 

term ‘‘Low Income Individual’’ as one 

who qualifies under various criteria, 

including an individual who received 

income for a six-month period that does 

not exceed the higher level of the 

poverty line or 70 percent of the LLSIL. 

This issuance provides the Secretary’s 

annual LLSIL for 2009 and references 

the current 2009 Health and Human 

Services ‘‘Poverty Guidelines.’’ 

DATES: Effective Date: This notice is 

effective on the date of publication in 

the Federal Register. 

ADDRESSES: Send written comments to: 

Mr. Samuel Wright, Department of 

Labor, Employment and Training 

Administration, 200 Constitution 

Avenue, NW., Room C–4510, 

Washington, DC 20210. 

FOR FURTHER INFORMATION CONTACT: 

Please contact Mr. Samuel Wright, 

Telephone (202) 693–2870; Fax (202) 

693–3015 (these are not toll free 

numbers). 

SUPPLEMENTARY INFORMATION: It is the 

purpose of the Workforce Investment 

Act of 1998 ‘‘to provide workforce 

investment activities, through statewide 

and local workforce investment systems, 

that increase the employment, retention, 

and earnings of participants, and 

increase occupational skill attainment 

by participants, and as a result, improve 

the quality of the workforce, reduce 

welfare dependency, and enhance the 

productivity and competitiveness of the 

Nation.’’ 

The LLSIL is used for several 

purposes under WIA. Specifically, WIA 

Section 101(25) defines the term ‘‘low 

income individual’’ for eligibility 

purposes, and Sections 127(b)(2)(C) and 

132(b)(1)(B)(v)(IV) define the terms 

‘‘disadvantaged youth’’ and 

‘‘disadvantaged adult’’ in terms of the 

poverty line or LLSIL for state formula 

allotments. The Governor and state/ 

local workforce investment boards 

(WIBs) use the LLSIL for determining 

eligibility for youth, eligibility for 

employed adult workers for certain 

services and for the Work Opportunity 

Tax Credit (WOTC). We encourage the 

Governors and state/local WIBs to 

consult WIA regulations and the 

preamble to the WIA Final Rule 

(published at 65 FR 49294 August 11, 

2000) for more specific guidance in 

applying the LLSIL to program 

requirements. The Department of Health 

and Human Services (HHS) published 

the annual 2009 update of the povertylevel guidelines in the Federal Register, 

Vol. 74, No. 14, January 23, 2009, pp. 

4199–4201. The HHS 2009 Poverty 

guidelines may also be found on the 

Internet at: http://aspe.hhs.gov/poverty/ 

09fedreg.pdf. ETA plans to have the 

2009 LLSIL available on its Web site at 

[http://www.doleta.gov/llsil/2009/]. 

WIA Section 101(24) defines the 

LLSIL as ‘‘that income level (adjusted 

for regional, metropolitan, urban and 

rural differences and family size) 

determined annually by the Secretary 

[of Labor] based on the most recent 

lower living family budget issued by the 

Secretary.’’ The most recent lower living 

family budget was issued by the 

Secretary in the fall of 1981. The fourperson urban family budget estimates, 

previously published by the Bureau of 

Labor Statistics (BLS), provided the 

basis for the Secretary to determine the 

LLSIL. BLS terminated the four-person 

family budget series in 1982, after 

publication of the fall 1981 estimates. 

Currently, BLS provides data to ETA 

through which ETA develops the LLSIL 

tables, as provided in the Appendices. 

ETA published the 2008 updates to 

the LLSIL in the Federal Register of 

April 25, 2008, at 73 FR 22435 and the 

corrections to tables 4 and 5 in the 

Federal Register of June 10, 2008, at 73 

FR 32740. These notices again updates 

the LLSIL to reflect cost of living 

increases for 2008, by applying the 

percentage change in the most recent 

2008 Consumer Price Index for All 

Urban Consumers (CPI–U) for an area, 

compared with the 2007 CPI–U to each