26016 Federal Register / Vol. 74, No. 102 / Friday, May 29, 2009 / Notices 

1The 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. 

2For 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. 

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. 

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. 

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

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

State 2009 

AEWRs 

Alabama .................................... $8.77 

Arizona ...................................... 9.82 

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Federal Register / Vol. 74, No. 102 / Friday, May 29, 2009 / Notices 26017 

TABLE—2009 ADVERSE EFFECT WAGE

RATES—Continued 

State 2009 

AEWRs 

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 

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] 

BILLING CODE 4510–FP–P 

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