Labor Certification Process for the Temporary Employment of Aliens in Agriculture in the United States; Announcement of Non-Material Change to the Farm Labor Survey Used for Determining the Adverse Effect Wage Rate, 12723-12724 [2012-5201]

Download as PDF 12723 Rules and Regulations Federal Register Vol. 77, No. 42 Friday, March 2, 2012 This section of the FEDERAL REGISTER contains regulatory documents having general applicability and legal effect, most of which are keyed to and codified in the Code of Federal Regulations, which is published under 50 titles pursuant to 44 U.S.C. 1510. The Code of Federal Regulations is sold by the Superintendent of Documents. Prices of new books are listed in the first FEDERAL REGISTER issue of each week. DEPARTMENT OF LABOR Employment and Training Administration 20 CFR Part 655 Labor Certification Process for the Temporary Employment of Aliens in Agriculture in the United States; Announcement of Non-Material Change to the Farm Labor Survey Used for Determining the Adverse Effect Wage Rate Employment and Training Administration, Department of Labor. ACTION: Announcement of non-material change. AGENCY: Under the Department of Labor’s (we or the Department) H–2A temporary labor certification program, Adverse Effect Wage Rates (AEWRs) are the minimum wage rates the Department has determined must be offered and paid by employers to H–2A workers and workers in corresponding employment for a particular occupation and area such that the wages of similarly employed United States (U.S.) workers will not be adversely affected. 20 CFR 655.100(b). AEWRs are derived from the Farm Labor Survey (FLS) issued by the U.S. Department of Agriculture’s (USDA) National Agricultural Statistics Service (NASS). In the interest of government transparency, we are publishing this document to announce a non-material change in the frequency of establishment surveys under the FLS (and its accompanying publication) beginning in 2012. DATES: This announcement is effective March 2, 2012. FOR FURTHER INFORMATION CONTACT: William L. Carlson, Ph.D., Administrator, Office of Foreign Labor Certification, Employment and Training Administration, U.S. Department of rmajette on DSK2TPTVN1PROD with PROPOSALS SUMMARY: VerDate Mar<15>2010 15:16 Mar 01, 2012 Jkt 226001 Labor, 200 Constitution Avenue NW., Room C–4312, Washington, DC 20210; Telephone (202) 693–3010 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone number above via TTY calling the toll-free Federal Information Relay Service as 1–877– 889–5627 (TTY/TDD). SUPPLEMENTARY INFORMATION: The U.S. Citizenship and Immigration Services of the Department of Homeland Security will not approve an employer’s petition for the admission of H–2A nonimmigrant temporary agricultural workers in the U.S. unless the petitioner has received from the Department an H– 2A labor certification. The labor certification provides that: (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(s) 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), 1184(c)(1), and 1188(a); 8 CFR 214.2(h)(5). The Department’s H–2A regulations at 20 CFR 655.120(a) provide that employers must pay their H–2A workers and workers in corresponding employment at least the highest of: (i) The AEWR; (ii) the prevailing wage; (iii) the prevailing piece rate; (iv) the agreedupon collective bargaining wage, if applicable; or (v) the Federal or State minimum wage, in effect at the time the work is performed. The H–2A regulations define the AEWR as ‘‘[t]he annual weighted average hourly wage for field and livestock workers (combined) in the States or regions as published annually by the U.S. Department of Agriculture (USDA) based upon its quarterly wage survey.’’ 20 CFR 655.103(a) and (b). NASS historically has conducted the FLS on which the AEWR is based. The FLS provides quarterly statistics on the number of agricultural workers; hours worked, and wage rates. We have relied upon the FLS since 1987 1 as the basis 1 There a brief period of deviation beginning January 17, 2009 through March 14, 2010, where we decided to use the Bureau of Labor Statistics Occupational Employment Statistics Survey rather than the FLS to set the AEWR. See ‘‘Temporary Agricultural Employment of H–2A Aliens in the United States; Modernizing the Labor Certification PO 00000 Frm 00001 Fmt 4700 Sfmt 4700 for setting the AEWR. We explain our reasons in great detail in the preamble of the ‘‘Temporary Agricultural Employment of H–2A Aliens in the United States; Final Rule’’, 75 FR 6884, 6891–6901, Feb. 12, 2010 (the 2010 H– 2A Rule). However, we are publishing several clarifications in light of recent changes to the method by which the FLS is conducted. We stated in the preamble to the 2010 H–2A Final Rule that [t]he FLS is conducted each year in January, April, July and October, and results are published the following month. We also stated in the preamble that: The FLS and publication schedule provide timely data for purposes of calculating the relevant State AEWRs. Specifically, the FLS is routinely available and published within 1 month of the survey date. The quarterly gathering of data ensures that the annual averages are more accurately reflective of the fluctuations of farm labor patterns, which are by definition seasonal and thus more subject to fluctuation than other occupations. However, beginning calendar year 2012, NASS will conduct the FLS semiannually and collect data for January and April during April and collect data for July and October during October. In other words, NASS will continue to collect data from all four quarters but will only survey the establishments twice a year, with publication of the results the following month. Other than this change in frequency in which establishments are surveyed, and the accompanying publication of the results, the FLS remains the same as described in the preamble to the 2010 H–2A Rule. NASS will continue to include its annual average estimate for wage rates, based on data collected from all four quarters of the year, in the October FLS report which is published in November. The change in how frequently establishments are surveyed (and the accompanying publication of those results) does not change the statistical validity of the FLS. In the fall of 2011, NASS conducted an internal review and found that there was not enough evidence to conclude that collecting quarterly data at 3 months after the estimation period resulted in a statistically significant recall bias. Accordingly, the definition of AEWR at Process and Enforcement, Final Rule’’, 73 FR 77110, Dec. 18, 2008. E:\FR\FM\02MRR1.SGM 02MRR1 12724 Federal Register / Vol. 77, No. 42 / Friday, March 2, 2012 / Rules and Regulations 20 CFR 655.103(b) 2 and the justification for returning to the FLS as the basis for the AEWR continue to apply and are not materially affected by this procedural change. Signed in Washington, DC, this 28th day of February, 2012. Jane Oates, Assistant Secretary, Employment and Training Administration. [FR Doc. 2012–5201 Filed 2–29–12; 4:15 pm] BILLING CODE 4510–FP–P POSTAL SERVICETM 39 CFR Part 20 International Postal Service—Global Expedited Package Services (GEPS) Contracts Postal ServiceTM. ACTION: Final rule. AGENCY: The Postal Service will revise Mailing Standards of the United States Postal Service, International Mail Manual (IMM®) to incorporate a change concerning the requirements that a mailer must meet in order to qualify for a Global Expedited Package Services (GEPS) contract. DATES: Effective date: April 1, 2012. FOR FURTHER INFORMATION CONTACT: Margaret M. Falwell, 202–268–2576. SUPPLEMENTARY INFORMATION: The United States Postal Service® gives notice that, on January 30, 2012, the Postal Service filed with the Postal Regulatory Commission a notice of a minor classification change for the international competitive product Global Expedited Package Services (GEPS) Contracts. The minor classification change concerns the requirements that a mailer must meet in order to qualify for a GEPS contract. This change is designed for consistency with published commercial plus pricing discounts for Express Mail International and Priority Mail International. The Commission concurred with the notice in its Order No. 1225, issued on February 10, 2012. Documents are available at www.prc.gov, Docket No. MC2012–8. rmajette on DSK2TPTVN1PROD with PROPOSALS SUMMARY: List of Subjects in 39 CFR Part 20 Foreign relations, International postal services. 2 Although the definition of AEWR refers to ‘‘quarterly surveys,’’ we do not believe that it is necessary to replace that reference with ‘‘semiannual surveys,’’ as the NASS will continue to collect wage data from all four quarters and the annual weighted average hourly wage for field and livestock workers (combined) in the States or regions would continue to be based upon that quarterly wage data. VerDate Mar<15>2010 15:16 Mar 01, 2012 Jkt 226001 Accordingly, 39 CFR Part 20 is amended as follows: Air Quality Standards (NAAQS). This action is being taken pursuant to section 110 of the Clean Air Act (CAA or Act). PART 20—[AMENDED] DATES: This direct final rule is effective May 1, 2012 without further notice, ■ 1. The authority citation for 39 CFR unless EPA receives adverse comment part 20 continues to read as follows: by April 2, 2012. If EPA receives such Authority: 5 U.S.C. 552(a); 13 U.S.C. 301– comments, it will publish a timely 307; 18 U.S.C. 1692–1737; 39 U.S.C. 101, withdrawal of the direct final rule in the 401, 403, 404, 407, 414, 416, 3001–3011, Federal Register and inform the public 3201–3219, 3403–3406, 3621, 3622, 3626, that the rule will not take effect. 3632, 3633, and 5001. ADDRESSES: Submit your comments, ■ 2. Revise the following sections of identified by Docket ID No. EPA–R04– Mailing Standards of the United States OAR–2011–0850, by one of the Postal Service, International Mail following methods: Manual (IMM), as follows: 1. www.regulations.gov: Follow the * * * * * on-line instructions for submitting comments. 2 Conditions for Mailing 2. Email: benjamin.lynorae@epa.gov. * * * * * 3. Fax: (404) 562–9019. 297 Customized Agreements 4. Mail: ‘‘EPA–R04–OAR–2011– 0850,’’ Regulatory Development Section, * * * * * Air Planning Branch, Air, Pesticides and 297.2 Qualifying Mailers Toxics Management Division, U.S. Environmental Protection Agency, [Revise IMM 297.2 as follows:] Region 4, 61 Forsyth Street SW., To qualify for a GEPS contract, a Atlanta, Georgia 30303–8960. mailer must be capable, on an 5. Hand Delivery or Courier: Lynorae annualized basis, of paying at least Benjamin, Regulatory Development $200,000 in international postage to the Section, Air Planning Branch, Air, Postal Service. Pesticides and Toxics Management * * * * * Division, U.S. Environmental Protection We will publish an amendment to 39 Agency, Region 4, 61 Forsyth Street CFR part 20 to reflect these changes. SW., Atlanta, Georgia 30303–8960. Such deliveries are only accepted during the Stanley F. Mires, Regional Office’s normal hours of Attorney, Legal Policy & Legislative Advice. operation. The Regional Office’s official [FR Doc. 2012–5049 Filed 3–1–12; 8:45 am] hours of business are Monday through BILLING CODE 7710–12–P Friday, 8:30 to 4:30, excluding federal holidays. Instructions: Direct your comments to ENVIRONMENTAL PROTECTION Docket ID No. EPA–R04–OAR–2011– AGENCY 0850. EPA’s policy is that all comments received will be included in the public 40 CFR Part 52 docket without change and may be made available online at www. [EPA–R04–OAR–2011–0850–201154(a); FRL–9639–8] regulations.gov, including any personal information provided, unless the Approval and Promulgation of comment includes information claimed Implementation Plans; Georgia; to be Confidential Business Information Macon; Fine Particulate Matter 2002 (CBI) or other information whose Base Year Emissions Inventory disclosure is restricted by statute. Do not submit through www.regulations.gov AGENCY: Environmental Protection or email, information that you consider Agency (EPA). to be CBI or otherwise protected. The ACTION: Direct final rule. www.regulations.gov Web site is an ‘‘anonymous access’’ system, which SUMMARY: EPA is taking direct final means EPA will not know your identity action to approve the fine particulate matter (PM2.5) 2002 base year emissions or contact information unless you provide it in the body of your comment. inventory, portion of the State If you send an email comment directly Implementation Plan (SIP) revision to EPA without going through www. submitted by the State of Georgia on regulations.gov, your email address will August 17, 2009. The emissions be automatically captured and included inventory is part of the Macon, Georgia as part of the comment that is placed in (hereafter referred to as ‘‘the Macon the public docket and made available on Area’’ or ‘‘Area’’), PM2.5 attainment the Internet. If you submit an electronic demonstration that was submitted for the 1997 annual PM2.5 National Ambient comment, EPA recommends that you PO 00000 Frm 00002 Fmt 4700 Sfmt 4700 E:\FR\FM\02MRR1.SGM 02MRR1

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[Federal Register Volume 77, Number 42 (Friday, March 2, 2012)]
[Rules and Regulations]
[Pages 12723-12724]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-5201]



========================================================================
Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 
Prices of new books are listed in the first FEDERAL REGISTER issue of each 
week.

========================================================================


Federal Register / Vol. 77, No. 42 / Friday, March 2, 2012 / Rules 
and Regulations

[[Page 12723]]



DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655


Labor Certification Process for the Temporary Employment of 
Aliens in Agriculture in the United States; Announcement of Non-
Material Change to the Farm Labor Survey Used for Determining the 
Adverse Effect Wage Rate

AGENCY: Employment and Training Administration, Department of Labor.

ACTION: Announcement of non-material change.

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

SUMMARY: Under the Department of Labor's (we or the Department) H-2A 
temporary labor certification program, Adverse Effect Wage Rates 
(AEWRs) are the minimum wage rates the Department has determined must 
be offered and paid by employers to H-2A workers and workers in 
corresponding employment for a particular occupation and area such that 
the wages of similarly employed United States (U.S.) workers will not 
be adversely affected. 20 CFR 655.100(b). AEWRs are derived from the 
Farm Labor Survey (FLS) issued by the U.S. Department of Agriculture's 
(USDA) National Agricultural Statistics Service (NASS). In the interest 
of government transparency, we are publishing this document to announce 
a non-material change in the frequency of establishment surveys under 
the FLS (and its accompanying publication) beginning in 2012.

DATES: This announcement is effective March 2, 2012.

FOR FURTHER INFORMATION CONTACT: William L. Carlson, Ph.D., 
Administrator, Office of Foreign Labor Certification, Employment and 
Training Administration, U.S. Department of Labor, 200 Constitution 
Avenue NW., Room C-4312, Washington, DC 20210; Telephone (202) 693-3010 
(this is not a toll-free number). Individuals with hearing or speech 
impairments may access the telephone number above via TTY calling the 
toll-free Federal Information Relay Service as 1-877-889-5627 (TTY/
TDD).

SUPPLEMENTARY INFORMATION: The U.S. Citizenship and Immigration 
Services of the Department of Homeland Security will not approve an 
employer's petition for the admission of H-2A nonimmigrant temporary 
agricultural workers in the U.S. unless the petitioner has received 
from the Department an H-2A labor certification. The labor 
certification provides that: (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(s) 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), 1184(c)(1), and 1188(a); 8 CFR 214.2(h)(5).
    The Department's H-2A regulations at 20 CFR 655.120(a) provide that 
employers must pay their H-2A workers and workers in corresponding 
employment at least the highest of: (i) The AEWR; (ii) the prevailing 
wage; (iii) the prevailing piece rate; (iv) the agreed-upon collective 
bargaining wage, if applicable; or (v) the Federal or State minimum 
wage, in effect at the time the work is performed. The H-2A regulations 
define the AEWR as ``[t]he annual weighted average hourly wage for 
field and livestock workers (combined) in the States or regions as 
published annually by the U.S. Department of Agriculture (USDA) based 
upon its quarterly wage survey.'' 20 CFR 655.103(a) and (b).
    NASS historically has conducted the FLS on which the AEWR is based. 
The FLS provides quarterly statistics on the number of agricultural 
workers; hours worked, and wage rates. We have relied upon the FLS 
since 1987 \1\ as the basis for setting the AEWR. We explain our 
reasons in great detail in the preamble of the ``Temporary Agricultural 
Employment of H-2A Aliens in the United States; Final Rule'', 75 FR 
6884, 6891-6901, Feb. 12, 2010 (the 2010 H-2A Rule). However, we are 
publishing several clarifications in light of recent changes to the 
method by which the FLS is conducted.
---------------------------------------------------------------------------

    \1\ There a brief period of deviation beginning January 17, 2009 
through March 14, 2010, where we decided to use the Bureau of Labor 
Statistics Occupational Employment Statistics Survey rather than the 
FLS to set the AEWR. See ``Temporary Agricultural Employment of H-2A 
Aliens in the United States; Modernizing the Labor Certification 
Process and Enforcement, Final Rule'', 73 FR 77110, Dec. 18, 2008.
---------------------------------------------------------------------------

    We stated in the preamble to the 2010 H-2A Final Rule that

[t]he FLS is conducted each year in January, April, July and 
October, and results are published the following month.

    We also stated in the preamble that:

    The FLS and publication schedule provide timely data for 
purposes of calculating the relevant State AEWRs. Specifically, the 
FLS is routinely available and published within 1 month of the 
survey date. The quarterly gathering of data ensures that the annual 
averages are more accurately reflective of the fluctuations of farm 
labor patterns, which are by definition seasonal and thus more 
subject to fluctuation than other occupations.

    However, beginning calendar year 2012, NASS will conduct the FLS 
semi-annually and collect data for January and April during April and 
collect data for July and October during October. In other words, NASS 
will continue to collect data from all four quarters but will only 
survey the establishments twice a year, with publication of the results 
the following month. Other than this change in frequency in which 
establishments are surveyed, and the accompanying publication of the 
results, the FLS remains the same as described in the preamble to the 
2010 H-2A Rule. NASS will continue to include its annual average 
estimate for wage rates, based on data collected from all four quarters 
of the year, in the October FLS report which is published in November.
    The change in how frequently establishments are surveyed (and the 
accompanying publication of those results) does not change the 
statistical validity of the FLS. In the fall of 2011, NASS conducted an 
internal review and found that there was not enough evidence to 
conclude that collecting quarterly data at 3 months after the 
estimation period resulted in a statistically significant recall bias. 
Accordingly, the definition of AEWR at

[[Page 12724]]

20 CFR 655.103(b) \2\ and the justification for returning to the FLS as 
the basis for the AEWR continue to apply and are not materially 
affected by this procedural change.
---------------------------------------------------------------------------

    \2\ Although the definition of AEWR refers to ``quarterly 
surveys,'' we do not believe that it is necessary to replace that 
reference with ``semi-annual surveys,'' as the NASS will continue to 
collect wage data from all four quarters and the annual weighted 
average hourly wage for field and livestock workers (combined) in 
the States or regions would continue to be based upon that quarterly 
wage data.

    Signed in Washington, DC, this 28th day of February, 2012.
Jane Oates,
Assistant Secretary, Employment and Training Administration.
[FR Doc. 2012-5201 Filed 2-29-12; 4:15 pm]
BILLING CODE 4510-FP-P