[Federal Register Volume 76, Number 124 (Tuesday, June 28, 2011)]
[Proposed Rules]
[Pages 37686-37689]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-16310]


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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

RIN 1205-AB61


Wage Methodology for the Temporary Non-Agricultural Employment H-
2B Program; Amendment of Effective Date

AGENCY: Employment and Training Administration, Labor.

ACTION: Proposed rule; request for comments.

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SUMMARY: The Department of Labor (the Department or DOL) proposes to 
amend the effective date of Wage Methodology for the Temporary Non-
agricultural Employment H-2B Program; Final Rule, 76 FR 3452, January 
19, 2011, (the Wage Rule). The Wage Rule revised the methodology by 
which the Department calculates the prevailing wages to be

[[Page 37687]]

paid to H-2B workers and United States (U.S.) workers recruited in 
connection with a temporary labor certification for use in petitioning 
the Department of Homeland Security to employ a nonimmigrant worker in 
H-2B status. The effective date of the Wage Rule was set at January 1, 
2012.

DATES: Interested persons are invited to submit written comments on the 
proposed rule on or before July 8, 2011.

ADDRESSES: You may submit comments, identified by Regulatory 
Information Number (RIN) 1205-AB61, by any one of the following 
methods:
     Federal e-Rulemaking Portal http://www.regulations.gov. 
Follow the Web site instructions for submitting comments.
     Mail or Hand Delivery/Courier: Please submit all written 
comments (including disk and CD-ROM submissions) to Michael S. Jones, 
Acting Administrator, Office of Policy Development and Research, 
Employment and Training Administration, U.S. Department of Labor, 200 
Constitution Avenue, NW., Room N-5641, Washington, DC 20210.
    Please submit your comments by only one method. Because of the 
short timeframe for this rulemaking, as discussed in further detail 
below, the Department will not review comments received by means other 
than those listed above or that are received after the comment period 
has closed. While the Department is soliciting comments on the proposed 
effective date of the Wage Rule, we are not seeking comments relating 
to the merits of the provisions contained in the Wage Rule which 
already has been subjected fully to the notice and comment process. We 
will deem any such comments out of scope and will not consider them. 
Additionally, as the U.S. District Court for the Eastern District of 
Pennsylvania ruled in Comit[eacute] de Apoyo a los Trabajadores 
Agricolas (CATA) v. Solis, Civil No. 2:09-cv-240-LP (E.D. Pa.), the 
Immigration and Nationality Act, as amended (INA) does not permit the 
Department to consider issues relating to employer hardship as a reason 
to delay the effective date of a new wage rule. See CATA v. Solis, Dkt. 
No. 119, Memorandum Opinion at 9 (June 15, 2011).
    The Department will post all comments received on http://www.regulations.gov without making any change to the comments, 
including any personal information provided. The http://www.regulations.gov Web site is the Federal e-rulemaking portal and all 
comments posted there are available and accessible to the public. The 
Department cautions commenters not to include their personal 
information such as Social Security Numbers, personal addresses, 
telephone numbers, and e-mail addresses in their comments as such 
submitted information will become viewable by the public on the http://www.regulations.gov Web site. It is the commenter's responsibility to 
safeguard his or her information. Comments submitted through http://www.regulations.gov will not include the commenter's e-mail address 
unless the commenter chooses to include that information as part of his 
or her comment.
    Postal delivery in Washington, DC may be delayed due to security 
concerns. Therefore, the Department encourages the public to submit 
comments through the http://www.regulations.gov Web site.
    Docket: For access to the docket to read background documents or 
comments received, go the Federal eRulemaking portal at http://www.regulations.gov and enter RIN 1205-AB61 in the search field. The 
Department will also make all the comments it receives available for 
public inspection during normal business hours at the Employment and 
Training Administration (ETA) Office of Policy Development and Research 
at the above address. If you need assistance to review the comments, 
the Department will provide you with appropriate aids such as readers 
or print magnifiers. The Department will make copies of the rule 
available, upon request, in large print and as an electronic file on 
computer disk. The Department will consider providing the proposed rule 
in other formats upon request. To schedule an appointment to review the 
comments and/or obtain the rule in an alternate format, contact the 
Office of Policy Development and Research at (202) 693-3700 (VOICE) 
(this is not a toll-free number) or 1-877-889-5627 (TTY/TDD).

FOR FURTHER INFORMATION CONTACT: William L. Carlson, Ph.D., 
Administrator, Office of Foreign Labor Certification, ETA, 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 by calling the toll-free Federal 
Information Relay Service at 1-877-889-5627 (TTY/TDD).

SUPPLEMENTARY INFORMATION: 

I. Amendment of Effective Date of the Wage Rule

A. The Prevailing Wage Final Rule

    On January 19, 2011, the Department published the Wage Rule. Under 
the Wage Rule, the prevailing wage for the H-2B program is based on the 
highest of the following: wages established under an agreed-upon 
collective bargaining agreement; a wage rate established under the 
Davis-Bacon Act (DBA) or the McNamara O'Hara Service Contract Act (SCA) 
for that occupation in the area of intended employment; or the 
arithmetic mean wage rate established by the Occupational Employment 
Statistics (OES) wage survey for that occupation in the area of 
intended employment. The Wage Rule also permits the use of private wage 
surveys in very limited circumstances. Lastly, the Wage Rule requires 
the new wage methodology to apply to all work performed on or after 
January 1, 2012. The Department selected the January 1, 2012 effective 
date because ``many employers already may have planned for their labor 
needs and operations for this year in reliance on the existing 
prevailing wage methodology. In order to provide employers with 
sufficient time to plan for their labor needs for the next year and to 
minimize the disruption to their operations, the Department is delaying 
implementation of this Final Rule so that the prevailing wage 
methodology set forth in this Rule applies only to wages paid for work 
performed on or after January 1, 2012.'' 76 FR 3462, Jan. 19, 2011.

B. The Need for New Rulemaking

    On January 24, 2011, the plaintiffs in CATA v. Solis, Civil No. 
2:09-cv-240-LP (E.D. Pa.) filed a motion for an order to require the 
Department to comply with the Court's August 30, 2010 order,\1\ arguing 
that the Wage Rule violated the Administrative Procedure Act (APA) 
because ``it did not provide notice to Plaintiffs and the public that 
DOL was considering delaying implementation of

[[Page 37688]]

the new regulation and because DOL's reason for delaying implementation 
of the new regulation is arbitrary.'' CATA v. Solis, Dkt. No. 103-1, 
Plaintiff's Motion for an Order Enforcing the Judgment at 2 (Jan. 24, 
2011). On June 15, 2011, the court issued a ruling that invalidated the 
January 1, 2012 effective date of the Wage Rule and ordered the 
Department to announce a new effective date for the rule within 45 days 
from June 15. The basis for the court's ruling was twofold: (1) That 
the almost one-year delay in the effective date was not a ``logical 
outgrowth'' of the proposed rule, and therefore violated the APA; and 
(2) that the Department violated the INA in considering hardship to 
employers when deciding to delay the effective date. The court held 
that ``it is apparent that in this case the notice of proposed 
rulemaking was deficient.'' CATA v. Solis, Dkt. No. 119, Memorandum 
Opinion at 8 (June 15, 2011). The court noted that the NPRM said 
nothing about a delayed effective date, and accordingly ``the public 
would . . . be justified in assuming that any delay in the effective 
date would mirror the minimal delays associated with the issuance of 
similar wage regulations over the past several decades.'' Id. In 
finding a violation of the INA, the court relied extensively on the 
1983 district court decision in NAACP v. Donovan, 566 F. Supp. 1202 
(D.D.C. 1983), which held that the Department could not phase in a wage 
regime based upon a desire to alleviate hardship on small businesses, 
because ```[in] administering the labor certification program, DOL is 
charged with protection of workers.''' CATA v. Solis, Dkt. No. 119, 
Memorandum Opinion at 10 (June 15, 2011) (citing NAACP v. Donovan, 566 
F. Supp. at 1206).
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    \1\ On August 30, 2010, the U.S. District Court for the Eastern 
District of Pennsylvania in CATA v. Solis, Civil No. 2:09-cv-240-LP, 
2010 WL 3431761 (E.D. Pa.) ruled that the Department had violated 
the Administrative Procedure Act in failing to adequately explain 
its reasoning for using skill levels as part of the H-2B prevailing 
wage determinations, and failing to consider comments relating to 
the choice of appropriate data sets in deciding to rely on OES data 
rather than SCA and DBA in setting the prevailing wage rates. The 
court ordered the Department to ``promulgate new rules concerning 
the calculation of the prevailing wage rate in the H-2B program that 
are in compliance with the Administrative Procedure Act no later 
than 120 days from the date of this order.'' The order was later 
amended to provide the Department with additional time, until 
January 18, 2011, to promulgate a final rule.
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C. The Effective Date

    The Department proposes that the Wage Rule take effect 60 days from 
the date of publication of a final rule resulting from this rulemaking. 
The Department anticipates the date of publication of the final rule to 
be on or about August 1, 2011; thus, the effective date of the Wage 
Rule would be on or about October 1, 2011. Because the Wage Rule, which 
was published on January 19, 2011, would have required at least a 60-
day delayed effective date from the date of publication since it is 
considered to be a major rule under the Congressional Review Act (CRA), 
5 U.S.C. 801, et seq.,\2\ the Department believes that it would be 
appropriate to apply a 60-day delayed effective date to the final rule 
that sets the effective date of the Wage Rule. The Wage Rule will be 
effective for wages paid to H-2B workers and U.S. workers recruited in 
connection with an H-2B labor certification for all work performed on 
or after the new effective date. A 60-day delayed effective date also 
would provide the Office of Foreign Labor Certification (OFLC) within 
the Department with the time it needs to implement the wage rule, as 
OFLC must issue new prevailing wages for approved work performed on or 
after the new effective date. In order to accomplish this, OFLC must 
identify all certified H-2B applications which contain dates of work to 
be performed on and after the new effective date of the wage rule. This 
universe of certifications must then be issued new prevailing wage 
determinations in accordance with the wage rule's methodology. This is 
a labor intensive activity, as OFLC will have to determine and issue 
the new determinations before the new effective date proposed in this 
rulemaking for each of these employers. OFLC has determined the 
universe of applications to be large, and therefore will require the 
60-day delayed effective date in order to complete this task.
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    \2\ Under the CRA, a major rule is defined as ``any rule that 
the Administrator of the Office of Information and Regulatory 
Affairs of the Office of Management and Budget finds has resulted in 
or is likely to result in --(A) an annual effect on the economy of 
$100,000,000 or more; (B) a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local 
government agencies, or geographic regions; or (C) significant 
adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
enterprises to compete with foreign-based enterprises in domestic 
and export markets. The term does not include any rule promulgated 
under the Telecommunications Act of 1996 and the amendments made by 
that Act.'' 5 U.S.C. 804(2). As part of the Department's Executive 
Order 12866 analysis, OMB determined that the Wage Rule would likely 
result in transfers in excess of $100 million annually. See 76 FR 
3468, Jan. 19, 2011.
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    As mentioned above, the purpose of this rulemaking is to solicit 
comments on the proposed effective date of the Wage Rule; therefore, 
any comments relating to the merits of the provisions contained in the 
Wage Rule will be deemed out of scope and will not be considered. 
Furthermore, pursuant to the district court's order, the Department 
cannot consider specific examples of employer hardship to delay the 
effective date of a new wage rule. See CATA v. Solis, Dkt. No. 119, 
Memorandum Opinion at 9 (June 15, 2011).

II. Administrative Information

A. Executive Orders 12866 and 13563

    Under Executive Order (E.O.) 12866 and E.O. 13563, the Department 
must determine whether a regulatory action is significant and 
therefore, subject to the requirements of the E.O. and subject to 
review by the Office of Management and Budget (OMB). Section 3(f) of 
E.O. 12866 defines a ``significant regulatory action'' as an action 
that is likely to result in a rule that: (1) Has an annual effect on 
the economy of $100 million or more or adversely and materially affects 
a sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local or Tribal 
governments or communities (also referred to as ``economically 
significant''); (2) creates serious inconsistency or otherwise 
interferes with an action taken or planned by another agency; (3) 
materially alters the budgetary impacts of entitlement grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof; or (4) raises novel legal or policy issues arising out of 
legal mandates, the President's priorities, or the principles set forth 
in the E.O. The Department has determined that this NPRM is not an 
economically significant regulatory action under sec. 3(f)(1) of E.O. 
12866. The Department, however, has determined that this NPRM is a 
significant regulatory action under sec. 3(f)(4) of the E.O. and, 
accordingly, OMB has reviewed this NPRM.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) at 5 U.S.C. 603 requires 
agencies to prepare a regulatory flexibility analysis to determine 
whether a regulation will have a significant economic impact on a 
substantial number of small entities. Section 605 of the RFA allows an 
agency to certify a rule in lieu of preparing an analysis if the 
regulation is not expected to have a significant economic impact on a 
substantial number of small entities. Further, under the Small Business 
Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 801 (SBREFA), an 
agency is required to produce a compliance guidance for small entities 
if the rule has a significant economic impact. In the Wage Rule, the 
Department stated that it believed that the Wage Rule was not likely to 
impact a substantial number of small entities; however, in the interest 
of transparency, the Department prepared a Final Regulatory Flexibility 
Analysis (FRFA) to assess the impact of this regulation on small 
entities, as defined by the applicable Small Business Administration 
(SBA) size standards. See 76 FR 3473, Jan. 19, 2011. While the change 
in the effective date of the Wage Rule that is being proposed in this 
NPRM may change the

[[Page 37689]]

period in which the total cost burdens for small entities would occur, 
the Department believes that the amount of the total cost burdens 
themselves would not change. Accordingly, the Assistant Secretary of 
ETA has notified the Chief Counsel for Advocacy, Small Business 
Administration (SBA), under the RFA at 5 U.S.C. 605(b), and certified 
that this rule will not have a significant economic impact on a 
substantial number of small entities.

C. Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
1531) directs agencies to assess the effects of Federal regulatory 
actions on State, local, and Tribal governments, and the private 
sector. The proposed rule has no Federal mandate, which is defined in 2 
U.S.C. 658(6) to include either a ``Federal intergovernmental mandate'' 
or a ``Federal private sector mandate.'' A Federal mandate is any 
provision in a regulation that imposes an enforceable duty upon State, 
local, or Tribal governments, or imposes a duty upon the private sector 
which is not voluntary.

D. Small Business Regulatory Enforcement Fairness Act of 1996

    The Department has determined that this rulemaking does not impose 
a significant impact on a substantial number of small entities under 
the RFA; therefore, the Department is not required to produce any 
compliance guides for small entities as mandated by the SBREFA. The 
Department has similarly concluded that this proposed rule is not a 
major rule requiring review by the Congress under the SBREFA because it 
will not likely result in: (1) An annual effect on the economy of $100 
million or more; (2) a major increase in costs or prices for consumers, 
individual industries, Federal, State or local government agencies, or 
geographic regions; or (3) significant adverse effects on competition, 
employment, investment, productivity, innovation, or on the ability of 
U.S.-based enterprises to compete with foreign-based enterprises in 
domestic or export markets.

 E. Executive Order 13132--Federalism

    The Department has reviewed this proposed rule in accordance with 
E.O. 13132 regarding federalism and has determined that it does not 
have federalism implications. The proposed rule does not have 
substantial direct effects on States, on the relationship between the 
States, or on the distribution of power and responsibilities among the 
various levels of government as described by E.O. 13132. Therefore, the 
Department has determined that this proposed rule will not have a 
sufficient federalism implication to warrant the preparation of a 
summary impact statement.

 F. Executive Order 13175--Indian Tribal Governments

    This proposed rule was reviewed under the terms of E.O. 13175 and 
determined not to have Tribal implications. The proposed rule does not 
have substantial direct effects on one or more Indian Tribes, on the 
relationship between the Federal Government and Indian Tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian Tribes. As a result, no Tribal summary impact 
statement has been prepared.

G. Assessment of Federal Regulations and Policies on Families

    Section 654 of the Treasury and General Government Appropriations 
Act, enacted as part of the Omnibus Consolidated and Emergency 
Supplemental Appropriations Act of 1999 (Pub. L. 105-277, 112 Stat. 
2681) requires the Department to assess the impact of this proposed 
rule on family well-being. A rule that is determined to have a negative 
effect on families must be supported with an adequate rationale.
    The Department has assessed this proposed rule and determines that 
it will not have a negative effect on families.

 H. Executive Order 12630--Government Actions and Interference with 
Constitutionally Protected Property Rights

    The proposed rule is not subject to E.O. 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights, because it does not involve implementation of a policy with 
takings implications.

I. Executive Order 12988--Civil Justice

    The proposed rule has been drafted and reviewed in accordance with 
E.O. 12988, Civil Justice Reform, and will not unduly burden the 
Federal court system. The Department has developed the proposed rule to 
minimize litigation and provide a clear legal standard for affected 
conduct, and has reviewed the proposed rule carefully to eliminate 
drafting errors and ambiguities.

 J. Plain Language

    The Department drafted this NPRM in plain language.

K. Paperwork Reduction Act

    As part of its continuing effort to reduce paperwork and respondent 
burden, the Department conducts a preclearance consultation program to 
provide the general public and Federal agencies with an opportunity to 
comment on proposed and continuing collections of information in 
accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 
3506(c)(2)(A)). This process helps to ensure that the public 
understands the Department's collection instructions; respondents 
provide requested data in the desired format; reporting burden (time 
and financial resources) is minimized; collection instruments are 
clearly understood; and the Department properly assesses the impact of 
collection requirements on respondents.
    The PRA requires all Federal agencies to analyze proposed 
regulations for potential time burdens on the regulated community 
created by provisions within the proposed regulations that require the 
submission of information. These information collection (IC) 
requirements must be submitted to the OMB for approval. Persons are not 
required to respond to a collection of information unless it displays a 
currently valid OMB control number as required in 5 CFR 1320.11(l) or 
it is exempt from the PRA.
    The majority of the IC requirements for the current H-2B program 
are approved under OMB control number 1205-0466 (which includes ETA 
Form 9141 and ETA Form 9142). There are no burden adjustments that need 
to be made to the analysis. For an additional explanation of how the 
Department calculated the burden hours and related costs, the PRA 
package for information collection OMB control number 1205-0466 may be 
obtained at http://www.RegInfo.gov.

III. Change of Effective Date of Wage Rule

    The Department therefore proposes to amend the ``DATES'' section of 
the Wage Rule to read ``This Final Rule is effective [60 DAYS FROM THE 
DATE OF PUBLICATION OF THE FINAL RULE RESULTING FROM THIS 
RULEMAKING].''

    Signed in Washington this 24th day of June, 2011.
Jane Oates,
Assistant Secretary, Employment and Training Administration.
[FR Doc. 2011-16310 Filed 6-24-11; 4:15 pm]
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