[Federal Register Volume 76, Number 188 (Wednesday, September 28, 2011)]
[Rules and Regulations]
[Pages 59896-59897]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-24969]


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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; Postponement of Effective Date

AGENCY: Employment and Training Administration, Labor.

ACTION: Final rule; delay of effective date.

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SUMMARY: The Department of Labor (Department) is postponing the 
effective date of the Wage Methodology for the Temporary Non-
Agricultural Employment H-2B Program; Final Rule, 76 FR 3452, Jan. 19, 
2011, (the Wage Rule). The Wage Rule revised the methodology by which 
we calculate the prevailing wages to be 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. However, the Wage 
Methodology for the Temporary Non-Agricultural Employment H-2B Program; 
Amendment of Effective Date; Final Rule, 76 FR 45667, August 1, 2011 
revised the effective date to September 30, 2011. Due to pending legal 
challenges, we are postponing the effective date of the Wage Rule to 
November 30, 2011, pursuant to the Administrative Procedure Act, 5 
U.S.C. 705.

DATES: The effective date of the rule amending 20 CFR part 655 
published at 76 FR 45667, August 1, 2011 is delayed until November 30, 
2011.

FOR FURTHER INFORMATION CONTACT: William L. Carlson, PhD, 
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:  The Department published the Wage Rule on 
January 19, 2011, 76 FR 3452. The Wage Rule revised the methodology by 
which we calculate the prevailing wages to be 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 the H-2B status.
    The Department originally set the effective date of the Wage Rule 
for January 1, 2012. On January 24, 2011, the plaintiffs in CATA v. 
Solis, Civil No. 2:09-cv-240-LP (E.D. Pa.) filed a motion in which they 
argued that the January 1, 2012 effective date did not comply with the 
court's August 30, 2010 order to promulgate new rules concerning the 
calculation of the prevailing wage rate in the H-2B program. CATA v. 
Solis, Dkt. No. 103-1, Plaintiff's Motion for an Order Enforcing the 
Judgment at 2 (Jan. 24, 2011). On June 16, 2011, the court issued a 
ruling that invalidated the January 1, 2012 effective date of the Wage 
Rule and ordered us to announce a new effective date for the rule 
within 45 days from June 16. CATA, 2011 WL 2414555 at *4.
    In response to the court's order, we issued a Notice of Proposed 
Rulemaking (NPRM) on June 28, 2011, which proposed that the Wage Rule 
take effect 60 days from the date of publication of a final rule 
resulting from the NPRM. 76 FR 37686, June 28, 2011. After a period of 
public comment, we published the Final Rule on August 1, 2011, which 
set the new effective date for the Wage Rule at September 30, 2011, 
without altering the substance of the Wage Rule. 76 FR 45667.
    On September 7, 2011, the Louisiana Forestry Association, Inc., and 
others filed suit against the Department in the United States District 
Court for the Western District of Louisiana, Alexandria Division. 
Louisiana Forestry Association, Inc., et al (LFA) v. Solis, et al, 
Civil Docket No. 11-1623. LFA claims that the Wage Rule, and the 
subsequent rule amending the Wage Rule's original effective date, 
violate the Takings Clause of the Fifth Amendment to the United States 
Constitution, the Administrative Procedure Act, the Regulatory 
Flexibility Act, and the Immigration and Nationality Act of 1952, as 
amended. Accordingly, LFA seeks temporary injunctive relief before 
September 30, 2011, and permanent injunctive relief, barring the 
Department from implementing the Wage Rule.
    On September 19, 2011, the plaintiffs in the CATA litigation moved 
to intervene in the LFA litigation, and also moved to transfer venue 
over the litigation to the Eastern District of Pennsylvania, the court 
in which the CATA case remains pending. Both motions in the LFA 
litigation are currently pending.
    On September 21, 2011, another group of employers filed a legal 
challenge to the Wage Rule in the United States District Court for the

[[Page 59897]]

Northern District of Florida, Pensacola Division. Bayou Lawn & 
Landscape Services, et al. (Bayou) v. Solis, et al., Civil Docket No. 
11-445. The Bayou plaintiffs' claims are similar to the LFA plaintiffs' 
claims, and they also seek to preliminarily and permanently enjoin the 
Department's implementation of the Wage Rule.
    The Administrative Procedure Act, at 5 U.S.C. 705, provides that 
``[w]hen an agency finds that justice so requires, it may postpone the 
effective date of action taken by it, pending judicial review.'' In 
consideration of the two pending challenges to the Wage Rule and its 
new effective date, and the possibility that, in response to the CATA 
plaintiffs' motion, the litigation will be transferred to another 
court, the Department is postponing the effective date of the rule from 
September 30, 2011, until November 30, 2011. This delay will allow the 
Department to mount an appropriate defense of the rule, and will allow 
for the orderly resolution of the various claims pending in two Federal 
courts. The delay will permit the various courts involved in the 
litigation to determine the appropriate venue for the resolution of all 
claims, and allow the Department to avoid the possibility of 
administering the H-2B program under potentially conflicting court 
orders. In the interest of administering a nationwide program in a 
uniform fashion during the pending litigation, the Department has 
determined that, in the interest of justice, a delay in the effective 
date is necessary.

    Signed at Washington, DC, this 22nd day of September, 2011.
Jane Oates,
Assistant Secretary for Employment and Training.
[FR Doc. 2011-24969 Filed 9-26-11; 4:15 pm]
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