[Federal Register Volume 76, Number 190 (Friday, September 30, 2011)]
[Rules and Regulations]
[Pages 60720-60721]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-25302]


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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; Impact on Prevailing Wage 
Determinations

AGENCY: Employment and Training Administration, Wage and Hour Division.

ACTION: Guidance.

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SUMMARY: The Department of Labor (Department) recently postponed the 
effective date of the Wage Methodology for the Temporary Non-
agricultural Employment H-2B Program Final Rule, January 19, 2011 (the 
Wage Rule), to November 30, 2011, due to pending legal challenges, 
pursuant to the Administrative Procedure Act. This document provides 
guidance to the employers who have received supplemental wage 
determinations based on the new prevailing wage methodology set forth 
in the Wage Rule, as to the prevailing wages that would apply before 
and after the new effective date of November 30, 2011.

DATES: This guidance is effective September 30, 2011.

FOR FURTHER INFORMATION CONTACT: 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). For further information on Wage and Hour, 
contact Mary Ziegler, Director, Division of Regulations, Legislation, 
and Interpretation, Wage and Hour Division, U.S. Department of Labor, 
200 Constitution Avenue, NW., Room S-3510, Washington, DC 20210; 
Telephone (202) 693-0071 (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 1-800-877-8339.

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 used in petitioning the Department of Homeland 
Security to employ a nonimmigrant worker in H-2B status. The Department 
originally set the effective date of the Wage Rule for January 1, 2012. 
However, due to a court ruling that invalidated the January 1, 2012 
effective date of the Wage Rule,\1\ 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 a Final Rule on August 1, 2011, which set 
the new effective date for the Wage Rule of September 30, 2011 (the 
Effective Date Rule).
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    \1\ CATA v. Solis, Dkt. No. 119, 2011 WL 2414555.
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    Both the Wage Rule and the Effective Date Rule recently were 
challenged in two separate lawsuits \2\ seeking to bar their 
implementation. In consideration of the two pending challenges to the 
Wage Rule and its new effective date, and the possibility that the 
litigation will be transferred to another court,\3\ the Department 
issued a final rule published in the Federal Register on September 28, 
2011, postponing the effective date of the rule from September 30, 
2011, until November 30, 2011, in accordance with the Administrative 
Procedure Act, 5 U.S.C. 705.
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    \2\ See Louisiana Forestry Association, Inc., et al. (LFA) v. 
Solis, et al., Civil Docket No. 11-1623 (WD LA, Alexandria 
Division); and Bayou Lawn & Landscape Services, et al. (Bayou) v. 
Solis, et al., Civil Docket No. 11-445 (ND FL, Pensacola Division).
    \3\ 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.
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    In anticipation of the September 30, 2011 effective date, the 
Office of Foreign Labor Certification issued supplemental wage 
determinations based on the new prevailing wage methodology set forth 
in the Wage Rule for approximately 3,500 previously certified H-2B 
applications. However, in light of our recent decision to postpone the 
effective date of the Wage Rule until November 30, 2011, any employer 
who has received a supplemental H-2B prevailing wage determination in 
anticipation of the September 30, 2011 effective date is not required 
to pay, and the Department's Wage and Hour Division will not enforce, 
the wage provided in that supplemental prevailing wage determination 
for any work performed beginning September 30, 2011 through November 
29, 2011 by H-2B workers or U.S. workers recruited in connection with 
the H-2B

[[Page 60721]]

application process. The employer is expected to continue to pay at 
least the prevailing wage as promised in the employer's labor 
certification (ETA Form 9142) for any work performed before November 
30, 2011. However, employers who received a supplemental H-2B 
prevailing wage determination must pay at least that wage to any H-2B 
worker and any U.S. worker recruited in connection with the labor 
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certification for work performed on or after November 30, 2011.

    Signed at Washington, DC, this 27th of September 2011.
Jane Oates,
Assistant Secretary for Employment and Training.
Nancy J. Leppink,
Deputy Administrator, Wage and Hour Division.
[FR Doc. 2011-25302 Filed 9-28-11; 11:15 am]
BILLING CODE 4510-FP-P