[Federal Register Volume 76, Number 251 (Friday, December 30, 2011)]
[Rules and Regulations]
[Pages 82116-82117]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-33523]


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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; Delay of Effective Date; Impact on Prevailing Wage 
Determinations

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

ACTION: Guidance.

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SUMMARY: The Department of Labor (we or the Department), as a result of 
Congressional appropriations language, recently delayed the effective 
date of the Wage Methodology for Temporary Non-agricultural Employment 
H-2B Program Final Rule (the Wage Rule) to January 1, 2012. This Notice 
provides additional guidance to those employers who have received from 
the Department either a supplemental or dual prevailing wage 
determinations based on a previous effective date of the new prevailing 
wage methodology. This guidance provides additional clarification 
regarding the wage payment requirements for employers participating in 
the H-2B Temporary Non-agricultural program.

DATES: This guidance is effective December 30, 2011.

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). For further information concerning 
the Wage and Hour Division, 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 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 wage 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. We originally 
set the effective date of the Wage Rule for January 1, 2012. However, 
as a result of 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, proposing that the Wage Rule take 
effect 60 days from the date of publication of a final rule resulting 
from the NPRM. 76 FR 37686, Jun. 28, 2011. We published a Final Rule on 
August 1, 2011, which set the new effective date of September 30,

[[Page 82117]]

2011 for the Wage Rule (the Effective Date Rule).
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    \1\ CATA v. Solis, Civil Docket No. 09-240, Doc. No. 119, 2011 
WL 2414555 (E.D. Pa. June 16, 2011).
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    In anticipation of the revised effective date of the Wage Rule, the 
Department issued supplemental prevailing wage determinations to those 
employers granted labor certification for an H-2B application where 
work would be performed on or after September 30, 2011. Those 
supplemental determinations were provided to employers to enable them 
to meet their amended wage obligations.
    Both the Wage Rule and the Effective Date Rule 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 could be 
transferred to another court,\3\ the Department issued a final rule, 76 
FR 59896, Sep. 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 December 12, 2011, the LFA court granted a motion to 
transfer venue over the litigation to the Eastern District of 
Pennsylvania, the court in which the CATA case remains pending. 
However, the Bayou court denied the defendant's motion to transfer 
the Bayou litigation to the Eastern District of Pennsylvania the 
same day.
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    Following the postponement of the effective date to November 30, 
2011, and in anticipation of the new effective date, the Office of 
Foreign Labor Certification (OFLC) issued participating employers two 
simultaneous (or dual) wage determinations for work to be potentially 
performed before and after the new effective date of the Wage Rule. The 
first determination was based on the former regulations that applied 
until November 30, and the second determination was based on the new 
prevailing wage methodology set forth in the Wage Rule, that was to be 
effective for work performed on and after November 30, 2011.
    On November 18, 2011, the President signed into law the 
Consolidated and Further Continuing Appropriations Act, 2012, Pub. L. 
112-55, Div. B, Title V, Sec.  546 (Nov. 18, 2011) (the November 
Appropriations Act). The November Appropriations Act contains language 
preventing the expenditure of funds to implement, administer, or 
enforce the Wage Rule prior to January 1, 2012. Accordingly, the 
Department issued a final rule in the Federal Register, 76 FR 73508 
(Nov. 29, 2011), again postponing the effective date of the rule, this 
time from November 30, 2011, until January 1, 2012. As a result, the 
Department issued in the first half of December 2011 prevailing wage 
determinations, with the advisory that additional determinations would 
be forthcoming.
    On December 23, 2011, the President signed into law the 
Consolidated Appropriations Act, 2012, which provides that [``[n]one of 
the amounts made available under this Act may be used to implement the 
[Wage Rule].''] Because of the distinct possibility that we would be 
unable to operate the H-2B program for the remainder of FY 2012 if the 
effective date of the Wage Rule were not postponed, the Department 
determined that this situation constituted an emergency warranting the 
publication of a final rule under the good cause exception of the 
Administrative Procedure Act to delay the effective date of the Wage 
Rule to October 1, 2012. Consequently, the Department is publishing a 
final rule to extend the effective date of the Wage Final Rule to 
October 1, 2012. See the final rule delaying the effective date of the 
H-2B Wage Rule, published elsewhere in this issue of the Federal 
Register.
    In light of the postponement of the effective date of the Wage Rule 
until October 1, 2012, the Department is hereby providing public notice 
that the wage determinations previously issued in anticipation of the 
effective date of, and in accordance with, the Wage Rule will not be 
effective until October 1, 2012, and will then apply only to work 
performed on or after that date, if applicable. In addition, we are 
hereby providing notice that those prevailing wage determinations 
issued under the Labor Certification Process and Enforcement for 
Temporary Employment in Occupations Other Than Agriculture or 
Registered Nursing in the United States (H-2B Workers), and Other 
Technical Changes; Final Rule, 73 FR 78020, Dec. 19, 2008 (the 2008 H-
2B Rule), which were listed as valid until either November 30, 2011 or 
December 31, 2011, are now valid for a period of 90 days beyond 
December 31, 2011, i.e. until March 30, 2012, and only apply to work 
performed on or before September 30, 2012.
    Any employer who received an H-2B prevailing wage determination 
issued in anticipation of the September 30, 2011, November 30, 2011, or 
January 1, 2012 effective dates of the Wage Rule is not required to 
pay, and the Department's Wage and Hour Division will not enforce, the 
wage provided in those prevailing wage determinations issued in 
anticipation of the effective date of the Wage Rule for any work 
performed by H-2B workers or U.S. workers recruited in connection with 
the H-2B application process until October 1, 2012. Employers are 
expected to continue to pay at least the prevailing wage as provided in 
a prevailing wage determination issued under the 2008 H-2B Rule for any 
work performed before October 1, 2012. Further, employers who received 
a supplemental H-2B prevailing wage determination, or a prevailing wage 
determination issued in anticipation of the effective date of the Wage 
Rule, who are still employing H-2B workers employed under labor 
certifications issued in connection with those prevailing wage 
determinations, must pay at least the wage issued under the Wage Rule 
to any H-2B worker and any U.S. worker recruited in connection with the 
labor certification for work performed on or after October 1, 2012.
    The Department is providing notice that, as a result of the 
December Appropriations Act, it is precluded from addressing issues 
raised in Center Director Review requests submitted by employers in 
connection with prevailing wage determinations issued in anticipation 
of the effective date of, and in accordance with, the Wage Rule.
    Last, the Department in anticipation of questions from the filing 
community and as a measure of customer service has established the 
following email box for questions: [email protected].

    Signed at Washington, DC, this 23rd day of December 2011.
Jane Oates,
Assistant Secretary for Employment and Training.
Nancy Leppink,
Deputy Administrator, Wage and Hour Division.
[FR Doc. 2011-33523 Filed 12-27-11; 4:15 pm]
BILLING CODE 4510-FP-P