[Federal Register Volume 77, Number 191 (Tuesday, October 2, 2012)]
[Rules and Regulations]
[Pages 60040-60041]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-24264]


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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

AGENCY: Employment and Training Administration, Labor.

ACTION: Final rule; delay of effective date.

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SUMMARY: The Department of Labor (Department) is delaying the effective 
date of the Wage Methodology for the Temporary Non-agricultural 
Employment H-2B Program final rule, in response to recently enacted 
legislation that prohibits any funds from being used to implement the 
Wage Rule for the first 6 months of fiscal year (FY) 2013. The Wage 
Rule revised the methodology by which the Department calculates 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.

DATES: The effective date for the final rule amending 20 CFR part 655, 
published at 76 3452, January 19, 2011, effective January 1, 2012, 
amended to September 30, 2011, at 76 FR 45667, August 1, 2011, delayed 
until November 30, 2011, at 76 FR 59896 (September 28, 2011), delayed 
until January 1, 2012, at 76 FR 73508 (November 29, 2011), and delayed 
until October 1, 2012 at 76 FR 82115 (December 30, 2011), is further 
delayed until March 27, 2013.

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: 
    The Department published the Wage Methodology for the Temporary 
Non-agricultural Employment H-2B Program final rule (the Wage Rule) on 
January 19, 2011, 76 FR 3452. The Wage Rule revised the methodology by 
which the Department calculates 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 
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\ the Department 
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, a Final Rule was published 
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, Civil Docket No. 09-240, Doc. No. 119, 2011 
WL 2414555 (E.D. Pa. June 16, 2011).
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    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 would be 
transferred to another court,\3\ the Department issued a final rule, 76 
FR 59896, September 28, 2011, postponing the effective date of the Wage 
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 (W.D. La, Alexandria 
Division); and Bayou Lawn & Landscape Services, et al. (Bayou) v. 
Solis, et al., Civil Docket No. (N.D. Fla., 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. The plaintiffs' 
motion to intervene was granted by the U.S. District Court in the 
Western District of Louisiana on Sept. 22, 2011, but was denied by 
the U.S. District Court in the Northern District of Florida on Nov. 
23, 2011. Additionally, the motion to transfer venue was granted by 
the U.S. District Court in the Western District of Louisiana on Dec. 
12, 2011 but was denied by the U.S. District Court in the Northern 
District of Florida on Dec. 12, 2011.
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    Thereafter, the Department postponed the effective date of the Wage 
Rule again, in light of the enactment on November 18, 2011, of the 
Consolidated and Further Continuing Appropriations Act, 2012, which 
provided that ``[n]one of the funds made available by this or any other 
Act for fiscal year 2012 may be used to implement, administer, or 
enforce, prior to January 1, 2012 the [Wage Rule].'' Public Law 112-55, 
Div. B, Title V, Sec.  546 (Nov. 18, 2011) (the November Appropriations 
Act). In delaying the Wage Rule's effective date, the Department stated 
that although the November Appropriations Act ``prevent[ed] the 
expenditure of funds to implement, administer, or enforce the Wage Rule 
before January 1, 2012, it did not prohibit the Wage Rule from going 
into effect, which was scheduled to occur on November 30, 2011. When 
the Wage Rule goes into effect, it will supersede and make null the 
prevailing wage provisions at 20 CFR 655.10(b) of the Department's 
existing H-2B regulations, which were promulgated under 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 H-2B

[[Page 60041]]

2008 Rule).'' 76 FR 82115, 82116. Accordingly, the Department 
determined that it was necessary in light of the November 
Appropriations Act to delay the effective date of the Wage Rule in 
order to avoid the replacement of the H-2B 2008 Rule with a new rule 
that the Department lacks appropriated funds to implement. As a result, 
the Department issued a final rule, 76 FR 73508, on November 29, 2011 
which delayed the effective date of the Wage Rule until January 1, 
2012.
    On December 23, 2011, President Obama signed into law the 
Consolidated Appropriations Act, 2012 (the December Appropriations 
Act), which provided that ``[n]one of the amounts made available under 
this Act may be used to implement the [Wage Rule].'' Similar to the 
November Appropriations Act, the December Appropriations Act prevented 
the expenditure of funds to implement the Wage Rule for the remainder 
of FY 2012. In light of the December Appropriations Act, the Department 
issued a Final Rule, 76 FR 82115, on December 30, 2011, which further 
delayed the effective date of the Wage Rule until October 1, 2012.
    In anticipation of the enactment of H.J. Res. 117, which continues 
the Department's appropriations from the December Appropriations Act 
until March 27, 2013 ``under the authority and conditions provided'' in 
the December Appropriations Act, H.J. Res. 117, Sec. 101(a), the 
Department must again delay the effective date of the Wage Rule to 
prevent the replacement of the H-2B 2008 Rule with a new rule that the 
Department lacks appropriated funds to implement. As noted with the 
previous delays in the effective dates, if the Wage Rule were to become 
effective on October 1, 2012 and H.J. Res. 117 becomes law, the 
Department would be unable to issue prevailing wage determinations 
under the H-2B 2008 rule. The Department of Homeland Security (DHS), 
under its regulations at 8 CFR 214.2(h)(6)(iii) and (iv) requires an 
employer seeking H-2B workers to obtain a labor certification from the 
Department. Because the Department would be legally precluded from 
issuing prevailing wage determinations, temporary labor certifications 
for employers seeking H-2B workers could not be issued because the 
Department could not comply with its own regulations or those of DHS. 
As a result, the H-2B program would be held in abeyance for the first 6 
months of FY 2013; therefore, the Department is extending the effective 
date of the Wage Rule until March 27, 2013.
    The Department considers this situation an emergency warranting the 
publication of a final rule under the good cause exception of the 
Administrative Procedure Act. See 5 U.S.C. 553(b)(B) and 553(d)(3). In 
order to avoid an operational suspension during the first 6 months of 
FY 2013, the Department finds good cause to adopt this rule, effective 
immediately, and without prior notice and comment. See 5 U.S.C. 
553(b)(B) and 553(d)(3). As such, a delay in promulgating this rule 
past the date of publication would be impracticable and unnecessary and 
would disrupt the program, leaving program users without access to the 
H-2B program.

    Signed at Washington, DC this 27th day of September, 2012.
Jane Oates,
Assistant Secretary for Employment and Training.
[FR Doc. 2012-24264 Filed 9-28-12; 8:45 am]
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