[Federal Register Volume 78, Number 141 (Tuesday, July 23, 2013)]
[Proposed Rules]
[Pages 44054-44056]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-17676]


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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; Proposed Delay of Effective Date

AGENCY: Employment and Training Administration, Labor.

ACTION: Proposed delay of effective date; request for comments.

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SUMMARY: The Department of Labor (Department) is proposing to delay 
indefinitely the effective date of the Wage Methodology for the 
Temporary Non-agricultural Employment H-2B Program final rule (2011 
Wage Rule), in order to comply with recurrent legislation that 
prohibits the Department from using any funds to implement it, and to 
permit time for consideration of public comments sought in conjunction 
with an interim final rule published April 24, 2013, 78 FR 24047. The 
2011 Wage Rule revised the methodology by which the Department 
calculates the prevailing wages to be paid to H-2B workers and United 
States 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 2011 Wage 
Rule was originally scheduled to become effective on January 1, 2012, 
and the effective date has been extended a number of times, most 
recently to October 1, 2013.\1\ The Department is now proposing to 
delay the effective date of the 2011 Wage Rule until such time as 
Congress no longer prohibits the Department from implementing the 2011 
Wage Rule.
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    \1\ The effective date of the 2011 Wage Rule was previously 
revised to September 30, 2011, 76 FR 45667 (Aug. 1, 2011); to 
November 30, 2011, 76 FR 59896 (Sept. 28, 2011); to January 1, 2012, 
76 FR 73508 (Nov. 29, 2011); to October 1, 2012, 76 FR 82115 (Dec. 
30, 2011); to March 27, 2013, 77 FR 60040 (Oct. 2, 2012); and to 
October 1, 2013, 78 FR 19098 (Mar. 29, 2013).

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DATES: Comments must be received on or before August 9, 2013.

ADDRESSES: You may submit comments, identified by Regulatory 
Information Number (RIN) 1205-AB61, by any one of the following 
methods:
    Federal e-Rulemaking Portal: 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 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. Comments received 
by means other than those listed above or received after the comment 
period has closed will not be reviewed. 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 caution commenters not to include personal 
information such as Social Security Numbers, personal addresses, 
telephone numbers, and email addresses in their comments as such 
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 email 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 to the Federal eRulemaking portal at http://www.regulations.gov. The Department will also make all the comments 
received available for public inspection during normal business hours 
at the Employment and Training Administration (ETA) Office of Policy 
Development and Research at the above

[[Page 44055]]

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 notice available, 
upon request, in large print and as an electronic file on computer 
disk. The Department will consider providing the notice in other 
formats upon request. To schedule an appointment to review the comments 
and/or obtain the notice in an alternate format, contact the ETA 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: The Department of Labor published a final 
rule, Wage Methodology for the Temporary Non-agricultural Employment H-
2B Program, on January 19, 2011. See 76 FR 3452 (the 2011 Wage Rule). 
The 2011 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 2011 Wage Rule for January 1, 
2012. However, as a result of litigation and following notice-and-
comment rulemaking, we issued a final rule, 76 FR 45667 (August 1, 
2011), revising the effective date of the 2011 Wage Rule to September 
30, 2011, and a second final rule, 76 FR 59896 (September 28, 2011), 
further revising the effective date of the 2011 Wage Rule to November 
30, 2011.
    Thereafter, the Department delayed the effective date of the 2011 
Wage Rule until January 1, 2012, 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, 125 Stat. 552, Div. B, Title V, sec. 546 (Nov. 18, 
2011) (the November 2011 Appropriations Act). In delaying the 2011 Wage 
Rule's effective date at that time, the Department stated that although 
the November 2011 Appropriations Act ``prevent[ed] the expenditure of 
funds to implement, administer, or enforce the [2011] Wage Rule before 
January 1, 2012, it [did] not prohibit the [2011] Wage Rule from going 
into effect, which [was] scheduled to occur on November 30, 2011.'' 76 
FR 73508, 73509 (November 29, 2011). The Department explained that 
``when the [2011] 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 2008 Rule).'' Id. Accordingly, the 
Department determined that it was necessary in light of the November 
2011 Appropriations Act to delay the effective date of the 2011 Wage 
Rule to avoid the replacement of the wage provisions of the H-2B 2008 
Rule with a new rule that the Department lacked appropriated funds to 
implement. Such an occurrence would have rendered the H-2B program 
inoperable because the issuance of a prevailing wage determination is a 
condition precedent to approving an employer's request for an H-2B 
labor certification. As a result, the Department issued a final rule, 
76 FR 73508, which delayed the effective date of the 2011 Wage Rule 
until January 1, 2012.
    Subsequent appropriations legislation \2\ containing the same 
restriction prohibiting the Department's use of appropriated funds to 
implement, administer, or enforce the 2011 Wage Rule necessitated 
subsequent extensions of the effective date of that rule. See 76 FR 
82115 (December 30, 2011) (extending the effective date to October 1, 
2012); 77 FR 60040 (October 2, 2012) (extending the effective date to 
March 27, 2013); 78 FR 19098 (March 29, 2013) (extending the effective 
date to October 1, 2013). In light of the continued prohibitions on the 
expenditure of the Department's appropriated funds to implement, 
administer, or enforce the 2011 Wage Rule, the Department proposes to 
delay indefinitely the effective date of the 2011 Wage Rule until such 
time as the rule can be implemented.
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    \2\ These include the Consolidated Appropriations Act of 2012, 
Public Law 112-74, 125 Stat. 786 (Dec. 23, 2011); Continuing 
Appropriations Resolution, 2013, Public Law 112-175, 126 Stat. 1313 
(Sept. 28, 2012); and Consolidated and Further Continuing 
Appropriations Act, 2013, Public Law 113-6, 127 Stat. 198 (Mar. 26, 
2013) (establishing DOL's appropriations through Sept. 30, 2013).
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    Additionally, the Department, together with the Department of 
Homeland Security (the Departments),\3\ recently promulgated an interim 
final rule (IFR), 78 FR 24047, establishing a new wage methodology. 
This action was taken in direct response to Comite de Apoyo a los 
Trabajadores Agricolas (CATA) v. Solis, -- F. Supp. 2d --, 2013 WL 
1163426 (E.D. Pa. 2013) in which the district court vacated a provision 
of the H-2B 2008 rule, 20 CFR 655.10(b)(2). That provision required 
that prevailing wages based on the Occupational Employment Statistics 
(OES) survey contain tiers that are commensurate with the skill 
required for the job; the Department accordingly divided the 
Occupational Employment Survey wage applicable to the occupation in 
question into four tiers of wages to correspond to skill levels. The 
court vacated 20 CFR 655.10(b)(2), which was the basis for the four-
tiered wage, and remanded the matter to the Department, ordering the 
Department to come into compliance with the court's order within 30 
days.
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    \3\ The Department of Labor (DOL) and the Department of Homeland 
Security (DHS) issued the IFR jointly to dispel questions regarding 
the respective roles of the two agencies and the validity of DOL's 
regulations as an appropriate way to implement the interagency 
consultation specified in section 214(c)(1) of the INA, 8 U.S.C. 
1184(c)(1). See Bayou Lawn & Landscape Servs. v. Sec'y of Labor, 713 
F.3d 1080 (11th Cir. 2013) (holding that the Department of Labor 
lacks independent rulemaking authority under the INA to issue 
legislative regulations implementing its role in the H-2B program). 
But see La. Forestry Ass'n v. Solis, 889 F. Supp. 2d 711 (E.D. Pa. 
2012) (rejecting claim that the Department of Labor lacks authority 
under the INA to administer the H-2B program through legislative 
rules). Due to these inconsistent court rulings about the Department 
of Labor's authority to issue independent legislative rules, the 
Department of Labor and DHS together issued the IFR revising the 
prevailing wage methodology in the H-2B program.
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    In response to CATA v. Solis, the Departments issued the IFR on 
April 24, 2013. See 78 FR 24047. The Departments struck the phrase, 
``at the skill level,'' from 20 CFR 655.10(b)(2), thus requiring 
prevailing wage determinations issued using the OES survey to be based 
on the mean wage for the occupation in the area of intended employment 
without tiers or skill levels. See id. at 24053. That revision became 
effective on April 24, 2013, the date of publication. The Departments 
requested comments on all aspects of the prevailing wage provisions of 
20 CFR

[[Page 44056]]

655.10(b), including, among other things, whether the OES mean is the 
appropriate basis for determining the prevailing wage; whether wages 
based on the Davis-Bacon Act (DBA), 40 U.S.C. 276a et seq., 29 CFR part 
1, or the McNamara-O'Hara Service Contract Act (SCA), 41 U.S.C. 351 et 
seq., should be used to determine the prevailing wage, and if so to 
what extent; and whether to permit the continued use of employer-
submitted surveys and ways to strengthen their methodology, if 
permitted. The comment period closed on June 10, 2013, and the 
Departments are in the process of reviewing those comments and 
determining whether further revision to 20 CFR 655.10(b) is warranted 
in light of public comment.
    The confluence of the recurrent Congressional prohibition against 
implementation of the 2011 Wage Rule, which the Department anticipates 
will continue, and the Department's current review and consideration of 
suggestions made in the comments associated with the IFR, which revised 
wage provisions of the H-2B regulations that were also the subject of 
the 2011 Wage Rule, require the indefinite delay of the effective date 
of the 2011 Wage Rule. Were the 2011 Wage Rule to become effective, it 
would supplant the revisions made to 20 CFR 655.10(b) in the IFR, which 
were necessary in light of the court's order in CATA v. Solis. In that 
event, the Department would likely continue to be unable to implement 
the 2011 Wage Rule, based on the continuation of the Congressional 
prohibition on its implementation. However, should Congress lift the 
prohibition against implementation of the 2011 Wage Rule, the 
Department would need time to assess the current regulatory framework, 
to consider any changed circumstances, novel concerns or new 
information received, and to minimize disruptions.
    Until such time as Congress no longer prohibits the Department from 
implementing the 2011 Wage Rule, the effective date of the 2011 Wage 
Rule should be delayed. In the event that Congress no longer prohibits 
implementation of the 2011 Wage Rule, the Department would publish a 
document in the Federal Register within 45 days apprising the public of 
the status of 20 CFR 655.10 and the effective date of the 2011 Wage 
Rule. The Department invites comment on the proposed indefinite delay 
of the effective date of the 2011 Wage Rule.

    Signed: at Washington, DC, this 18 of July, 2013.
Eric Seleznow,
Acting Assistant Secretary for Employment and Training.
[FR Doc. 2013-17676 Filed 7-18-13; 4:15 pm]
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