[Federal Register Volume 78, Number 169 (Friday, August 30, 2013)]
[Rules and Regulations]
[Pages 53643-53645]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-21132]


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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; indefinite delay of effective date.

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SUMMARY: The Department of Labor (Department or we/us) is delaying 
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 us 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. We are now delaying the effective date of the 2011 Wage Rule 
indefinitely. This rule does not affect the Interim Final Rule, 78 FR 
24047, published on April 24, 2013, establishing the current prevailing 
wage methodology for the H-2B program; that rule remains in effect.

DATES: The effective date of the rule amending 20 CFR part 655, 
published at 76 FR 3452 (January 19, 2011) (referred to herein as the 
2011 Wage Rule), originally effective January 1, 2012, and which was 
previously made effective September 30, 2011, at 76 FR 45667 (August 1, 
2011); and delayed to November 30, 2011, at 76 FR 59896 (September 28, 
2011); to January 1, 2012, at 76 FR 73508 (November 29, 2011); to 
October 1, 2012, at 76 FR 82115 (December 30, 2011); to March 27, 2013, 
at 77 FR 60040 (October 2, 2012); and to October 1, 2013, at 78 FR 
19098 (March 29, 2013), is delayed indefinitely, effective on September 
30, 2013. The Department will publish a later document in the Federal 
Register establishing a new effective date in the event of 
implementation of the 2011 Wage Rule.

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 we

[[Page 53644]]

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 (DHS) to employ a nonimmigrant worker in H-2B status. We 
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 (Aug. 1, 2011), 
revising the effective date of the 2011 Wage Rule to September 30, 
2011, and a second final rule, 76 FR 59896 (Sept. 28, 2011), further 
revising the effective date of the 2011 Wage Rule to November 30, 2011.
    Thereafter, we 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 No. 
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 (Nov. 29, 2011). We 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, we 
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 we lacked appropriated funds to implement. Such an 
occurrence would have rendered the H-2B program inoperable because, as 
discussed in the NPRM, at 78 FR 44055, the issuance of a prevailing 
wage determination is a condition precedent to approving an employer's 
request for an H-2B labor certification. See 20 CFR 655.10. 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 \1\ 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 (Dec. 30, 2011) (extending the effective date to October 1, 
2012); 77 FR 60040 (Oct. 2, 2012) (extending the effective date to 
March 27, 2013); 78 FR 19098 (Mar. 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 proposed in 
the July 23, 2013 NPRM to delay indefinitely the effective date of the 
2011 Wage Rule until such time as the rule can be implemented.
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    \1\ 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 DHS (the 
Departments),\2\ 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. Mar. 21, 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 OES 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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    \2\ The Department of Labor and DHS issued the IFR jointly to 
dispel questions about the respective roles of the two agencies and 
the validity of the Department'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), appeal 
pending, No. 12-4030 (3d Cir.). Due to these inconsistent court 
rulings about the Department's authority to issue independent 
legislative rules, the Department 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 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.
    Because of the confluence of the recurrent Congressional 
prohibition against implementation of the 2011 Wage Rule, which we 
anticipate will continue, and our current review and consideration of 
comments associated with the IFR, which revised the wage provision of 
the H-2B regulations that was also the subject of the 2011 Wage Rule, 
the Department proposed the indefinite delay of the effective date of 
the 2011 Wage Rule on July 23, 2013. 78 FR 44054. We accepted comments 
from the public on the proposed indefinite delay through August 9, 
2013.
    We received 36 comments on the proposed rule. We received three 
comments that support the delay of the effective date of the 2011 Wage 
Rule. Two commenters submitted joint comments on the IFR without 
addressing the proposed extension of the 2011 Wage Rule. The remaining

[[Page 53645]]

commenters, many of whom submitted identical or nearly identical 
comments, summarily suggested that the Department reconsider or delay 
the implementation of the ``new rule'' or the ``new wage methodology.'' 
We interpret these comments to refer to the Department's IFR issued on 
April 24, 2013. As noted above, the Departments are considering 
comments submitted in response to the IFR and will determine, in that 
separate rulemaking proceeding, whether further changes are necessary 
in light of those comments. However, comments on the IFR are beyond the 
scope of this rulemaking, which only addresses the effective date of 
the 2011 Wage Rule. As a result, we have not considered comments about 
the IFR in this final rule.
    One commenter challenged generally the merits of the 2011 Wage Rule 
and the IFR. As noted above, the relative merits of the IFR were not 
raised in this proposed rule, which was limited to the proposed 
indefinite delay of the effective date of the 2011 Wage Rule. Comments 
about the IFR are therefore beyond the scope of this rulemaking, as are 
the relative merits of the 2011 Wage Rule. The same commenter also 
challenged our authority to issue rules for the H-2B program, 
asserting, in part, that the issuance of the proposed extension of the 
2011 Wage Rule violates ``the congressional defunding legislation,'' 
which, in its view, requires the rescission of the 2011 Wage Rule and 
precludes its indefinite delay. This commenter also asserted that the 
APA does not allow an agency to place a regulation ``on a shelf 
forever'' and that the Department has acted improperly by determining 
that it intends to issue--without public comment--the 2011 Wage Rule 
upon expiration of ``the defunding legislation.''
    As explained in the proposed rule, we have complied with the 
restrictions imposed on our use of appropriated funds to implement, 
administer, or enforce the 2011 Wage Rule. Contrary to the commenter's 
view, the appropriations legislation, by its terms, is only applicable 
for a specified period of time and does not supplant the substantive 
provisions of the 2011 Wage Rule. Moreover, the proposal to 
indefinitely delay the effective date of the rule is consistent with 
the conditions imposed by Congress. As noted in the proposed rule, we 
have promulgated a series of notices delaying the effective date of the 
2011 Wage Rule. By doing so, we have clarified the status of the rule 
for the public, thereby eliminating any uncertainty or confusion as to 
its status.
    To the extent that the commenter is challenging our authority to 
issue any regulations in the H-2B program, we disagree for the reasons 
stated in the 2011 Wage Rule (76 FR at 3452-3453) and the IFR (78 FR at 
24049-24051). As to the commenter's additional assertions, we have 
complied fully with the Administrative Procedure Act (APA) in proposing 
and adopting as a final rule the indefinite delay of the 2011 Wage 
rule. Our future actions likewise will be guided by the APA and other 
statutory requirements. The 2011 Wage Rule has already been the subject 
of extensive public comment to which we responded in detail in the 
preamble to the 2011 Wage Rule. The commenter provides no authority, 
and we are aware of none, that would require us to reopen the rule for 
comment simply because the effective date of the rule has been changed.
    In sum, after considering all the comments, the Department has 
decided to indefinitely delay the 2011 Wage Rule for the reasons stated 
in the proposal. As noted in the proposed rule, if the 2011 Wage Rule 
were 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, we would likely continue to be 
unable to implement the 2011 Wage Rule, based on the continuation of 
the Congressional prohibition on its implementation. However, if 
Congress lifts 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. This rule preserves 
our ability to do so.
    Until such time as Congress no longer prohibits the Department from 
implementing the 2011 Wage Rule, the effective date of the 2011 Wage 
Rule is delayed indefinitely. If Congress no longer prohibits 
implementation of the 2011 Wage Rule, the Department will publish a 
document in the Federal Register within 45 days of that event apprising 
the public of the status of 20 CFR 655.10 and the effective date of the 
2011 Wage Rule. This rule does not affect the Interim Final Rule, 78 FR 
24047, published on April 24, 2013, establishing the current prevailing 
wage methodology for the H-2B program; that rule remains in effect.

    Signed: at Washington, DC this 26th of August, 2013.
Eric Seleznow,
Acting Assistant Secretary for Employment and Training.
[FR Doc. 2013-21132 Filed 8-29-13; 8:45 am]
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