[Federal Register Volume 89, Number 222 (Monday, November 18, 2024)]
[Proposed Rules]
[Pages 90646-90662]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-26481]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
[DOL Docket No. ETA-2024-0001]
RIN 1205-AC15
Employer-Provided Survey Wage Methodology for the Temporary Non-
Agricultural Employment H-2B Program
AGENCY: Employment and Training Administration, Department of Labor.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Labor (Department or DOL) proposes to amend
[[Page 90647]]
its regulations for employer-provided wage surveys for the H-2B
temporary labor certification program. The regulations were published
in the Wage Methodology for the Temporary Non-Agricultural Employment
H-2B Program final rule (2015 Wage Rule). This notice of proposed
rulemaking (NPRM or proposed rule) proposes to amend those regulations
consistent with recent Federal litigation by clarifying existing
requirements for employer-provided surveys for the H-2B program,
proposing new requirements, and proposing to eliminate Form ETA-9165,
Employer-Provided Survey Attestations to Accompany H-2B Prevailing Wage
Determination Request Based on a Non-OEWS Survey (Form ETA-9165).
DATES: Interested persons are invited to submit written comments on the
proposed rule on or before January 17, 2025.
ADDRESSES: You may submit comments electronically by the following
method:
Federal eRulemaking Portal: https://www.regulations.gov/. Follow
the instructions on the website for submitting comments.
Instructions: Include the agency's name and docket number ETA-2024-
0001 in your comments. All comments received will become a matter of
public record and may be posted without change to https://www.regulations.gov/. Comments submitted after the deadline for
submission will not be considered. Please do not submit comments
containing trade secrets, confidential or proprietary commercial or
financial information, personal health information, sensitive
personally identifiable information (for example, social security
numbers, driver's license or state identification numbers, passport
numbers, or financial account numbers), or other information that you
do not want to be made available to the public. The agency reserves the
right to redact or refrain from posting such information and libelous
or otherwise inappropriate comments, including those that contain
obscene, indecent, or profane language; that contain threats or
defamatory statements; or that contain hate speech directed at race,
color, sex, sexual orientation, national origin, ethnicity, age,
religion, or disability. Please note that depending on how information
is submitted through regulations.gov, the agency may not be able to
redact the information and instead reserves the right to refrain from
posting the information or comment in such situations.
FOR FURTHER INFORMATION CONTACT: Michelle L. Paczynski, 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, telephone: (202) 693-3700 (this is
not a toll-free number). For persons with a hearing or speech
disability who need assistance to use the telephone system, please dial
711 to access telecommunications relay services.
SUPPLEMENTARY INFORMATION:
Preamble Table of Contents
I. Acronyms and Abbreviations
II. Background
A. The Statutory and Regulatory Framework
B. The 2008 Rule, the Related Litigation, and the Attempted 2011
Wage Rule
C. The 2013 Interim Final Rule
D. Vacatur of the 2013 Interim Final Rule
E. The 2015 Wage Rule, the 2016 Appropriations Rider, and DOL's
Guidance Regarding the Rider's Effect on the Rule
F. Invalidation of the 2015 Wage Rule
G. The Department's Authority To Promulgate This Rule
III. Summary of Proposed Revisions to 20 CFR part 655; Subpart A; 20
CFR 655.10
A. Discussion of Proposed Technical Changes to 20 CFR 655.10
B. Discussion of Proposed Revisions to 20 CFR 655.10(f)(1)
C. Discussion of Proposed Revisions to 20 CFR 655.10(f)(2)
D. Discussion of 20 CFR 655.10(f)(3)
E. Discussion of Proposed Revisions to 20 CFR 655.10(f)(4)
F. Discussion of Proposed Regulatory Revisions to 20 CFR
655.10(f)(5)
IV. Administrative Information
A. Executive Order 12866: Regulatory Planning and Review;
Executive Order 14094: Modernizing Regulatory Review; and Executive
Order 13563: Improving Regulation and Regulatory Review
B. Regulatory Flexibility Analysis and Small Business Regulatory
Enforcement Fairness Act and Executive Order 13272: Proper
Consideration of Small Entities in Agency Rulemaking
C. Paperwork Reduction Act
D. Unfunded Mandates Reform Act of 1995
E. Executive Order 13132 (Federalism)
F. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
I. Acronyms and Abbreviations
APA Administrative Procedure Act
BLS Bureau of Labor Statistics
CATA Comit[eacute] de Apoyo a los Trabajadores Agr[iacute]colas
CBA collective bargaining agreement
DBA Davis-Bacon Act
DHS U.S. Department of Homeland Security
DOL U.S. Department of Labor
FAQ Frequently Asked Questions
FY fiscal year
GAL General Administration Letter
HR human resources
HSA Homeland Security Act of 2002
IFR interim final rule
INA Immigration and Nationality Act
MOU memorandum of understanding
NPRM notice of proposed rulemaking
NPWC National Prevailing Wage Center
OES Occupational Employment Statistics
OEWS Occupational Employment and Wage Statistics
OFLC Office of Foreign Labor Certification
OIRA Office of Information and Regulatory Affairs
OMB Office of Management and Budget
PRA Paperwork Reduction Act
PWD prevailing wage determination
SCA McNamara-O'Hara Service Contract Act
SESA State employment service agencies
SOC Standard Occupational Classification
UMRA Unfunded Mandates Reform Act of 1995
II. Background
A. The Statutory and Regulatory Framework
The Immigration and Nationality Act (INA), as amended, establishes
the H-2B nonimmigrant classification for a non-agricultural temporary
worker ``having a residence in a foreign country which he has no
intention of abandoning who is coming temporarily to the United States
to perform . . . temporary [non- agricultural] service or labor if
unemployed persons capable of performing such service or labor cannot
be found in this country.'' 8 U.S.C. 1101(a)(15)(H)(ii)(b).\1\
Employers must petition the Department of Homeland Security (DHS) for
classification of a prospective temporary worker as an H-2B
nonimmigrant. 8 U.S.C. 1184(c)(1). DHS must approve this petition
before the beneficiary can be considered eligible for an H-2B visa or
H-2B status. Id. In addition, the INA requires that ``[t]he question of
importing any [foreign worker] as [an H-2B] nonimmigrant . . . in any
specific case or specific cases shall be determined by [DHS] \2\ after
consultation with appropriate agencies of the Government.'' Id.
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\1\ For ease of reference, sections of the INA are referred to
by their corresponding section in the U.S. Code.
\2\ In accordance with sec. 1517 of title XV of the Homeland
Security Act of 2002 (HSA), Public Law 107-296, 116 Stat. 2135, any
reference to the Attorney General in a provision of the INA
describing functions that were transferred from the Attorney General
or other Department of Justice official to DHS by the HSA ``shall be
deemed to refer to the Secretary'' of Homeland Security. See 6
U.S.C. 557 (2002) (codifying HSA, title XV, sec. 1517); 6 U.S.C.
542; 8 U.S.C. 1551).
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Pursuant to this statutory mandate to consult with ``appropriate
agencies of the Government'' to determine eligibility for H-2B status,
DHS (and the former Immigration and Naturalization Service) has long
recognized that the most effective administration of the H-2B program
requires consultation with
[[Page 90648]]
DOL to advise whether U.S. workers capable of performing the temporary
services or labor are available.\3\
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\3\ See, e.g., Temporary Alien Workers Seeking Classification
Under the Immigration and Nationality Act, 55 FR 2606, 2617 (Jan.
26, 1990) (``The Service must seek advice from the Department of
Labor under the H-2B classification because the statute requires a
showing that unemployed U.S. workers are not available to perform
the services before a petition can be approved. The Department of
Labor is the appropriate agency of the Government to make such a
labor market finding. The Service supports the process that the
Department of Labor uses for testing the labor market and assuring
that wages and working conditions of U.S. workers will not be
adversely affected by employment of alien workers.'').
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Accordingly, DHS regulations require that an H-2B petition for
temporary employment in the United States must be accompanied by an
approved temporary labor certification from DOL. 8 CFR
214.2(h)(6)(iii)(A) and (iv)(A). The temporary labor certification
serves as DOL's advice to DHS with respect to whether a qualified U.S.
worker is available to fill the petitioning H-2B employer's job
opportunity and whether a foreign worker's employment in the job
opportunity will adversely affect the wages or working conditions of
similarly employed U.S. workers. See 8 CFR 214.2(h)(6)(iii)(A). In
addition, as part of DOL's certification, DHS regulations require DOL
to ``determine the prevailing wage applicable to an application for
temporary labor certification in accordance with the Secretary of
Labor's regulation at 20 CFR 655.10.'' 8 CFR 214.2(h)(6)(iii)(D).
Section 655.10, in turn, requires that any prospective H-2B employer
first obtain from DOL a prevailing wage determination (PWD) before
filing its application with DOL for temporary labor certification. 20
CFR 655.10(a).
B. The 2008 Rule, the Related Litigation, and the Attempted 2011 Wage
Rule
In 2008, DOL issued regulations related to its role in the H-2B
temporary worker program, including a methodology for determining the
minimum wage that a prospective H-2B employer must offer, advertise in
recruitment, and pay. 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 (2008 Rule), 73 FR 78020 (Dec. 19, 2008). The 2008
Rule provided, inter alia, that the prevailing wage would be the
collective bargaining agreement (CBA) wage rate if the job opportunity
was covered by an agreement negotiated at arms' length between a union
and the employer; the Occupational Employment and Wage Statistics
(OEWS) \4\ survey wage rate if there was no CBA; a survey if an
employer elected to provide an acceptable survey; or a wage rate under
the Davis-Bacon Act (DBA) or the McNamara-O'Hara Service Contract Act
(SCA), if one was available for the occupation in the area of intended
employment. Id. at 78056. The 2008 Rule and the agency guidance
implementing it required that when PWDs were based on the OEWS survey,
the wage had to be structured to contain four tiers to reflect skill
and experience.\5\ Id. at 78056, 78068. While DOL subjected most
provisions of the 2008 Rule to the Administrative Procedure Act's (APA)
notice-and-comment requirements, because the agency had already been
implementing the four-tier wage structure in the H-2B program pursuant
to sub-regulatory guidance, DOL did not seek public comments on the use
of the four-tier structure when promulgating the 2008 Rule. See id. at
78031.
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\4\ Prior to March 31, 2021, this survey--conducted by the
Department's Bureau of Labor Statistics (BLS)--was known as the
Occupational Employment Statistics (OES) survey. For the sake of
consistency, however, the Department uses the term OEWS throughout.
\5\ Because the OEWS survey does not capture information on the
skills or responsibilities of the workers whose wages are being
reported, the four-tiered wage structure, adapted from the
statutorily required four tiers applicable to the H-1B visa program
under 8 U.S.C. 1182(p), was derived by mathematical formula to
reflect ``entry level,'' ``qualified,'' ``experienced,'' and ``fully
competent'' workers. See id. at 78068; Prevailing Wage Determination
Policy Guidance, Nonagricultural Immigration Programs, Revised
(revised Nov. 2009) (2009 Prevailing Wage Guidance), available at
https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/NPWHC_Guidance_Revised_11_2009.pdf.
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In 2009, a lawsuit was filed under the APA challenging several
aspects of the 2008 Rule. See Comit[eacute] de Apoyo a los Trabajadores
Agr[iacute]colas (CATA) v. Solis, No. 09-cv-240, 2010 WL 3431761 (E.D.
Pa. Aug. 30, 2010) (CATA I). Among the issues raised in that litigation
was the use of the four-tier wage structure in the H-2B program. In its
decision, the district court ruled that, substantively, DOL had
violated the APA by failing to adequately explain its reasoning for
adopting skill and experience levels as part of the H-2B PWD process.
Id. at *19. The court also found that the four-tier wage structure was
a legislative rule subject to the APA's notice-and-comment provision,
and that DOL had failed to subject it to notice and comment. Id. The
court ordered promulgation of ``new rules concerning the calculation of
the prevailing wage rate in the H-2B program that are in compliance
with the [APA]'' within 120 days. Id. at *27.
Consequently, after issuing an NPRM on October 5, 2010, DOL
published a final rule on January 19, 2011. See Wage Methodology for
the Temporary Non-Agricultural Employment H-2B Program, 75 FR 61578
(Oct. 5, 2010); Wage Methodology for the Temporary Non-Agricultural
Employment H-2B Program (2011 Wage Rule), 76 FR 3452, 3465-3467 (Jan.
19, 2011). The 2011 Wage Rule eliminated the four-tier structure. Id.
at 3458-3461. The 2011 Wage Rule set the prevailing wage as the highest
of the OEWS arithmetic mean for each occupational category in the area
of intended employment; the applicable SCA or DBA wage rate; or the CBA
wage. The use of employer-provided surveys was eliminated except when
the job opportunity: (1) was in a geographic location not included in
the Bureau of Labor Statistics' (BLS) data collection for the OEWS
(e.g., the Commonwealth of the Northern Mariana Islands); or (2) was
not ``accurately represented'' within the OEWS job classification used
in those surveys. Id. at 3466-3467. In deciding to so limit the
submission and use of employer-provided surveys, the Department stated
that the OEWS wage survey was ``the most consistent, efficient, and
accurate means of determining the prevailing wage rate for the H-2B
program.'' Id. at 3465.
The effective date of the 2011 Wage Rule was originally set for
January 1, 2012--a date the CATA plaintiffs challenged, seeking an
earlier one--but Congress ultimately short-circuited the dispute by an
enacting an appropriations rider prohibiting the Department from
implementing the 2011 Wage Rule. Public Law 112-55, 125 Stat. 552, Div.
B, title V, sec. 546 (Nov. 18, 2011). DOL therefore extended the
effective date to October 1, 2012. 76 FR 82115 (Dec. 30, 2011).
Subsequent appropriations contained the same restriction prohibiting
DOL's use of appropriated funds to implement, administer, or enforce
the 2011 Wage Rule, necessitating additional rulemaking to further
delay the effective date of the 2011 Wage Rule.\6\ 77 FR 60040 (Oct. 2,
2012) (extending the effective date to March 27, 2013); 78 FR
[[Page 90649]]
19098 (Mar. 29, 2013) (extending the effective date to October 1,
2013).
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\6\ 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); Consolidated and Further Continuing Appropriations
Act, 2013, Public Law 113-6, 127 Stat. 198 (Mar. 26, 2013);
Continuing Appropriations Act, 2014, Public Law 113-46, 127 Stat.
558 (Oct. 17, 2013); and Joint Resolution Making Further Continuing
Appropriations for Fiscal Year 2014, Public Law 113-73, 128 Stat. 3
(Jan. 15, 2014).
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Given Congress's prohibition against implementation of the 2011
Wage Rule, the Department continued to operate the H-2B program under
the 2008 Rule, which CATA I had invalidated but not vacated. The CATA
plaintiffs, however, sued again and on March 31, 2013, obtained a
permanent injunction against application and vacatur of the four-tier
OEWS structure in the 2008 Rule. CATA v. Solis, 933 F. Supp. 2d 700,
716 (E.D. Pa. 2013) (CATA II). In particular, the court vacated and
remanded 20 CFR 655.10(b)(2), giving DOL 30 days to come into
compliance with its ruling finding invalid the four-tier OEWS skill
level and wage structure. Id. In the interim, DOL was unable to issue
the vast majority of H-2B PWDs, which were based on the OEWS survey.
C. The 2013 Interim Final Rule
In compliance with the CATA II court's ruling, DOL published an
interim final rule (IFR). Wage Methodology for the Temporary Non-
Agricultural Employment H-2B Program, Part 2, 78 FR 24047 (Apr. 24,
2013) (2013 IFR).\7\ The 2013 IFR became effective on the date of
publication, with the agencies asserting that they had ``good cause''
for an immediate effective date pursuant to 5 U.S.C. 553(d)(3). Given
the vacatur of the 2008 Rule, the agencies would have been forced to
cease processing employers' requests for PWDs and temporary labor
certifications without an immediate effective date and thus unable to
continue to provide the advice that DHS had determined to be necessary
under 8 U.S.C. 1184(c)(1)--as implemented in the DHS regulation at 8
CFR 214.2(h)(6)--for DHS to fulfill its statutory responsibility to
adjudicate H-2B petitions. Id. at 24050.
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\7\ DOL and DHS published the 2013 IFR jointly in light of a
then-recent court decision indicating DOL lacked authority to
promulgate H-2B rules. See Bayou Lawn & Landscape Servs. v. DOL, 713
F.3d 1080, 1085 (11th Cir. 2013) (affirming preliminary injunction
based in part on plaintiffs' likelihood of succeeding on their claim
that DOL lacked authority to promulgate H-2B rules). Subsequent
courts, reviewing the matter on the merits, reached the opposite
conclusion. See Outdoor Amusement Bus. Ass'n v. DHS, 983 F.3d 671,
685 (4th Cir. 2020) (DOL has authority to promulgate H-2B rules);
La. Forestry Ass'n v. DOL, 745 F.3d 653, 675 (3d Cir. 2014) (same).
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The 2013 IFR did not revise or amend 20 CFR 655.10(f) of the 2008
Rule, leaving intact the permitted use of employer-provided surveys.
Id. at 24054-24055. Noting that ``DOL still has the concerns expressed
in the 2011 rule about the consistency, reliability and validity'' of
employer-provided surveys, the 2013 IFR stated that DOL and DHS invited
comment on ``whether to permit the continued use of employer-submitted
surveys.'' Id. at 24055. The 2013 IFR invited comment on the following:
all aspects of the prevailing wage methodology of 20 CFR 655.10,
including, among other things, whether the OEWS mean was the
appropriate basis for determining the prevailing wage; whether wages
based on the DBA or the SCA should be used to determine the prevailing
wage and if so, to what extent; comments on the accuracy and
reliability of private surveys, including ``state-developed'' surveys;
and whether the continued use of employer-provided surveys should be
permitted and if so, how to better ensure their methodological
soundness. Id.\8\
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\8\ Specifically, the 2013 IFR invited comment on the following
questions with respect to employer-provided surveys: ``Are there
methodological standards that can or should be included in the
regulation that would ensure consistency, validity and reliability
of employer-provided surveys? Are there industries in which
employers historically and routinely rely on employer-submitted
surveys that should be permitted to do so because of the well-
developed, historical, industry-wide practice, or for other reasons?
Are there state-developed wage surveys, such as state agricultural
surveys, or surveys from other agencies, such as maritime agencies,
that could provide data that would be useful in setting prevailing
wages? Should employer surveys that include data based on wages paid
to H-2B or other nonimmigrant workers be permitted in establishing a
prevailing wage that does not adversely affect U.S. workers? If so,
under what circumstances?'' 78 FR 24055 (Apr. 24, 2013).
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The comment period closed on June 10, 2013, and the agencies
received over 300 comments on all aspects of the H-2B wage methodology
from interested parties.\9\ Meanwhile, because Congress continued to
prohibit the use of funds to implement the 2011 Wage Rule, DOL
indefinitely delayed its effective date. See Wage Methodology for the
Temporary Non-Agricultural Employment H-2B Program; Delay of Effective
Date (Indefinite Delay Rule), 78 FR 53643, 53645 (Aug. 30, 2013).
Although the appropriations prohibition was removed as part of the
Department's fiscal year (FY) 2014 appropriation, Consolidated
Appropriations Act, 2014, Public Law 113-76, 128 Stat. 5, DOL has not
since revisited the Indefinite Delay Rule.
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\9\ A substantial number of comments on the 2013 IFR repeated,
to a great extent, the same arguments that had been raised in
connection with the 2011 rulemaking. See 76 FR 3458-3463 (Jan. 19,
2011).
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D. Vacatur of the 2013 Interim Final Rule
In 2014, the CATA plaintiffs sued for the third time, challenging
the 2013 IFR's continued allowance of employer-provided surveys to set
the prevailing wage under 20 CFR 655.10(f). See CATA v. Perez, No.
2:14-02657, 2014 WL 4100708 (E.D. Pa. Jul. 23, 2014). In addition, the
CATA plaintiffs challenged DOL's ongoing use under the 2013 IFR of the
2009 Prevailing Wage Guidance,\10\ which continued to permit surveys to
incorporate skill levels at least with respect to employer-provided
surveys. Id. The district court dismissed the case on procedural
grounds. On December 5, 2014, however, the Court of Appeals for the
Third Circuit reversed, vacating both 20 CFR 655.10(f) and the 2009
Prevailing Wage Guidance. CATA v. Perez, 774 F.3d 173, 191 (3d Cir.
2014) (CATA III).
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\10\ The 2009 Prevailing Wage Guidance governed the methodology
for employer-provided surveys across DOL-administered wage programs.
See 2009 Prevailing Wage Guidance, available at https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/NPWHC_Guidance_Revised_11_2009.pdf.
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The CATA III court invalidated the use of employer-provided surveys
in the H-2B program on both substantive and procedural grounds. First,
the court held that DOL's failure to explain the broad acceptance of
employer-provided surveys where an OEWS wage is available was
procedurally invalid, particularly because this decision was a policy
change from the 2011 Wage Rule's prohibition of most employer-provided
surveys as an alternative to the OEWS. Id. at 187-88. Next, the court
held that the employer-provided survey provision of the 2013 IFR, Sec.
655.10(f), was arbitrary, and therefore substantively invalid under the
APA, given DOL's findings in the 2011 Wage Rule, 76 FR 3465 (Jan. 19,
2011), that the OEWS is the ``most consistent, efficient, and accurate
means of determining the prevailing wage rate for the H-2B program.''
CATA III, 774 F.3d 173 at 189. Further, the court held that Sec.
655.10(f) was substantively invalid under the APA because it permitted
wealthy employers to commission surveys that resulted in a lower
prevailing wage than those paid by less affluent employers without
means to produce such surveys and resulted in significant variations in
the prevailing wage within a single occupation in the same geographic
location. Id. at 189-90. Finally, the court held that the 2009
Prevailing Wage Guidance violated the APA because it allowed employer-
provided surveys containing tiered wages based on skill levels. This,
the court held, conflicted with the CATA II order, which invalidated
the four-tier OEWS structure. Id. at 190-91.
The CATA III court ultimately ``direct[ed] that private surveys no
longer be used in determining the mean rate of wage for occupations
except where an otherwise applicable OE[W]S survey does not provide any
data for an
[[Page 90650]]
occupation in a specific geographical location, or where the OE[W]S
survey does not accurately represent the relevant job classification.''
Id. DOL immediately ceased accepting employer-provided wage surveys. 80
FR at 24151 (Apr. 29, 2015).
E. The 2015 Wage Rule, the 2016 Appropriations Rider, and DOL's
Guidance Regarding the Rider's Effect on the Rule
Soon after the CATA III decision, the court in Perez v. Perez, No.
14-cv-682 (N.D. Fla. Mar. 4, 2015), vacated the 2008 Rule and
permanently enjoined DOL from applying or enforcing it, thus creating a
regulatory void. DOL had to cease operating the H-2B program briefly
until it obtained a temporary stay of the Perez court's order until May
15, 2015. 80 FR at 24151 (Apr. 29, 2015). On April 29, 2015, DOL and
DHS jointly published two rules: the Temporary Non-Agricultural
Employment of H-2B Aliens in the United States IFR, 80 FR 24042 (Apr.
29, 2015), and the 2015 Wage Rule, Wage Methodology for the Temporary
Non-Agricultural Employment H-2B Program, 80 FR 24146 (Apr. 29, 2015).
The 2015 Wage Rule acknowledged the CATA III court's substantive
concerns regarding the validity of employer-provided surveys in the H-
2B program and stated that ``DOL's options for accepting such surveys
under this final rule are now necessarily more limited than under the
2013 IFR.'' Id. at 24151. Referring to the questions presented to the
public in the 2013 IFR for any ``additional data on the accuracy and
reliability of private surveys covering traditional H-2B occupations to
allow for further factual findings on the sufficiency of private
surveys for setting prevailing wage rates,'' the 2015 Wage Rule
discussed the comments submitted by worker advocacy groups, employers
and employer associations, and associations of seafood processing
employers, among others. Id. at 24166-24169.
After reviewing the comments provided, and recognizing the concerns
underscored by the CATA III decision, the 2015 Wage Rule reiterated
DOL's position in the 2011 Wage Rule, stating ``DOL experience
reviewing employer-provided surveys since 2011 has not provided any
demonstrable evidence that the wage information produced from
nongovernment surveys is any more consistent or reliable than DOL
determined was the case four years ago.'' Id. at 24168. The 2015 Wage
Rule went on to state that, given DOL's administrative experience
regarding employer-provided surveys, the comments received following
the 2013 IFR, and the court's decision in CATA III, ``the Departments
have decided to allow the submission of employer-provided surveys to
set the prevailing wage in H-2B in limited circumstances.'' Id. The
first two such circumstances tracked those endorsed by the court in
CATA III, permitting ``the use of a nongovernmental employer-provided
survey to set the prevailing wage only where the OE[W]S survey does not
provide any data for an occupation in a specific geographical location,
or where the OE[W]S survey does not accurately represent the relevant
job classification.'' Id.
When submitting such a wage survey, an employer was required to
include ``specific information about the survey methodology, including
such items as sample size and source, sample selection procedures, and
survey job descriptions, to allow a determination of the adequacy of
the data provided and validity of the statistical methodology used in
conducting the survey.'' 20 CFR 655.10(f)(4). Further, the employer was
required to attest, via Form ETA-9165, that the survey was not
conducted by the employer or its agents, that the surveyor either
contacted a randomized sample of relevant employers or attempted to
contact them all, and, among other things, that the ``survey includes
wage data from at least 30 workers and three employers.'' Id. at Sec.
655.10(f)(4)(i) through (iii).
Additionally, the 2015 Wage Rule included a ``third, limited
category of acceptable employer-provided surveys, even where the
occupation is sufficiently represented in the OE[W]S.'' 80 FR 24169-
24170 (Apr. 29, 2015). In reaching this conclusion, the Departments
quoted the preamble to the 2011 Wage Rule, which stated ``the
prevailing wage rate is best determined through reliable Government
surveys of wage rates, rather than employer-provided surveys that
employ varying methods, statistics, and surveys.'' Id. at 24170 (citing
76 FR 3465, Jan. 19, 2011). The Departments stated that, consistent
with their assessment that government surveys are reliable, ``surveys
conducted and issued by a state represent an additional category of
reliable government surveys.'' Id. at 24170. The preamble to the 2015
Wage Rule further reasoned that as the State-conducted surveys were
capable of meeting the methodological standards included in the rule,
and if issued without regard to the interest of any employer in the
outcome of the wage reported from the survey, such surveys would be
``generally reliable and an adequate substitute for the OE[W]S.'' Id.
Shortly after promulgation of the 2015 Wage Rule, however, Congress
included in the Department's FY 2016 appropriation a provision that
mandated broader use of employer-provided surveys:
The determination of prevailing wage for the purposes of the H-
2B program shall be the greater of--(1) the actual wage level paid
by the employer to other employees with similar experience and
qualifications for such position in the same location; or (2) the
prevailing wage level for the occupational classification of the
position in the geographic area in which the H-2B nonimmigrant will
be employed, based on the best information available at the time of
filing the petition. In the determination of prevailing wage for the
purposes of the H-2B program, the Secretary shall accept private
wage surveys even in instances where Occupational Employment
Statistics survey data are available unless the Secretary determines
that the methodology and data in the provided survey are not
statistically supported.
Consol. Appropriations Act, 2016, Public Law 114-113, sec. 112, 129
Stat. 2242, 2599 (Dec. 18, 2015). Every subsequent Appropriations Act
has included the same provision.\11\ Shortly after the first of the
appropriations riders, DOL published a Frequently Asked Questions (FAQ)
on its website stating that it would use the criteria in the 2015 Wage
Rule to determine whether an employer-provided survey was
``statistically supported'' within the meaning of the appropriations
rider.\12\
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\11\ This language has been included in each subsequent
appropriation. See Further Consol. Appropriations Act, 2024, Public
Law 118-47, Div. D, title I, sec. 110, 138 Stat. 460, 646 (2024);
Consol. Appropriations Act, 2023, Public Law 117-328, Div. H, title
I, sec. 110, 136 Stat. 4459, 4852 (2023); Consol. Appropriations
Act, 2022, Public Law 117-103, sec. 110, 136 Stat. 49, 439 (2022);
Consol. Appropriations Act, 2021, Public Law 116-260, sec. 110, 134
Stat. 1182, 1564-65 (2020); Further Consol. Appropriations Act,
2020, Public Law 116-94, sec. 110, 133 Stat. 2534, 2554 (2019);
Dep't of Defense, Labor, Health and Hum. Serv., and Educ.
Appropriations Act, 2019, and Continuing Appropriations Act, 2019,
Public Law 115-245, sec. 111, 132 Stat. 2981, 3065 (2018); Consol.
Appropriations Act, 2018, Public Law 115-141, sec. 112, 132 Stat.
348, 712 (2018); Consol. Appropriations Act, 2017, Public Law 115-
31, sec. 112, 131 Stat. 135, 518-19 (2017).
\12\ See DOL, Emp't & Training Admin., Effects of the 2016 Dep't
of Labor Appropriations Act at 4 (Dec. 29, 2015), available at
https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/H2B_Prevailing_Wage_FAQs_DOL_Appropriations_Act.pdf.
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F. Invalidation of the 2015 Wage Rule
The United States District Court for the District of Columbia
issued a decision on December 23, 2022, holding the 2015 Wage Rule--
specifically 20 CFR 655.10(f)(2) and (f)(4)--to be procedurally invalid
for failure to comply with the notice-and-comment requirement of the
APA, and further
[[Page 90651]]
holding that DOL's application of the 2015 Wage Rule--specifically
paragraph (f)(3)--to PWDs accepting a 2021 employer-provided wage
survey was unlawful. Williams, et al. v. Walsh, et al., 648 F.Supp.3d
70, 75 (D.D.C. 2022). Regarding the first holding, the court reasoned
that although the 2015 Wage Rule purported to finalize the 2013 IFR,
the CATA III decision had vacated the 2013 IFR. Id. at 91. As a result
of the CATA III vacatur, the Williams court concluded that the agencies
were required to either engage in a new notice-and-comment procedure or
invoke the APA's good-cause exception to promulgate the 2015 Wage Rule
as an IFR. Id. Because the agencies did neither, the court ruled that
the 2015 Wage Rule was procedurally deficient, specifically
invalidating paragraphs (f)(2) and (f)(4). Id. Having reached this
conclusion with respect to the 2015 Wage Rule's procedural defects, the
Court did not reach Plaintiffs' substantive facial challenges to the
2015 Wage Rule.
Regarding the Plaintiffs' as-applied challenge to the rule, the
Court held that DOL erred in accepting the 2021 wage survey that had
been submitted by some twenty employers because the survey had been
expanded beyond the area of intended employment for stated reasons that
did not meet the requirements of paragraph (f)(3). Id. at 95-96.
The Court remanded the case to the agencies for further
consideration consistent with its opinion. Id. at 97-99. This
rulemaking is being undertaken consistent with the court's order.
G. The Department's Authority To Promulgate This Rule
As discussed above, the INA obligates DHS to consult with
``appropriate agencies of the Government'' in considering an employer's
petition for visas for nonimmigrant workers. 8 U.S.C. 1184(c)(1). DHS
regulations designate the Secretary of Labor as an appropriate
consultant regarding the H-2B program, specify that the Secretary shall
establish procedures for administering the labor certification program,
and require an employer's petition to employ H-2B workers to be
accompanied by an approved temporary labor certification from the
Secretary. 8 CFR 214.2(h)(6)(iii)(D), (iv); see also 20 CFR 655.1. The
Department's authority to promulgate regulations to structure and
administer the H-2B temporary labor certification process, including
the determination of the prevailing wage, has been judicially upheld.
Outdoor Amusement Bus. Ass'n v. DHS, 983 F.3d 671, 684-89 (4th Cir.
2020) (DOL possesses independent H-2B rulemaking authority); La.
Forestry Ass'n v. DOL, 745 F.3d 653, 669 (3d Cir. 2014) (same).\13\
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\13\ Although other courts have reached a different conclusion
at the preliminary injunction stage of litigation challenging the
Department's authority to issue regulations, Bayou Lawn & Landscape
Servs., 713 F.3d 1080, 1085 (11th Cir. 2013) (affirming preliminary
injunction, holding the plaintiffs were likely to succeed on claim
that DOL lacked authority to promulgate H-2B rules), or under a
separate theory of rulemaking authority, G.H. Daniels v. Perez, 626
F. Appx. 205 (10th Cir. 2015) (DHS's 2008 H-2B rule improperly sub-
delegated certification authority to DOL), the Department disagrees
with the conclusions reached in those cases--which were either not
merits decisions or non-precedential--regarding its rulemaking
authority for the reasons explained in this NPRM.
---------------------------------------------------------------------------
In addition, the language in the appropriations riders discussed in
Section II.E, above, specifically authorizes the Secretary of Labor to
determine whether the ``methodology and data'' used in an employer-
provided wage survey is ``statistically supported.'' See, e.g., Further
Consol. Appropriations Act, 2024, Public Law 118-47, Div. D, title I,
sec. 110, 138 Stat. 460, 646 (2024); Consol. Appropriations Act, 2023,
Public Law 117-328, Div. H, title I, sec. 110, 136 Stat. 4459, 4852
(2023). The methodological and data criteria proposed here implement
that statutory requirement. Accordingly, as part of its consultative
role and based on the language in recent appropriations riders, the
Department possesses clear authority to promulgate the proposed rule.
III. Summary of Proposed Revisions to 20 CFR Part 655; Subpart A; 20
CFR 655.10
In compliance with the Williams ruling, the Department hereby
provides notice and an opportunity to comment on the proposed employer-
provided wage survey provisions of 20 CFR 655.10(f). The Department
proposes to allow employers to submit wage surveys in the same limited
circumstances as the 2015 Wage Rule, the current rule, does.
Specifically, if the job opportunity is not covered by a CBA or a
professional sports league's rules or regulations, an employer would be
permitted to submit a survey only if: (1) the survey was independently
conducted and issued by a State, including any State agency, State
college, or State university; (2) the survey is submitted for a
geographic area where the BLS does not collect OEWS survey data, or in
a geographic area where the OEWS survey provides an arithmetic mean
only at a national level for workers employed in the Standard
Occupational Classification (SOC); or (3) the job opportunity is within
an occupational classification of the SOC system designated as an ``All
Other'' classification.\14\ The proposed rule, however, would eliminate
the option that such a survey could report the median wages of workers
performing the same or substantially similar job duties in the area of
intended employment. Rather, the proposed rule would only allow the
submission of a survey that includes the arithmetic mean of the wages
of those workers.
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\14\ As discussed further in Section III.B, below, the
Department recognizes that the language contained in every
appropriations act since 2016 supersedes these limitations and
requires acceptance of any employer-provided wage survey unless it
determines that the methodology and data in the survey are not
``statistically supported.'' See n.11, above. The Department
proposes to retain the same limitations as in the current rule in
the event that the language is eliminated from or modified in future
appropriations acts. When Congress annually reenacts a provision in
appropriations acts, ``common sense suggests--and courts are free to
presume--that Congress did not consider the language as creating
permanent law.'' Atlantic Fish Spotters Ass'n v. Evans, 321 F.3d
220, 227 (1st Cir. 2003) (citing U.S. v. Vulte, 233 U.S. 509, 514
(1914)).
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The proposed rule, like the current rule, would require an
employer-provided survey to contain specific information about the
survey methodology, such as sample size and source, sample selection
procedures, and survey job descriptions, to allow the National
Prevailing Wage Center (NPWC) to determine the adequacy of the survey
data and validity of the methodology used to conduct the survey. The
proposed rule, however, would eliminate the standard survey attestation
form, Form ETA-9165, Employer-Provided Survey Attestations to Accompany
H-2B Prevailing Wage Determination Request Based on a Non-OES Survey
(Form ETA-9165), which H-2B employers must complete and submit under
the current rule when they request a survey-based prevailing wage.
Instead, the proposed rule would require the employer to submit the
survey to the NPWC for evaluation at the same time the employer submits
its Form ETA-9141 requesting a PWD from the NPWC.
Additionally, the proposed rule would include new requirements to
follow-up at least three times with non-respondents and to keep the
survey open for accepting responses for at least 14 calendar days after
the issuance of the third follow-up. The follow-up requirement would
reduce sampling bias, and the additional 14-calendar day period would
maximize the amount of wage data collected. Together, these two new
requirements would result in more accurate surveys. The proposed rule
would, like the current rule, provide that if the minimum sample size
of 3 employers and 30 workers is not met,
[[Page 90652]]
the geographic area of the survey may be expanded beyond the area of
intended employment to other contiguous geographic areas in order to
meet the minimum sample size requirement.
The Department seeks public comment on all aspects of this proposed
rule discussed in Sections III.A through III.F below, especially the
proposed revisions to the current Sec. 655.10(f).
A. Discussion of Proposed Technical Changes to 20 CFR 655.10
Consistent with the 2015 Wage Rule, the Department proposes the
following technical changes. First, the proposed rule would retain
Sec. 655.10(a) with a technical change to spell out the phrase
``prevailing wage determination'' and placing ``PWD'' in parentheses.
Second, this proposed rule would retain Sec. 655.10(a) and (b),
with three technical changes in Sec. 655.10(b) by inserting the word
``Wage'' between the words ``and Statistics'' and inserting a ``W''
into ``OES'' in the parenthetical ``(OES).'' Also, the proposed rule
would replace the term ``OFLC'' with ``the NPWC'' in Sec.
655.10(b)(2). These technical changes are for consistency with other
sections of this proposed rule.
Third, this proposed rule would retain Sec. 655.10(e) with
technical changes to: (1) replace the word ``provide'' with the word
``determine''; (2) change the placement of ``Form'' in the
parenthetical ``(ETA Form-9141)'' to precede ``ETA''; and (3) replace
``its'' with the phrase ``the determination and the NPWC's'' for
clarity and to be consistent with other sections of this proposed rule.
B. Discussion of Proposed Revisions to 20 CFR 655.10(f)(1)
The Department proposes to allow employers to submit wage surveys
in the same three circumstances as the current rule does. The first two
circumstances would remain unchanged, and the third would be revised as
discussed in Sections III.B.1 through III.B.3, below. The Department,
however, does not intend to apply or enforce these limitations on wage
surveys as long as the language contained in the appropriations acts
discussed above remains in effect. That language requires the Secretary
to ``accept private wage surveys even in instances where Occupational
Employment Statistics survey data are available unless the Secretary
determines that the methodology and data in the provided survey are not
statistically supported.'' \15\ This language supersedes the current
Sec. 655.10(f)(1) and would supersede the proposed Sec. 655.10(f)(1)
as long as that language remains in effect. The Department would apply
and enforce the proposed Sec. 655.10(f)(1) only if and when Congress
eliminates that language.
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\15\ See n.11, above.
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1. State Conducted Survey
Consistent with current Sec. 655.10(f)(1)(i), this proposal would
permit employers to submit prevailing wage surveys that are
independently conducted and issued by a State, including any State
agency, State college, or State university. As stated in the preamble
to the 2015 Wage Rule, the Department continues to believe that surveys
that are independently conducted and issued by a State are as reliable
as ``Government'' surveys.\16\ Since a ``state must independently
conduct and issue the survey, [this requirement] means that the state
must design and implement the survey without regard to the interest of
any employer in the outcome of the wage reported from the survey.''
\17\ In addition, a State would have to satisfy the proposed rule's
methodological and data requirements to be used to establish a PWD.\18\
The Department considers State agencies to generally be neutral third
parties that are free from bias and have no self-interest or motivation
with respect to the result of the survey. Based on its ``substantial
experience with wage surveys conducted by the states,'' the Department
continues to think that surveys conducted by a State agency are
appropriate as a wage source for the H-2B program provided they meet
the methodological standards described below.\19\
---------------------------------------------------------------------------
\16\ See 80 FR 24146, 24170 (Apr. 29, 2015).
\17\ Id.
\18\ Id.
\19\ Id.
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Where a State conducts a survey that meets the methodological and
data requirements in this proposed rule, an employer may attach the
State-conducted wage survey to a prevailing wage request for
consideration as a wage source for its job opportunity. While there may
be concerns about undue influence over the development and
administration of a survey, the Department proposes to allow the use of
surveys conducted by State agencies, such as State agriculture or
maritime agencies, or State colleges and universities. These entities
must design and implement the survey without regard to the interest of
any employer in the outcome of the wage reported from the survey. In
addition, to satisfy this requirement, a State official must approve
the survey.\20\
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\20\ 80 FR 24146, 24170 (Apr. 29, 2015).
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2. OEWS Data Limitation in Certain Geographic Areas
Consistent with current Sec. 655.10(f)(1)(ii), the Department
proposes that employers may submit surveys where the OEWS survey does
not collect data in a geographic area, or where the OEWS reports a wage
for the SOC based only on national data. For geographic areas where the
OEWS does not collect data or does not collect enough data to report a
wage (e.g., because the sample size is too small), wage surveys could
provide the Department with access to data it simply would not
otherwise have. For geographic areas where only an OEWS national wage
is available, a wage survey could provide data for the geographic area
in which the job opportunity exists. Thus, this proposed rule reflects
the Department's view that employers should be permitted to submit wage
surveys where the Department does not have readily available or
appropriate OEWS data to issue a prevailing wage for the occupation in
the area of intended employment where the job opportunity will be
performed. Acceptance of private wage surveys in these circumstances
was expressly endorsed by the court in CATA III.\21\
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\21\ 774 F.3d at 191 (private surveys may be used ``where an
otherwise applicable OE[W]S survey does not provide any data for an
occupation in a specific geographic location'').
---------------------------------------------------------------------------
3. OEWS Data Limitation in Certain SOC Codes
According to the BLS, the SOC system is used ``to classify workers
and jobs into occupational categories for the purpose of collecting,
calculating, analyzing, or disseminating data.'' \22\ Occupations that
have similar job duties, and in some cases, similar skills, education,
and/or training, are classified in a distinct detailed SOC code.\23\
Under the SOC system, occupations are assigned an SOC code based on the
worker's job duties, not the worker's job title(s).\24\ When workers do
not perform job duties described in any distinct detailed occupation,
the SOC system classifies the occupation as one contained within an
``All Other'' SOC code.\25\ For example, according to the BLS, an ``All
Other'' SOC code is 49-9099, Installation, Maintenance, and
[[Page 90653]]
Repair Workers, All Other. The BLS provides these examples of
occupational titles that would fall under this SOC code: Bowling Alley
Mechanic, Fabric Awning Repairer, Fire Extinguisher Installer, Gasoline
Pump Installer, Gunsmith, Parachute Repairer, Sail Repairer.\26\
---------------------------------------------------------------------------
\22\ See 2018 SOC Manual, available at https://www.bls.gov/soc/2018/soc_2018_manual.pdf, at 1.
\23\ Id.
\24\ Id. at 23.
\25\ Id.
\26\ Id. at 181. Please note this example is based on the 2018
SOC codes, which are subject to future updates.
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Consistent with the 2015 Wage Rule, this proposed rule would
continue to permit employers to submit surveys where the job
opportunity is within an ``All Other'' SOC code. This situation,
similar to the one described in the preceding section, is one in which
a wage survey could provide the Department access to information that
it either simply does not have or is more sufficiently tailored to the
specific occupation in the employer's job opportunity. To meet this
requirement, which is currently in Sec. 655.10(f)(1)(iii)(B), an
employer's job opportunity, as entered on the employer's prevailing
wage application, must entail job duties requiring ``knowledge, skills,
abilities, and work tasks that are significantly different than those
in any SOC classification other than [an] `all other' category.'' \27\
---------------------------------------------------------------------------
\27\ 80 FR 24146, 24169 (Apr. 29, 2015).
---------------------------------------------------------------------------
The Department proposes to delete the current Sec.
655.10(f)(1)(iii)(A) and redesignate current Sec. 655.10(f)(1)(iii)(B)
as Sec. 655.10(f)(1)(iii). Under the current Sec.
655.10(f)(1)(iii)(A), the Department accepts an employer-provided
survey when the employer's job opportunity is not included in an
occupational classification of the SOC system; and under the current
Sec. 655.10(f)(1)(iii)(B), the Department accepts an employer-provided
survey when the job opportunity is within an ``All Other'' SOC code.
The Department proposes to delete subordinate paragraph (A) because, in
the Department's experience, a more specific SOC code is invariably
applicable. In assigning an SOC code, the Department may consider the
employer's prior filing history.\28\ Acceptance of private wage surveys
when the job opportunity falls within an ``All Other'' SOC code is
consistent with the court's decision in CATA III.\29\
---------------------------------------------------------------------------
\28\ See generally 2018 SOC Manual, available at https://www.bls.gov/soc/2018/soc_2018_manual.pdf.
\29\ 774 F.3d at 191 (private surveys may be used ``where the
OE[W]S survey does not accurately represent the relevant job
classification'').
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C. Discussion of Proposed Revisions to 20 CFR 655.10(f)(2)
The proposed rule would require that employer-provided wage surveys
provide the arithmetic mean of the wages of all workers performing the
same or substantially similar job duties. This proposed rule uses the
phrase ``substantially similar,'' which is derived from the
Department's permanent labor certification regulation at 20 CFR
656.40(d).\30\ For purposes of this proposed rule, ``workers performing
the same or substantially similar job duties'' refers to workers that
are similarly employed in the area of intended employment. The proposed
rule would eliminate the exception in the current rule that ``if the
survey provides a median but does not provide an arithmetic mean, the
prevailing wage applicable to the employer's job opportunity shall be
the median of the wages of workers similarly employed in the area of
intended employment.'' \31\ Under this proposed rule, if an employer
submits a survey that provides only the median wage, the NPWC would
issue an OEWS wage for such a PWD request.
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\30\ See 20 CFR 656.40(d) (``similarly employed'' means ``having
substantially comparable jobs in the occupational category in the
area of intended employment'').
\31\ 20 CFR 655.10(f)(2).
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The Department proposes this change to be consistent with the
methodology applied when the OEWS survey is the wage source used to
determine the prevailing wage rate. As stated in the preamble to the
2015 Wage Rule, ``[t]he mean is the average of all wages surveyed in an
occupation in the geographic area, and in the . . . [occupations in the
H-2B program], the mean represents the average wage paid to [workers]
to perform that job. If the prevailing wage is set below the mean, the
average wage of workers in the occupation would be drawn down,
resulting in a depressive effect on U.S. workers' wages overall.'' \32\
The preamble went on to note that ``the Department has set the wage
rate at the mean rather than at the median because the mean provides
equal weight to the wage rate received by each worker in the occupation
across the wage spectrum and maintaining the OE[W]S mean provides
regulatory continuity. As a result, when the prevailing wage is based
on the OE[W]S survey, the Department will set it at the mean because it
is the most appropriate wage to use in order to avoid immigration
induced labor market distortions inconsistent with the requirements of
INA.'' \33\
---------------------------------------------------------------------------
\32\ 80 FR 24146, 24159 (Apr. 29, 2015).
\33\ Id.
---------------------------------------------------------------------------
The Department's experience since the introduction of the 2015 Wage
Rule is that H-2B employers have generally submitted surveys with the
arithmetic mean of the wages of all workers performing the same or
substantially similarly job duties in the area of intended employment
for establishing an H-2B survey-based prevailing wage. As a result, the
Department does not believe that elimination of the option to provide a
survey using a median wage will have a significant practical effect
because the NPWC rarely receives surveys that only include a median
wage. Moreover, the Department continues to think that setting the wage
below the mean would have a depressive effect on wages, and therefore
this proposed change is consistent with the Department's obligation to
ensure that U.S. workers' wages are not adversely affected when setting
a prevailing wage for workers employed in the H-2B program.\34\
---------------------------------------------------------------------------
\34\ See 8 U.S.C. 1182(a)(5)(A)(i), (p).
---------------------------------------------------------------------------
Under this proposed paragraph, the Department would continue to
require that surveys provide the arithmetic mean of the wages of all
workers similarly employed without regard to the immigration status of
the workers surveyed. Doing so remains consistent with the Department's
historical practice in the H-2B program \35\ and would continue to
promote consistency with the OEWS survey, which includes wage data from
all workers without regard to their immigration status.\36\ Further,
commercial wage surveys generally do not exclude workers from the
survey based on their immigration status, and, where the OEWS does not
provide adequate information for the occupation or geographic location,
the Department is concerned that requiring the exclusion of
nonimmigrant workers would effectively bar employers from using such
surveys--thus potentially leaving the Department without a reliable
basis on which to set a prevailing wage. Therefore, as stated in the
2015 Wage Rule and continued in this proposed rule, the Department
``will not accept wage surveys that exclude the wages of U.S. workers
or exclude the wages of nonimmigrant workers.'' \37\
---------------------------------------------------------------------------
\35\ Id. at 24172.
\36\ Id.
\37\ Id.
---------------------------------------------------------------------------
D. Discussion of 20 CFR 655.10(f)(3)
Consistent with the 2015 Wage Rule, the Department would continue
to allow, under proposed Sec. 655.10(f)(3), employer-provided surveys
to cover a geographic area beyond the area of intended employment only
if: (1) the expansion is limited to geographic areas that are
contiguous to the area of
[[Page 90654]]
intended employment; (2) the expansion is required to meet either the
30-worker or 3-employer minimum; and (3) the geographic area is
expanded no more than necessary to meet these minimum requirements.
Consistent with the 2015 Wage Rule, a geographic area may be
expanded in two ways. First, if an employer contracts with a surveyor
familiar with the area of employment, the surveyor may determine before
beginning the survey that the survey will not elicit a sufficient
response to meet the regulatory requirements--for example, if there are
not enough employers or workers in the local area of employment. In
those cases, the surveyor may elect, at the outset, to survey a
geographic area larger than the area of employment. In its submission
to the NPWC, the survey must explain the decision to expand the survey
area at the outset, and describe the extent of the expansion and the
reason why the expansion was needed to meet the regulatory
requirements.\38\
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\38\ See id.
---------------------------------------------------------------------------
Second, a survey may be expanded incrementally. Expansion would be
permitted only if the survey of the area of intended employment did not
yield sufficient wage data to meet the minimum sample size
requirements. In such circumstances, consistent with current guidance,
``the geographic area of consideration should not be expanded more than
is necessary'' to meet either the 30-worker or 3-employer, or both,
requirements of Sec. 655.10(f)(4)(ii).\39\ For example, as noted in
the guidance, it would be ``appropriate to survey cities and counties
that are in close proximity to the area of intended employment rather
than using a State-wide average wage rate.'' \40\ In all cases where an
area larger than the area of intended employment is surveyed, the
survey would have to establish that the expansion was necessary to meet
either the 30-worker or 3-employer requirements of Sec.
655.10(f)(4)(ii).\41\
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\39\ See General Administration Letter (GAL) 4-95, Interim
Prevailing Wage Policy for Nonagricultural Immigration Programs (May
18, 1995) at p. 4, available at https://www.dol.gov/sites/dolgov/files/ETA/advisories/GAL/1995/GAL4-95_attach.pdf. See infra n.42.
\40\ Id.
\41\ See GAL 2-98, Prevailing Wage Policy for Nonagricultural
Immigration Programs (Oct. 31, 1997) at p. 8, available at https://oui.doleta.gov/dmstree/gal/gal98/gal_0298a.pdf.
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Further, consistent with current practice, incremental geographic
area expansion beyond the area of intended employment must be
consistent with OEWS survey methodology,\42\ meaning that a ``survey's
expansion may take place across state lines, as long as the new area(s)
added to the survey [is] contiguous to the area of intended employment
in which the job opportunity is located and the expansion extends only
as much as is necessary to satisfy the minimum sample size
requirement.'' \43\ Any such expansion is limited to geographic areas
that are contiguous to the area of intended employment because the
NPWC's ``experience demonstrates that some employers have submitted
surveys that expanded the survey area using remote geographic areas
located far from the job opportunity. [The Department] see[s] no reason
for a survey to ignore areas immediately surrounding the job
opportunity in favor of geographic areas located large distances from
the job.'' \44\ For example, in Williams, the surveyor expanded the
geographic area of the survey without explaining why a statewide survey
was needed instead of a ``more incremental approach.'' \45\ Thus, the
Department continues to believe that areas contiguous to the area of
intended employment, which are closest to the area of intended
employment, better reflect the wages in the area of intended
employment. As such, this proposal seeks to guard against the potential
for wage depression that may result when a survey is expanded to
geographic areas that are remote from the location of the job
opportunity and where wages may be lower.
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\42\ 80 FR 24146, 24174 (Apr. 29, 2015).
\43\ See OFLC Frequently Asked Questions and Answers, #32 (Sep.
1, 2016), available at https://foreignlaborcert.doleta.gov/faqsanswers.cfm (Question: ``The surveyor has not been able to
elicit a response to the survey in the occupation and area of
intended employment that meets the minimum sample size requirements
(i.e., at least 3 employers and 30 workers) of the 2015 H-2B Wage
Final Rule. May the surveyor expand the geographic area surveyed?'')
and (Answer: ``Yes, under certain limited conditions, the geographic
area surveyed may be expanded incrementally until employer-provided
survey sample size requirement is met (i.e., at least 3 employers
and 30 workers). A survey may be expanded to cover a geographic area
larger than the area of intended employment in which the job
opportunity is located only where that area of intended employment
does not generate a sufficient sample to meet minimum size
requirements. Under that condition, the survey may only be expanded
to geographic areas that are contiguous to the area of intended
employment only to the extent necessary to generate a sample size
sufficient to satisfy the minimum sample size requirement. The
survey's expansion may take place across state lines, as long as the
new area(s) added to the survey are contiguous to the area of
intended employment in which the job opportunity is located and the
expansion extends only as much as is necessary to satisfy the
minimum sample size requirement. If the surveyor determines after
surveying the area of intended employment that the survey does not
meet minimum sample size requirements, it must either conduct a new
random sample of the expanded area (including the area of intended
employment) or make a reasonable, good faith effort to survey all
employers employing workers in the occupation and expanded area
surveyed.'').
\44\ 80 FR 24146, 24174 (Apr. 29, 2015).
\45\ Williams, 648 F. Supp. 3d at 96 (holding DOL erred in
accepting a statewide survey where the justification for expansion
of the geographic area required by Sec. 655.10(f)(3) had not been
provided).
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The Department is proposing clarifying guidance on the steps for
conducting geographic area expansion if the area of intended employment
surveyed area does not meet the 30-worker and 3-employer requirements
under proposed Sec. 655.10(f)(4)(ii). In particular, if a survey is
incrementally expanded beyond the area of intended employment to meet
the minimum sample size requirements, the surveyor would have to survey
the newly added area using the same method used to survey the original
area of intended employment for consistency.\46\
---------------------------------------------------------------------------
\46\ Id.
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Under this proposed rule, if the NPWC determines that the
geographic area of an employer-provided survey appears to be broader
than permitted by Sec. 655.10(f)(3), the NPWC will review the survey
for the reason(s) why and how the geographic area was expanded, as it
does under current practice. Then, the NPWC may issue a request for
information for an explanation for the reason(s) why and how the
geographic area was expanded, if needed. An example of such an
explanation, or a part of such an explanation, could be that the
expansion was needed to meet the regulatory requirements because there
were not enough workers or employers in the area of intended employment
and the area of intended employment was fully surveyed (i.e., all
geographic components such as counties and townships, etc.). Consistent
with current practice, if the NPWC determines the geographic area was
improperly expanded, the NPWC would reject the survey and issue an OEWS
wage for the employer's job opportunity.
E. Discussion of Proposed Revisions to 20 CFR 655.10(f)(4)
Under the current rule, when an employer requests a PWD based on a
survey, the Department requires the employer to submit the Form ETA-
9165, Employer-Provided Survey Attestations to Accompany H-2B
Prevailing Wage Determination Request Based on a Non-OES Survey (``Form
ETA-9165''), with the Form ETA-9141, Application for Prevailing Wage
Determination (``Form ETA-9141''). This proposed rule would eliminate
the Form ETA-9165, which was intended to streamline the Department's
analysis of employer-provided surveys and yield
[[Page 90655]]
consistent results. In the Department's experience, however, using the
current Form ETA-9165 has proven inadequate to determine whether the
survey meets the data and methodological requirements of the current
rule. The Form ETA-9165 is based on an employer's attestations
regarding an independently conducted survey but in practice, the NPWC
has requested the survey itself for nearly all survey-based H-2B
prevailing wage requests to evaluate whether the survey satisfied the
data and methodological requirements of the regulation. The current
regulation does not explicitly require that the survey be submitted
concurrently with the Form ETA-9141. This has necessitated that the
NPWC contact the employer to submit the actual survey instrument. Thus,
to align the regulation with the NPWC's practice of reviewing the
actual survey instrument alongside the submitted Form ETA-9141, the
Department proposes to require the employer to submit the survey
simultaneously with the Form ETA-9141 when an employer requests a
survey-based H-2B prevailing wage from the NPWC.
The Department therefore proposes to discontinue the Form ETA-9165.
Doing so would benefit PWD applicants by eliminating the burden of
completing a form, and would benefit the Department by simplifying the
survey-based H-2B prevailing wage process. This simplified process, in
turn, would assist the Department in maintaining the integrity of the
wage determination process for the H-2B program because the Department
would have a copy of the survey itself during its review of the
employer's Form ETA-9141, without needing to rely on the Form ETA-9165
and without needing to separately request the survey, potentially
speeding up the determination process. Consequently, the proposal would
better protect U.S. worker wages against the potential adverse effects
that the employment of H-2B workers could have as the Department would
have all necessary information available to make a determination about
the use of the survey.
The elimination of the Form ETA-9165 would not affect how employers
complete the Form ETA-9141. The Department does not propose any changes
to the Form ETA-9141. Employers would continue to complete the Form
ETA-9141 as they have been doing. However, the Department proposes to
revise the General Instructions for the Form ETA-9141 by including in
the Wage Source Information section instructions to submit the survey
concurrently with the Form ETA-9141 when an employer seeks a survey-
based PWD.
Also, the proposed rule would replace the phrase ``the adequacy of
the data provided and validity of the statistical methodology used in
conducting the survey'' in paragraph (f)(4) with ``whether the survey
meets all of the requirements of this section, including the
following.'' This change is intended to clarify that the survey would
have to meet the requirements of proposed Sec. 655.10(f)(4)(i) through
(v), in addition to containing specific information about the survey
methodology, such as the sample size, sample selection procedures, and
survey job descriptions.
1. Discussion of Proposed Revisions to 20 CFR 655.10(f)(4)(i)
Initially, the Department proposes a technical change to the
regulatory text at Sec. 655.10(f)(4)(i) to clarify that the ``good
faith'' requirement applies to both methods of conducting surveys
permitted. That is, the surveyor would have to make a reasonable, good
faith attempt to either: (1) contact all employers of workers
performing the same or substantially similar job duties in the
geographic area surveyed; or (2) conduct a randomized sampling of such
employers. The Department continues to believe, as it noted in the
preamble of the 2015 Wage Rule, that ``[p]roper randomization requires
the surveyor to determine the appropriate `universe' of employers to be
surveyed before beginning the survey and to select randomly a
sufficient number of employers to survey to meet the minimum criteria
pertaining to the number of employers and workers who must be
sampled.'' \47\ This proposed provision additionally explains what a
good faith attempt consists of, as discussed below.
---------------------------------------------------------------------------
\47\ Id.
---------------------------------------------------------------------------
The proposed rule would make two substantive changes to the current
Sec. 655.10(f)(4)(i). First, it would replace the phrase ``in the
occupation'' with ``performing the same or substantially similar job
duties.'' This change would reflect the reality that the survey is
conducted before the employer submits its PWD application and the NPWC
assigns an SOC code (identifying the occupation) based on the
description of job duties contained in the PWD application.
Consequently, a survey conducted based on an occupational
classification would necessarily require speculation about which SOC
code the NPWC will subsequently assign. As explained in the 2015 Wage
Rule preamble, to assess whether workers are performing the ``same or
substantially similar'' job duties, ``the surveyor would take into
account the nature and duties of the job opportunity, and contact a
large enough sample of employers to yield usable data for at least
three employers and 30 workers similarly employed'' \48\ in the
geographic area surveyed.
---------------------------------------------------------------------------
\48\ 80 FR 24146, 24173 (Apr. 29, 2015).
---------------------------------------------------------------------------
Second, the proposed rule would add a new requirement to Sec.
655.10(f)(4)(i) that at least three follow-up attempts be made to
contact non-respondents. The contact must be made using the same method
of contact initially used, and at least two other active methods of
contact--such as email, telephone, or site visit--across different
business days and times that are most likely to receive the most
response. This proposed requirement would reduce sampling bias and
therefore yield more accurate and representative survey results.
2. Discussion of Proposed Revisions to 20 CFR 655.10(f)(4)(ii)
Consistent with the 2015 Wage Rule, this proposed rule in Sec.
655.10(f)(4)(ii) would require surveys submitted under this paragraph
to include wage data from at least 30 workers and 3 employers. These
minimums are based, as they were in the 2015 Wage Rule, on criteria
that BLS OEWS itself uses to provide Office of Foreign Labor
Certification (OFLC) with wage data not only for the H-2B program, but
also for other foreign labor certification programs, such as the H-1B
program and the permanent labor certification program. The OEWS survey
data has been used by OFLC to produce prevailing wage data for those
programs since 1998. In October 2020, this arrangement was formalized
in a memorandum of understanding (MOU) between BLS and OFLC, which was
amended in January 2021 and runs for 5 years. The MOU describes the
standards and procedures BLS uses to provide wage data to OFLC, stating
that BLS will ``report wages'' to OFLC for each occupational
classification and geographic area ``that pass BLS confidentiality
criteria and include a minimum of three (3) establishments . . .
representing no fewer than 30 employees reported across the entire wage
distribution.'' \49\
---------------------------------------------------------------------------
\49\ Amended MOU Between the DOL's Employment and Training
Administration Office of Foreign Labor Certification and Bureau of
Labor Statistics for the Sharing of Occupational Wage Information;
see 80 FR 24146, 24173 (Apr. 29, 2015).
---------------------------------------------------------------------------
These minimum criteria and the other proposed requirements in Sec.
655.10(f) also satisfy the Appropriations Acts' requirement that
employer-provided
[[Page 90656]]
wage surveys be ``statistically supported.'' See Further Consol.
Appropriations Act, 2024, Public Law 118-47, Div. D, title I, sec. 110,
138 Stat. 460, 646 (2024). Elsewhere, Congress has used more precise
terms of art, the meanings of which are widely accepted by
statisticians, such as ``statistically significant'' and
``statistically valid'' (which appears in the INA itself \50\).\51\
Here, however, Congress chose to use the term ``statistically
supported,'' which does not appear in the U.S. Code. Immediately after
Congress first enacted the ``statistically supported'' requirement, the
Department published guidance on its website stating that ``[w]e
interpret the requirement of the 2016 DOL Appropriations Act that the
`methodology and data' in a private survey be `statistically supported'
to be those methodological criteria for surveys set out in the 2015
Wage Rule.'' \52\ Congress subsequently re-enacted the same language in
every DOL Appropriations Act since 2016. See n.11, supra. Congress is
``presumed to be aware of an administrative or judicial interpretation
of a statute and to adopt that interpretation when it re-enacts a
statute without substantive change.'' \53\ DOL continues to believe
that surveys that meet the proposed 3-and-30 minimums BLS has used for
25 years to provide OEWS survey data to OFLC, along with the other
criteria BLS uses to provide OEWS survey data to OFLC, and the
additional survey requirements proposed in Sec. 655.10(f) and
explained in this preamble, are ``statistically supported'' as required
by the provision in the Department's appropriation.
---------------------------------------------------------------------------
\50\ 8 U.S.C. 1153(b)(5)(E)(iii)(I), (v)(I), (v)(II)(aa),
(v)(II)(cc), (F)(i)(II).
\51\ For ``statistically significant,'' see, e.g., 29 U.S.C.
1303(a); 20 U.S.C. 6303a; 43 U.S.C. 1748a-2(b)(3); 21 U.S.C.
2109(a)(3); 47 U.S.C. 1303(c)(1); 34 U.S.C. 10554(4)(A),
40101(f)(1). For ``statistically valid,'' see, e.g., 38 U.S.C.
7731(c)(2)(A); 19 U.S.C. 1677f-1(a)(1), (b), (c)(2)(A),
(e)(2)(A)(i); 42 U.S.C. 1395(f)(5)(C)(ii)(I), (f)(5)(D); 38 U.S.C.
3122(a)(1). 7731(c)(2)(A); 19 U.S.C. 1677f-1(a)(1), (b), (c)(2)(A),
(e)(2)(A)(i); 42 U.S.C. 1395(f)(5)(C)(ii)(I), (f)(5)(D); 38 U.S.C.
3122(a)(1).
\52\ Effects of the 2016 Department of Labor Appropriations Act
(Dec. 29, 2015), available at https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/H-2B_Prevailing_Wage_FAQs_DOL_Appropriations_Act.pdf.
\53\ Forest Grove School District v. T.A., 557 U.S. 230, 239-40
(2009).
---------------------------------------------------------------------------
Under the proposed rule, as a new requirement in paragraph
(f)(4)(ii), surveyors would have to continue accepting employer
responses for at least 14 calendar days from the date the third
notification in proposed paragraph (f)(4)(i) is sent even if responses
have been received from 3 employers including the wages of 30 workers.
This additional 14-calendar day period would maximize the opportunity
to include as much data as possible in the survey so that it is as
accurate and representative as possible. Also, the additional 14-day
calendar period seeks to prevent the skewing of results by an employer
that could occur should the survey conclude as soon as the minimum
number of responses are received. If the minimum sample size
requirements are not met, the geographic area of the survey may be
extended beyond the area of intended employment under proposed Sec.
655.10(f)(3).
Consistent with the 2015 Wage Rule, a survey may not report wages
selectively, include responses that are based on only a portion of the
workers performing the same or substantially similar job duties or
limit the wage survey data to include only enough data to meet the
minimum 30-worker threshold. The survey would have to include wage data
for all workers performing the same or substantially similar job duties
regardless of their level of skill, education, seniority, experience,
or immigration status.\54\ If, after following-up with non-respondents
as described above, a surveyor could not collect wage data from at
least 3 employers for at least 30 workers, the surveyor would be
permitted to expand the survey beyond the area of intended employment
as discussed above in the section on Sec. 655.10(f)(3) of this
proposed regulation.
---------------------------------------------------------------------------
\54\ Id.
---------------------------------------------------------------------------
3. Discussion of Proposed Revisions to 20 CFR 655.10(f)(4)(iii)
Consistent with the 2015 Wage Rule, in Sec. 655.10(f)(4)(iii),
bona fide third parties would have to conduct any employer-provided
surveys submitted under proposed Sec. 655.10(f)(1)(ii) or (iii). This
proposed rule clarifies that not only would the H-2B employer, its
agent, and its representative be prohibited from conducting the
employer's survey, but so would any of the employer's employees and
their attorney. The proposed rule would exclude these non-bona fide
third parties to prevent their personal self-interests from affecting
the reliability of employer-provided surveys, and in the case of
employees, prevent an employer from placing any undue pressure on the
employee conducting the survey. As the Department stated in the
preamble of the 2015 Wage Rule and affirms here, ``[e]ven H-2B
employers, representatives, agents, and attorneys who are not directly
involved in the application for which the survey is submitted are
barred from conducting a wage survey . . . because we conclude that H-
2B employers and the entities that represent them are likely to share
common interests and biases that may affect the reliability of such
surveys.'' \55\ The preamble also explained that requiring a bona fide
third party to conduct an employer-provided survey would ``not bar an
employer from paying an otherwise bona fide third party to conduct the
survey. In addition, employers who are eligible to submit a survey
under proposed Sec. 655.10(f)(1)(ii) or (iii) would be permitted to
submit a survey conducted and issued by a state.'' \56\
---------------------------------------------------------------------------
\55\ Id. at 24174.
\56\ Id.
---------------------------------------------------------------------------
4. Discussion of Proposed Revisions to 20 CFR 655.10(f)(4)(iv)
Consistent with the 2015 Wage Rule, the proposed rule would require
employer-provided surveys under proposed Sec. 655.10(f)(1) be
conducted across industries, which means surveying employers in all
industries employing workers performing the same or substantially
similar job duties as those contained in the job opportunity in the
area of intended employment.\57\ This requirement, the purpose of which
is to cast as wide a net as possible to obtain the most representative
data available, would be consistent with the Department's criteria for
review of employer-provided surveys in the H-1B temporary program and
permanent labor certification program. Surveying across industries
provides a broader representation of wage data for jobs requiring the
same or substantially similar duties, irrespective of the sector or
segment of the economy where the job duties are being performed. Thus,
the proposed rule would clarify that ``across industries'' means all
industries that employ workers performing similar or substantially
similar job duties. For example, a wage survey for a Landscaping and
Groundskeeping Workers job opportunity that surveyed only hotels would
not satisfy the ``across industries'' requirements because industries
other than hotels employ such workers. Surveying workers performing
these job duties not only at hotels, but also workers performing
similar or substantially similar job duties at hospitals, schools,
country clubs, golf courses, and other outdoor sports venues, among
others, would provide a better representation of wages within that
occupation.
---------------------------------------------------------------------------
\57\ Id. at 24171.
---------------------------------------------------------------------------
[[Page 90657]]
5. Discussion of Proposed Revisions to 20 CFR 655.10(f)(4)(v)
This proposed rule would continue the requirement under the current
rule that all types of pay be included in employer-provided wage
surveys. As stated in the preamble of the 2015 Wage Rule, all types of
pay include ``the base rate of pay, commissions, cost-of-living
allowances, deadheading pay, guaranteed pay, hazard pay, incentive pay,
longevity pay, piece rate, portal-to-portal rate, production bonuses,
and tips.'' \58\ For example, if an employer guarantees a minimum
hourly wage, but pays other types of monetary compensation, including
tips, commissions, or piece rates, in excess of this minimum hourly
wage, the total of the minimum hourly wage and these additional types
of compensation would have to be included in the hourly wage paid
reported in the survey. This proposal remains consistent with the
methodology of the OEWS survey.\59\ The Department continues to think
that, as explained in the preamble to the 2015 Wage Rule, ``[i]f we did
not require inclusion in the survey wage reported of all of the types
of pay reported to the OE[W]S, those limited surveys permitted by [the
rule] would necessarily undercut the OE[W]S by not reporting the
complete wage paid. We understand that employers ordinarily calculate
the wage paid for OE[W]S purposes by consulting payroll records.'' \60\
While the Department recognizes that this requirement will impose some
burden on employers, given that the requirement is consistent with how
the OEWS is administered, and given the importance of the Department
having a complete picture of the compensation paid, the Department does
not think that the burden outweighs the benefit of this requirement.
---------------------------------------------------------------------------
\58\ Id. at 24175.
\59\ See ``How are `wages' defined by the OEWS survey?'' OEWS,
Frequently Asked Questions, available at https://www.bls.gov/oes/oes_ques.htm.
\60\ 80 FR 24146, 24175 (Apr. 29, 2015).
---------------------------------------------------------------------------
F. Discussion of Proposed Regulatory Revisions to 20 CFR 655.10(f)(5)
The current rule requires an employer-provided survey to be: (1)
the most current edition of the survey; and (2) based on wages paid to
workers no more than 24 months before the survey was submitted to the
NPWC. The proposed rule would maintain these same two requirements, but
the language regarding the second requirement would be changed to
reflect the proposed new requirement in paragraph (f)(4) that the
survey must be submitted to the NPWC together with the employer's Form
ETA-9141.\61\ In addition, the proposed rule would eliminate the first
sentence currently in Sec. 655.10(f)(5), which states that ``[t]he
survey must be based upon recently collected data,'' \62\ because the
remaining sentence specifies the two components of ``recently collected
data,'' as mentioned above. Therefore, the introductory sentence is
unnecessary.
---------------------------------------------------------------------------
\61\ For purposes of comparison, OEWS estimates are based on
data collected over a 3-year period, with the survey updated every 6
months based on more recent data. The May 2022 estimates are based
on responses from six semiannual panels collected over a 3-year
period: May 2022, November 2021, May 2021, November 2020, May 2020,
and November 2019. See Technical Notes for May 2022 OEWS Estimates
(bls.gov), available at https://www.bls.gov/oes/current/oes_tec.htm.
In addition, in the 1990s, the DOL recommended that State employment
service agencies (SESAs) use their in-house wage surveys for only 2
years. See GAL 4-95 at pp. 9-10 (``SESA Conducted Prevailing Wage
Surveys . . . Length of Time Survey Results are Valid . . . SESAs
may use survey results for up to 2 years after the data are
collected. After 2 years, the results of a new survey should be
implemented.'').
\62\ 20 CFR 655.10(f)(5).
---------------------------------------------------------------------------
The requirement that the survey be based on wages paid to workers
in the prior 24 months was originally codified in the 2008 Rule, 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, 73 FR 78020 (Dec.
19, 2008), and retained in the 2015 Wage Rule. The 24-month and most-
current-edition standards would, together, continue to protect both
U.S. and H-2B workers' wages by ensuring that employer-provided surveys
are based on the most recent wage information available.
IV. Administrative Information
A. Executive Order 12866: Regulatory Planning and Review; Executive
Order 14094: Modernizing Regulatory Review; and Executive Order 13563:
Improving Regulation and Regulatory Review
Under E.O. 12866, the Office of Management and Budget's (OMB)
Office of Information and Regulatory Affairs (OIRA) determines whether
a regulatory action is significant and, therefore, subject to the
requirements of the E.O. and review by OMB. 58 FR 51735 (Oct. 4, 1993).
Section 3(f) of E.O. 12866, as amended by E.O. 14094, defines a
``significant regulatory action'' as an action that is likely to result
in a rule that: (1) has an annual effect on the economy of $200 million
or more, or adversely affects in a material way the economy, a sector
of the economy, productivity, competition, jobs, the environment,
public health or safety, or State, local, Territorial, or Tribal
Governments or communities; (2) creates serious inconsistency or
otherwise interferes with an action taken or planned by another agency;
(3) materially alters the budgetary impacts of entitlement, grants,
user fees, or loan programs, or the rights and obligations of
recipients thereof; or (4) raises legal or policy issues arising out of
legal mandates, the President's priorities, or the principles set forth
in the E.O. 88 FR 21879 (Apr. 11, 2023). OIRA has designated this NPRM
as ``not significant'' per E.O. 12866 and waived review.
E.O. 13563 directs agencies to, among other things, propose or
adopt a regulation only upon a reasoned determination that its benefits
justify its costs; the regulation is tailored to impose the least
burden on society, consistent with achieving the regulatory objectives;
and in choosing among alternative regulatory approaches, the agency has
selected those approaches that maximize net benefits. E.O. 13563
recognizes that some costs and benefits are difficult to quantify and
provides that, where appropriate and permitted by law, agencies may
consider and discuss qualitatively values that are difficult or
impossible to quantify, including equity, human dignity, fairness, and
distributive impacts.
Outline of the Analysis
Section IV.A.1 describes the need for the proposed rule, and
Section IV.A.2 describes the process used to estimate the costs of the
rule and the general inputs used, such as wages and number of affected
entities. Section IV.A.3 explains how the provisions of the proposed
rule would result in costs and cost savings and presents the
calculations the Department used to estimate them. In addition, Section
IV.A.4 provides a description of qualitative benefits. Section IV.A.5
summarizes the estimated 1st-year and 10-year total and annualized
costs and cost savings of the proposed rule.
Summary of the Analysis
The Department estimates that the proposed rule would result in
costs and cost savings. As shown in Exhibit 1, the proposed rule is
expected to have an annualized cost of $1,285, an annualized cost
savings of $5,466, and a net cost savings of $4,535 at a discount rate
of 2 percent.\63\
---------------------------------------------------------------------------
\63\ The proposed rule is expected to have an undiscounted
annual cost of $1,369, an undiscounted annual cost savings of
$4,861, and an undiscounted annual net cost savings of $3,492 in
2023 dollars.
[[Page 90658]]
Exhibit 1--Estimated Monetized Costs and Cost Savings of the Proposed Rule
[2023 $]
----------------------------------------------------------------------------------------------------------------
Costs Cost savings Net cost savings
----------------------------------------------------------------------------------------------------------------
1st Year............................................ $12,850 $5,359 -$7,492
Undiscounted Annual................................. 1,285 5,359 4,074
Annualized with at a Discount Rate of 2%............ 1,431 5,359 4,535
----------------------------------------------------------------------------------------------------------------
The total cost of the proposed rule is associated with rule
familiarization and the new requirements that the surveyor must
continue to accept responses for at least 14 calendar days after
receiving the third employer response to the survey request. In
addition, the surveyor must include no fewer than three contacts with
non-respondents, using the same method of contact initially used, and
at least two other active methods of contact across different business
days and times that are most likely to receive the most response. Cost
savings are the results of the elimination of the Form ETA-9165,
Employer-Provided Survey Attestations to Accompany H-2B Prevailing Wage
Determination Request Based on a Non-OES Survey. See the costs and cost
savings subsections of Section IV.A.3 (Subject-by-Subject Analysis).
1. Need for Regulation
As discussed further in Section II.F, supra, this NPRM is required
by a court ruling that, in promulgating the 2015 Wage Rule, the
agencies failed to comply with the APA's notice-and-comment
requirements. Williams v. Walsh, 648 F. Supp. 3d 70 (D.D.C. 2022).
Consequently, the court remanded the rule ``for further consideration
consistent with'' its opinion. Id. at 99. Additionally, in light of
issues raised (although not decided) in that litigation, OFLC is
proposing to revise the data and methodological criteria for employer-
provided wage surveys.
2. Analysis Considerations
The Department estimated the costs and the cost savings of the
proposed rule relative to the existing baseline (i.e., the current
practices for complying, at a minimum, with the H-2B program as
currently codified at 20 CFR part 655).
In accordance with the regulatory analysis guidance articulated in
OMB's Circular A-4 and consistent with the Department's practices in
previous rulemakings, this regulatory analysis focuses on the likely
consequences of the proposed rule (i.e., costs, cost savings, and
qualitative benefits). The analysis covers 10 years (from 2025 through
2034) to ensure it captures major costs, cost savings, and qualitative
benefits that accrue over time. The Department expresses all quantified
impacts in 2023 dollars and uses undiscounted annuals and a discount
rate of 2 percent, pursuant to Circular A-4.
Exhibit 2 shows the total number of H-2B PWD requests and the
number of submissions requesting a survey wage for FYs 2020--2023. The
Department used this information to estimate the costs and cost savings
of the proposed rule.
Exhibit 2--Number of Unique Submissions for H-2B Survey Requests *
----------------------------------------------------------------------------------------------------------------
Number of H-2B PWD Number of H-2B wage % of total submissions
FY requests survey requests requesting survey wage
----------------------------------------------------------------------------------------------------------------
2020................................... 11,629 77 0.7
2021................................... 14,748 161 1.1
2022................................... 24,914 378 1.5
2023................................... 24,715 267 1.1
------------------------------------------------------------------------
Average............................ 19,002 221 1.1
----------------------------------------------------------------------------------------------------------------
* Data source: OFLC performance data for FY2020-2023.
a. Compensation Rates
In Section IV.A.3 (Subject-by-Subject Analysis), the Department
presents the costs, including labor, associated with the implementation
of the provisions of the proposed rule. Exhibit 3 presents the hourly
compensation rates for the occupational categories expected to
experience a change in the number of hours necessary to comply with the
proposed rule. The Department used the mean hourly wage rate for
private sector human resources (HR) specialists (SOC code 13-1071).\64\
Wage rates are adjusted to reflect total compensation, which includes
nonwage factors such as overhead and fringe benefits (e.g., health and
retirement benefits). We use an overhead rate of 17 percent \65\ and a
fringe benefits rate based on the ratio of average total compensation
to average wages and salaries in 2023. For private sector employees, we
use a fringe benefits rate of 42 percent.\66\ We then multiply the
loaded wage factor and the overhead rate by the wage rate to calculate
an hourly compensation rate. The Department used the hourly
compensation rates presented in Exhibit 3 throughout this analysis to
estimate the labor costs for each provision.
---------------------------------------------------------------------------
\64\ BLS. (2024). May 2023 National Occupational Employment and
Wage Estimates: 13-1071--Human Resources Specialists. Retrieved
from: https://www.bls.gov/oes/current/oes131071.htm.
\65\ Cody Rice, U.S. Environmental Protection Agency, ``Wage
Rates for Economic Analyses of the Toxics Release Inventory
Program,'' June 10, 2002, https://www.regulations.gov/document?D=EPA-HQ-OPPT-2014-0650-0005.
\66\ BLS. (Mar. 2024). ``Employer Costs for Employee
Compensation.'' Retrieved from: https://www.bls.gov/news.release/ecec.nr0.htm.
[[Page 90659]]
Exhibit 3--Compensation Rates
[2023 Dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Grade Base hourly Hourly
Position level wage rate Loaded wage factor Overhead costs compensation rate
(a) (b) (c) (d) = a + b + c
--------------------------------------------------------------------------------------------------------------------------------------------------------
HR Specialist.......................................... N/A $36.573 $15.36 ($36.57 x 0.42) $6.22 ($36.57 x 0.17) $58.15
--------------------------------------------------------------------------------------------------------------------------------------------------------
3. Subject-by-Subject Analysis
The Department's analysis below covers the costs, cost savings, and
qualitative benefits of the proposed rule. This proposed rule includes
the quantified cost of rule familiarization, the unquantified cost of
additional survey requirements, and the quantified cost savings of
elimination of the Form ETA-9165, and qualitative discussion of
benefits.
a. Costs
The following section describes the quantified and unquantified
costs of the proposed rule.
i. Rule Familiarization
If the proposed rule takes effect, H-2B employers who are
submitting an employer-provided survey would need to familiarize
themselves with the new regulations. Consequently, this would impose a
one-time cost in the 1st year.
To estimate the 1st-year cost of rule familiarization, the number
of unique H-2B employers who are submitting an employer-provided survey
(221) was multiplied by the estimated amount of time required to review
the rule (1 hour). The Department requests public comments and inputs
regarding this estimate. This number was then multiplied by the hourly
compensation rate of HR specialists ($58.15 per hour). This calculation
results in a one-time undiscounted cost of $12,850 in the 1st year
after the proposed rule takes effect. The annualized cost over the 10-
year period is $1,431 at a discount rate of 2 percent. An undiscounted
annual cost over the 10-year period is $1,285.
ii. Additional Survey Requirements
The Department proposes in the NPRM to revise the data and
methodological criteria for employer-provided wage surveys to require
that a survey must continue to accept responses for at least 14
calendar days after receiving the minimum number of required responses
from at least 3 employers that together include wages for at least 30
workers. In addition, the surveyor must include no fewer than three
contacts with non-respondents, using the same method of contact
initially used, and at least two other active methods of contact across
different business days and times that are most likely to generate
responses. The Department expects these new requirements may add a
small compliance cost to surveyors, but we cannot quantify it due to
the data limitations. The Department seeks public comments and inputs
that will help us to quantify this cost impact to surveyors.
b. Cost Savings
The following section describes the cost savings of the proposed
rule.
i. Elimination of the Form ETA-9165
The Department proposes to eliminate the Form ETA-9165, Employer-
Provided Survey Attestations to Accompany H-2B Prevailing Wage
Determination Request Based on a Non-OES Survey. Each employer would
have spent 25 minutes to fill out the attestation form if it had not
been eliminated. To estimate the cost savings per year, the number of
unique H-2B employers who are expected to submit an employer-provided
survey (221) was multiplied by the estimated amount of time required to
fill out the attestation form (25 minutes or 0.417 hours). This number
was then multiplied by the hourly compensation rate of HR specialists
($58.15 per hour). This calculation results in an annual cost savings
of $5,359 after the proposed rule takes effect. The annualized cost
savings over the 10-year period is $5,359 at a discount rate of 2
percent and undiscounted annual cost savings at $5,359.
c. Qualitative Benefits Discussion
The following section describes the benefits of the proposed rule.
i. Improved Accuracy in Prevailing Wage Data
The Department's proposal would benefit H-2B workers and workers in
corresponding employment by adding a new condition to Sec.
655.10(f)(4)(i) that at least three follow-up attempts be made to
contact non-respondents. This proposed requirement that the surveyor
make no fewer than three contacts with non-respondents, first using the
same method of contact initially used, and subsequently two other
active methods of contact across different business days and times that
are most likely to generate responses, is intended to reduce sampling
bias and, therefore, yield more accurate survey results.
Additionally, under the proposed rule, as a new requirement,
surveyors would have to continue accepting employer responses for at
least 14 calendar days from the date the third notification in proposed
paragraph (f)(4)(i) is sent, even after receiving responses from 3
employers including the wages of 30 workers. This additional 14-
calendar day period would maximize the opportunity to include as much
data as possible in the survey so that it is as accurate and
representative as possible. Also, the additional 14-day calendar period
would prevent: (1) the skewing of results that could occur should the
survey conclude as soon as the minimum number of responses are
received; and (2) the exclusion of available data from the survey.
ii. Greater Efficiency in Employer-Provided Survey Process
An additional benefit of this proposal would be an increase in
efficiency in the employer-provided survey process. Employers would be
required to submit the survey with the Form ETA-9141 when an employer
requests a survey-based H-2B prevailing wage from the NPWC and such
survey should contain the necessary information about the survey
methodology (e.g., sample size and source, sample selection procedures,
and survey job descriptions). This would reduce the need for the NPWC
to routinely issue Requests for Information in most cases involving
employer-provided surveys. Efficiency is inherently valuable as a
principle of good government and provides benefits to the public at
large, including reducing the need to routinely issue Requests for
Information necessary for the Department's analyses.
4. Summary of the Analysis
Exhibit 4 summarizes the estimated total costs and cost savings of
the proposed rule over the 10-year analysis period. The Department
estimates the
[[Page 90660]]
annualized costs of the proposed rule at $1,431 for rule
familiarization, the annualized cost savings at $5,359 for eliminating
the Form ETA-9165 and the annualized net cost savings at $4,535, each
at a discount rate of 2 percent. Unquantified costs include the new
requirements that the surveyor must continue to accept responses for at
least 14 calendar days from the date the third notification is sent
even if responses have been received from 3 employers including the
wages of 30 workers. The surveyor must also include no fewer than three
contacts with non-respondents, using the same method of contact
initially used, and at least two other active methods of contact across
different business days and times that are most likely to receive the
most response. Unquantified benefits include improved accuracy in
prevailing wage surveys due to permitting employer-provided surveys in
instances where OEWS data is unavailable or insufficient, and increased
transparency in the employer survey process.
Exhibit 4--Estimated Monetized Costs and Cost Savings of the Proposed Rule
[2023 $]
----------------------------------------------------------------------------------------------------------------
Year Costs Cost savings Net cost savings
----------------------------------------------------------------------------------------------------------------
2025................................................ $12,850 $5,359 $7,492
2026................................................ .................. 5,359 5,359
2027................................................ .................. 5,359 5,359
2028................................................ .................. 5,359 5,359
2029................................................ .................. 5,359 5,359
2030................................................ .................. 5,359 5,359
2031................................................ .................. 5,359 5,359
2032................................................ .................. 5,359 5,359
2033................................................ .................. 5,359 5,359
2034................................................ .................. 5,359 5,359
Undiscounted annual................................. 1,285 5,359 4,074
Annualized with a Discount Rate of 2%............... 1,431 5,359 4,535
----------------------------------------------------------------------------------------------------------------
B. Regulatory Flexibility Analysis and Small Business Regulatory
Enforcement Fairness Act and Executive Order 13272: Proper
Consideration of Small Entities in Agency Rulemaking
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996, requires agencies to determine whether regulations will have a
significant economic impact on a substantial number of small entities.
Pursuant to 5 U.S.C. 605(b), the head of the agency (i.e., the
undersigned Assistant Secretary for Employment and Training), certifies
that the proposed rule does not have a significant economic impact on a
substantial number of small entities. On average, small employers who
are submitting an employer-provided survey will incur a net cost saving
of $20.52 per year at a discount rate of 2 percent.\67\ This will be
far less than 1 percent of the revenue for the smallest of small H-2B
employers. For example, the average annual revenue for firms in the
landscaping industry (North American Industry Classification System
code 561730) with fewer than five employees is $238,877.\68\ $20.52 is
about 0.009 percent of the average revenue of $238,877. The Department
therefore certifies that the proposed rule does not have a significant
economic impact on a substantial number of small entities.
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\67\ $4,535/221 = $20.52.
\68\ 2017 Statistics of U.S. Businesses Annual Data Tables by
Establishment Industry, https://www.census.gov/data/tables/2017/econ/susb/2017-susb-annual.html.
---------------------------------------------------------------------------
C. Paperwork Reduction Act
The INA, as amended, assigns responsibilities to the Secretary of
Labor relating to the entry and employment of certain categories of
immigrant and nonimmigrant foreign workers under the permanent labor
certification (PERM), H-2B, H-1B, H-1B1, and E-3 programs. The INA
requires the Secretary of Labor to certify that the employment of
foreign workers under certain visa classifications will not adversely
affect the wages and working conditions of similarly employed workers
in the United States. To render this certification, the Secretary of
Labor determines the prevailing wage for the occupational
classification and area of intended employment and ensures the employer
offers a wage to the foreign worker that equals at least the prevailing
wage. The Department uses Form ETA-9141 to collect information
necessary to determine the prevailing wage for the applicable
occupation and area of intended employment. This information collection
is subject to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq.
A Federal agency generally cannot conduct or sponsor a collection of
information, and the public is generally not required to respond to an
information collection, unless OMB approves it under the PRA and it
displays a currently valid OMB Control Number. In addition,
notwithstanding any other provisions of law, no person will generally
be subject to penalty for failing to comply with a collection of
information that does not display a valid Control Number. See 5 CFR
1320.5(a), 1320.6. The Department obtained OMB approval for this
information collection under Control Number 1205-0508. The Department
seeks PRA authorization for this information collection for 3 years.
This information collection request, concerning OMB Control No.
1205-0508, includes the collection of information related to the
Department's PWDs. Prior to submitting applications for most labor
certifications or a labor condition application to the Secretary of
Labor, employers must obtain a prevailing wage for the job opportunity
based on the place and type of employment in order to ensure that the
employment of foreign workers does not adversely affect the wages and
working conditions of U.S. workers similarly employed. Form ETA-9141,
Application for Prevailing Wage Determination, is used to collect the
necessary information from employers to enable the Department to issue
a prevailing wage for the occupation and location of the job
opportunity. The Form ETA-9141 is used in the PERM, H-2B, H-1B, H-1B1,
and E-3 programs administered by the Department. In order to meet its
statutory responsibilities under the INA, the Department must request
information from employers seeking to hire and import foreign labor.
The Department uses the information collected to
[[Page 90661]]
determine the minimum wage that must be offered, advertised in
recruitment, and paid by an employer to foreign workers in most
programs.
The collection of information under the current OMB Control No.
1205-0508 was approved by OMB on September 8, 2022, and was implemented
into OFLC systems on February 6, 2024.
The Department now proposes revisions to this information
collection, covered under OMB Control No. 1205-0508, to further revise
the information collection tools based on regulatory changes in this
proposed rule. As noted above, the current regulations do not
explicitly require that the survey be submitted concurrently with the
Form ETA-9141, but the proposed rule, as well as the Form ETA-9141,
General Instruction, would require that the survey be filed at the same
time as submission of the Form ETA-9141. Further, the Department
proposes to eliminate the use of the Form ETA-9165, Employer-Provided
Survey Attestations to Accompany H-2B Prevailing Wage Determination
Request Based on a Non-OEWS Survey. The Department proposes to revise
the Form ETA-9141 to conform with the proposed rule's requirement that
employers, when seeking a survey-based prevailing wage, submit the
survey to the Department with the Form ETA-9141 for consideration,
rather than complete the Form ETA-9165.
The proposed revisions to the Form ETA-9141, General Instructions,
and the proposed elimination of Form ETA-9165 and its instructions will
align information collection requirements with the Department's
proposed regulatory framework and continue the ongoing efforts to
provide greater clarity to employers on regulatory requirements greater
accuracy in PWDs, and greater standardizing and streamlining this
information collection to reduce employer time and burden in preparing
applications. The proposed changes will also promote greater efficiency
and transparency in the review and issuance of PWDs for the
Department's employment-based foreign labor certification and labor
condition programs. The information collection includes the Form ETA-
9141, Application for Prevailing Wage Determination (``Form ETA-
9141''); Form ETA-9141, General Instructions (``General
Instructions''); and Form ETA-9141, Appendix A, Request for Additional
Worksite(s) (``Appendix A'').
Overview of Information Collection Proposed by This NPRM
Title: Application for Prevailing Wage Determination.
Type of Review: Revision of a Currently Approved Information
Collection.
OMB Control Number: 1205-0508.
Affected Public: Private Sector--Businesses or other for-profits,
not-for profit institutions, and farms.
Total Estimated Number of Respondents: 120,042.
Total Estimated Number of Responses: 462,470.
Total Estimated Annual Time Burden: 211,425 hours.
Total Estimated Annual Other Costs Burden: $191,769.
D. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4,
codified at 2 U.S.C. 1501 et seq.) is intended, among other things, to
curb the practice of imposing unfunded Federal mandates on State,
local, and Tribal Governments. UMRA requires Federal agencies to assess
a regulation's effects on State, local, and Tribal Governments, as well
as on the private sector, except to the extent the regulation
incorporates requirements specifically set forth in law. Title II of
the UMRA requires each Federal agency to prepare a written statement
assessing the effects of any regulation that includes any Federal
mandate in a proposed or final agency rule that may result in $100
million or more expenditure (adjusted annually for inflation) in any 1
year by State, local, and Tribal Governments, in the aggregate, or by
the private sector. A Federal mandate is any provision in a regulation
that imposes an enforceable duty upon State, local, or Tribal
Governments, or upon the private sector, except as a condition of
Federal assistance or a duty arising from participation in a voluntary
Federal program.
This proposed rule does not result in unfunded mandates for the
public or private sector because private employers' participation in
the program is voluntary, and State governments are reimbursed for
performing activities required under the program. The requirements of
title II of the UMRA, therefore, do not apply, and the Department has
not prepared a statement under the UMRA.
E. Executive Order 13132 (Federalism)
This proposed rule would not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with sec. 6 of
E.O. 13132,\69\ it is determined that this proposed rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
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\69\ E.O. 13132, Federalism, 64 FR 43255 (Aug. 10, 1999).
---------------------------------------------------------------------------
F. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
The Department has reviewed this proposed rule in accordance with
E.O. 13175 \70\ and has determined that it does not have Tribal
implications. This proposed rule does not have substantial direct
effects on one or more Indian tribes, on the relationship between the
Federal Government and Indian tribes, or on the distribution of power
and responsibilities between the Federal Government and Tribal
Governments.
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\70\ E.O. 13175, Consultation and Coordination with Indian
Tribal Governments, 65 FR 67249 (Nov. 9, 2000).
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List of Subjects in 20 CFR Part 655
Administrative practice and procedure, Employment, Employment and
training, Enforcement, Foreign workers, Forest and forest products,
Fraud, Health professions, Immigration, Labor, Longshore and harbor
work, Migrant workers, Nonimmigrant workers, Passports and visas,
Penalties, Reporting and recordkeeping requirements, Unemployment,
Wages, Working conditions.
For the reasons discussed in the preamble, the Department of Labor
proposes to amend 20 CFR part 655 as follows:
PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED
STATES
0
1. The authority citation for Sec. 655.0 of part 655 is revised and
the authority citation for subpart A continues to read as follows:
Authority: Section 655.0 issued under 8 U.S.C.
1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 8 U.S.C.
1103(a)(6), 1182(m), (n), and (t), 1184(c), (g), and (j), 1188, and
1288(c) and (d); sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2102
(8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 4978,
5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102-232, 105
Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103-206,
107 Stat. 2428; sec. 412(e), Pub. L. 105-277, 112 Stat. 2681 (8
U.S.C. 1182 note); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316
(8 U.S.C. 1182 note); 29 U.S.C. 49k; Pub. L. 107-296, 116 Stat.
2135, as amended; Pub. L. 109-423, 120 Stat. 2900; sec. 6, Pub. L.
115-218, 132 Stat. 1547 (48 U.S.C. 1806); div. D, title I, sec. 110,
Pub. L. 118-47, 138 Stat. 460, 646; and 8 CFR 214.2(h)(4)(i) and
(h)(6)(iii).
[[Page 90662]]
Subpart A issued under 8 CFR 214.2(h).
* * * * *
0
2. Amend Sec. 655.10 by revising paragraphs (a), (b)(2), (e), and (f)
to read as follows:
Sec. 655.10 Determination of prevailing wage for temporary labor
certification purposes.
(a) Offered wage. The employer must advertise the position to all
potential workers at a wage at least equal to the prevailing wage
obtained from the NPWC, or the Federal, State, or local minimum wage,
whichever is highest. The employer must offer and pay this wage (or
higher) to both its H-2B workers and its workers in corresponding
employment. The issuance of a prevailing wage determination (PWD) under
this section does not permit an employer to pay a wage lower than the
highest wage required by any applicable Federal, State, or local law.
(b) * * *
(1) * * *
(2) If the job opportunity is not covered by a CBA, the prevailing
wage for labor certification purposes shall be the arithmetic mean of
the wages of workers similarly employed in the area of intended
employment using the wage component of the BLS Occupational Employment
and Wage Statistics (OEWS) survey, unless the employer provides a
survey acceptable to the NPWC under paragraph (f) of this section.
* * * * *
(e) NPWC action. The NPWC will determine the PWD, indicate the
source, and return the Application for Prevailing Wage Determination
(Form ETA-9141) with the determination and the NPWC's endorsement to
the employer.
(f) Employer-provided survey. (1) If the job opportunity is not
covered by a CBA, or by a professional sports league's rules or
regulations, the NPWC will consider a survey provided by the employer
in making a PWD only if the employer's submission demonstrates that the
survey falls into one of the following categories:
(i) The survey was independently conducted and issued by a State,
including any State agency, State college, or State university;
(ii) The survey is submitted for a geographic area where the OEWS
does not collect data, or in a geographic area where the OEWS provides
an arithmetic mean only at a national level for workers employed in the
SOC; or
(iii) The job opportunity is within an occupational classification
of the SOC system designated as an ``All Other'' classification.
(2) Any such survey must provide the arithmetic mean of the wages
of all workers performing the same or substantially similar job duties
in the area of intended employment.
(3) Notwithstanding paragraph (f)(2) of this section, the
geographic area surveyed may be expanded beyond the area of intended
employment, but only as necessary to meet the requirements of paragraph
(f)(4)(ii) of this section. Any geographic expansion beyond the area of
intended employment must include only those geographic areas that are
contiguous to the area of intended employment.
(4) In each case where the employer submits a survey under
paragraph (f)(1) of this section, the employer must submit,
concurrently with the Form ETA-9141, a copy of the survey containing
specific information about the survey methodology, including sample
size and source, sample selection procedures, and survey job
descriptions, to allow a determination of whether the survey meets all
the requirements of this section, in addition to the following:
(i) The surveyor made a reasonable, good faith attempt to either
contact all employers of workers performing the same or substantially
similar job duties in the geographic area surveyed or conduct a
randomized sampling of such employers. No fewer than three contacts
with non-respondents must be made, first using the same method of
contact initially used, and subsequently two other active methods of
contact across different business days and times that are most likely
to generate survey responses;
(ii) The survey must include wage data from at least 30 workers
performing the same or substantially similar job duties and at least 3
employers of such workers. The survey must continue to remain open to
accept responses for at least 14 calendar days from the date the third
notification in paragraph (f)(4)(i) of this section was sent to non-
respondents;
(iii) If the survey is submitted under paragraph (f)(1)(ii) or
(iii) of this section, the survey must be administered by a bona fide
third party. Any H-2B employer or H-2B employer's agent,
representative, employee, or attorney are not bona fide third parties;
(iv) The survey must be conducted across industries that employ
workers performing the same or substantially similar job duties; and
(v) The wage reported in the survey must include all types of pay.
(5) The survey must be the most current edition of the survey and
must be based on wages paid not more than 24 months before the date the
PWD request is submitted to the NPWC.
* * * * *
Jos[eacute] Javier Rodr[iacute]guez,
Assistant Secretary for Employment and Training, Labor.
[FR Doc. 2024-26481 Filed 11-15-24; 8:45 am]
BILLING CODE 4510-FP-P