Federal Register, Volume 78 Issue 61 (Friday, March 29, 2013)


[Federal Register Volume 78, Number 61 (Friday, March 29, 2013)]
[Rules and Regulations]
[Pages 19098-19099]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-07431]


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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

RIN 1205-AB61


Wage Methodology for the Temporary Non-Agricultural Employment H-
2B Program; Delay of Effective Date

AGENCY: Employment and Training Administration, Labor.

ACTION: Final rule; delay of effective date.

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SUMMARY: The Department of Labor is delaying the effective date of the
Wage Methodology for the Temporary Non-agricultural Employment H-2B
Program final rule (the Wage Rule), in order to address legislation
that prohibits any funds from being used to implement the Wage Rule for
the remainder of fiscal year (FY) 2013. The Wage Rule revised the
methodology by which the Department calculates the prevailing wages to
be paid to H-2B workers and United States (U.S.) workers recruited in
connection with a temporary labor certification for use in petitioning
the Department of Homeland Security to employ a nonimmigrant worker in
H-2B status.

DATES: The effective date of the rule amending 20 CFR part 655,
published at 76 FR 3452 (January 19, 2011), originally effective
January 1, 2012, and which was previously made effective September 30,
2011, at 76 FR 45667 (August 1, 2011); delayed to November 30, 2011, at
76 FR 59896 (September 28, 2011); to January 1, 2012, at 76 FR 73508
(November 29, 2011); to October 1, 2012, at 76 FR 82115 (December 30,
2011); and to March 27, 2013, at 77 FR 60040 (October 2, 2012), is now
delayed until October 1, 2013.

FOR FURTHER INFORMATION CONTACT: William L. Carlson, Ph.D.,
Administrator, Office of Foreign Labor Certification, ETA, U.S.
Department of Labor, 200 Constitution Avenue NW., Room C-4312,
Washington, DC 20210; Telephone (202) 693-3010 (this is not a toll-free
number). Individuals with hearing or speech impairments may access the
telephone number above via TTY by calling the toll-free Federal
Information Relay Service at 1-877-889-5627 (TTY/TDD).

SUPPLEMENTARY INFORMATION: The Department of Labor (the Department)
published the Wage Methodology for the Temporary Non-agricultural
Employment H-2B Program final rule (the Wage Rule) on January 19, 2011,
76 FR 3452. The Wage Rule revised the methodology by which the
Department calculates the prevailing wages to be paid to H-2B workers
and United States (U.S.) workers recruited in connection with a
temporary labor certification for use in petitioning the Department of
Homeland Security to employ a nonimmigrant worker in H-2B status. The
Department originally set the effective date of the Wage Rule for
January 1, 2012. However, as a result of litigation and following
notice-and-comment rulemaking, we issued a final rule, 76 FR 45667
(Aug. 1, 2011), revising the effective date of the Wage Rule to
September 30, 2011, and a second final rule, 76 FR 59896 (Sept. 28,
2011), further revising the effective date of the Wage Rule to November
30, 2011.
Thereafter, the Department extended the effective date of the Wage
Rule until January 1, 2012, in light of the enactment on November 18,
2011 of the Consolidated and Further Continuing Appropriations Act,
2012, which provided that ``[n]one of the funds made available by this
or any other Act for fiscal year 2012 may be used to implement,
administer, or enforce, prior to January 1, 2012 the [Wage Rule].''
Public Law 112-55, 125 Stat. 552, Div. B, Title V, Sec. 546 (Nov. 18,
2011) (the November 2011 Appropriations Act). In delaying the Wage
Rule's effective date, the Department stated that although the November
2011 Appropriations Act ``prevent[ed] the expenditure of funds to
implement, administer, or enforce the Wage Rule before January 1, 2012,
it [did] not prohibit the Wage Rule from going into effect, which [was]
scheduled to occur on November 30, 2011. When the Wage Rule goes into
effect, it will supersede and make null the prevailing wage provisions
at 20 CFR 655.10(b) of the Department's existing H-2B regulations,
which were promulgated under Labor Certification Process and
Enforcement for Temporary Employment in Occupations Other Than
Agriculture or Registered Nursing in the United States (H-2B Workers),
and Other Technical Changes; Final Rule, 73 FR 78020, Dec. 19, 2008
(the H-2B 2008 Rule).'' 76 FR 73508, 73509 (Nov. 29, 2011).
Accordingly, the Department determined that it was necessary in
light of the November 2011 Appropriations Act to delay the effective
date of the Wage Rule in order to avoid the replacement of the H-2B
2008 Rule with a new rule that the Department lacked appropriated funds
to implement. As a result, the Department issued a final rule, 76 FR
73508, that delayed the effective date of the Wage Rule until January
1, 2012. Subsequent

[[Page 19099]]

appropriations legislation\1\ containing the same restriction
prohibiting the Department's use of appropriated funds to implement,
administer, or enforce the Wage Rule necessitated subsequent extensions
of the effective date of that rule. See 76 FR 82115 (Dec. 30, 2011)
(extending the effective date to Oct. 1, 2012); 77 FR 60040 (Oct. 2,
2012) (extending the effective date to Mar. 27, 2013).
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\1\ These include the Consolidated Appropriations Act of 2012,
Pub. L. No. 112-74, 125 Stat. 786, which was enacted on December 23,
2011; Continuing Appropriations Resolution, 2013, Public Law 112-
175, 126 Stat. 1313, which was enacted on September 28, 2012.
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In light of the anticipated enactment of the Consolidated and
Further Continuing Appropriations Act, 2013, which establishes the
Department's appropriations through September 30, 2013, and also
continues the prohibition of the expenditure of the Department's
appropriated funds to implement, administer, or enforce the Wage Rule
through September 30, 2013, see Sec. 1101, the Department again must
delay the effective date of the Wage Rule. Delaying the effective date
of the Wage Rule will ensure an orderly transition and prevent further
disruption in light of the U.S. District Court for the Eastern District
of Pennsylvania's March 21, 2013 ruling in Comite de Apoyo a los
Trabajadores Agricolas et al. v. Solis, 09-cv-00240, 2013 WL 1163426
(E.D. Pa. Mar. 21, 2013), in which the court vacated and granted a
permanent injunction against the operation of one provision of the H-2B
2008 Rule, 20 CFR 655.10(b)(2). Under the now-vacated provision,
prevailing wage determinations issued by the Department for a job
opportunity for which the employer seeks H-2B workers must be based on
the arithmetic mean of the wages of workers similarly employed at the
skill level in the area of intended employment. Pursuant to that now-
vacated regulation, the Department established a four-tier wage
structure by dividing the Bureau of Labor Statistics Occupational
Employment Statistics Survey (OES survey) wage applicable to the
occupation in question into four tiers. The court vacated 20 CFR
655.10(b)(2) and remanded to the Department, giving the Department
thirty days to come into compliance with the court's order.
As a result of the court's order, if a prevailing wage
determination is sought based on the OES survey, the Department
currently is unable to issue a prevailing wage determination under the
now-vacated wage provision of the 2008 rule because the court has held
invalid the four-tiered OES wage. Most of the Department's prevailing
wage determinations in the H-2B program are based on the invalidated
four-tiered OES wage. However, if an employer's request for a
prevailing wage determination is covered by a collective bargaining
agreement, the Department still may issue that prevailing wage
determination because the issuance of such determinations is unaffected
by the court's order. See 20 CFR 655.10(b)(1). Similarly, the
Department still may issue prevailing wage determinations based on the
employer's submission of a private wage survey (if approved by the
Department), or its voluntary use of wages set under the Davis-Bacon
Act, 40 U.S.C. 276a et seq., 29 CFR part 1, or the McNamara-O'Hara
Service Contract Act, 41 U.S.C. 351 et seq. See 20 CFR 655(b)(4),
(b)(5). These alternative methodologies would be barred, however, were
the 2011 Wage Rule to take effect.
Consistent with the court's ruling and order, the Department
intends to promulgate a revised wage rule within 30 days of the date of
that ruling that complies with the court's interpretation of what the
statutory and regulatory framework require. Doing so will allow the
Department to resume the normal operation of the H-2B program. Were the
2011 Wage Rule to take effect in this short time period during which
DOL is preparing a revised wage rule, not only would it prevent the
Department from continuing to issue the small but meaningful percentage
of H-2B labor certifications that are not based on the vacated portion
of the 2008 rule, but it would lead to disruption and confusion about
the governing regulatory framework, as the 2011 rule would be in place
and govern submissions made to the Department, but the Department would
lack funds to implement that governing structure. Therefore, we are
again postponing the effective date of the 2011 Wage Rule, which the
Department is unable to implement as a result of Congressional action
and which, if permitted to become effective, would further limit the
Department's current ability to issue prevailing wage determinations.
The Department considers this situation an emergency warranting the
publication of a final rule under the good cause exception of the
Administrative Procedure Act. See 5 U.S.C. 553(b)(B), (d)(3). We are
currently experiencing a significant suspension in program operations
as a result of the court's order and until we promulgate a new
regulation, which we intend to do in short order. In order to avoid a
complete operational suspension of the H-2B program while we promulgate
a new regulation (due to the continued defunding of the 2011 Wage
Rule), as well as the confusion and disruption that would result from
the 2011 Wage Rule briefly taking legal effect pending that new
regulation, the Department finds good cause to adopt this rule,
effective immediately, and without prior notice and comment. See 5
U.S.C. 553(b)(B), (d)(3). Any delay in promulgating this extension of
the Wage Rule's effective date as the result of notice-and-comment
rulemaking would significantly disrupt the program.

Signed: At Washington, DC this 26th day of March, 2013.
Jane Oates,
Assistant Secretary for Employment and Training.
[FR Doc. 2013-07431 Filed 3-26-13; 5:00 pm]
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