Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program; Delay of Effective Date; Impact on Prevailing Wage Determinations, 73509-73510 [2011-30745]

Download as PDF pmangrum on DSK3VPTVN1PROD with RULES Federal Register / Vol. 76, No. 229 / Tuesday, November 29, 2011 / Rules and Regulations enforce, prior to January 1, 2012 the [Wage Rule].’’ Public Law 112–55, Div. B, Title V, § 546 (Nov. 18, 2011). While the Act prevents the expenditure of funds to implement, administer, or enforce the Wage Rule before January 1, 2012, it does not prohibit the Wage Rule from going into effect, which is 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). Allowing the Wage Rule to go into effect as planned on November 30, 2011, would therefore render the Department unable to issue prevailing wage determinations under the 2008 H–2B Rule, because it would no longer exist. Although dates of need are not included in prevailing wage determination requests, it is possible that some of the pending requests with the Department would cover work to be performed before January 1, 2012, and accordingly, the wage would need to be determined in accordance with the 2008 H–2B Rule. However, if the Wage Rule were to go into ‘‘effect’’ on November 30, 2011, we would be legally precluded during the month of December 2011 from issuing prevailing wage determinations under the H–2B 2008 Rule. This result would be directly contrary to Congressional intent as expressed in its Conference Report that ‘‘[i]n making prevailing wage determinations for the H–2B nonimmigrant visa program for employment prior to January 1, 2012, the conferees direct the Secretary of Labor to continue to apply the [H–2B 2008 Rule]’’ H.R. Rept. No. 112–284 (Conf. Rep.), 157 Cong. Rec. H7528 (Nov. 14, 2011). Because of the imminent threat that the Department will be unable to issue prevailing wage determinations for work to be performed before January 1, 2012, the Department considers this situation an emergency warranting the publication of a final rule under the good cause exception of the Administrative Procedure Act. See 5 U.S.C. 553(b)(B) and 553(d)(3). Accordingly, we must further delay the effective date of the Wage Rule to January 1, 2012. Based on Congressional intent and to avoid an operational hiatus during the month of December 2011, the VerDate Mar<15>2010 14:37 Nov 28, 2011 Jkt 226001 Department finds good cause to adopt this rule, effective immediately, and without prior notice and comment. See 5 U.S.C. 553(b)(B) and 553(d)(3). We believe that immediate action must be taken so that the employment of H–2B workers will not adversely affect U.S. workers similarly employed, and that employers are able to obtain a temporary non-agricultural workforce where there are no U.S. workers available for the job. The Department is simply effectuating the intent of Congress that the H–2B 2008 Rule should continue to govern prevailing wage determinations for employment before January 1, 2012. As such, a delay in promulgation of this rule past the date of publication would be impracticable and unnecessary and disrupt the program to the detriment of the public interest. Signed at Washington, DC, November 23, 2011. Jane Oates, Assistant Secretary for Employment and Training. [FR Doc. 2011–30781 Filed 11–25–11; 11:15 am] BILLING CODE 4510–FP–P DEPARTMENT OF LABOR Employment and Training Administration Wage and Hour Division 20 CFR Part 655 RIN 1205–AB61 Wage Methodology for the Temporary Non-Agricultural Employment H–2B Program; Delay of Effective Date; Impact on Prevailing Wage Determinations Employment and Training Administration, Wage and Hour Division, Department of Labor. ACTION: Guidance. AGENCY: The Department of Labor (Department) recently delayed the effective date of the Wage Methodology for Temporary Non-agricultural Employment H–2B Program Final Rule, 76 FR 3452, Jan. 19, 2011 (the Wage Rule) to January 1, 2012. This notice provides guidance to those employers who have received from the Department either a supplemental or dual prevailing wage determinations based on a previous effective date of the new prevailing wage methodology. This guidance is intended to clarify the wage payment requirements for employers participating in the H–2B Temporary Non-agricultural program. SUMMARY: PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 73509 This guidance is effective November 29, 2011. DATES: FOR FURTHER INFORMATION CONTACT: William L. Carlson, Ph.D., Administrator, Office of Foreign Labor Certification, Employment and Training Administration, 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). For further information concerning the Wage and Hour Division, contact Mary Ziegler, Director, Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, 200 Constitution Avenue NW., Room S–3502, Washington, DC 20210; Telephone (202) 693–0406 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone number above via TTY calling the toll-free Federal Information Relay Service as 1–(877) 889–5627 (TTY/TDD). SUPPLEMENTARY INFORMATION: The Department published the Wage Rule on January 19, 2011, 76 FR 3452. The Wage Rule revised the methodology by which we calculate the prevailing wage to be paid to H–2B workers and United States (U.S.) workers recruited in connection with a temporary labor certification used 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. Due to a court ruling that invalidated the January 1, 2012 effective date of the Wage Rule,1 we issued a Notice of Proposed Rulemaking (NPRM) on June 28, 2011, which proposed that the Wage Rule take effect 60 days from the date of publication of a final rule resulting from the NPRM. 76 FR 37686, Jun. 28, 2011. We published a Final Rule on August 1, 2011, which set the new effective date of September 30, 2011 for the Wage Rule (the Effective Date Rule). In anticipation of the effective date of the Wage Rule, the Department issued supplemental prevailing wage determinations to those employers who had been granted certification for an H–2B application where work would be performed on or after September 30, 2011. Both the Wage Rule and the Effective Date Rule were challenged in two separate lawsuits 2 seeking to bar their 1 CATA v. Solis, Dkt. No. 119, 2011 WL 2414555 (E.D. Pa. June 16, 2011). 2 See Louisiana Forestry Association, Inc., et al. (LFA) v. Solis, et al, Civil Docket No. 11–1623 (WD LA, Alexandria Division); and Bayou Lawn & Landscape Services, et al (Bayou) v. Solis, et al, E:\FR\FM\29NOR1.SGM Continued 29NOR1 73510 Federal Register / Vol. 76, No. 229 / Tuesday, November 29, 2011 / Rules and Regulations pmangrum on DSK3VPTVN1PROD with RULES implementation. In consideration of the two pending challenges to the Wage Rule and its new effective date, and the possibility that the litigation may be transferred to another court,3 the Department issued a Federal Register notice, 76 FR 59896, Sep. 28, 2011, postponing the effective date of the rule from September 30, 2011, until November 30, 2011, in accordance with the Administrative Procedure Act, 5 U.S.C. 705. Following the postponement of the effective date to November 30, 2011, and in anticipation of the new effective date, the Office of Foreign Labor Certification (OFLC) issued participating employers two simultaneous wage determinations for work to be potentially performed before and after the new effective date of the Wage Rule. The first determination was based on the former regulations that applied up until November 30, and the second determination was based on the new prevailing wage methodology set forth in the Wage Rule, that was to be effective for work performed on and after November 30, 2011. On November 18, 2011, 2011, the President signed into law the Consolidated and Further Continuing Appropriations Act, 2012, H.R. 2112, 112th Cong. (2011) (enacted). The legislation contains language prohibiting the Department from implementing, administering, or enforcing, prior to January 1, 2012, the Wage Rule. While the Act prevents the expenditure of funds to implement, administer, or enforce the Wage Rule before January 1, 2012, it does not prohibit the Wage Rule from going into effect, which is scheduled to occur on November 30, 2011. When the Wage Rule goes into effect, it will supersede and nullify 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). Since dates of need are not included in prevailing wage determination Civil Docket No. 11–445 (ND FL, Pensacola Division). 3 On September 19, 2011, the plaintiffs in the CATA litigation moved to intervene in the LFA litigation, and also moved to transfer venue over the litigation to the Eastern District of Pennsylvania, the court in which the CATA case remains pending. The plaintiffs’ motion to intervene was granted by the U.S. District Court in the Western District of Louisiana on Sept. 22, 2011, but its similar motion in the Bayou litigation before the U.S. District Court in the Northern District of Florida remains pending. VerDate Mar<15>2010 14:37 Nov 28, 2011 Jkt 226001 requests, it is possible that some of the pending requests with the Department would cover work to be performed before January 1, 2012, and accordingly, that wage would need to be determined in accordance with the 2008 H–2B Rule. However, if the Wage Rule were to go into ‘‘effect’’ on November 30, 2011, we would be legally precluded during the month of December 2011 from issuing prevailing wage determinations under the H–2B 2008 Rule. This result would be directly contrary to Congressional intent as expressed in the Conference Report, ‘‘[i]n making prevailing wage determinations for the H–2B nonimmigrant visa program for employment prior to January 1, 2012, the conferees direct the Secretary of Labor to continue to apply the [H–2B 2008 Rule].’’ H.R. Rept. No. 112–284 (Conf. Rep.), 157 Cong. Rec. H7528 (Nov. 14, 2011). Based on Congressional intent and to avoid an operational hiatus during the month of December 2011, the Department has published a Final Rule extending the effective date of the Wage Rule to apply to work performed on and after January 1, 2012. See the final rule delaying the effective date of the H–2B Wage Rule, published elsewhere in this issue of the Federal Register. In light of the recent postponement of the effective date of the Wage Rule until January 1, 2012, the Department is hereby providing notice that the wage determinations previously issued under the Wage Rule will not be effective until January 1, 2012, and will apply only to work performed on or after January 1, 2012. Any employer who has received an H–2B prevailing wage determination in anticipation of either the September 30, 2011 or November 30, 2011 effective dates is not required to pay, and the Department’s Wage and Hour Division will not enforce, the wage provided in the prevailing wage determination issued under the Wage Rule for any work performed by H–2B workers or U.S. workers recruited in connection with the H–2B application process until January 1, 2012. Employers are expected to continue to pay at least the prevailing wage as provided in a prevailing wage determination issued under the 2008 H– 2B Rule for any work performed before January 1, 2012. Further, employers who received a supplemental H–2B prevailing wage determination, or a prevailing wage determination issued under the Wage Rule, must pay at least that wage to any H–2B worker and any U.S. worker recruited in connection with the labor certification for work performed on or after January 1, 2012. PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 Signed at Washington, DC, this 23rd of November 2011. Jane Oates, Assistant Secretary for Employment and Training. Nancy Leppink, Deputy Administrator, Wage and Hour Division. [FR Doc. 2011–30745 Filed 11–25–11; 11:15 am] BILLING CODE 4510–FP–P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG–2011–1034] Drawbridge Operation Regulations; Saugus River, Lynn and Revere, MA Coast Guard, DHS. Notice of temporary deviation from regulations. AGENCY: ACTION: The Commander, First Coast Guard District, has issued a temporary deviation from the regulation governing the operation of the General Edwards Bridge at mile 1.7, across the Saugus River between Lynn and Revere, Massachusetts. The deviation is necessary to facilitate scheduled bridge rehabilitation. This deviation allows the bridge to open upon a 48 hour advance notice during the rehabilitation period. DATES: This deviation is effective from November 21, 2011 through April 24, 2012. SUMMARY: Documents mentioned in this preamble as being available in the docket are part of docket USCG–2011– 1034 and are available online at http://www.regulations.gov, inserting USCG–2011–1034 in the ‘‘Keyword’’ and then clicking ‘‘Search’’. They are also available for inspection or copying at the Docket Management Facility (M– 30), U.S. Department of Transportation, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC, 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, call or email Mr. John W. McDonald, Project Officer, First Coast Guard District, john.w.mcdonald@uscg.mil, or telephone (617) 223–8364. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone (202) 366–9826. SUPPLEMENTARY INFORMATION: ADDRESSES: E:\FR\FM\29NOR1.SGM 29NOR1

Agencies

[Federal Register Volume 76, Number 229 (Tuesday, November 29, 2011)]
[Rules and Regulations]
[Pages 73509-73510]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-30745]


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DEPARTMENT OF LABOR

Employment and Training Administration

Wage and Hour Division

20 CFR Part 655

RIN 1205-AB61


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

AGENCY: Employment and Training Administration, Wage and Hour Division, 
Department of Labor.

ACTION: Guidance.

-----------------------------------------------------------------------

SUMMARY: The Department of Labor (Department) recently delayed the 
effective date of the Wage Methodology for Temporary Non-agricultural 
Employment H-2B Program Final Rule, 76 FR 3452, Jan. 19, 2011 (the Wage 
Rule) to January 1, 2012. This notice provides guidance to those 
employers who have received from the Department either a supplemental 
or dual prevailing wage determinations based on a previous effective 
date of the new prevailing wage methodology. This guidance is intended 
to clarify the wage payment requirements for employers participating in 
the H-2B Temporary Non-agricultural program.

DATES: This guidance is effective November 29, 2011.

FOR FURTHER INFORMATION CONTACT: William L. Carlson, Ph.D., 
Administrator, Office of Foreign Labor Certification, Employment and 
Training Administration, 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). For further information concerning 
the Wage and Hour Division, contact Mary Ziegler, Director, Division of 
Regulations, Legislation, and Interpretation, Wage and Hour Division, 
U.S. Department of Labor, 200 Constitution Avenue NW., Room S-3502, 
Washington, DC 20210; Telephone (202) 693-0406 (this is not a toll-free 
number). Individuals with hearing or speech impairments may access the 
telephone number above via TTY calling the toll-free Federal 
Information Relay Service as 1-(877) 889-5627 (TTY/TDD).

SUPPLEMENTARY INFORMATION: The Department published the Wage Rule on 
January 19, 2011, 76 FR 3452. The Wage Rule revised the methodology by 
which we calculate the prevailing wage to be paid to H-2B workers and 
United States (U.S.) workers recruited in connection with a temporary 
labor certification used 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. 
Due to a court ruling that invalidated the January 1, 2012 effective 
date of the Wage Rule,\1\ we issued a Notice of Proposed Rulemaking 
(NPRM) on June 28, 2011, which proposed that the Wage Rule take effect 
60 days from the date of publication of a final rule resulting from the 
NPRM. 76 FR 37686, Jun. 28, 2011. We published a Final Rule on August 
1, 2011, which set the new effective date of September 30, 2011 for the 
Wage Rule (the Effective Date Rule). In anticipation of the effective 
date of the Wage Rule, the Department issued supplemental prevailing 
wage determinations to those employers who had been granted 
certification for an H-2B application where work would be performed on 
or after September 30, 2011.
---------------------------------------------------------------------------

    \1\ CATA v. Solis, Dkt. No. 119, 2011 WL 2414555 (E.D. Pa. June 
16, 2011).
---------------------------------------------------------------------------

    Both the Wage Rule and the Effective Date Rule were challenged in 
two separate lawsuits \2\ seeking to bar their

[[Page 73510]]

implementation. In consideration of the two pending challenges to the 
Wage Rule and its new effective date, and the possibility that the 
litigation may be transferred to another court,\3\ the Department 
issued a Federal Register notice, 76 FR 59896, Sep. 28, 2011, 
postponing the effective date of the rule from September 30, 2011, 
until November 30, 2011, in accordance with the Administrative 
Procedure Act, 5 U.S.C. 705. Following the postponement of the 
effective date to November 30, 2011, and in anticipation of the new 
effective date, the Office of Foreign Labor Certification (OFLC) issued 
participating employers two simultaneous wage determinations for work 
to be potentially performed before and after the new effective date of 
the Wage Rule. The first determination was based on the former 
regulations that applied up until November 30, and the second 
determination was based on the new prevailing wage methodology set 
forth in the Wage Rule, that was to be effective for work performed on 
and after November 30, 2011.
---------------------------------------------------------------------------

    \2\ See Louisiana Forestry Association, Inc., et al. (LFA) v. 
Solis, et al, Civil Docket No. 11-1623 (WD LA, Alexandria Division); 
and Bayou Lawn & Landscape Services, et al (Bayou) v. Solis, et al, 
Civil Docket No. 11-445 (ND FL, Pensacola Division).
    \3\ On September 19, 2011, the plaintiffs in the CATA litigation 
moved to intervene in the LFA litigation, and also moved to transfer 
venue over the litigation to the Eastern District of Pennsylvania, 
the court in which the CATA case remains pending. The plaintiffs' 
motion to intervene was granted by the U.S. District Court in the 
Western District of Louisiana on Sept. 22, 2011, but its similar 
motion in the Bayou litigation before the U.S. District Court in the 
Northern District of Florida remains pending.
---------------------------------------------------------------------------

    On November 18, 2011, 2011, the President signed into law the 
Consolidated and Further Continuing Appropriations Act, 2012, H.R. 
2112, 112th Cong. (2011) (enacted). The legislation contains language 
prohibiting the Department from implementing, administering, or 
enforcing, prior to January 1, 2012, the Wage Rule. While the Act 
prevents the expenditure of funds to implement, administer, or enforce 
the Wage Rule before January 1, 2012, it does not prohibit the Wage 
Rule from going into effect, which is scheduled to occur on November 
30, 2011. When the Wage Rule goes into effect, it will supersede and 
nullify 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).
    Since dates of need are not included in prevailing wage 
determination requests, it is possible that some of the pending 
requests with the Department would cover work to be performed before 
January 1, 2012, and accordingly, that wage would need to be determined 
in accordance with the 2008 H-2B Rule. However, if the Wage Rule were 
to go into ``effect'' on November 30, 2011, we would be legally 
precluded during the month of December 2011 from issuing prevailing 
wage determinations under the H-2B 2008 Rule. This result would be 
directly contrary to Congressional intent as expressed in the 
Conference Report, ``[i]n making prevailing wage determinations for the 
H-2B nonimmigrant visa program for employment prior to January 1, 2012, 
the conferees direct the Secretary of Labor to continue to apply the 
[H-2B 2008 Rule].'' H.R. Rept. No. 112-284 (Conf. Rep.), 157 Cong. Rec. 
H7528 (Nov. 14, 2011). Based on Congressional intent and to avoid an 
operational hiatus during the month of December 2011, the Department 
has published a Final Rule extending the effective date of the Wage 
Rule to apply to work performed on and after January 1, 2012. See the 
final rule delaying the effective date of the H-2B Wage Rule, published 
elsewhere in this issue of the Federal Register.
    In light of the recent postponement of the effective date of the 
Wage Rule until January 1, 2012, the Department is hereby providing 
notice that the wage determinations previously issued under the Wage 
Rule will not be effective until January 1, 2012, and will apply only 
to work performed on or after January 1, 2012. Any employer who has 
received an H-2B prevailing wage determination in anticipation of 
either the September 30, 2011 or November 30, 2011 effective dates is 
not required to pay, and the Department's Wage and Hour Division will 
not enforce, the wage provided in the prevailing wage determination 
issued under the Wage Rule for any work performed by H-2B workers or 
U.S. workers recruited in connection with the H-2B application process 
until January 1, 2012. Employers are expected to continue to pay at 
least the prevailing wage as provided in a prevailing wage 
determination issued under the 2008 H-2B Rule for any work performed 
before January 1, 2012.
    Further, employers who received a supplemental H-2B prevailing wage 
determination, or a prevailing wage determination issued under the Wage 
Rule, must pay at least that wage to any H-2B worker and any U.S. 
worker recruited in connection with the labor certification for work 
performed on or after January 1, 2012.

    Signed at Washington, DC, this 23rd of November 2011.
Jane Oates,
Assistant Secretary for Employment and Training.
Nancy Leppink,
Deputy Administrator, Wage and Hour Division.
[FR Doc. 2011-30745 Filed 11-25-11; 11:15 am]
BILLING CODE 4510-FP-P