Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program; Delay of Effective Date, 73508-73509 [2011-30781]
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Federal Register / Vol. 76, No. 229 / Tuesday, November 29, 2011 / Rules and Regulations
List of Subjects in 17 CFR Part 232
Incorporation by reference, Reporting
and recordkeeping requirements,
Securities.
this material at NARA, call (202) 741–
6030, or go to: https://www.archives.gov/
federal_register/code_of_federal_
regulations/ibr_locations.html.
Text of the Amendment
In accordance with the foregoing,
Title 17, Chapter II of the Code of
Federal Regulations is amended as
follows:
Dated: November 22, 2011.
By the Commission.
Elizabeth M. Murphy,
Secretary.
[FR Doc. 2011–30591 Filed 11–28–11; 8:45 am]
BILLING CODE 8011–01–P
PART 232—REGULATION S–T—
GENERAL RULES AND REGULATIONS
FOR ELECTRONIC FILINGS
DEPARTMENT OF LABOR
1. The authority citation for Part 232
continues to read in part as follows:
Employment and Training
Administration
■
Authority: 15 U.S.C. 77f, 77g, 77h, 77j,
77s(a), 77z–3, 77sss(a), 78c(b), 78l, 78m, 78n,
78o(d), 78w(a), 78ll, 80a–6(c), 80a–8, 80a–29,
80a–30, 80a–37, and 7201 et seq.; and 18
U.S.C. 1350.
20 CFR Part 655
RIN 1205–AB61
*
*
*
*
■ 2. Section 232.301 is revised to read
as follows:
Wage Methodology for the Temporary
Non-Agricultural Employment H–2B
Program; Delay of Effective Date
§ 232.301
AGENCY:
pmangrum on DSK3VPTVN1PROD with RULES
*
EDGAR Filer Manual.
Filers must prepare electronic filings
in the manner prescribed by the EDGAR
Filer Manual, promulgated by the
Commission, which sets out the
technical formatting requirements for
electronic submissions. The
requirements for becoming an EDGAR
Filer and updating company data are set
forth in the updated EDGAR Filer
Manual, Volume I: ‘‘General
Information,’’ Version 11 (November
2011). The requirements for filing on
EDGAR are set forth in the updated
EDGAR Filer Manual, Volume II:
‘‘EDGAR Filing,’’ Version 18 (November
2011). Additional provisions applicable
to Form N–SAR filers are set forth in the
EDGAR Filer Manual, Volume III: ‘‘N–
SAR Supplement,’’ Version 2 (August
2011). All of these provisions have been
incorporated by reference into the Code
of Federal Regulations, which action
was approved by the Director of the
Federal Register in accordance with 5
U.S.C. 552(a) and 1 CFR Part 51. You
must comply with these requirements in
order for documents to be timely
received and accepted. You can obtain
paper copies of the EDGAR Filer
Manual from the following address:
Public Reference Room, U.S. Securities
and Exchange Commission, 100 F Street
NE., Room 1543, Washington, DC
20549, on official business days
between the hours of 10 a.m. and 3 p.m.
Electronic copies are available on the
Commission’s Web site. The address for
the Filer Manual is https://www.sec.gov/
info/edgar.shtml. You can also inspect
the document at the National Archives
and Records Administration (NARA).
For information on the availability of
VerDate Mar<15>2010
14:37 Nov 28, 2011
Jkt 226001
Employment and Training
Administration, Department of Labor.
ACTION: Final rule; delay of effective
date.
The Department of Labor
(Department) is delaying the effective
date of the Wage Methodology for the
Temporary Non-agricultural
Employment H–2B Program; Final Rule,
76 FR 3452, Jan. 19, 2011, (the Wage
Rule) to January 1, 2012 in response to
recently enacted legislation that
prohibits any funds from being used to
implement administer, or enforce the
Wage Rule before January 1, 2012. The
Wage Rule revised the methodology by
which we calculate the prevailing wages
to be paid to H–2B workers and United
States (U.S.) workers recruited in
connection with a temporary labor
certification for use in petitioning the
Department of Homeland Security 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 45667, August 1, 2011, as further
amended at 76 FR 59896, September 28,
2011, is delayed until January 1, 2012.
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).
SUMMARY:
PO 00000
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Fmt 4700
Sfmt 4700
The
Department of Labor (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 we calculate the
prevailing wages to be paid to H–2B
workers and United States (U.S.)
workers recruited in connection with a
temporary labor certification for use in
petitioning the Department of Homeland
Security 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, 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,
June 28, 2011. After a period of public
comment, we published a Final Rule on
August 1, 2011, which set the new
effective date for the Wage Rule of
September 30, 2011 (the Effective Date
Rule).
Both the Wage Rule and the Effective
Date Rule recently were challenged in
two separate lawsuits 2 seeking to bar
their implementation. In consideration
of the two pending challenges to the
Wage Rule and its new effective date,
and the possibility that the litigation
will be transferred to another court,3 the
Department issued a final rule, 76 FR
59896, September 28, 2011, postponing
the effective date of the Wage Rule from
September 30, 2011, until November 30,
2011, in accordance with the
Administrative Procedure Act, 5 U.S.C.
705.
On November 18, 2011, President
Obama signed into law the Consolidated
and Further Continuing Appropriations
Act, 2012, which provides 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
SUPPLEMENTARY INFORMATION:
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.,
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 motion before
the U.S. District Court in the Northern District of
Florida remains pending.
E:\FR\FM\29NOR1.SGM
29NOR1
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
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Fmt 4700
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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
]]>Agencies
[Federal Register Volume 76, Number 229 (Tuesday, November 29, 2011)]
[Rules and Regulations]
[Pages 73508-73509]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-30781]
=======================================================================
-----------------------------------------------------------------------
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, Department of Labor.
ACTION: Final rule; delay of effective date.
-----------------------------------------------------------------------
SUMMARY: The Department of Labor (Department) is delaying the effective
date of the Wage Methodology for the Temporary Non-agricultural
Employment H-2B Program; Final Rule, 76 FR 3452, Jan. 19, 2011, (the
Wage Rule) to January 1, 2012 in response to recently enacted
legislation that prohibits any funds from being used to implement
administer, or enforce the Wage Rule before January 1, 2012. The Wage
Rule revised the methodology by which we calculate the prevailing wages
to be paid to H-2B workers and United States (U.S.) workers recruited
in connection with a temporary labor certification for use in
petitioning the Department of Homeland Security 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 45667, August 1, 2011, as further amended at 76 FR
59896, September 28, 2011, is delayed until January 1, 2012.
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 (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 we
calculate the prevailing wages to be paid to H-2B workers and United
States (U.S.) workers recruited in connection with a temporary labor
certification for use in petitioning the Department of Homeland
Security 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, 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, June 28, 2011. After a period of
public comment, we published a Final Rule on August 1, 2011, which set
the new effective date for the Wage Rule of September 30, 2011 (the
Effective Date Rule).
---------------------------------------------------------------------------
\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 recently were
challenged in two separate lawsuits \2\ seeking to bar their
implementation. In consideration of the two pending challenges to the
Wage Rule and its new effective date, and the possibility that the
litigation will be transferred to another court,\3\ the Department
issued a final rule, 76 FR 59896, September 28, 2011, postponing the
effective date of the Wage Rule from September 30, 2011, until November
30, 2011, in accordance with the Administrative Procedure Act, 5 U.S.C.
705.
---------------------------------------------------------------------------
\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 motion
before the U.S. District Court in the Northern District of Florida
remains pending.
---------------------------------------------------------------------------
On November 18, 2011, President Obama signed into law the
Consolidated and Further Continuing Appropriations Act, 2012, which
provides 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
[[Page 73509]]
enforce, prior to January 1, 2012 the [Wage Rule].'' Public Law 112-55,
Div. B, Title V, Sec. 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 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
