Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program; Delay of Effective Date; Impact on Prevailing Wage Determinations, 82116-82117 [2011-33523]
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82116
Federal Register / Vol. 76, No. 251 / Friday, December 30, 2011 / Rules and Regulations
tkelley on DSK3SPTVN1PROD with RULES
of the two pending challenges to the
Wage Rule and its new effective date,
and the possibility that the litigation
would 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
enforce, prior to January 1, 2012 the
[Wage Rule].’’ Public Law 112–55, Div.
B, Title V, § 546 (Nov. 18, 2011) (the
November Appropriations Act). While
the November Appropriations Act
prevents 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). The Department
determined that 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. Accordingly, the
Department issued a final rule, 76 FR
73508, on November 29, 2011 which
delayed the effective date of the Wage
Rule until January 1, 2012.
On December 23, 2011, President
Obama signed into law the Consolidated
Appropriations Act, 2012, which
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 was denied by the
U.S. District Court in the Northern District of
Florida on Nov. 23, 2011. Additionally, the motion
to transfer venue was granted by the U.S. District
Court in the Western District of Louisiana on Dec.
12, 2011 but was denied by the U.S. District Court
in the Northern District of Florida on Dec. 12, 2011.
VerDate Mar<15>2010
17:50 Dec 29, 2011
Jkt 226001
provides that ‘‘[n]one of the amounts
made available under this Act may be
used to implement the [Wage Rule].’’
Similar to the November Appropriations
Act, the December Appropriations Act
prevents the expenditure of funds to
implement the Wage Rule for the
remainder of FY 2012, but it does not
prohibit the Wage Rule from going into
effect. If the Wage Rule were to go into
‘‘effect’’ on January 1, 2012, we would
be unable to issue prevailing wage
determinations under the 2008 H–2B
rule and the H–2B program would have
to be held in abeyance for the remainder
of FY 2012, as we would be legally
precluded from issuing prevailing wage
determinations for the remainder of FY
2012. Because of the imminent threat
that we will be unable to operate the H–
2B program for the remainder of FY
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).
In order to avoid an operational hiatus
during the remainder of FY 2012, 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). As
such, a delay in promulgating 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, this 23rd day of
December 2011.
Jane Oates,
Assistant Secretary for Employment and
Training.
[FR Doc. 2011–33521 Filed 12–27–11; 4:15 pm]
BILLING CODE 4510–FP–P
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;
Impact on Prevailing Wage
Determinations
Employment and Training
Administration, Wage and Hour
Division, Labor.
ACTION: Guidance.
AGENCY:
The Department of Labor (we
or the Department), as a result of
Congressional appropriations language,
SUMMARY:
PO 00000
Frm 00042
Fmt 4700
Sfmt 4700
recently delayed the effective date of the
Wage Methodology for Temporary Nonagricultural Employment H–2B Program
Final Rule (the Wage Rule) to January 1,
2012. This Notice provides additional
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
provides additional clarification
regarding the wage payment
requirements for employers
participating in the H–2B Temporary
Non-agricultural program.
DATES: This guidance is effective
December 30, 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–3510, Washington, DC 20210;
Telephone (202) 693–0071 (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 at 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.
We originally set the effective date of
the Wage Rule for January 1, 2012.
However, as a result of 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, proposing
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,
1 CATA v. Solis, Civil Docket No. 09–240, Doc.
No. 119, 2011 WL 2414555 (E.D. Pa. June 16, 2011).
E:\FR\FM\30DER1.SGM
30DER1
Federal Register / Vol. 76, No. 251 / Friday, December 30, 2011 / Rules and Regulations
2011 for the Wage Rule (the Effective
Date Rule).
In anticipation of the revised effective
date of the Wage Rule, the Department
issued supplemental prevailing wage
determinations to those employers
granted labor certification for an H–2B
application where work would be
performed on or after September 30,
2011. Those supplemental
determinations were provided to
employers to enable them to meet their
amended wage obligations.
Both the Wage Rule and the Effective
Date Rule 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 could be
transferred to another court,3 the
Department issued a final rule, 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 (or dual) 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 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, the President
signed into law the Consolidated and
Further Continuing Appropriations Act,
2012, Pub. L. 112–55, Div. B, Title V,
§ 546 (Nov. 18, 2011) (the November
Appropriations Act). The November
Appropriations Act contains language
preventing the expenditure of funds to
implement, administer, or enforce the
Wage Rule prior to January 1, 2012.
Accordingly, the Department issued a
tkelley on DSK3SPTVN1PROD with RULES
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 December 12, 2011, the LFA court granted
a motion to transfer venue over the litigation to the
Eastern District of Pennsylvania, the court in which
the CATA case remains pending. However, the
Bayou court denied the defendant’s motion to
transfer the Bayou litigation to the Eastern District
of Pennsylvania the same day.
VerDate Mar<15>2010
17:50 Dec 29, 2011
Jkt 226001
final rule in the Federal Register, 76 FR
73508 (Nov. 29, 2011), again postponing
the effective date of the rule, this time
from November 30, 2011, until January
1, 2012. As a result, the Department
issued in the first half of December 2011
prevailing wage determinations, with
the advisory that additional
determinations would be forthcoming.
On December 23, 2011, the President
signed into law the Consolidated
Appropriations Act, 2012, which
provides that [‘‘[n]one of the amounts
made available under this Act may be
used to implement the [Wage Rule].’’]
Because of the distinct possibility that
we would be unable to operate the
H–2B program for the remainder of FY
2012 if the effective date of the Wage
Rule were not postponed, the
Department determined that this
situation constituted an emergency
warranting the publication of a final
rule under the good cause exception of
the Administrative Procedure Act to
delay the effective date of the Wage Rule
to October 1, 2012. Consequently, the
Department is publishing a final rule to
extend the effective date of the Wage
Final Rule to October 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 postponement of the
effective date of the Wage Rule until
October 1, 2012, the Department is
hereby providing public notice that the
wage determinations previously issued
in anticipation of the effective date of,
and in accordance with, the Wage Rule
will not be effective until October 1,
2012, and will then apply only to work
performed on or after that date, if
applicable. In addition, we are hereby
providing notice that those prevailing
wage determinations issued under the
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
2008 H–2B Rule), which were listed as
valid until either November 30, 2011 or
December 31, 2011, are now valid for a
period of 90 days beyond December 31,
2011, i.e. until March 30, 2012, and only
apply to work performed on or before
September 30, 2012.
Any employer who received an H–2B
prevailing wage determination issued in
anticipation of the September 30, 2011,
November 30, 2011, or January 1, 2012
effective dates of the Wage Rule is not
required to pay, and the Department’s
Wage and Hour Division will not
enforce, the wage provided in those
PO 00000
Frm 00043
Fmt 4700
Sfmt 4700
82117
prevailing wage determinations issued
in anticipation of the effective date of
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 October 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 October 1, 2012. Further,
employers who received a supplemental
H–2B prevailing wage determination, or
a prevailing wage determination issued
in anticipation of the effective date of
the Wage Rule, who are still employing
H–2B workers employed under labor
certifications issued in connection with
those prevailing wage determinations,
must pay at least the wage issued under
the Wage Rule to any H–2B worker and
any U.S. worker recruited in connection
with the labor certification for work
performed on or after October 1, 2012.
The Department is providing notice
that, as a result of the December
Appropriations Act, it is precluded from
addressing issues raised in Center
Director Review requests submitted by
employers in connection with
prevailing wage determinations issued
in anticipation of the effective date of,
and in accordance with, the Wage Rule.
Last, the Department in anticipation
of questions from the filing community
and as a measure of customer service
has established the following email box
for questions: H2Bwagerule@dol.gov.
Signed at Washington, DC, this 23rd day of
December 2011.
Jane Oates,
Assistant Secretary for Employment and
Training.
Nancy Leppink,
Deputy Administrator, Wage and Hour
Division.
[FR Doc. 2011–33523 Filed 12–27–11; 4:15 pm]
BILLING CODE 4510–FP–P
DEPARTMENT OF LABOR
Office of Workers’ Compensation
Programs
20 CFR Part 701
RIN 1240–AA02
Regulations Implementing the
Longshore and Harbor Workers’
Compensation Act: Recreational
Vessels
Office of Workers’
Compensation Programs, Labor.
ACTION: Final rule.
AGENCY:
E:\FR\FM\30DER1.SGM
30DER1
]]>Agencies
[Federal Register Volume 76, Number 251 (Friday, December 30, 2011)]
[Rules and Regulations]
[Pages 82116-82117]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-33523]
-----------------------------------------------------------------------
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; Impact on Prevailing Wage
Determinations
AGENCY: Employment and Training Administration, Wage and Hour Division,
Labor.
ACTION: Guidance.
-----------------------------------------------------------------------
SUMMARY: The Department of Labor (we or the Department), as a result of
Congressional appropriations language, recently delayed the effective
date of the Wage Methodology for Temporary Non-agricultural Employment
H-2B Program Final Rule (the Wage Rule) to January 1, 2012. This Notice
provides additional 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 provides additional clarification
regarding the wage payment requirements for employers participating in
the H-2B Temporary Non-agricultural program.
DATES: This guidance is effective December 30, 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-3510,
Washington, DC 20210; Telephone (202) 693-0071 (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 at 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. We originally
set the effective date of the Wage Rule for January 1, 2012. However,
as a result of 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, proposing 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,
[[Page 82117]]
2011 for the Wage Rule (the Effective Date Rule).
---------------------------------------------------------------------------
\1\ CATA v. Solis, Civil Docket No. 09-240, Doc. No. 119, 2011
WL 2414555 (E.D. Pa. June 16, 2011).
---------------------------------------------------------------------------
In anticipation of the revised effective date of the Wage Rule, the
Department issued supplemental prevailing wage determinations to those
employers granted labor certification for an H-2B application where
work would be performed on or after September 30, 2011. Those
supplemental determinations were provided to employers to enable them
to meet their amended wage obligations.
Both the Wage Rule and the Effective Date Rule 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 could be
transferred to another court,\3\ the Department issued a final rule, 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.
---------------------------------------------------------------------------
\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 December 12, 2011, the LFA court granted a motion to
transfer venue over the litigation to the Eastern District of
Pennsylvania, the court in which the CATA case remains pending.
However, the Bayou court denied the defendant's motion to transfer
the Bayou litigation to the Eastern District of Pennsylvania the
same day.
---------------------------------------------------------------------------
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 (or dual) 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
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, the President signed into law the
Consolidated and Further Continuing Appropriations Act, 2012, Pub. L.
112-55, Div. B, Title V, Sec. 546 (Nov. 18, 2011) (the November
Appropriations Act). The November Appropriations Act contains language
preventing the expenditure of funds to implement, administer, or
enforce the Wage Rule prior to January 1, 2012. Accordingly, the
Department issued a final rule in the Federal Register, 76 FR 73508
(Nov. 29, 2011), again postponing the effective date of the rule, this
time from November 30, 2011, until January 1, 2012. As a result, the
Department issued in the first half of December 2011 prevailing wage
determinations, with the advisory that additional determinations would
be forthcoming.
On December 23, 2011, the President signed into law the
Consolidated Appropriations Act, 2012, which provides that [``[n]one of
the amounts made available under this Act may be used to implement the
[Wage Rule].''] Because of the distinct possibility that we would be
unable to operate the H-2B program for the remainder of FY 2012 if the
effective date of the Wage Rule were not postponed, the Department
determined that this situation constituted an emergency warranting the
publication of a final rule under the good cause exception of the
Administrative Procedure Act to delay the effective date of the Wage
Rule to October 1, 2012. Consequently, the Department is publishing a
final rule to extend the effective date of the Wage Final Rule to
October 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 postponement of the effective date of the Wage Rule
until October 1, 2012, the Department is hereby providing public notice
that the wage determinations previously issued in anticipation of the
effective date of, and in accordance with, the Wage Rule will not be
effective until October 1, 2012, and will then apply only to work
performed on or after that date, if applicable. In addition, we are
hereby providing notice that those prevailing wage determinations
issued under the 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 2008 H-
2B Rule), which were listed as valid until either November 30, 2011 or
December 31, 2011, are now valid for a period of 90 days beyond
December 31, 2011, i.e. until March 30, 2012, and only apply to work
performed on or before September 30, 2012.
Any employer who received an H-2B prevailing wage determination
issued in anticipation of the September 30, 2011, November 30, 2011, or
January 1, 2012 effective dates of the Wage Rule is not required to
pay, and the Department's Wage and Hour Division will not enforce, the
wage provided in those prevailing wage determinations issued in
anticipation of the effective date of 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 October 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 October 1, 2012. Further, employers who received
a supplemental H-2B prevailing wage determination, or a prevailing wage
determination issued in anticipation of the effective date of the Wage
Rule, who are still employing H-2B workers employed under labor
certifications issued in connection with those prevailing wage
determinations, must pay at least the wage issued under the Wage Rule
to any H-2B worker and any U.S. worker recruited in connection with the
labor certification for work performed on or after October 1, 2012.
The Department is providing notice that, as a result of the
December Appropriations Act, it is precluded from addressing issues
raised in Center Director Review requests submitted by employers in
connection with prevailing wage determinations issued in anticipation
of the effective date of, and in accordance with, the Wage Rule.
Last, the Department in anticipation of questions from the filing
community and as a measure of customer service has established the
following email box for questions: H2Bwagerule@dol.gov.
Signed at Washington, DC, this 23rd day of December 2011.
Jane Oates,
Assistant Secretary for Employment and Training.
Nancy Leppink,
Deputy Administrator, Wage and Hour Division.
[FR Doc. 2011-33523 Filed 12-27-11; 4:15 pm]
BILLING CODE 4510-FP-P
