Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program; Delay of Effective Date, 60040-60041 [2012-24264]

Download as PDF 60040 Federal Register / Vol. 77, No. 191 / Tuesday, October 2, 2012 / Rules and Regulations the Regulations.gov Web site. Most of the comments focused on the three main elements; ensuring minimum regulation, need for objective evidence, and general support or opposition to options proposed in the regulatory basis. The NRC staff reviewed and considered the comments in updating the draft regulatory basis to a final regulatory basis. A listing of the comments and the NRC’s comment responses are provided in ADAMS under Accession No. ML12240A676. The final regulatory basis provides the technical basis to support proceeding with rulemaking to streamline and enhance the Research and Test Reactor License Renewal Process. The final regulatory basis is provided in ADAMS under Accession No. ML12240A677. FOR FURTHER INFORMATION CONTACT: Duane Hardesty, Project Manager, Research and Test Reactors Licensing Branch, Division of Policy and Rulemaking, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555– 0001, telephone: 301–415–3724; email: Duane.Hardesty@nrc.gov. The NRC is issuing this notice for the availability of the final regulatory basis to streamline non-power reactor license renewal. Dated at Rockville, Maryland, this 19th day of September 2012. For the Nuclear Regulatory Commission, Linh N. Tran, Acting Chief, Research and Test Reactors Licensing Branch, Division of Policy and Rulemaking, Office of Nuclear Reactor Regulation. [FR Doc. 2012–24221 Filed 10–1–12; 8:45 am] BILLING CODE 7590–01–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 Employment and Training Administration, Labor. ACTION: Final rule; delay of effective date. wreier-aviles on DSK5TPTVN1PROD with RULES AGENCY: 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, in response to recently enacted SUMMARY: VerDate Mar<15>2010 14:57 Oct 01, 2012 Jkt 229001 legislation that prohibits any funds from being used to implement the Wage Rule for the first 6 months 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 for the final rule amending 20 CFR part 655, published at 76 3452, January 19, 2011, effective January 1, 2012, amended to September 30, 2011, at 76 FR 45667, August 1, 2011, delayed until November 30, 2011, at 76 FR 59896 (September 28, 2011), delayed until January 1, 2012, at 76 FR 73508 (November 29, 2011), and delayed until October 1, 2012 at 76 FR 82115 (December 30, 2011), is further delayed until March 27, 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 published the Wage Methodology for the Temporary Nonagricultural 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, due to a court ruling that invalidated the January 1, 2012 effective date of the Wage Rule,1 the Department 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, a Final Rule was published on August 1, 2011, which set the new 1 CATA v. Solis, Civil Docket No. 09–240, Doc. No. 119, 2011 WL 2414555 (E.D. Pa. June 16, 2011). PO 00000 Frm 00002 Fmt 4700 Sfmt 4700 effective date for the Wage Rule of September 30, 2011 (the Effective Date Rule). 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 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. Thereafter, the Department postponed the effective date of the Wage Rule again, 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, Div. B, Title V, § 546 (Nov. 18, 2011) (the November Appropriations Act). In delaying the Wage Rule’s effective date, the Department stated that although the November 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 2 See Louisiana Forestry Association, Inc., et al. (LFA) v. Solis, et al., Civil Docket No. 11–1623 (W.D. La, Alexandria Division); and Bayou Lawn & Landscape Services, et al. (Bayou) v. Solis, et al., Civil Docket No. (N.D. Fla., 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 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. E:\FR\FM\02OCR1.SGM 02OCR1 wreier-aviles on DSK5TPTVN1PROD with RULES Federal Register / Vol. 77, No. 191 / Tuesday, October 2, 2012 / Rules and Regulations 2008 Rule).’’ 76 FR 82115, 82116. Accordingly, the Department determined that it was necessary in light of the November 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 lacks appropriated funds to implement. As a result, 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 (the December Appropriations Act), which provided 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 prevented the expenditure of funds to implement the Wage Rule for the remainder of FY 2012. In light of the December Appropriations Act, the Department issued a Final Rule, 76 FR 82115, on December 30, 2011, which further delayed the effective date of the Wage Rule until October 1, 2012. In anticipation of the enactment of H.J. Res. 117, which continues the Department’s appropriations from the December Appropriations Act until March 27, 2013 ‘‘under the authority and conditions provided’’ in the December Appropriations Act, H.J. Res. 117, Sec. 101(a), the Department must again delay the effective date of the Wage Rule to prevent the replacement of the H–2B 2008 Rule with a new rule that the Department lacks appropriated funds to implement. As noted with the previous delays in the effective dates, if the Wage Rule were to become effective on October 1, 2012 and H.J. Res. 117 becomes law, the Department would be unable to issue prevailing wage determinations under the H–2B 2008 rule. The Department of Homeland Security (DHS), under its regulations at 8 CFR 214.2(h)(6)(iii) and (iv) requires an employer seeking H–2B workers to obtain a labor certification from the Department. Because the Department would be legally precluded from issuing prevailing wage determinations, temporary labor certifications for employers seeking H–2B workers could not be issued because the Department could not comply with its own regulations or those of DHS. As a result, the H–2B program would be held in abeyance for the first 6 months of FY 2013; therefore, the Department is extending the effective date of the Wage Rule until March 27, 2013. VerDate Mar<15>2010 14:57 Oct 01, 2012 Jkt 229001 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 suspension during the first 6 months of FY 2013, 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 would disrupt the program, leaving program users without access to the H– 2B program. Signed at Washington, DC this 27th day of September, 2012. Jane Oates, Assistant Secretary for Employment and Training. [FR Doc. 2012–24264 Filed 9–28–12; 8:45 am] BILLING CODE 4510–FP–P DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs 25 CFR Part 36 [Docket ID BIA–2012–0001] RIN 1076–AF10 Heating, Cooling, and Lighting Standards for Bureau-Funded Dormitory Facilities Bureau of Indian Affairs, Interior. ACTION: Final rule. AGENCY: The Bureau of Indian Affairs (BIA) is confirming the interim final rule published and effective on May 24, 2012, addressing heating, cooling, and lighting standards for Bureau-funded dormitory facilities. This rule was developed through negotiated rulemaking, as required by the No Child Left Behind Act of 2001. The May 24, 2012, publication stated that the BIA would review comments on the interim final rule and either confirm the rule or initiate a proposed rulemaking. BIA did not receive any adverse comments, and therefore confirms the rule without change. SUMMARY: DATES: Effective October 2, 2012. FOR FURTHER INFORMATION CONTACT: Regina Gilbert, Office of Regulatory Affairs and Collaborative Action, Office of the Assistant Secretary—Indian Affairs, 1001 Indian School Road, NW., PO 00000 Frm 00003 Fmt 4700 Sfmt 4700 60041 Suite 312, Albuquerque, NM 87104; telephone (505) 563–3805; fax (505) 563–3811. The No Child Left Behind School Facilities and Construction Negotiated Rulemaking Committee developed the interim final rule to complete the work responding to the mandates of the No Child Left Behind Act at 25 U.S.C. 2002. See the May 24, 2012, interim final rule (77 FR 30888) for additional background on the Committee. The Committee determined, by consensus, that the codes and standards identified in the ‘‘School Facilities Design Handbook’’ (handbook) dated March 30, 2007, respecting heating, ventilation, air conditioning, and lighting are appropriate for homeliving (dormitory) situations at Bureaufunded Indian education facilities. On May 24, 2012, BIA published the interim final rule (77 FR 30888), under Docket No. BIA–2012–0001, to make the codes and standards identified in the handbook respecting heating, ventilation, air conditioning, and lighting mandatory for home-living (dormitory) situations at Bureau-funded Indian education facilities; require the Bureau to give the public notice and an opportunity to comment on any proposal to change which standard building codes are incorporated in the handbook; and make a technical change to remove reference to subpart H, which is no longer in existence, and replace it with a reference to subpart G. SUPPLEMENTARY INFORMATION: We stated in the interim final rule that we would address comments received and, by a future publication in the Federal Register, confirm the interim final rule, with or without change, or initiate a proposed rulemaking. We did not receive any comments on the interim final rule; therefore, we are confirming the interim final rule without change. List of Subjects in 25 CFR Part 36 Educational facilities, Incorporation by reference, Indians—education, school construction. Accordingly, the interim rule published May 24, 2012, at 77 FR 30888, is adopted as final without change. Dated: September 20, 2012. Donald E. Laverdure, Acting Assistant Secretary—Indian Affairs. [FR Doc. 2012–24258 Filed 10–1–12; 8:45 am] BILLING CODE 4310–W7–P E:\FR\FM\02OCR1.SGM 02OCR1

Agencies

[Federal Register Volume 77, Number 191 (Tuesday, October 2, 2012)]
[Rules and Regulations]
[Pages 60040-60041]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-24264]


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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.

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

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, in response to recently enacted 
legislation that prohibits any funds from being used to implement the 
Wage Rule for the first 6 months 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 for the final rule amending 20 CFR part 655, 
published at 76 3452, January 19, 2011, effective January 1, 2012, 
amended to September 30, 2011, at 76 FR 45667, August 1, 2011, delayed 
until November 30, 2011, at 76 FR 59896 (September 28, 2011), delayed 
until January 1, 2012, at 76 FR 73508 (November 29, 2011), and delayed 
until October 1, 2012 at 76 FR 82115 (December 30, 2011), is further 
delayed until March 27, 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 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, due to a court ruling that invalidated the 
January 1, 2012 effective date of the Wage Rule,\1\ the Department 
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, a Final Rule was published 
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, Civil Docket No. 09-240, Doc. 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 implementation. In 
consideration 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.
---------------------------------------------------------------------------

    \2\ See Louisiana Forestry Association, Inc., et al. (LFA) v. 
Solis, et al., Civil Docket No. 11-1623 (W.D. La, Alexandria 
Division); and Bayou Lawn & Landscape Services, et al. (Bayou) v. 
Solis, et al., Civil Docket No. (N.D. Fla., 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 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.
---------------------------------------------------------------------------

    Thereafter, the Department postponed the effective date of the Wage 
Rule again, 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, 
Div. B, Title V, Sec.  546 (Nov. 18, 2011) (the November Appropriations 
Act). In delaying the Wage Rule's effective date, the Department stated 
that although the November 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

[[Page 60041]]

2008 Rule).'' 76 FR 82115, 82116. Accordingly, the Department 
determined that it was necessary in light of the November 
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 lacks appropriated funds to implement. As a result, 
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 (the December Appropriations 
Act), which provided 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 prevented 
the expenditure of funds to implement the Wage Rule for the remainder 
of FY 2012. In light of the December Appropriations Act, the Department 
issued a Final Rule, 76 FR 82115, on December 30, 2011, which further 
delayed the effective date of the Wage Rule until October 1, 2012.
    In anticipation of the enactment of H.J. Res. 117, which continues 
the Department's appropriations from the December Appropriations Act 
until March 27, 2013 ``under the authority and conditions provided'' in 
the December Appropriations Act, H.J. Res. 117, Sec. 101(a), the 
Department must again delay the effective date of the Wage Rule to 
prevent the replacement of the H-2B 2008 Rule with a new rule that the 
Department lacks appropriated funds to implement. As noted with the 
previous delays in the effective dates, if the Wage Rule were to become 
effective on October 1, 2012 and H.J. Res. 117 becomes law, the 
Department would be unable to issue prevailing wage determinations 
under the H-2B 2008 rule. The Department of Homeland Security (DHS), 
under its regulations at 8 CFR 214.2(h)(6)(iii) and (iv) requires an 
employer seeking H-2B workers to obtain a labor certification from the 
Department. Because the Department would be legally precluded from 
issuing prevailing wage determinations, temporary labor certifications 
for employers seeking H-2B workers could not be issued because the 
Department could not comply with its own regulations or those of DHS. 
As a result, the H-2B program would be held in abeyance for the first 6 
months of FY 2013; therefore, the Department is extending the effective 
date of the Wage Rule until March 27, 2013.
    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 suspension during the first 6 months of 
FY 2013, 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 
would disrupt the program, leaving program users without access to the 
H-2B program.

    Signed at Washington, DC this 27th day of September, 2012.
Jane Oates,
Assistant Secretary for Employment and Training.
[FR Doc. 2012-24264 Filed 9-28-12; 8:45 am]
BILLING CODE 4510-FP-P