Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program; Proposed Delay of Effective Date, 44054-44056 [2013-17676]

Download as PDF 44054 Federal Register / Vol. 78, No. 141 / Tuesday, July 23, 2013 / Proposed Rules (A) Determine the actual LCF ratio by dividing the total actual LCF2 cycle count obtained from the HR by the total actual LCF1 cycle count obtained from the HR. Add to the actual counts from the HR any actual additional fatigue cycle incurred during any period in which the HR was inoperative. (B) Determine the LCF1 retirement life by dividing the maximum number of LCF2 events obtained from the applicable diagram for each engine by the sum of the actual LCF ratio obtained by following paragraph (e)(2)(ii)(A) of this AD plus the quotient of the maximum number of LCF2 events from the applicable diagram for each engine divided by the maximum number of LCF1 events from the applicable diagram for each engine. (C) Determine the LCF2 retirement life by multiplying the actual LCF ratio obtained by following paragraph (e)(2)(ii)(A) of this AD times the LCF1 retirement life determined by following paragraph (e)(2)(ii)(B) of this AD. (iii) Replace each GGT rotor part that has reached the new fatigue cycle life limit with an airworthy rotor part. (3) For helicopters with the GE T700–GE– 401C engine, if you cannot determine the number of low cycle fatigue events manually from the HR or by combining both manual and HR counts, then the life limit for the GGT rotor part is the hours TIS for the part as shown in Table 1 of ESB No. T700 S/B 72– 0041, dated August 21, 2009. (4) Before further flight, begin or continue to count the full and partial low fatigue cycle events and record on the component card or equivalent record that count at the end of each day for which the HR is inoperative. (f) Special Flight Permit Special flight permits will not be issued to allow flight in excess of life limits. ehiers on DSK2VPTVN1PROD with PROPOSALS-1 (g) Alternative Methods of Compliance (AMOCs) (1) The Manager, Boston Aircraft Certification Office, FAA, may approve AMOCs for this AD. Send your proposal to: Michael Davison, Flight Test Engineer, New England Regional Office, FAA, 12 New England Executive Park, Burlington, MA 01803; phone: (781) 238–7156; fax: (781) 238–7170; email: michael.davison@faa.gov. (2) For operations conducted under 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office before operating any aircraft complying with this AD through an AMOC. (h) Additional Information For service information identified in this AD, contact Sikorsky Aircraft Corporation, Attn: Manager, Commercial Technical Support, mailstop s581a, 6900 Main Street, Stratford, CT, telephone (800) 562–4409, email address tsslibrary@sikorsky.com, or at http://www.sikorsky.com. You may review a copy of the referenced service information at the FAA, Office of the Regional Counsel, Southwest Region, 2601 Meacham Blvd., Room 663, Fort Worth, Texas 76137. VerDate Mar<15>2010 15:39 Jul 22, 2013 Jkt 229001 (i) Subject Joint Aircraft Service Component (JASC) Code: 7250: Turbine Section. Issued in Fort Worth, Texas, on July 11, 2013. Kim Smith, Directorate Manager, Rotorcraft Directorate, Aircraft Certification Service. [FR Doc. 2013–17627 Filed 7–22–13; 8:45 am] BILLING CODE 4910–13–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; Proposed Delay of Effective Date Employment and Training Administration, Labor. ACTION: Proposed delay of effective date; request for comments. AGENCY: The Department of Labor (Department) is proposing to delay indefinitely the effective date of the Wage Methodology for the Temporary Non-agricultural Employment H–2B Program final rule (2011 Wage Rule), in order to comply with recurrent legislation that prohibits the Department from using any funds to implement it, and to permit time for consideration of public comments sought in conjunction with an interim final rule published April 24, 2013, 78 FR 24047. The 2011 Wage Rule revised the methodology by which the Department calculates the prevailing wages to be paid to H–2B workers and United States 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 2011 Wage Rule was originally scheduled to become effective on January 1, 2012, and the effective date has been extended a number of times, most recently to October 1, 2013.1 The Department is now proposing to delay the effective date of the 2011 Wage Rule until such time as Congress no longer prohibits the SUMMARY: 1 The effective date of the 2011 Wage Rule was previously revised to September 30, 2011, 76 FR 45667 (Aug. 1, 2011); to November 30, 2011, 76 FR 59896 (Sept. 28, 2011); to January 1, 2012, 76 FR 73508 (Nov. 29, 2011); to October 1, 2012, 76 FR 82115 (Dec. 30, 2011); to March 27, 2013, 77 FR 60040 (Oct. 2, 2012); and to October 1, 2013, 78 FR 19098 (Mar. 29, 2013). PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 Department from implementing the 2011 Wage Rule. DATES: Comments must be received on or before August 9, 2013. ADDRESSES: You may submit comments, identified by Regulatory Information Number (RIN) 1205–AB61, by any one of the following methods: Federal e-Rulemaking Portal: www.regulations.gov. Follow the Web site instructions for submitting comments. Mail or Hand Delivery/Courier: Please submit all written comments (including disk and CD–ROM submissions) to Michael Jones, Acting Administrator, Office of Policy Development and Research, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue NW., Room N–5641, Washington, DC 20210. Please submit your comments by only one method. Comments received by means other than those listed above or received after the comment period has closed will not be reviewed. The Department will post all comments received on http://www.regulations.gov without making any change to the comments, including any personal information provided. The http:// www.regulations.gov Web site is the Federal e-rulemaking portal and all comments posted there are available and accessible to the public. The Department caution commenters not to include personal information such as Social Security Numbers, personal addresses, telephone numbers, and email addresses in their comments as such information will become viewable by the public on the http:// www.regulations.gov Web site. It is the commenter’s responsibility to safeguard his or her information. Comments submitted through http:// www.regulations.gov will not include the commenter’s email address unless the commenter chooses to include that information as part of his or her comment. Postal delivery In Washington, DC, may be delayed due to security concerns. Therefore, the Department encourages the public to submit comments through the http:// www.regulations.gov Web site. Docket: For access to the docket to read background documents or comments received, go to the Federal eRulemaking portal at http:// www.regulations.gov. The Department will also make all the comments received available for public inspection during normal business hours at the Employment and Training Administration (ETA) Office of Policy Development and Research at the above E:\FR\FM\23JYP1.SGM 23JYP1 ehiers on DSK2VPTVN1PROD with PROPOSALS-1 Federal Register / Vol. 78, No. 141 / Tuesday, July 23, 2013 / Proposed Rules address. If you need assistance to review the comments, the Department will provide you with appropriate aids such as readers or print magnifiers. The Department will make copies of the notice available, upon request, in large print and as an electronic file on computer disk. The Department will consider providing the notice in other formats upon request. To schedule an appointment to review the comments and/or obtain the notice in an alternate format, contact the ETA Office of Policy Development and Research at (202) 693–3700 (VOICE) (this is not a toll-free number) or 1–877–889–5627 (TTY/ TDD). 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 published a final rule, Wage Methodology for the Temporary Non-agricultural Employment H–2B Program, on January 19, 2011. See 76 FR 3452 (the 2011 Wage Rule). The 2011 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 2011 Wage Rule for January 1, 2012. However, as a result of litigation and following notice-andcomment rulemaking, we issued a final rule, 76 FR 45667 (August 1, 2011), revising the effective date of the 2011 Wage Rule to September 30, 2011, and a second final rule, 76 FR 59896 (September 28, 2011), further revising the effective date of the 2011 Wage Rule to November 30, 2011. Thereafter, the Department delayed the effective date of the 2011 Wage Rule until January 1, 2012, in light of the enactment on November 18, 2011, of the Consolidated and Further Continuing Appropriations Act, 2012, which provided that ‘‘[n]one of the funds made available by this or any other Act for fiscal year 2012 may be used to implement, administer, or enforce, prior to January 1, 2012 the [Wage Rule].’’ VerDate Mar<15>2010 15:39 Jul 22, 2013 Jkt 229001 Public Law 112–55, 125 Stat. 552, Div. B, Title V, sec. 546 (Nov. 18, 2011) (the November 2011 Appropriations Act). In delaying the 2011 Wage Rule’s effective date at that time, the Department stated that although the November 2011 Appropriations Act ‘‘prevent[ed] the expenditure of funds to implement, administer, or enforce the [2011] Wage Rule before January 1, 2012, it [did] not prohibit the [2011] Wage Rule from going into effect, which [was] scheduled to occur on November 30, 2011.’’ 76 FR 73508, 73509 (November 29, 2011). The Department explained that ‘‘when the [2011] 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).’’ Id. Accordingly, the Department determined that it was necessary in light of the November 2011 Appropriations Act to delay the effective date of the 2011 Wage Rule to avoid the replacement of the wage provisions of the H–2B 2008 Rule with a new rule that the Department lacked appropriated funds to implement. Such an occurrence would have rendered the H–2B program inoperable because the issuance of a prevailing wage determination is a condition precedent to approving an employer’s request for an H–2B labor certification. As a result, the Department issued a final rule, 76 FR 73508, which delayed the effective date of the 2011 Wage Rule until January 1, 2012. Subsequent appropriations legislation 2 containing the same restriction prohibiting the Department’s use of appropriated funds to implement, administer, or enforce the 2011 Wage Rule necessitated subsequent extensions of the effective date of that rule. See 76 FR 82115 (December 30, 2011) (extending the effective date to October 1, 2012); 77 FR 60040 (October 2, 2012) (extending the effective date to March 27, 2013); 78 FR 19098 (March 29, 2013) (extending the effective date to October 1, 2013). In light of the continued prohibitions on the expenditure of the 2 These include the Consolidated Appropriations Act of 2012, Public Law 112–74, 125 Stat. 786 (Dec. 23, 2011); Continuing Appropriations Resolution, 2013, Public Law 112–175, 126 Stat. 1313 (Sept. 28, 2012); and Consolidated and Further Continuing Appropriations Act, 2013, Public Law 113–6, 127 Stat. 198 (Mar. 26, 2013) (establishing DOL’s appropriations through Sept. 30, 2013). PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 44055 Department’s appropriated funds to implement, administer, or enforce the 2011 Wage Rule, the Department proposes to delay indefinitely the effective date of the 2011 Wage Rule until such time as the rule can be implemented. Additionally, the Department, together with the Department of Homeland Security (the Departments),3 recently promulgated an interim final rule (IFR), 78 FR 24047, establishing a new wage methodology. This action was taken in direct response to Comite de Apoyo a los Trabajadores Agricolas (CATA) v. Solis, l F. Supp. 2d l, 2013 WL 1163426 (E.D. Pa. 2013) in which the district court vacated a provision of the H–2B 2008 rule, 20 CFR 655.10(b)(2). That provision required that prevailing wages based on the Occupational Employment Statistics (OES) survey contain tiers that are commensurate with the skill required for the job; the Department accordingly divided the Occupational Employment Survey wage applicable to the occupation in question into four tiers of wages to correspond to skill levels. The court vacated 20 CFR 655.10(b)(2), which was the basis for the four-tiered wage, and remanded the matter to the Department, ordering the Department to come into compliance with the court’s order within 30 days. In response to CATA v. Solis, the Departments issued the IFR on April 24, 2013. See 78 FR 24047. The Departments struck the phrase, ‘‘at the skill level,’’ from 20 CFR 655.10(b)(2), thus requiring prevailing wage determinations issued using the OES survey to be based on the mean wage for the occupation in the area of intended employment without tiers or skill levels. See id. at 24053. That revision became effective on April 24, 2013, the date of publication. The Departments requested comments on all aspects of the prevailing wage provisions of 20 CFR 3 The Department of Labor (DOL) and the Department of Homeland Security (DHS) issued the IFR jointly to dispel questions regarding the respective roles of the two agencies and the validity of DOL’s regulations as an appropriate way to implement the interagency consultation specified in section 214(c)(1) of the INA, 8 U.S.C. 1184(c)(1). See Bayou Lawn & Landscape Servs. v. Sec’y of Labor, 713 F.3d 1080 (11th Cir. 2013) (holding that the Department of Labor lacks independent rulemaking authority under the INA to issue legislative regulations implementing its role in the H–2B program). But see La. Forestry Ass’n v. Solis, 889 F. Supp. 2d 711 (E.D. Pa. 2012) (rejecting claim that the Department of Labor lacks authority under the INA to administer the H–2B program through legislative rules). Due to these inconsistent court rulings about the Department of Labor’s authority to issue independent legislative rules, the Department of Labor and DHS together issued the IFR revising the prevailing wage methodology in the H–2B program. E:\FR\FM\23JYP1.SGM 23JYP1 ehiers on DSK2VPTVN1PROD with PROPOSALS-1 44056 Federal Register / Vol. 78, No. 141 / Tuesday, July 23, 2013 / Proposed Rules 655.10(b), including, among other things, whether the OES mean is the appropriate basis for determining the prevailing wage; whether wages based on the Davis-Bacon Act (DBA), 40 U.S.C. 276a et seq., 29 CFR part 1, or the McNamara-O’Hara Service Contract Act (SCA), 41 U.S.C. 351 et seq., should be used to determine the prevailing wage, and if so to what extent; and whether to permit the continued use of employersubmitted surveys and ways to strengthen their methodology, if permitted. The comment period closed on June 10, 2013, and the Departments are in the process of reviewing those comments and determining whether further revision to 20 CFR 655.10(b) is warranted in light of public comment. The confluence of the recurrent Congressional prohibition against implementation of the 2011 Wage Rule, which the Department anticipates will continue, and the Department’s current review and consideration of suggestions made in the comments associated with the IFR, which revised wage provisions of the H–2B regulations that were also the subject of the 2011 Wage Rule, require the indefinite delay of the effective date of the 2011 Wage Rule. Were the 2011 Wage Rule to become effective, it would supplant the revisions made to 20 CFR 655.10(b) in the IFR, which were necessary in light of the court’s order in CATA v. Solis. In that event, the Department would likely continue to be unable to implement the 2011 Wage Rule, based on the continuation of the Congressional prohibition on its implementation. However, should Congress lift the prohibition against implementation of the 2011 Wage Rule, the Department would need time to assess the current regulatory framework, to consider any changed circumstances, novel concerns or new information received, and to minimize disruptions. Until such time as Congress no longer prohibits the Department from implementing the 2011 Wage Rule, the effective date of the 2011 Wage Rule should be delayed. In the event that Congress no longer prohibits implementation of the 2011 Wage Rule, the Department would publish a document in the Federal Register within 45 days apprising the public of the status of 20 CFR 655.10 and the effective date of the 2011 Wage Rule. The Department invites comment on the proposed indefinite delay of the effective date of the 2011 Wage Rule. VerDate Mar<15>2010 15:39 Jul 22, 2013 Jkt 229001 Signed: at Washington, DC, this 18 of July, 2013. Eric Seleznow, Acting Assistant Secretary for Employment and Training. [FR Doc. 2013–17676 Filed 7–18–13; 4:15 pm] BILLING CODE 4510–FP–P PENSION BENEFIT GUARANTY CORPORATION 29 CFR Parts 4000, 4006, 4007, and 4047 RIN 1212–AB26 Premium Rates; Payment of Premiums; Reducing Regulatory Burden Pension Benefit Guaranty Corporation. ACTION: Proposed rule. AGENCY: The Pension Benefit Corporation (PBGC) proposes to make its premium rules more effective and less burdensome. Based on its regulatory review under Executive Order 13563 (Improving Regulation and Regulatory Review), PBGC proposes to amend its regulations on Premium Rates and Payment of Premiums to simplify due dates, coordinate the due date for terminating plans with the termination process, make conforming and clarifying changes to the variable-rate premium rules, provide for relief from penalties, and make other changes. Large plans would no longer have to pay flat-rate premiums early; small plans would get more time to value benefits. These amendments would be effective starting 2014. PBGC also proposes to amend its regulations in accordance with the Moving Ahead for Progress in the 21st Century Act. DATES: Comments must be submitted on or before September 23, 2013. ADDRESSES: Comments, identified by Regulation Identifier Number (RIN) 1212–AB26, may be submitted by any of the following methods: • Federal eRulemaking Portal: http:// www.regulations.gov. Follow the Web site instructions for submitting comments. • Email: reg.comments@pbgc.gov. • Fax: 202–326–4112. • Mail or Hand Delivery: Regulatory Affairs Group, Office of the General Counsel, Pension Benefit Guaranty Corporation, 1200 K Street NW., Washington, DC 20005–4026. All submissions must include the Regulation Identifier Number for this rulemaking (RIN 1212–AB26). Comments received, including personal SUMMARY: PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 information provided, will be posted to www.pbgc.gov. Copies of comments may also be obtained by writing to Disclosure Division, Office of the General Counsel, Pension Benefit Guaranty Corporation, 1200 K Street NW., Washington DC 20005–4026, or calling 202–326–4040 during normal business hours. (TTY and TDD users may call the Federal relay service tollfree at 1–800–877–8339 and ask to be connected to 202–326–4040.) FOR FURTHER INFORMATION CONTACT: Catherine B. Klion, Assistant General Counsel for Regulatory Affairs (klion.catherine@pbgc.gov), or Deborah C. Murphy, Senior Counsel (murphy.deborah@pbgc.gov), Office of the General Counsel, Pension Benefit Guaranty Corporation, 1200 K Street NW., Washington DC 20005–4026; 202– 326–4024. (TTY and TDD users may call the Federal relay service toll-free at 800–877–8339 and ask to be connected to 202–326–4024.) SUPPLEMENTARY INFORMATION: Executive Summary—Purpose of the Regulatory Action This rulemaking is needed to make PBGC’s premium rules more effective and less burdensome. The proposed rule simplifies and streamlines due dates, coordinates the due date for terminating plans with the termination process, makes conforming changes to the variable-rate premium rules, clarifies the computation of the premium funding target, reduces the maximum penalty for delinquent filers that selfcorrect, and expands premium penalty relief. PBGC’s legal authority for this action comes from section 4002(b)(3) of the Employee Retirement Income Security Act of 1974 (ERISA), which authorizes PBGC to issue regulations to carry out the purposes of title IV of ERISA, and section 4007 of ERISA, which gives PBGC authority to set premium due dates and to assess late payment penalties. Executive Summary—Major Provisions of the Regulatory Action Due Date Changes Premium due dates currently depend on plan size. Large plans pay the flatrate premium early in the premium payment year and the variable-rate premium later in the year. Mid-size plans pay both the flat- and variable-rate premiums by that same later due date. Small plans pay the flat- and variablerate premiums in the following year. PBGC proposes to simplify the due-date rules by providing that all annual premiums for plans of all sizes will be E:\FR\FM\23JYP1.SGM 23JYP1

Agencies

[Federal Register Volume 78, Number 141 (Tuesday, July 23, 2013)]
[Proposed Rules]
[Pages 44054-44056]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-17676]


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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; Proposed Delay of Effective Date

AGENCY: Employment and Training Administration, Labor.

ACTION: Proposed delay of effective date; request for comments.

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

SUMMARY: The Department of Labor (Department) is proposing to delay 
indefinitely the effective date of the Wage Methodology for the 
Temporary Non-agricultural Employment H-2B Program final rule (2011 
Wage Rule), in order to comply with recurrent legislation that 
prohibits the Department from using any funds to implement it, and to 
permit time for consideration of public comments sought in conjunction 
with an interim final rule published April 24, 2013, 78 FR 24047. The 
2011 Wage Rule revised the methodology by which the Department 
calculates the prevailing wages to be paid to H-2B workers and United 
States 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 2011 Wage 
Rule was originally scheduled to become effective on January 1, 2012, 
and the effective date has been extended a number of times, most 
recently to October 1, 2013.\1\ The Department is now proposing to 
delay the effective date of the 2011 Wage Rule until such time as 
Congress no longer prohibits the Department from implementing the 2011 
Wage Rule.
---------------------------------------------------------------------------

    \1\ The effective date of the 2011 Wage Rule was previously 
revised to September 30, 2011, 76 FR 45667 (Aug. 1, 2011); to 
November 30, 2011, 76 FR 59896 (Sept. 28, 2011); to January 1, 2012, 
76 FR 73508 (Nov. 29, 2011); to October 1, 2012, 76 FR 82115 (Dec. 
30, 2011); to March 27, 2013, 77 FR 60040 (Oct. 2, 2012); and to 
October 1, 2013, 78 FR 19098 (Mar. 29, 2013).

---------------------------------------------------------------------------
DATES: Comments must be received on or before August 9, 2013.

ADDRESSES: You may submit comments, identified by Regulatory 
Information Number (RIN) 1205-AB61, by any one of the following 
methods:
    Federal e-Rulemaking Portal: www.regulations.gov. Follow the Web 
site instructions for submitting comments.
    Mail or Hand Delivery/Courier: Please submit all written comments 
(including disk and CD-ROM submissions) to Michael Jones, Acting 
Administrator, Office of Policy Development and Research, Employment 
and Training Administration, U.S. Department of Labor, 200 Constitution 
Avenue NW., Room N-5641, Washington, DC 20210.
    Please submit your comments by only one method. Comments received 
by means other than those listed above or received after the comment 
period has closed will not be reviewed. The Department will post all 
comments received on http://www.regulations.gov without making any 
change to the comments, including any personal information provided. 
The http://www.regulations.gov Web site is the Federal e-rulemaking 
portal and all comments posted there are available and accessible to 
the public. The Department caution commenters not to include personal 
information such as Social Security Numbers, personal addresses, 
telephone numbers, and email addresses in their comments as such 
information will become viewable by the public on the http://www.regulations.gov Web site. It is the commenter's responsibility to 
safeguard his or her information. Comments submitted through http://www.regulations.gov will not include the commenter's email address 
unless the commenter chooses to include that information as part of his 
or her comment.
    Postal delivery In Washington, DC, may be delayed due to security 
concerns. Therefore, the Department encourages the public to submit 
comments through the http://www.regulations.gov Web site.
    Docket: For access to the docket to read background documents or 
comments received, go to the Federal eRulemaking portal at http://www.regulations.gov. The Department will also make all the comments 
received available for public inspection during normal business hours 
at the Employment and Training Administration (ETA) Office of Policy 
Development and Research at the above

[[Page 44055]]

address. If you need assistance to review the comments, the Department 
will provide you with appropriate aids such as readers or print 
magnifiers. The Department will make copies of the notice available, 
upon request, in large print and as an electronic file on computer 
disk. The Department will consider providing the notice in other 
formats upon request. To schedule an appointment to review the comments 
and/or obtain the notice in an alternate format, contact the ETA Office 
of Policy Development and Research at (202) 693-3700 (VOICE) (this is 
not a toll-free number) or 1-877-889-5627 (TTY/TDD).

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 published a final 
rule, Wage Methodology for the Temporary Non-agricultural Employment H-
2B Program, on January 19, 2011. See 76 FR 3452 (the 2011 Wage Rule). 
The 2011 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 2011 Wage Rule for January 1, 
2012. However, as a result of litigation and following notice-and-
comment rulemaking, we issued a final rule, 76 FR 45667 (August 1, 
2011), revising the effective date of the 2011 Wage Rule to September 
30, 2011, and a second final rule, 76 FR 59896 (September 28, 2011), 
further revising the effective date of the 2011 Wage Rule to November 
30, 2011.
    Thereafter, the Department delayed the effective date of the 2011 
Wage Rule until January 1, 2012, in light of the enactment on November 
18, 2011, of the Consolidated and Further Continuing Appropriations 
Act, 2012, which provided that ``[n]one of the funds made available by 
this or any other Act for fiscal year 2012 may be used to implement, 
administer, or enforce, prior to January 1, 2012 the [Wage Rule].'' 
Public Law 112-55, 125 Stat. 552, Div. B, Title V, sec. 546 (Nov. 18, 
2011) (the November 2011 Appropriations Act). In delaying the 2011 Wage 
Rule's effective date at that time, the Department stated that although 
the November 2011 Appropriations Act ``prevent[ed] the expenditure of 
funds to implement, administer, or enforce the [2011] Wage Rule before 
January 1, 2012, it [did] not prohibit the [2011] Wage Rule from going 
into effect, which [was] scheduled to occur on November 30, 2011.'' 76 
FR 73508, 73509 (November 29, 2011). The Department explained that 
``when the [2011] 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).'' Id. Accordingly, the 
Department determined that it was necessary in light of the November 
2011 Appropriations Act to delay the effective date of the 2011 Wage 
Rule to avoid the replacement of the wage provisions of the H-2B 2008 
Rule with a new rule that the Department lacked appropriated funds to 
implement. Such an occurrence would have rendered the H-2B program 
inoperable because the issuance of a prevailing wage determination is a 
condition precedent to approving an employer's request for an H-2B 
labor certification. As a result, the Department issued a final rule, 
76 FR 73508, which delayed the effective date of the 2011 Wage Rule 
until January 1, 2012.
    Subsequent appropriations legislation \2\ containing the same 
restriction prohibiting the Department's use of appropriated funds to 
implement, administer, or enforce the 2011 Wage Rule necessitated 
subsequent extensions of the effective date of that rule. See 76 FR 
82115 (December 30, 2011) (extending the effective date to October 1, 
2012); 77 FR 60040 (October 2, 2012) (extending the effective date to 
March 27, 2013); 78 FR 19098 (March 29, 2013) (extending the effective 
date to October 1, 2013). In light of the continued prohibitions on the 
expenditure of the Department's appropriated funds to implement, 
administer, or enforce the 2011 Wage Rule, the Department proposes to 
delay indefinitely the effective date of the 2011 Wage Rule until such 
time as the rule can be implemented.
---------------------------------------------------------------------------

    \2\ These include the Consolidated Appropriations Act of 2012, 
Public Law 112-74, 125 Stat. 786 (Dec. 23, 2011); Continuing 
Appropriations Resolution, 2013, Public Law 112-175, 126 Stat. 1313 
(Sept. 28, 2012); and Consolidated and Further Continuing 
Appropriations Act, 2013, Public Law 113-6, 127 Stat. 198 (Mar. 26, 
2013) (establishing DOL's appropriations through Sept. 30, 2013).
---------------------------------------------------------------------------

    Additionally, the Department, together with the Department of 
Homeland Security (the Departments),\3\ recently promulgated an interim 
final rule (IFR), 78 FR 24047, establishing a new wage methodology. 
This action was taken in direct response to Comite de Apoyo a los 
Trabajadores Agricolas (CATA) v. Solis, -- F. Supp. 2d --, 2013 WL 
1163426 (E.D. Pa. 2013) in which the district court vacated a provision 
of the H-2B 2008 rule, 20 CFR 655.10(b)(2). That provision required 
that prevailing wages based on the Occupational Employment Statistics 
(OES) survey contain tiers that are commensurate with the skill 
required for the job; the Department accordingly divided the 
Occupational Employment Survey wage applicable to the occupation in 
question into four tiers of wages to correspond to skill levels. The 
court vacated 20 CFR 655.10(b)(2), which was the basis for the four-
tiered wage, and remanded the matter to the Department, ordering the 
Department to come into compliance with the court's order within 30 
days.
---------------------------------------------------------------------------

    \3\ The Department of Labor (DOL) and the Department of Homeland 
Security (DHS) issued the IFR jointly to dispel questions regarding 
the respective roles of the two agencies and the validity of DOL's 
regulations as an appropriate way to implement the interagency 
consultation specified in section 214(c)(1) of the INA, 8 U.S.C. 
1184(c)(1). See Bayou Lawn & Landscape Servs. v. Sec'y of Labor, 713 
F.3d 1080 (11th Cir. 2013) (holding that the Department of Labor 
lacks independent rulemaking authority under the INA to issue 
legislative regulations implementing its role in the H-2B program). 
But see La. Forestry Ass'n v. Solis, 889 F. Supp. 2d 711 (E.D. Pa. 
2012) (rejecting claim that the Department of Labor lacks authority 
under the INA to administer the H-2B program through legislative 
rules). Due to these inconsistent court rulings about the Department 
of Labor's authority to issue independent legislative rules, the 
Department of Labor and DHS together issued the IFR revising the 
prevailing wage methodology in the H-2B program.
---------------------------------------------------------------------------

    In response to CATA v. Solis, the Departments issued the IFR on 
April 24, 2013. See 78 FR 24047. The Departments struck the phrase, 
``at the skill level,'' from 20 CFR 655.10(b)(2), thus requiring 
prevailing wage determinations issued using the OES survey to be based 
on the mean wage for the occupation in the area of intended employment 
without tiers or skill levels. See id. at 24053. That revision became 
effective on April 24, 2013, the date of publication. The Departments 
requested comments on all aspects of the prevailing wage provisions of 
20 CFR

[[Page 44056]]

655.10(b), including, among other things, whether the OES mean is the 
appropriate basis for determining the prevailing wage; whether wages 
based on the Davis-Bacon Act (DBA), 40 U.S.C. 276a et seq., 29 CFR part 
1, or the McNamara-O'Hara Service Contract Act (SCA), 41 U.S.C. 351 et 
seq., should be used to determine the prevailing wage, and if so to 
what extent; and whether to permit the continued use of employer-
submitted surveys and ways to strengthen their methodology, if 
permitted. The comment period closed on June 10, 2013, and the 
Departments are in the process of reviewing those comments and 
determining whether further revision to 20 CFR 655.10(b) is warranted 
in light of public comment.
    The confluence of the recurrent Congressional prohibition against 
implementation of the 2011 Wage Rule, which the Department anticipates 
will continue, and the Department's current review and consideration of 
suggestions made in the comments associated with the IFR, which revised 
wage provisions of the H-2B regulations that were also the subject of 
the 2011 Wage Rule, require the indefinite delay of the effective date 
of the 2011 Wage Rule. Were the 2011 Wage Rule to become effective, it 
would supplant the revisions made to 20 CFR 655.10(b) in the IFR, which 
were necessary in light of the court's order in CATA v. Solis. In that 
event, the Department would likely continue to be unable to implement 
the 2011 Wage Rule, based on the continuation of the Congressional 
prohibition on its implementation. However, should Congress lift the 
prohibition against implementation of the 2011 Wage Rule, the 
Department would need time to assess the current regulatory framework, 
to consider any changed circumstances, novel concerns or new 
information received, and to minimize disruptions.
    Until such time as Congress no longer prohibits the Department from 
implementing the 2011 Wage Rule, the effective date of the 2011 Wage 
Rule should be delayed. In the event that Congress no longer prohibits 
implementation of the 2011 Wage Rule, the Department would publish a 
document in the Federal Register within 45 days apprising the public of 
the status of 20 CFR 655.10 and the effective date of the 2011 Wage 
Rule. The Department invites comment on the proposed indefinite delay 
of the effective date of the 2011 Wage Rule.

    Signed: at Washington, DC, this 18 of July, 2013.
Eric Seleznow,
Acting Assistant Secretary for Employment and Training.
[FR Doc. 2013-17676 Filed 7-18-13; 4:15 pm]
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