Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program; Proposed Delay of Effective Date, 44054-44056 [2013-17676]
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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
https://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).
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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 https://www.regulations.gov
without making any change to the
comments, including any personal
information provided. The https://
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 https://
www.regulations.gov Web site. It is the
commenter’s responsibility to safeguard
his or her information. Comments
submitted through https://
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 https://
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 https://
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
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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
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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
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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: https://
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
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]]>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]
=======================================================================
-----------------------------------------------------------------------
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 https://www.regulations.gov without making any
change to the comments, including any personal information provided.
The https://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 https://www.regulations.gov Web site. It is the commenter's responsibility to
safeguard his or her information. Comments submitted through https://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 https://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 https://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.
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\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).
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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.
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\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.
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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]
BILLING CODE 4510-FP-P
