Intent To Issue Declaratory Order, 75179-75184 [2014-28823]
Download as PDF
<![CDATA[
Federal Register / Vol. 79, No. 242 / Wednesday, December 17, 2014 / Notices
collection request to the Office of
Management and Budget (OMB) for
review and approval in accordance with
the Paperwork Reduction Act of 1995.
The proposed information collection is
published to obtain comments from the
public and affected agencies.
DATES: Comments are encouraged and
will be accepted for 60 days until
February 17, 2015.
FOR FURTHER INFORMATION CONTACT: If
you have additional comments
especially on the estimated public
burden or associated response time,
suggestions, or need a copy of the
proposed information collection
instrument with instructions or
additional information, please contact
Natisha Taylor, Firearms Industry
Programs Branch, 99 New York Avenue
NE., Washington, DC 20226 or email at
fipb-informationcollection@atf.gov .
SUPPLEMENTARY INFORMATION: Written
comments and suggestions from the
public and affected agencies concerning
the proposed collection of information
are encouraged. Your comments should
address one or more of the following
four points:
• Evaluate whether the proposed
collection of information is necessary
for the proper performance of the
functions of the agency, including
whether the information will have
practical utility;
• Evaluate the accuracy of the
agency’s estimate of the burden of the
proposed collection of information,
including the validity of the
methodology and assumptions used;
• Evaluate whether and if so how the
quality, utility, and clarity of the
information to be collected can be
enhanced; and
• Minimize the burden of the
collection of information on those who
are to respond, including through the
use of appropriate automated,
electronic, mechanical, or other
technological collection techniques or
other forms of information technology,
e.g., permitting electronic submission of
responses.
mstockstill on DSK4VPTVN1PROD with NOTICES
Overview of This Information
Collection 1140–0046
1. Type of Information Collection:
Extension without change of a currently
approved collection.
2. The Title of the Form/Collection:
Certification on Agency Letterhead
Authorizing Purchase of Firearm for
Official Duties of Law Enforcement
Officer.
3. The agency form number, if any,
and the applicable component of the
Department sponsoring the collection:
Form number: None.
VerDate Sep<11>2014
19:49 Dec 16, 2014
Jkt 235001
Component: Bureau of Alcohol,
Tobacco, Firearms and Explosives, U.S.
Department of Justice.
4. Affected public who will be asked
or required to respond, as well as a brief
abstract:
Primary: State, Local, or Tribal
Government.
Other: None.
Abstract: The letter is used by a law
enforcement officer to purchase
handguns to be used in his/her official
duties from a licensed firearm dealer
anywhere in the country. The letter
shall state that the officer will use the
firearm in official duties and that a
records check reveals that the
purchasing officer has no convictions
for misdemeanor crimes of domestic
violence.
5. An estimate of the total number of
respondents and the amount of time
estimated for an average respondent to
respond: An estimated 50,000
respondents will take 8 minutes to
complete and file the letter.
6. An estimate of the total public
burden (in hours) associated with the
collection: The estimated annual public
burden associated with this collection is
6,667 hours.
If additional information is required
contact: Jerri Murray, Department
Clearance Officer, United States
Department of Justice, Justice
Management Division, Policy and
Planning Staff, Two Constitution
Square, 145 N Street NE., Room 3E–
405B, Washington, DC 20530.
Dated: December 11, 2014.
Jerri Murray,
Department Clearance Officer for PRA, U.S.
Department of Justice.
[FR Doc. 2014–29454 Filed 12–16–14; 8:45 am]
BILLING CODE 4410–FY–P
DEPARTMENT OF LABOR
Office of the Secretary of Labor
Intent To Issue Declaratory Order
Office of the Secretary of Labor,
Department of Labor.
ACTION: Notice of intent to issue
declaratory order; request for comment.
AGENCY:
The Secretary of Labor
(Secretary) is considering issuing on his
own motion a declaratory order
confirming that he has exclusive
authority to make legal and policy
determinations based on his statutory
and regulatory authority to administer
and enforce the H–2B temporary labor
certification program. Such a
declaratory order would remove
uncertainty about that authority created
SUMMARY:
PO 00000
Frm 00066
Fmt 4703
Sfmt 4703
75179
by a decision of the Board of Alien
Labor Certification Appeals in Island
Holdings LLC, 2013–PWD–00002
(BALCA Dec. 3, 2013) (en banc). The
Secretary issues this Notice pursuant to
the authority granted in the
Administrative Procedure Act (APA), 5
U.S.C. 554(e), to issue declaratory orders
‘‘to terminate a controversy or remove
uncertainty.’’ The Secretary will accept
comments from the public on this
Notice for 30 days, and may issue a
declaratory order after consideration of
all comments received in that
timeframe.
DATES: This Notice is effective
December 17, 2014. Interested persons
are invited to submit written comments
on this Declaratory Order on or before
January 16, 2015.
ADDRESSES: You may submit comments,
identified by docket number ETA–
2014–0003, 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 Adele Gagliardi,
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
Departments 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
Departments 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.
E:\FR\FM\17DEN1.SGM
17DEN1
75180
Federal Register / Vol. 79, No. 242 / Wednesday, December 17, 2014 / Notices
mstockstill on DSK4VPTVN1PROD with NOTICES
Postal delivery in Washington, DC,
may be delayed due to security
concerns. Therefore, the Departments
encourage 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 Departments
will also make all the comments either
Department receives available for public
inspection during normal business
hours at the Employment and Training
Administration (ETA) Office of Policy
Development and Research at the above
address. If you need assistance to review
the comments, DOL will provide you
with appropriate aids such as readers or
print magnifiers. DOL will make copies
of the rule available, upon request, in
large print and as an electronic file on
computer disk. DOL will consider
providing the interim final rule in other
formats upon request. To schedule an
appointment to review the comments
and/or obtain the rule 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: For
further information, contact William W.
Thompson, Acting 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 1–800–877–8339.
SUPPLEMENTARY INFORMATION:
I. Statutory and Regulatory Background
The Immigration and Nationality Act
(INA) establishes the H–2B visa
classification for a non-agricultural
temporary worker ‘‘having a residence
in a foreign country which he has no
intention of abandoning who is coming
temporarily to the United States to
perform . . . temporary [nonagricultural] service or labor if
unemployed persons capable of
performing such service or labor cannot
be found in this country[.]’’ 8 U.S.C.
1101(a)(15)(H)(ii)(b). The INA further
requires an importing employer (H–2B
employer) to petition the Department of
Homeland Security (DHS) for
classification of the prospective
temporary worker as an H–2B
nonimmigrant, and the petition must be
VerDate Sep<11>2014
19:49 Dec 16, 2014
Jkt 235001
made and approved before the
beneficiary (H–2B worker) can be
considered eligible for an H–2B visa or
H–2B status. 8 U.S.C. 1184(c)(1). In
adjudicating an H–2B petition, the INA
requires DHS to consult with
‘‘appropriate agencies of the
Government[.]’’ Id.
DHS has determined that in order to
administer the INA’s H–2B visa program
it must consult with the Department of
Labor (DOL) to determine whether U.S.
workers capable of performing the
temporary services or labor are available
and that the foreign worker’s
employment will not adversely affect
the wages or working conditions of
similarly employed U.S. workers. 8 CFR
214.2(h)(6)(iii)(A). DHS’s regulation
requires employers to obtain
certification from DOL that these
conditions are met prior to submitting a
petition to DHS. Id. DHS requires DOL
to ‘‘separately establish for the
temporary labor program under his or
her jurisdiction, by regulation at 20 CFR
655, procedures for administering that
temporary labor program under his or
her jurisdiction, and shall determine the
prevailing wage applicable to an
application for temporary labor
certification.’’ 8 CFR 214.2(h)(6)(iii)(D).
DOL has rulemaking authority to carry
out DHS’s charge to establish rules
governing the temporary labor
certification process. Louisiana Forestry
Ass’n v. Secretary, U.S. Department of
Labor, 745 F.3d 653, 669, 672–675 (3rd
Cir. 2014). DOL’s H–2B regulations
require a determination whether a
qualified U.S. worker is available to fill
the petitioning H–2B employer’s job
opportunity and whether a foreign
worker’s employment in the job
opportunity will adversely affect the
wages or working conditions of
similarly employed U.S. workers. See 20
CFR part 655, subpart A. As part of
DOL’s labor certification process, DOL
sets the wage that employers must offer
and pay foreign workers entering the
country on an H–2B visa. See 20 CFR
655.10.
On April 24, 2013, DHS and DOL (the
Departments) issued an interim final
rule (IFR) that revised DOL’s method of
determining the prevailing wage in the
H–2B program.1 Wage Methodology for
1 The Departments issued the 2013 IFR jointly to
dispel questions that arose contemporaneously with
its promulgation 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) (concluding that
plaintiffs are likely to prevail on their allegation
that the Department of Labor lacks independent
rulemaking authority under the INA to issue
PO 00000
Frm 00067
Fmt 4703
Sfmt 4703
the Temporary Non-Agricultural
Employment H–2B Program, Part 2, 78
FR 24,047 (Apr. 24, 2013). The IFR was
a direct response to a court order
vacating a portion of the DOL’s
prevailing wage methodology and
requiring the agency to come into
compliance within 30 days. Comite de
Apoyo a los Trabajadores Agricolas
(CATA) v. Solis, 933 F. Supp. 2d 700
(E.D. Pa. 2013) (CATA II). The CATA II
Court found that the 2008 regulation
then being implemented to set the H–2B
prevailing wage, which required the
issuance of prevailing wages based on
four artificial skill levels that were
wholly irrelevant to unskilled H–2B
work, violated the INA by allowing
employers to pay substandard wages
that harm the domestic labor
market.2 CATA II, 933 F. Supp. 2d at
713.3 As a result, the IFR set a new,
legislative regulations implementing its role in the
H–2B program). However, the Eleventh Circuit in
Bayou only reviewed the district court’s entry of a
preliminary injunction against implementation of
DOL’s H–2B rule issued before the joint IFR.
Therefore, the Bayou decision only addressed the
plaintiffs’ likelihood of success on the merits, and
was not a final judgment on the plaintiffs’ claim
that DOL is without authority to promulgate
legislative rules in the H–2B program before the
issuance of the joint IFR. The latter issue is
currently before the district court awaiting decision
on pending motions for summary judgment. As
noted above and in sharp contrast to the Bayou
case, in an APA challenge to the 2011 Wage Rule,
which also tested DOL’s authority to issue
legislative rules in the H–2B program, the U.S.
Court of Appeals for the Third Circuit held recently
that ‘‘DOL has authority to promulgate rules
concerning the temporary labor certification process
in the context of the H–2B program, and that the
2011 Wage Rule was validly promulgated pursuant
to that authority.’’ La. Forestry Ass’n v. Perez, 745
F.3d 653, 669 (3d Cir. Feb. 5, 2014); see also G.H.
Daniels & Assocs., Inc. v. Solis, 2013 WL 5216453,
*4–5 (D. Colo. Sept. 17, 2013) (DOL has authority
to issue H–2B legislative rules), appeal pending,
No. 13–1479 (10th Cir.).
2 The CATA II order was the culmination of a
years-long period of DOL rulemaking, challenges to
that rulemaking, and Congressional riders that
prevented the implementation of the agency’s rules.
In the preceding CATA I decision, Civ. No. 2:09–
cv–240–LP, 2010 WL 3431761 (E.D. Pa. 2010), the
district court concluded that the four-tiered skill
levels in the 2008 prevailing wage rule were
implemented without following the Administrative
Procedure Act’s notice-and-comment requirements.
However, rather than vacate that methodology, the
CATA I court left it in place and ordered DOL to
issue a replacement rule that complied with the
APA within 120 days. CATA I, slip op. at 27. DOL
complied with the CATA I order by revising the H–
2B wage regulation through notice and comment
procedures (76 FR 3452, Jan. 19, 2011), but
Congress, through appropriations riders, blocked its
implementation. For a complete history of events
leading up to the CATA II order and the IFR, see
‘‘Notification of Status of the 2011 H–2B Wage
Rule,’’ 79 FR 14450 (March 14, 2014).
3 As discussed further below in Sec. III, supra, the
CATA orders anticipated that once DOL issued a
valid regulatory method for determining the
prevailing wage, the agency would also issue
supplemental prevailing wage determinations to
employers with current labor certifications to
E:\FR\FM\17DEN1.SGM
17DEN1
mstockstill on DSK4VPTVN1PROD with NOTICES
Federal Register / Vol. 79, No. 242 / Wednesday, December 17, 2014 / Notices
legally valid prevailing wage standard to
allow for an immediate adjustment of
the wage rates for workers currently
employed under the vacated 2008 wage
rule. 78 FR at 24,056. In order to comply
with the CATA II order, the preamble to
the IFR notified the regulated
community that the new prevailing
wage rate under the IFR would apply to
all employers currently employing H–
2B workers in the U.S. upon individual
notification to the employer of a new
prevailing wage determination. Id. at
24,055.
To implement the IFR, on April 25,
2013, DOL issued an ‘‘FAQ’’ on its Web
site informing the public that
‘‘[e]mployers who have H–2B workers
performing work that is based on the
[vacated 2008 regulation] on or after
April 24, 2013, will receive a new
prevailing wage determination in
accordance with the Wage Methodology
IFR.’’ Employment and Training
Administration, Frequently Asked
Questions, Interim Final Rule, Wage
Methodology for the Temporary NonAgricultural Employment H–2B
Program, Part 2, at 1 (Apr. 25, 2013).
DOL also advised the public, consistent
with the statement in the preamble to
the IFR, that ‘‘employers are required to
offer and pay [the new IFR] wage for any
work performed on or after the date the
employer receives the supplemental
determination.’’ Id. In addition, DOL
indicated that employers were
permitted under the regulation to file an
appeal of any supplemental prevailing
wage determination, but not based on a
challenge to the occupational
classification, because employers
should have already raised that issue
when they received their original
prevailing wage determinations. Id. at 2.
Immediately following the publication
of the IFR, DOL issued supplemental
prevailing wage determinations to all
H–2B employers subject to the IFR,
including employers currently
employing H–2B workers under the
vacated 2008 wage regime. In each
supplemental prevailing wage
determination, DOL informed the
employer of its ability to seek a
redetermination of the supplemental
prevailing wage determination,
pursuant to 20 CFR 655.10(g). On
August 12, 2013, DOL completed the
processing of new and supplemental
prevailing wage determinations for all
cases falling within the scope of the IFR.
II. The Island Holdings Challenge
Island Holdings, LLC, filed
applications for labor certification with
correct the unlawful wage issued with those extant
certifications.
VerDate Sep<11>2014
19:49 Dec 16, 2014
Jkt 235001
DOL in early 2013 for multiple H–2B
nonimmigrant workers with proposed
dates of employment into November
2013. When filing its applications for
H–2B certification, Island Holdings
agreed to pay the wage rate that equals
or exceeds the highest of the most recent
prevailing wage rate that is or will be
issued by DOL for the time period the
H 2B workers perform work in the
United States. See ETA Form 9142—
Appendix B.1. Before the publication of
the IFR, DOL certified three Island
Holdings’ applications with prevailing
wages based on the 2008 wage
methodology, and these prevailing
wages were valid generally through the
end of 2013. Shortly after DOL
published the IFR, the agency issued to
Island Holdings three supplemental
prevailing wage determinations
(SPWDs) informing the company that it
was required to pay new prevailing
wage rates, as applicable under the IFR.
On May 23, 2013, Island Holdings
filed an administrative appeal of DOL’s
supplemental prevailing wage
determinations with the Board of Alien
Labor Certification Appeals (BALCA), a
group of Administrative Law Judges
(ALJs) empowered to hear and decide
appeals involving alien labor
certification. 20 CFR 655.11(e);
655.33(e). The BALCA remanded the
matter back to DOL to address Island
Holdings’ request for a redetermination
under 20 CFR 655.10(g). Island Holdings
subsequently sought a redetermination
of DOL’s supplemental prevailing wage
determinations, but DOL determined
that the agency’s initial wage
adjustments under the IFR were correct.
Consistent with its statement in the IFR,
DOL informed Island Holdings that the
CATA II Court’s vacatur order required
the agency to replace the vacated 2008
prevailing wage rates with the valid
prevailing wage rates under the IFR.
DOL also informed Island Holdings that
by signing ETA Form 9142, Appendix
B.1, the company agreed, as a condition
for importing foreign workers, that it
would pay the prevailing wage rate in
effect at the time the company
employed H–2B workers in the United
States. Because the 2008 wage rates had
been vacated and were no longer in
effect, DOL informed Island Holdings
that the new IFR wage rates controlled.
Island Holdings again sought an
administrative appeal of DOL’s
supplemental prevailing wage
determinations under the IFR, which
the BALCA docketed for en banc
review. On December 3, 2013, the
BALCA purportedly vacated DOL’s
supplemental prevailing wage
determinations under the IFR. See
Island Holdings LLC, 2013–PWD–00002
PO 00000
Frm 00068
Fmt 4703
Sfmt 4703
75181
(BALCA Dec. 3, 2013) (en banc).
Contrary to the Secretary of Labor’s
interpretation of the IFR stated in the
preamble, the BALCA determined that
DOL lacks the authority to issue
supplemental prevailing wage
determinations in cases where DOL has
already approved labor certification
applications based on the vacated 2008
prevailing wage rule. The BALCA
rejected DOL’s position, as stated in the
preamble to the IFR, that the CATA II
Court’s vacatur order requires DOL to
issue supplemental prevailing wage
determinations to replace the vacated
2008 prevailing wage rates for all work
performed by H–2B nonimmigrant
workers after the issuance of the IFR. In
addition, the BALCA determined that
DOL lacks authority to require
employers to pay the highest of the most
recent prevailing wage that is or will be
issued by DOL to the employer for the
time period H–2B workers perform labor
or services in the United States, despite
the employer’s signed agreement on
ETA Form 9142, Appendix B.1, to pay
the adjusted prevailing wage rate.
On December 11, 2013, CATA filed a
civil action challenging the BALCA’s
Island Holdings decision as arbitrary,
capricious, and in excess of law under
the Administrative Procedure Act.
CATA v. Perez,—FRD.—,2014 WL
3629528 (E.D. Pa. 2014) (CATA III). On
January 10, 2014, CATA moved for
summary judgment, seeking an order
vacating the BALCA’s decision. CATA
argued that the BALCA, as subordinate
Administrative Law Judges, lacks the
authority to overrule the Secretary of
Labor on issues of law and policy. Even
if the BALCA had such authority, CATA
contended that the BALCA’s decision is
an unreasonable and substantive
alteration of the agency’s legislative rule
under the IFR, which violates the
requirements of notice and comment
rulemaking. In its pleadings, the
Department of Labor agreed that Island
Holdings does not represent the legal or
policy decision of the Secretary of Labor
as reflected in the IFR. The Department
stated that the ‘‘BALCA’s Island
Holdings decision represents a
resolution of that individual case which
is not subject to further administrative
review . . ., but the BALCA’s decision
does not represent the legal position of
the Secretary of Labor.’’ On December
20, 2013, while the CATA III case was
pending, DOL stayed further action on
all pending supplemental prevailing
wage determinations (approximately
1050 SPWDs), and has not yet taken any
further action on them.
On July 23, 2014, the district court
dismissed CATA’s complaint,
concluding that the plaintiffs were
E:\FR\FM\17DEN1.SGM
17DEN1
75182
Federal Register / Vol. 79, No. 242 / Wednesday, December 17, 2014 / Notices
without standing because there was no
showing of agency action applying
Island Holdings to CATA or its
members. CATA III,—FRD.—,2014 WL
3629528, *7–8, The district court also
held that the case did not involve final
agency action because ‘‘it is . . . the
Secretary of Labor, and not the BALCA,
that ultimately makes the policies and
rules governing H–2B prevailing
wages.’’ Id. at 8. Finally, the court
concluded that because the DOL was
presently engaged in rulemaking to
revise the H–2B wage methodology,
adjudication would be premature
because the agency may address the
issue in that context. Id. at 8–10.
mstockstill on DSK4VPTVN1PROD with NOTICES
III. Basis for Declaratory Order
The BALCA’s Island Holdings
decision has created uncertainty about
the Secretary of Labor’s authority to set
law and policy in the H–2B program
generally, and about the immediate
application of the revised wage
regulation in the IFR to employers with
H–2B workers employed at the time of
the IFR but with prevailing wages set
under the vacated 2008 wage rule. The
decision has further cast uncertainty on
the legal status of the pending
supplemental prevailing wage
determinations that DOL stayed shortly
after the BALCA’s decision. DOL’s
expectation was that the CATA III
litigation, which squarely framed the
issue whether the BALCA’s Island
Holdings decision exceeded the scope of
its authority, would dispose of the
matter in the Secretary’s favor and
resolve the uncertainty created by the
BALCA. However, the district court
chose to stay its hand, and returned
resolution of the issue to DOL. Although
the agency is currently preparing
rulemaking to address issues involving
the methodology to set the H–2B
prevailing wage, that rulemaking cannot
address the determination of rights and
obligations under a prior rule, Bowen v.
Georgetown University Hosp., 488 U.S.
204, 208–211 (1988), and in any event
will not be finalized until 2015 at the
earliest.
The BALCA’s Island Holdings
decision does not reflect the legal
position of the Secretary of Labor
because the BALCA erroneously
rejected the Secretary of Labor’s own
plain interpretation of the relevant
regulatory provisions, as reflected in the
preamble to the IFR and a separate
notice amending ETA Form 9142,
requiring H–2B employers to attest that
they will pay at least the prevailing
wage that ‘‘is or will be issued by the
Department’’ during the course of the
certified employment. See 78 FR at
VerDate Sep<11>2014
19:49 Dec 16, 2014
Jkt 235001
24,055; 76 FR 21,036 (Apr. 14, 2011).4
In dismissing the Secretary’s preamble
discussions, the BALCA ignored the
established principle that a preamble
statement to a rule constitutes the best
evidence of the agency’s
contemporaneous interpretation of a
regulation, to which the courts owe
substantial deference. See Public Citizen
v. Carlin, 184 F.3d 900, 911 (D.C. Cir.
1999); cf. Dearborn Public Schools,
1991–INA–222 (BALCA Dec. 7, 1993)
(en banc), (BALCA, as a non-Article III
court, lacks inherent authority to rule on
the validity of a regulation).
Moreover, the BALCA’s decision in
Island Holdings that the Department is
without authority to issue supplemental
prevailing wage determinations is in
direct opposition to the district court’s
orders in the CATA case, and
potentially leaves the Department
susceptible to conflicting legal
obligations. CATA I ordered DOL to
issue a new wage regulation that
followed APA procedures. While DOL
was drafting its new wage regulation to
comply with CATA I, the district court
concluded that it need not order DOL to
issue conditional labor certifications to
employers seeking to hire H–2B workers
that would require employers to agree to
pay a prevailing wage set by the new
methodology as soon as that
methodology became effective. Rather,
the court specifically held that nothing
in the existing H–2B regulations
precluded DOL from issuing
certifications conditioned on a promise
to pay a new prevailing wage as soon as
one became effective. CATA I, 2010 WL
4823236, at *2–3 (Nov. 24, 2010). The
agency complied with the CATA I order
in 2011 by issuing a new wage rule. 76
FR 3452. Congress then barred that 2011
wage rule from being implemented
through a series of appropriations
riders, causing the agency to continue
applying the invalid 2008 wage rule.
The court in CATA II then vacated the
2008 wage rule, concluding that
prevailing wage determinations issued
based upon the four-tiered wage rates in
that rule resulted in adverse effect on
U.S. workers’ wages, and that the labor
certifications based on such prevailing
4 When it published the new ETA Form 9142
requiring employers seeking a labor certification to
swear under penalty of perjury that they would pay
at least the prevailing wage that ‘‘is or will be issued
by the Department’’ during the course of the
certified employment, the Department explained
that when a new wage rate became effective as a
result of a revision to the methodology to determine
the prevailing wage, employers would be required
to pay the prevailing wage rate in effect for the
period of work encompassed by their application,
which could result in two wage rates being
applicable to a single application. 76 FR 21,036.
Employers have been voluntarily signing this
attestation for over three years.
PO 00000
Frm 00069
Fmt 4703
Sfmt 4703
wages ‘‘exceed the bounds of DOL’s
delegated authority.’’ 933 F. Supp. 2d at
711–712. The court also found that the
four-tiered wages required by the 2008
rule violated section 706(2)(A) of the
APA, because it had consequences that
‘‘plainly contradict congressional policy
and render the 2008 Wage Rule
invalid[.]’’ Id. at 713. Once the court
vacated the 2008 wage rule, it ceased to
exist and DOL was obligated to move
quickly to issue a valid replacement rule
to fill the void. Harper v. Virginia Dep’t
of Taxation, 509 U.S. 86, 97 (1993);
Nat’l Fuel Gas Supply Corp. v. FERC, 59
F.3d 1281, 1289 (D.C. Cir. 1995).
Taken together, these rulings make it
clear that the CATA court expected that
once DOL issued a valid regulatory
method for determining the prevailing
wage, the agency would also issue
supplemental prevailing wage
determinations to employers with
current labor certifications to correct the
unlawful wage issued with those extant
certifications. The Secretary determined
that the court’s orders obliged the
Department to issue the SPWDs, and
that judgment is reflected in the IFR and
its implementing guidance. The
BALCA’s Island Holdings decision
directly controverts the CATA orders
and, if abided, leaves the Department
vulnerable to continuing legal
challenges based on prevailing wage
determinations invalidated by the IFR
on April 24, 2013.
Even if DOL were not required under
the CATA Court’s decisions to adjust the
prevailing wage obligations of H–2B
employers under the IFR, the BALCA
still erred in determining that DOL was
not authorized to issue supplemental
prevailing wage determinations. In
2011, DOL amended its ETA Form 9142,
Appendix B.1, to require an agreement
from all H–2B employers, as a condition
for importing H–2B nonimmigrant
workers, to pay the prevailing wage rate
in effect for the pay period of work
encompassed by the employer’s labor
certification application for H–2B
nonimmigrant workers. 76 FR at
21,036–39. In the preamble to the
Federal Register notice announcing the
amendment to ETA Form 9142,
Appendix B.1, the Assistant Secretary of
Labor stated that DOL requires all
employers who apply for an H–2B labor
certification to agree, as a condition of
receiving the H–2B labor certification, to
pay the prevailing wage rate in effect for
the period of work encompassed by the
employers’ labor certification
applications. Id. at 21,036. When
publishing the IFR, the Secretary of
Labor again stated that all employers are
required to comply with this condition
after receiving a supplemental
E:\FR\FM\17DEN1.SGM
17DEN1
mstockstill on DSK4VPTVN1PROD with NOTICES
Federal Register / Vol. 79, No. 242 / Wednesday, December 17, 2014 / Notices
prevailing wage determination under
the IFR. 78 FR at 24,055. Thus, DOL’s
issuance of supplemental prevailing
wage determinations under the IFR is
authorized by the contractual conditions
to which the employers agreed when
signing ETA Form 9142, Appendix B.1,
and the Secretary’s interpretation of the
scope of the IFR wage obligations for
employers currently employing H–2B
workers under wage rates that have been
vacated or rendered legally erroneous.
In the case under review, Island
Holdings willingly agreed to the wage
adjustment conditions when the
company signed ETA Form 9142,
Appendix B.1. Island Holdings agreed to
pay the wage rate that equals or exceeds
the highest of the most recent prevailing
wage rate that is or will be issued by
DOL for the time period the H–2B
workers perform work in the United
States. Because Island Holdings
specifically agreed to contractual terms
set by DOL as a condition for importing
foreign workers, the company remains
bound to those contractual terms.
Woodside Village v. Secretary of Labor,
611 F.2d 312, 315 (9th Cir. 1980);
Vulcan Arbor Hill Corp. v. Reich, 81
F.3d 1110, 1115–16 (D.C. Cir. 1996).
Island Holdings, and all similarly
situated H–2B employers, remain bound
by the voluntary and unconditional
promise to pay the wage rate that equals
or exceeds the highest of the most recent
prevailing wage rate that is or will be
issued by DOL for the time period the
H–2B workers perform work in the
United States, including the new IFR
wage rates. Frederick County Fruit
Growers v. Martin, 968 F.2d 1265, 1269
(D.C. Cir. 1992). The Secretary’s
position on this issue was clearly stated
in the preamble to the IFR, which
indicated that employers are required to
pay the higher IFR wage rates based on
the employers’ signed agreements under
Appendix B.1 to ETA Form 9142. 78 FR
at 24055. Therefore, the BALCA’s
determination that employers are not
required to pay the adjusted wage rates
under the supplemental prevailing wage
determinations was a legal error issued
contrary to the Secretary’s clear
direction on this precise issue under the
IFR.
Accordingly, pursuant to the
authority granted to DOL under 5 U.S.C.
554(e), the Secretary is now considering
issuing on his own motion a declaratory
order to clarify his authority to set law
and policy in the H–2B labor
certification program, and to resolve the
controversy arising from the BALCA’s
legally erroneous decision. The
BALCA’s Island Holdings decision does
not represent the legal or policy position
of the Secretary of Labor. The
VerDate Sep<11>2014
19:49 Dec 16, 2014
Jkt 235001
Administrative Law Judges composing
the BALCA are subordinate employees
of the agency. See 5 U.S.C. 3105; 52 FR
at 11,217; Dep’t of Justice, Legal Counsel
Opinion, 14 Op. O.L.C. 1, 2–3 (1990). It
is a basic principle of administrative
law that the agency makes law and
policy, not subordinate ALJs. See Ho v.
Donovan, 569 F.3d 677, 682 (7th Cir.
2009); Croplife v. EPA, 329 F.3d 876,
882 (D.C. Cir. 2003); Iran Air v.
Kugelman, 996 F.2d 1253, 1260 (D.C.
Cir. 1993); Nash v. Bowen, 869 F.2d 675,
680 (2d Cir. 1989); Admin. Conf. of the
United States, Recommendation 92–7,
57 FR 61,759, 61,763 (Dec. 29, 1992).
The BALCA ALJs’ authority is limited to
non-lawmaking functions, including
determining issues of fact and applying
undisputed law to the facts of an
employer’s particular case.
Apart from the general principle of
administrative law that the BALCA ALJs
do not have authority to speak for the
agency on questions of law and policy,
under DOL’s regulation the BALCA does
not have delegated authority to speak
for the agency. Unlike the Secretary’s
express delegation of his authority to
the Administrative Review Board (ARB),
see 77 FR 69378 (Secretary’s Order 1–
2012), the agency has never endowed
the BALCA with authority to speak for
the Secretary on legal issues, see 52 FR
at 11,217–18. Courts have recognized
that the ARB speaks for the agency
because it has delegated authority, see
Sasse v. DOL, 409 F.3d 773, 778–79 (6th
Cir. 2005), but the BALCA lacks such
delegation. Although the agency’s
administrative appellate regime may
terminate with the BALCA’s review
because there is no procedure for
appealing to a higher agency official,
that termination does not create
delegated authority in the BALCA to
make law or policy for the agency. The
lack of further administrative review
simply means that the BALCA’s
decision is the final agency action for
purposes of judicial review. See 5 U.S.C.
704; cf. Tom C. Clark, Attorney
General’s Manual on the Administrative
Procedure Act 83 (1947). However, as a
neutral fact finder and arbiter of an
employer’s complaint, the BALCA’s
decisions do not necessarily represent
the agency’s authoritative interpretation
of the regulation. Cf. Martin v.
Occupational Safety and Health Review
Comm’n, 499 U.S. 144, 154–55 (1991).5
5 Even under a split enforcement regime where
Congress delegates to a neutral adjudicatory board
the authority to hear claims or sanctions brought by
the agency with enforcement authority, the
Supreme Court has held that the enforcement
agency with authority to administer the statute has
jurisdiction to issue binding interpretations of the
agency’s regulation. See Martin v. OSHRC, 499 U.S.
PO 00000
Frm 00070
Fmt 4703
Sfmt 4703
75183
The Secretary establishes H–2B wage
policy and any related, governing legal
standards. If the Secretary determines
that the BALCA’s decision rests on a
legal error or departs from the
Secretary’s announced legal
interpretation or policy, the Secretary
may issue in his discretion a declaratory
order overruling the BALCA. 5 U.S.C.
554(e).
The Secretary proposes issuing a
declaratory order to overrule the
BALCA’s decision and legal conclusions
in Island Holdings, and to reaffirm the
Secretary’s interpretation of the
regulations, as stated in the preamble to
the IFR. The Secretary does not intend
through the proposed declaratory order
to create a new rule, but seeks to resolve
and clarify the agency’s prior
interpretation of the H–2B regulation
and apply this interpretation, as
originally intended, to the undisputed
facts in Island Holdings. Thus, the
proposed declaratory order is limited to
the concrete and narrow question of law
about the scope of the IFR as applied to
the factual scenario in Island Holdings,
which order will eliminate confusion
and uncertainty created by the Island
Holdings decision related to the
Secretary’s authority to set law and
policy in the H–2B program, and the
related status of the supplemental
prevailing determinations issued to the
employer in Island Holdings under the
IFR. In addition, a final declaratory
order on this issue will also establish
binding precedent for resolution of all
supplemental prevailing wage
determinations under the IFR involving
similarly situated parties. Following the
issuance of such an order, the
supplemental prevailing wage
determinations at issue in Island
Holdings and any similar pending cases
will be handled and finally resolved in
accordance with the final declaratory
order.
Since the proposed declaratory order
involves solely questions of law and the
application of law to undisputed facts
relating to the issuance of the
supplemental prevailing wage
determinations in Island Holdings, the
Secretary seeks comment from the
public in the nature of legal briefing
related to the proposed legal
144, 154–55 (1991). A neutral adjudicatory board
outside the agency does not have authority to issue
binding interpretations of law because the purpose
of the adjudicatory board is to determine whether
the agency’s action is consistent with the
regulation, which the agency defines in the first
instance. Id. Martin’s principle that the enforcement
agency has policy making authority has even more
force in this case, where DOL does not operate
under a split enforcement regime in H–2B context
and a single agency has retained to itself all
enforcement functions.
E:\FR\FM\17DEN1.SGM
17DEN1
75184
Federal Register / Vol. 79, No. 242 / Wednesday, December 17, 2014 / Notices
determinations stated in this notice. In
order to establish the record for this
adjudicatory proceeding, the
Department will provide access to the
following documents on the https://
www.regulations.gov Web site under the
docket number ETA–2014–0003: (1) The
Department’s April 24, 2013 Interim
Final Rule; (2) the CATA I and CATA II
decisions; and (3) the Island Holdings
decision.
Signed: at Washington, DC, this 2nd of
December 2014.
Thomas E. Perez,
Secretary of Labor.
[FR Doc. 2014–28823 Filed 12–16–14; 8:45 am]
BILLING CODE P
DEPARTMENT OF LABOR
Employment and Training
Administration
[TA–W–85,058]
mstockstill on DSK4VPTVN1PROD with NOTICES
Learjet Inc., a Kansas Corporation, a
Wholly Owned Indirect Subsidiary of
Bombardier, Inc., Including On-Site
Leased Workers From Additional
Technical Support, Inc., Aero
Structures Analysis Partners, LLC,
Aerotek Aviation, Black Diamond
Networks, Bruce Lutz Consultant,
Choson Resource, CJ Johnson
Enterprises, Inc. Daca International,
Dark Space, Inc., Donatech
Corporation, Experts Technical
Staffing, Foster Design Co., Inc.,
Global Contract Professionals, Inc., HiTek Professionals, Inconen, Johnson
Service Group, Jonas Services, Inc.,
Noramtec, Owens Aerospace Of
America, Inc., PDS Engineering, PDS
Production, PCO Innovation, Precision
Personnel, Precision Resources Co.,
Inc., Spencer Reed Group, Strom,
Valper Engineering, Volt Technical
Resources, LLC and Advanced
Technology Innovation Corporation,
Wichita, Kansas; Amended
Certification Regarding Eligibility To
Apply for Worker Adjustment
Assistance
In accordance with Section 223 of the
Trade Act of 1974, as amended (‘‘Act’’),
19 U.S.C. 2273, the Department of Labor
issued a Certification of Eligibility to
Apply for Worker Adjustment
Assistance on May 6, 2014, applicable
to workers of Learjet Inc., a Kansas
Corporation, a wholly owned indirect
subsidiary of Bombardier, Inc.,
including on-site leased workers from
Additional Technical Support, Inc.,
Aero Structures Analysis Partners, LLC,
Aerotek Aviation, Black Diamond
Networks, Bruce Lutz Consultant,
VerDate Sep<11>2014
19:49 Dec 16, 2014
Jkt 235001
Choson Resource, CJ Johnson
Enterprises, Inc. Daca International,
Dark Space, Inc., Donatech Corporation,
Experts Technical Staffing, Foster
Design Co., Inc., Global Contract
Professionals, Inc., Hi-Tek Professionals,
Inconen, Johnson Service Group, Jonas
Services, Inc., Noramtec, Owens
Aerospace Of America, Inc., PDS
Engineering, PDS Production, PCO
Innovation, Precision Personnel,
Precision Resources Co., Inc., Spencer
Reed Group, Strom, Valper Engineering,
and Volt Technical Resources, LLC,
Wichita, Kansas.
At the request of company official, the
Department reviewed the certification
for workers of the subject firm. The
workers were engaged in the production
of aircraft.
The company reports that workers
leased from Advanced Technology
Innovation Corporation were employed
on-site at Learjet Inc., Wichita, Kansas.
The Department has determined that
these workers were sufficiently under
the control of the subject firm to be
considered leased workers.
Based on these findings, the
Department is amending this
certification to include workers leased
from Advanced Technology Innovation
Corporation, working on-site at the
Wichita, Kansas location of Learjet Inc.,
a Kansas Corporation, a wholly owned
indirect subsidiary of Bombardier, Inc.
The amended notice applicable to
TA–W–85,058 is hereby issued as
follows:
‘‘All workers of Learjet Inc., a Kansas
Corporation, a wholly-owned subsidiary of
Bombardier, Inc., including on-site leased
workers from Additional Technical Support,
Inc., Aero Structures Analysis Partners, LLC,
Aerotek Aviation, Black Diamond Networks,
Bruce Lutz Consultant, Choson Resource, CJ
Johnson Enterprises, Inc. Daca International,
Dark Space, Inc., Donatech Corporation,
Experts Technical Staffing, Foster Design Co.,
Inc., Global Contract Professionals, Inc., HiTek Professionals, Inconen, Johnson Service
Group, Jonas Services, Inc., Noramtec, Owens
Aerospace Of America, Inc., PDS
Engineering, PDS Production, PCO
Innovation, Precision Personnel, Precision
Resources Co., Inc., Spencer Reed Group,
Strom, Valper Engineering, Volt Technical
Resources, LLC, and Advanced Technology
Innovation Corporation, Wichita, Kansas,
who became totally or partially separated
from employment on or after February 6,
2013 through May 6, 2016, and all workers
in the group threatened with total or partial
separation from employment on the date of
certification through May 6, 2016, are eligible
to apply for adjustment assistance under
Chapter 2 of Title II of the Trade Act of 1974,
as amended.’’
PO 00000
Frm 00071
Fmt 4703
Sfmt 4703
Signed in Washington, DC this 4th day of
December, 2014.
Michael W. Jaffe,
Certifying Officer, Office of Trade Adjustment
Assistance.
[FR Doc. 2014–29510 Filed 12–16–14; 8:45 am]
BILLING CODE 4510–FN–P
DEPARTMENT OF LABOR
Employment and Training
Administration
[TA–W–82,920]
Cooper Interconnect, LLC, A
Subsidiary of Eaton Corporation,
Including On-Site Leased Workers
From Aerotek, Adecco, J&J Staffing,
Superior Talent and Randstad, Salem,
New Jersey; Amended Certification
Regarding Eligibility To Apply for
Worker Adjustment Assistance
In accordance with Section 223 of the
Trade Act of 1974, as amended (‘‘Act’’),
19 U.S.C. 2273, the Department of Labor
issued a Certification of Eligibility to
Apply for Worker Adjustment
Assistance on July 30, 2013, applicable
to workers of GDF SUEZ Mt. Tom Power
Plant, a subsidiary of Cooper
Interconnect, LLC, a subsidiary of Eaton
Corporation, including on-site leased
workers from Aerotek, Addeco, J&J
Staffing and Superior Talent Resources,
Salem, New Jersey. The Department’s
notice of determination was published
in the Federal Register on August 27,
2013 (78 FR 52978).
In response to a request by the state
workforce office in Trenton, New Jersey,
the Department reviewed the
certification for workers of the subject
firm. The workers were engaged in the
production of electrical connectors.
The investigation confirmed that
leased workers from Randstad worked
on-site at the subject firm.
Based on these findings, the
Department is amending this
certification to include on-site leased
workers from Randstad, Salem, New
Jersey.
The amended notice applicable to
TA–W–82,920 is hereby issued as
follows:
‘‘All workers of Cooper Interconnect, LLC,
a subsidiary of Eaton Corporation, including
on-site leased workers from Aerotek, Adecco,
J&J Staffing, Superior Talent Resources and
Randstad, Salem, New, who became totally
or partially separated from employment on or
after July 18, 2013, through July 30, 2015,
and all workers in the group threatened with
total or partial separation from employment
on the date of certification through two years
from the date of certification, are eligible to
apply for adjustment assistance under
E:\FR\FM\17DEN1.SGM
17DEN1
]]>Agencies
[Federal Register Volume 79, Number 242 (Wednesday, December 17, 2014)]
[Notices]
[Pages 75179-75184]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-28823]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Office of the Secretary of Labor
Intent To Issue Declaratory Order
AGENCY: Office of the Secretary of Labor, Department of Labor.
ACTION: Notice of intent to issue declaratory order; request for
comment.
-----------------------------------------------------------------------
SUMMARY: The Secretary of Labor (Secretary) is considering issuing on
his own motion a declaratory order confirming that he has exclusive
authority to make legal and policy determinations based on his
statutory and regulatory authority to administer and enforce the H-2B
temporary labor certification program. Such a declaratory order would
remove uncertainty about that authority created by a decision of the
Board of Alien Labor Certification Appeals in Island Holdings LLC,
2013-PWD-00002 (BALCA Dec. 3, 2013) (en banc). The Secretary issues
this Notice pursuant to the authority granted in the Administrative
Procedure Act (APA), 5 U.S.C. 554(e), to issue declaratory orders ``to
terminate a controversy or remove uncertainty.'' The Secretary will
accept comments from the public on this Notice for 30 days, and may
issue a declaratory order after consideration of all comments received
in that timeframe.
DATES: This Notice is effective December 17, 2014. Interested persons
are invited to submit written comments on this Declaratory Order on or
before January 16, 2015.
ADDRESSES: You may submit comments, identified by docket number ETA-
2014-0003, 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 Adele Gagliardi,
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 Departments 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 Departments 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.
[[Page 75180]]
Postal delivery in Washington, DC, may be delayed due to security
concerns. Therefore, the Departments encourage 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 Departments will also make all the comments
either Department receives available for public inspection during
normal business hours at the Employment and Training Administration
(ETA) Office of Policy Development and Research at the above address.
If you need assistance to review the comments, DOL will provide you
with appropriate aids such as readers or print magnifiers. DOL will
make copies of the rule available, upon request, in large print and as
an electronic file on computer disk. DOL will consider providing the
interim final rule in other formats upon request. To schedule an
appointment to review the comments and/or obtain the rule 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: For further information, contact
William W. Thompson, Acting 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 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Statutory and Regulatory Background
The Immigration and Nationality Act (INA) establishes the H-2B visa
classification for a non-agricultural temporary worker ``having a
residence in a foreign country which he has no intention of abandoning
who is coming temporarily to the United States to perform . . .
temporary [non-agricultural] service or labor if unemployed persons
capable of performing such service or labor cannot be found in this
country[.]'' 8 U.S.C. 1101(a)(15)(H)(ii)(b). The INA further requires
an importing employer (H-2B employer) to petition the Department of
Homeland Security (DHS) for classification of the prospective temporary
worker as an H-2B nonimmigrant, and the petition must be made and
approved before the beneficiary (H-2B worker) can be considered
eligible for an H-2B visa or H-2B status. 8 U.S.C. 1184(c)(1). In
adjudicating an H-2B petition, the INA requires DHS to consult with
``appropriate agencies of the Government[.]'' Id.
DHS has determined that in order to administer the INA's H-2B visa
program it must consult with the Department of Labor (DOL) to determine
whether U.S. workers capable of performing the temporary services or
labor are available and that the foreign worker's employment will not
adversely affect the wages or working conditions of similarly employed
U.S. workers. 8 CFR 214.2(h)(6)(iii)(A). DHS's regulation requires
employers to obtain certification from DOL that these conditions are
met prior to submitting a petition to DHS. Id. DHS requires DOL to
``separately establish for the temporary labor program under his or her
jurisdiction, by regulation at 20 CFR 655, procedures for administering
that temporary labor program under his or her jurisdiction, and shall
determine the prevailing wage applicable to an application for
temporary labor certification.'' 8 CFR 214.2(h)(6)(iii)(D). DOL has
rulemaking authority to carry out DHS's charge to establish rules
governing the temporary labor certification process. Louisiana Forestry
Ass'n v. Secretary, U.S. Department of Labor, 745 F.3d 653, 669, 672-
675 (3rd Cir. 2014). DOL's H-2B regulations require a determination
whether a qualified U.S. worker is available to fill the petitioning H-
2B employer's job opportunity and whether a foreign worker's employment
in the job opportunity will adversely affect the wages or working
conditions of similarly employed U.S. workers. See 20 CFR part 655,
subpart A. As part of DOL's labor certification process, DOL sets the
wage that employers must offer and pay foreign workers entering the
country on an H-2B visa. See 20 CFR 655.10.
On April 24, 2013, DHS and DOL (the Departments) issued an interim
final rule (IFR) that revised DOL's method of determining the
prevailing wage in the H-2B program.\1\ Wage Methodology for the
Temporary Non-Agricultural Employment H-2B Program, Part 2, 78 FR
24,047 (Apr. 24, 2013). The IFR was a direct response to a court order
vacating a portion of the DOL's prevailing wage methodology and
requiring the agency to come into compliance within 30 days. Comite de
Apoyo a los Trabajadores Agricolas (CATA) v. Solis, 933 F. Supp. 2d 700
(E.D. Pa. 2013) (CATA II). The CATA II Court found that the 2008
regulation then being implemented to set the H-2B prevailing wage,
which required the issuance of prevailing wages based on four
artificial skill levels that were wholly irrelevant to unskilled H-2B
work, violated the INA by allowing employers to pay substandard wages
that harm the domestic labor market.\2\ CATA II, 933 F. Supp. 2d at
713.\3\ As a result, the IFR set a new,
[[Page 75181]]
legally valid prevailing wage standard to allow for an immediate
adjustment of the wage rates for workers currently employed under the
vacated 2008 wage rule. 78 FR at 24,056. In order to comply with the
CATA II order, the preamble to the IFR notified the regulated community
that the new prevailing wage rate under the IFR would apply to all
employers currently employing H-2B workers in the U.S. upon individual
notification to the employer of a new prevailing wage determination.
Id. at 24,055.
---------------------------------------------------------------------------
\1\ The Departments issued the 2013 IFR jointly to dispel
questions that arose contemporaneously with its promulgation
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) (concluding that plaintiffs
are likely to prevail on their allegation that the Department of
Labor lacks independent rulemaking authority under the INA to issue
legislative regulations implementing its role in the H-2B program).
However, the Eleventh Circuit in Bayou only reviewed the district
court's entry of a preliminary injunction against implementation of
DOL's H-2B rule issued before the joint IFR. Therefore, the Bayou
decision only addressed the plaintiffs' likelihood of success on the
merits, and was not a final judgment on the plaintiffs' claim that
DOL is without authority to promulgate legislative rules in the H-2B
program before the issuance of the joint IFR. The latter issue is
currently before the district court awaiting decision on pending
motions for summary judgment. As noted above and in sharp contrast
to the Bayou case, in an APA challenge to the 2011 Wage Rule, which
also tested DOL's authority to issue legislative rules in the H-2B
program, the U.S. Court of Appeals for the Third Circuit held
recently that ``DOL has authority to promulgate rules concerning the
temporary labor certification process in the context of the H-2B
program, and that the 2011 Wage Rule was validly promulgated
pursuant to that authority.'' La. Forestry Ass'n v. Perez, 745 F.3d
653, 669 (3d Cir. Feb. 5, 2014); see also G.H. Daniels & Assocs.,
Inc. v. Solis, 2013 WL 5216453, *4-5 (D. Colo. Sept. 17, 2013) (DOL
has authority to issue H-2B legislative rules), appeal pending, No.
13-1479 (10th Cir.).
\2\ The CATA II order was the culmination of a years-long period
of DOL rulemaking, challenges to that rulemaking, and Congressional
riders that prevented the implementation of the agency's rules. In
the preceding CATA I decision, Civ. No. 2:09-cv-240-LP, 2010 WL
3431761 (E.D. Pa. 2010), the district court concluded that the four-
tiered skill levels in the 2008 prevailing wage rule were
implemented without following the Administrative Procedure Act's
notice-and-comment requirements. However, rather than vacate that
methodology, the CATA I court left it in place and ordered DOL to
issue a replacement rule that complied with the APA within 120 days.
CATA I, slip op. at 27. DOL complied with the CATA I order by
revising the H-2B wage regulation through notice and comment
procedures (76 FR 3452, Jan. 19, 2011), but Congress, through
appropriations riders, blocked its implementation. For a complete
history of events leading up to the CATA II order and the IFR, see
``Notification of Status of the 2011 H-2B Wage Rule,'' 79 FR 14450
(March 14, 2014).
\3\ As discussed further below in Sec. III, supra, the CATA
orders anticipated that once DOL issued a valid regulatory method
for determining the prevailing wage, the agency would also issue
supplemental prevailing wage determinations to employers with
current labor certifications to correct the unlawful wage issued
with those extant certifications.
---------------------------------------------------------------------------
To implement the IFR, on April 25, 2013, DOL issued an ``FAQ'' on
its Web site informing the public that ``[e]mployers who have H-2B
workers performing work that is based on the [vacated 2008 regulation]
on or after April 24, 2013, will receive a new prevailing wage
determination in accordance with the Wage Methodology IFR.'' Employment
and Training Administration, Frequently Asked Questions, Interim Final
Rule, Wage Methodology for the Temporary Non-Agricultural Employment H-
2B Program, Part 2, at 1 (Apr. 25, 2013). DOL also advised the public,
consistent with the statement in the preamble to the IFR, that
``employers are required to offer and pay [the new IFR] wage for any
work performed on or after the date the employer receives the
supplemental determination.'' Id. In addition, DOL indicated that
employers were permitted under the regulation to file an appeal of any
supplemental prevailing wage determination, but not based on a
challenge to the occupational classification, because employers should
have already raised that issue when they received their original
prevailing wage determinations. Id. at 2. Immediately following the
publication of the IFR, DOL issued supplemental prevailing wage
determinations to all H-2B employers subject to the IFR, including
employers currently employing H-2B workers under the vacated 2008 wage
regime. In each supplemental prevailing wage determination, DOL
informed the employer of its ability to seek a redetermination of the
supplemental prevailing wage determination, pursuant to 20 CFR
655.10(g). On August 12, 2013, DOL completed the processing of new and
supplemental prevailing wage determinations for all cases falling
within the scope of the IFR.
II. The Island Holdings Challenge
Island Holdings, LLC, filed applications for labor certification
with DOL in early 2013 for multiple H-2B nonimmigrant workers with
proposed dates of employment into November 2013. When filing its
applications for H-2B certification, Island Holdings agreed to pay the
wage rate that equals or exceeds the highest of the most recent
prevailing wage rate that is or will be issued by DOL for the time
period the H 2B workers perform work in the United States. See ETA Form
9142--Appendix B.1. Before the publication of the IFR, DOL certified
three Island Holdings' applications with prevailing wages based on the
2008 wage methodology, and these prevailing wages were valid generally
through the end of 2013. Shortly after DOL published the IFR, the
agency issued to Island Holdings three supplemental prevailing wage
determinations (SPWDs) informing the company that it was required to
pay new prevailing wage rates, as applicable under the IFR.
On May 23, 2013, Island Holdings filed an administrative appeal of
DOL's supplemental prevailing wage determinations with the Board of
Alien Labor Certification Appeals (BALCA), a group of Administrative
Law Judges (ALJs) empowered to hear and decide appeals involving alien
labor certification. 20 CFR 655.11(e); 655.33(e). The BALCA remanded
the matter back to DOL to address Island Holdings' request for a
redetermination under 20 CFR 655.10(g). Island Holdings subsequently
sought a redetermination of DOL's supplemental prevailing wage
determinations, but DOL determined that the agency's initial wage
adjustments under the IFR were correct. Consistent with its statement
in the IFR, DOL informed Island Holdings that the CATA II Court's
vacatur order required the agency to replace the vacated 2008
prevailing wage rates with the valid prevailing wage rates under the
IFR. DOL also informed Island Holdings that by signing ETA Form 9142,
Appendix B.1, the company agreed, as a condition for importing foreign
workers, that it would pay the prevailing wage rate in effect at the
time the company employed H-2B workers in the United States. Because
the 2008 wage rates had been vacated and were no longer in effect, DOL
informed Island Holdings that the new IFR wage rates controlled.
Island Holdings again sought an administrative appeal of DOL's
supplemental prevailing wage determinations under the IFR, which the
BALCA docketed for en banc review. On December 3, 2013, the BALCA
purportedly vacated DOL's supplemental prevailing wage determinations
under the IFR. See Island Holdings LLC, 2013-PWD-00002 (BALCA Dec. 3,
2013) (en banc). Contrary to the Secretary of Labor's interpretation of
the IFR stated in the preamble, the BALCA determined that DOL lacks the
authority to issue supplemental prevailing wage determinations in cases
where DOL has already approved labor certification applications based
on the vacated 2008 prevailing wage rule. The BALCA rejected DOL's
position, as stated in the preamble to the IFR, that the CATA II
Court's vacatur order requires DOL to issue supplemental prevailing
wage determinations to replace the vacated 2008 prevailing wage rates
for all work performed by H-2B nonimmigrant workers after the issuance
of the IFR. In addition, the BALCA determined that DOL lacks authority
to require employers to pay the highest of the most recent prevailing
wage that is or will be issued by DOL to the employer for the time
period H-2B workers perform labor or services in the United States,
despite the employer's signed agreement on ETA Form 9142, Appendix B.1,
to pay the adjusted prevailing wage rate.
On December 11, 2013, CATA filed a civil action challenging the
BALCA's Island Holdings decision as arbitrary, capricious, and in
excess of law under the Administrative Procedure Act. CATA v. Perez,--
FRD.--,2014 WL 3629528 (E.D. Pa. 2014) (CATA III). On January 10, 2014,
CATA moved for summary judgment, seeking an order vacating the BALCA's
decision. CATA argued that the BALCA, as subordinate Administrative Law
Judges, lacks the authority to overrule the Secretary of Labor on
issues of law and policy. Even if the BALCA had such authority, CATA
contended that the BALCA's decision is an unreasonable and substantive
alteration of the agency's legislative rule under the IFR, which
violates the requirements of notice and comment rulemaking. In its
pleadings, the Department of Labor agreed that Island Holdings does not
represent the legal or policy decision of the Secretary of Labor as
reflected in the IFR. The Department stated that the ``BALCA's Island
Holdings decision represents a resolution of that individual case which
is not subject to further administrative review . . ., but the BALCA's
decision does not represent the legal position of the Secretary of
Labor.'' On December 20, 2013, while the CATA III case was pending, DOL
stayed further action on all pending supplemental prevailing wage
determinations (approximately 1050 SPWDs), and has not yet taken any
further action on them.
On July 23, 2014, the district court dismissed CATA's complaint,
concluding that the plaintiffs were
[[Page 75182]]
without standing because there was no showing of agency action applying
Island Holdings to CATA or its members. CATA III,--FRD.--,2014 WL
3629528, *7-8, The district court also held that the case did not
involve final agency action because ``it is . . . the Secretary of
Labor, and not the BALCA, that ultimately makes the policies and rules
governing H-2B prevailing wages.'' Id. at 8. Finally, the court
concluded that because the DOL was presently engaged in rulemaking to
revise the H-2B wage methodology, adjudication would be premature
because the agency may address the issue in that context. Id. at 8-10.
III. Basis for Declaratory Order
The BALCA's Island Holdings decision has created uncertainty about
the Secretary of Labor's authority to set law and policy in the H-2B
program generally, and about the immediate application of the revised
wage regulation in the IFR to employers with H-2B workers employed at
the time of the IFR but with prevailing wages set under the vacated
2008 wage rule. The decision has further cast uncertainty on the legal
status of the pending supplemental prevailing wage determinations that
DOL stayed shortly after the BALCA's decision. DOL's expectation was
that the CATA III litigation, which squarely framed the issue whether
the BALCA's Island Holdings decision exceeded the scope of its
authority, would dispose of the matter in the Secretary's favor and
resolve the uncertainty created by the BALCA. However, the district
court chose to stay its hand, and returned resolution of the issue to
DOL. Although the agency is currently preparing rulemaking to address
issues involving the methodology to set the H-2B prevailing wage, that
rulemaking cannot address the determination of rights and obligations
under a prior rule, Bowen v. Georgetown University Hosp., 488 U.S. 204,
208-211 (1988), and in any event will not be finalized until 2015 at
the earliest.
The BALCA's Island Holdings decision does not reflect the legal
position of the Secretary of Labor because the BALCA erroneously
rejected the Secretary of Labor's own plain interpretation of the
relevant regulatory provisions, as reflected in the preamble to the IFR
and a separate notice amending ETA Form 9142, requiring H-2B employers
to attest that they will pay at least the prevailing wage that ``is or
will be issued by the Department'' during the course of the certified
employment. See 78 FR at 24,055; 76 FR 21,036 (Apr. 14, 2011).\4\ In
dismissing the Secretary's preamble discussions, the BALCA ignored the
established principle that a preamble statement to a rule constitutes
the best evidence of the agency's contemporaneous interpretation of a
regulation, to which the courts owe substantial deference. See Public
Citizen v. Carlin, 184 F.3d 900, 911 (D.C. Cir. 1999); cf. Dearborn
Public Schools, 1991-INA-222 (BALCA Dec. 7, 1993) (en banc), (BALCA, as
a non-Article III court, lacks inherent authority to rule on the
validity of a regulation).
---------------------------------------------------------------------------
\4\ When it published the new ETA Form 9142 requiring employers
seeking a labor certification to swear under penalty of perjury that
they would pay at least the prevailing wage that ``is or will be
issued by the Department'' during the course of the certified
employment, the Department explained that when a new wage rate
became effective as a result of a revision to the methodology to
determine the prevailing wage, employers would be required to pay
the prevailing wage rate in effect for the period of work
encompassed by their application, which could result in two wage
rates being applicable to a single application. 76 FR 21,036.
Employers have been voluntarily signing this attestation for over
three years.
---------------------------------------------------------------------------
Moreover, the BALCA's decision in Island Holdings that the
Department is without authority to issue supplemental prevailing wage
determinations is in direct opposition to the district court's orders
in the CATA case, and potentially leaves the Department susceptible to
conflicting legal obligations. CATA I ordered DOL to issue a new wage
regulation that followed APA procedures. While DOL was drafting its new
wage regulation to comply with CATA I, the district court concluded
that it need not order DOL to issue conditional labor certifications to
employers seeking to hire H-2B workers that would require employers to
agree to pay a prevailing wage set by the new methodology as soon as
that methodology became effective. Rather, the court specifically held
that nothing in the existing H-2B regulations precluded DOL from
issuing certifications conditioned on a promise to pay a new prevailing
wage as soon as one became effective. CATA I, 2010 WL 4823236, at *2-3
(Nov. 24, 2010). The agency complied with the CATA I order in 2011 by
issuing a new wage rule. 76 FR 3452. Congress then barred that 2011
wage rule from being implemented through a series of appropriations
riders, causing the agency to continue applying the invalid 2008 wage
rule. The court in CATA II then vacated the 2008 wage rule, concluding
that prevailing wage determinations issued based upon the four-tiered
wage rates in that rule resulted in adverse effect on U.S. workers'
wages, and that the labor certifications based on such prevailing wages
``exceed the bounds of DOL's delegated authority.'' 933 F. Supp. 2d at
711-712. The court also found that the four-tiered wages required by
the 2008 rule violated section 706(2)(A) of the APA, because it had
consequences that ``plainly contradict congressional policy and render
the 2008 Wage Rule invalid[.]'' Id. at 713. Once the court vacated the
2008 wage rule, it ceased to exist and DOL was obligated to move
quickly to issue a valid replacement rule to fill the void. Harper v.
Virginia Dep't of Taxation, 509 U.S. 86, 97 (1993); Nat'l Fuel Gas
Supply Corp. v. FERC, 59 F.3d 1281, 1289 (D.C. Cir. 1995).
Taken together, these rulings make it clear that the CATA court
expected that once DOL issued a valid regulatory method for determining
the prevailing wage, the agency would also issue supplemental
prevailing wage determinations to employers with current labor
certifications to correct the unlawful wage issued with those extant
certifications. The Secretary determined that the court's orders
obliged the Department to issue the SPWDs, and that judgment is
reflected in the IFR and its implementing guidance. The BALCA's Island
Holdings decision directly controverts the CATA orders and, if abided,
leaves the Department vulnerable to continuing legal challenges based
on prevailing wage determinations invalidated by the IFR on April 24,
2013.
Even if DOL were not required under the CATA Court's decisions to
adjust the prevailing wage obligations of H-2B employers under the IFR,
the BALCA still erred in determining that DOL was not authorized to
issue supplemental prevailing wage determinations. In 2011, DOL amended
its ETA Form 9142, Appendix B.1, to require an agreement from all H-2B
employers, as a condition for importing H-2B nonimmigrant workers, to
pay the prevailing wage rate in effect for the pay period of work
encompassed by the employer's labor certification application for H-2B
nonimmigrant workers. 76 FR at 21,036-39. In the preamble to the
Federal Register notice announcing the amendment to ETA Form 9142,
Appendix B.1, the Assistant Secretary of Labor stated that DOL requires
all employers who apply for an H-2B labor certification to agree, as a
condition of receiving the H-2B labor certification, to pay the
prevailing wage rate in effect for the period of work encompassed by
the employers' labor certification applications. Id. at 21,036. When
publishing the IFR, the Secretary of Labor again stated that all
employers are required to comply with this condition after receiving a
supplemental
[[Page 75183]]
prevailing wage determination under the IFR. 78 FR at 24,055. Thus,
DOL's issuance of supplemental prevailing wage determinations under the
IFR is authorized by the contractual conditions to which the employers
agreed when signing ETA Form 9142, Appendix B.1, and the Secretary's
interpretation of the scope of the IFR wage obligations for employers
currently employing H-2B workers under wage rates that have been
vacated or rendered legally erroneous.
In the case under review, Island Holdings willingly agreed to the
wage adjustment conditions when the company signed ETA Form 9142,
Appendix B.1. Island Holdings agreed to pay the wage rate that equals
or exceeds the highest of the most recent prevailing wage rate that is
or will be issued by DOL for the time period the H-2B workers perform
work in the United States. Because Island Holdings specifically agreed
to contractual terms set by DOL as a condition for importing foreign
workers, the company remains bound to those contractual terms. Woodside
Village v. Secretary of Labor, 611 F.2d 312, 315 (9th Cir. 1980);
Vulcan Arbor Hill Corp. v. Reich, 81 F.3d 1110, 1115-16 (D.C. Cir.
1996). Island Holdings, and all similarly situated H-2B employers,
remain bound by the voluntary and unconditional promise to pay the wage
rate that equals or exceeds the highest of the most recent prevailing
wage rate that is or will be issued by DOL for the time period the H-2B
workers perform work in the United States, including the new IFR wage
rates. Frederick County Fruit Growers v. Martin, 968 F.2d 1265, 1269
(D.C. Cir. 1992). The Secretary's position on this issue was clearly
stated in the preamble to the IFR, which indicated that employers are
required to pay the higher IFR wage rates based on the employers'
signed agreements under Appendix B.1 to ETA Form 9142. 78 FR at 24055.
Therefore, the BALCA's determination that employers are not required to
pay the adjusted wage rates under the supplemental prevailing wage
determinations was a legal error issued contrary to the Secretary's
clear direction on this precise issue under the IFR.
Accordingly, pursuant to the authority granted to DOL under 5
U.S.C. 554(e), the Secretary is now considering issuing on his own
motion a declaratory order to clarify his authority to set law and
policy in the H-2B labor certification program, and to resolve the
controversy arising from the BALCA's legally erroneous decision. The
BALCA's Island Holdings decision does not represent the legal or policy
position of the Secretary of Labor. The Administrative Law Judges
composing the BALCA are subordinate employees of the agency. See 5
U.S.C. 3105; 52 FR at 11,217; Dep't of Justice, Legal Counsel Opinion,
14 Op. O.L.C. 1, 2-3 (1990). It is a basic principle of administrative
law that the agency makes law and policy, not subordinate ALJs. See Ho
v. Donovan, 569 F.3d 677, 682 (7th Cir. 2009); Croplife v. EPA, 329
F.3d 876, 882 (D.C. Cir. 2003); Iran Air v. Kugelman, 996 F.2d 1253,
1260 (D.C. Cir. 1993); Nash v. Bowen, 869 F.2d 675, 680 (2d Cir. 1989);
Admin. Conf. of the United States, Recommendation 92-7, 57 FR 61,759,
61,763 (Dec. 29, 1992). The BALCA ALJs' authority is limited to non-
lawmaking functions, including determining issues of fact and applying
undisputed law to the facts of an employer's particular case.
Apart from the general principle of administrative law that the
BALCA ALJs do not have authority to speak for the agency on questions
of law and policy, under DOL's regulation the BALCA does not have
delegated authority to speak for the agency. Unlike the Secretary's
express delegation of his authority to the Administrative Review Board
(ARB), see 77 FR 69378 (Secretary's Order 1-2012), the agency has never
endowed the BALCA with authority to speak for the Secretary on legal
issues, see 52 FR at 11,217-18. Courts have recognized that the ARB
speaks for the agency because it has delegated authority, see Sasse v.
DOL, 409 F.3d 773, 778-79 (6th Cir. 2005), but the BALCA lacks such
delegation. Although the agency's administrative appellate regime may
terminate with the BALCA's review because there is no procedure for
appealing to a higher agency official, that termination does not create
delegated authority in the BALCA to make law or policy for the agency.
The lack of further administrative review simply means that the BALCA's
decision is the final agency action for purposes of judicial review.
See 5 U.S.C. 704; cf. Tom C. Clark, Attorney General's Manual on the
Administrative Procedure Act 83 (1947). However, as a neutral fact
finder and arbiter of an employer's complaint, the BALCA's decisions do
not necessarily represent the agency's authoritative interpretation of
the regulation. Cf. Martin v. Occupational Safety and Health Review
Comm'n, 499 U.S. 144, 154-55 (1991).\5\ The Secretary establishes H-2B
wage policy and any related, governing legal standards. If the
Secretary determines that the BALCA's decision rests on a legal error
or departs from the Secretary's announced legal interpretation or
policy, the Secretary may issue in his discretion a declaratory order
overruling the BALCA. 5 U.S.C. 554(e).
---------------------------------------------------------------------------
\5\ Even under a split enforcement regime where Congress
delegates to a neutral adjudicatory board the authority to hear
claims or sanctions brought by the agency with enforcement
authority, the Supreme Court has held that the enforcement agency
with authority to administer the statute has jurisdiction to issue
binding interpretations of the agency's regulation. See Martin v.
OSHRC, 499 U.S. 144, 154-55 (1991). A neutral adjudicatory board
outside the agency does not have authority to issue binding
interpretations of law because the purpose of the adjudicatory board
is to determine whether the agency's action is consistent with the
regulation, which the agency defines in the first instance. Id.
Martin's principle that the enforcement agency has policy making
authority has even more force in this case, where DOL does not
operate under a split enforcement regime in H-2B context and a
single agency has retained to itself all enforcement functions.
---------------------------------------------------------------------------
The Secretary proposes issuing a declaratory order to overrule the
BALCA's decision and legal conclusions in Island Holdings, and to
reaffirm the Secretary's interpretation of the regulations, as stated
in the preamble to the IFR. The Secretary does not intend through the
proposed declaratory order to create a new rule, but seeks to resolve
and clarify the agency's prior interpretation of the H-2B regulation
and apply this interpretation, as originally intended, to the
undisputed facts in Island Holdings. Thus, the proposed declaratory
order is limited to the concrete and narrow question of law about the
scope of the IFR as applied to the factual scenario in Island Holdings,
which order will eliminate confusion and uncertainty created by the
Island Holdings decision related to the Secretary's authority to set
law and policy in the H-2B program, and the related status of the
supplemental prevailing determinations issued to the employer in Island
Holdings under the IFR. In addition, a final declaratory order on this
issue will also establish binding precedent for resolution of all
supplemental prevailing wage determinations under the IFR involving
similarly situated parties. Following the issuance of such an order,
the supplemental prevailing wage determinations at issue in Island
Holdings and any similar pending cases will be handled and finally
resolved in accordance with the final declaratory order.
Since the proposed declaratory order involves solely questions of
law and the application of law to undisputed facts relating to the
issuance of the supplemental prevailing wage determinations in Island
Holdings, the Secretary seeks comment from the public in the nature of
legal briefing related to the proposed legal
[[Page 75184]]
determinations stated in this notice. In order to establish the record
for this adjudicatory proceeding, the Department will provide access to
the following documents on the https://www.regulations.gov Web site
under the docket number ETA-2014-0003: (1) The Department's April 24,
2013 Interim Final Rule; (2) the CATA I and CATA II decisions; and (3)
the Island Holdings decision.
Signed: at Washington, DC, this 2nd of December 2014.
Thomas E. Perez,
Secretary of Labor.
[FR Doc. 2014-28823 Filed 12-16-14; 8:45 am]
BILLING CODE P
