Employer-Provided Survey Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program, 90646-90662 [2024-26481]

Agencies

• Employment and Training Administration
• DEPARTMENT OF LABOR

[Federal Register Volume 89, Number 222 (Monday, November 18, 2024)]
[Proposed Rules]
[Pages 90646-90662]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-26481]


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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

[DOL Docket No. ETA-2024-0001]
RIN 1205-AC15


Employer-Provided Survey Wage Methodology for the Temporary Non-
Agricultural Employment H-2B Program

AGENCY: Employment and Training Administration, Department of Labor.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Labor (Department or DOL) proposes to amend

[[Page 90647]]

its regulations for employer-provided wage surveys for the H-2B 
temporary labor certification program. The regulations were published 
in the Wage Methodology for the Temporary Non-Agricultural Employment 
H-2B Program final rule (2015 Wage Rule). This notice of proposed 
rulemaking (NPRM or proposed rule) proposes to amend those regulations 
consistent with recent Federal litigation by clarifying existing 
requirements for employer-provided surveys for the H-2B program, 
proposing new requirements, and proposing to eliminate Form ETA-9165, 
Employer-Provided Survey Attestations to Accompany H-2B Prevailing Wage 
Determination Request Based on a Non-OEWS Survey (Form ETA-9165).

DATES: Interested persons are invited to submit written comments on the 
proposed rule on or before January 17, 2025.

ADDRESSES: You may submit comments electronically by the following 
method:
    Federal eRulemaking Portal: https://www.regulations.gov/. Follow 
the instructions on the website for submitting comments.
    Instructions: Include the agency's name and docket number ETA-2024-
0001 in your comments. All comments received will become a matter of 
public record and may be posted without change to https://www.regulations.gov/. Comments submitted after the deadline for 
submission will not be considered. Please do not submit comments 
containing trade secrets, confidential or proprietary commercial or 
financial information, personal health information, sensitive 
personally identifiable information (for example, social security 
numbers, driver's license or state identification numbers, passport 
numbers, or financial account numbers), or other information that you 
do not want to be made available to the public. The agency reserves the 
right to redact or refrain from posting such information and libelous 
or otherwise inappropriate comments, including those that contain 
obscene, indecent, or profane language; that contain threats or 
defamatory statements; or that contain hate speech directed at race, 
color, sex, sexual orientation, national origin, ethnicity, age, 
religion, or disability. Please note that depending on how information 
is submitted through regulations.gov, the agency may not be able to 
redact the information and instead reserves the right to refrain from 
posting the information or comment in such situations.

FOR FURTHER INFORMATION CONTACT: Michelle L. Paczynski, 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, telephone: (202) 693-3700 (this is 
not a toll-free number). For persons with a hearing or speech 
disability who need assistance to use the telephone system, please dial 
711 to access telecommunications relay services.

SUPPLEMENTARY INFORMATION:

Preamble Table of Contents

I. Acronyms and Abbreviations
II. Background
    A. The Statutory and Regulatory Framework
    B. The 2008 Rule, the Related Litigation, and the Attempted 2011 
Wage Rule
    C. The 2013 Interim Final Rule
    D. Vacatur of the 2013 Interim Final Rule
    E. The 2015 Wage Rule, the 2016 Appropriations Rider, and DOL's 
Guidance Regarding the Rider's Effect on the Rule
    F. Invalidation of the 2015 Wage Rule
    G. The Department's Authority To Promulgate This Rule
III. Summary of Proposed Revisions to 20 CFR part 655; Subpart A; 20 
CFR 655.10
    A. Discussion of Proposed Technical Changes to 20 CFR 655.10
    B. Discussion of Proposed Revisions to 20 CFR 655.10(f)(1)
    C. Discussion of Proposed Revisions to 20 CFR 655.10(f)(2)
    D. Discussion of 20 CFR 655.10(f)(3)
    E. Discussion of Proposed Revisions to 20 CFR 655.10(f)(4)
    F. Discussion of Proposed Regulatory Revisions to 20 CFR 
655.10(f)(5)
IV. Administrative Information
    A. Executive Order 12866: Regulatory Planning and Review; 
Executive Order 14094: Modernizing Regulatory Review; and Executive 
Order 13563: Improving Regulation and Regulatory Review
    B. Regulatory Flexibility Analysis and Small Business Regulatory 
Enforcement Fairness Act and Executive Order 13272: Proper 
Consideration of Small Entities in Agency Rulemaking
    C. Paperwork Reduction Act
    D. Unfunded Mandates Reform Act of 1995
    E. Executive Order 13132 (Federalism)
    F. Executive Order 13175 (Consultation and Coordination With 
Indian Tribal Governments)

I. Acronyms and Abbreviations

APA Administrative Procedure Act
BLS Bureau of Labor Statistics
CATA Comit[eacute] de Apoyo a los Trabajadores Agr[iacute]colas
CBA collective bargaining agreement
DBA Davis-Bacon Act
DHS U.S. Department of Homeland Security
DOL U.S. Department of Labor
FAQ Frequently Asked Questions
FY fiscal year
GAL General Administration Letter
HR human resources
HSA Homeland Security Act of 2002
IFR interim final rule
INA Immigration and Nationality Act
MOU memorandum of understanding
NPRM notice of proposed rulemaking
NPWC National Prevailing Wage Center
OES Occupational Employment Statistics
OEWS Occupational Employment and Wage Statistics
OFLC Office of Foreign Labor Certification
OIRA Office of Information and Regulatory Affairs
OMB Office of Management and Budget
PRA Paperwork Reduction Act
PWD prevailing wage determination
SCA McNamara-O'Hara Service Contract Act
SESA State employment service agencies
SOC Standard Occupational Classification
UMRA Unfunded Mandates Reform Act of 1995

II. Background

A. The Statutory and Regulatory Framework

    The Immigration and Nationality Act (INA), as amended, establishes 
the H-2B nonimmigrant 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).\1\ 
Employers must petition the Department of Homeland Security (DHS) for 
classification of a prospective temporary worker as an H-2B 
nonimmigrant. 8 U.S.C. 1184(c)(1). DHS must approve this petition 
before the beneficiary can be considered eligible for an H-2B visa or 
H-2B status. Id. In addition, the INA requires that ``[t]he question of 
importing any [foreign worker] as [an H-2B] nonimmigrant . . . in any 
specific case or specific cases shall be determined by [DHS] \2\ after 
consultation with appropriate agencies of the Government.'' Id.
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    \1\ For ease of reference, sections of the INA are referred to 
by their corresponding section in the U.S. Code.
    \2\ In accordance with sec. 1517 of title XV of the Homeland 
Security Act of 2002 (HSA), Public Law 107-296, 116 Stat. 2135, any 
reference to the Attorney General in a provision of the INA 
describing functions that were transferred from the Attorney General 
or other Department of Justice official to DHS by the HSA ``shall be 
deemed to refer to the Secretary'' of Homeland Security. See 6 
U.S.C. 557 (2002) (codifying HSA, title XV, sec. 1517); 6 U.S.C. 
542; 8 U.S.C. 1551).
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    Pursuant to this statutory mandate to consult with ``appropriate 
agencies of the Government'' to determine eligibility for H-2B status, 
DHS (and the former Immigration and Naturalization Service) has long 
recognized that the most effective administration of the H-2B program 
requires consultation with

[[Page 90648]]

DOL to advise whether U.S. workers capable of performing the temporary 
services or labor are available.\3\
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    \3\ See, e.g., Temporary Alien Workers Seeking Classification 
Under the Immigration and Nationality Act, 55 FR 2606, 2617 (Jan. 
26, 1990) (``The Service must seek advice from the Department of 
Labor under the H-2B classification because the statute requires a 
showing that unemployed U.S. workers are not available to perform 
the services before a petition can be approved. The Department of 
Labor is the appropriate agency of the Government to make such a 
labor market finding. The Service supports the process that the 
Department of Labor uses for testing the labor market and assuring 
that wages and working conditions of U.S. workers will not be 
adversely affected by employment of alien workers.'').
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    Accordingly, DHS regulations require that an H-2B petition for 
temporary employment in the United States must be accompanied by an 
approved temporary labor certification from DOL. 8 CFR 
214.2(h)(6)(iii)(A) and (iv)(A). The temporary labor certification 
serves as DOL's advice to DHS with respect to 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 8 CFR 214.2(h)(6)(iii)(A). In 
addition, as part of DOL's certification, DHS regulations require DOL 
to ``determine the prevailing wage applicable to an application for 
temporary labor certification in accordance with the Secretary of 
Labor's regulation at 20 CFR 655.10.'' 8 CFR 214.2(h)(6)(iii)(D). 
Section 655.10, in turn, requires that any prospective H-2B employer 
first obtain from DOL a prevailing wage determination (PWD) before 
filing its application with DOL for temporary labor certification. 20 
CFR 655.10(a).

B. The 2008 Rule, the Related Litigation, and the Attempted 2011 Wage 
Rule

    In 2008, DOL issued regulations related to its role in the H-2B 
temporary worker program, including a methodology for determining the 
minimum wage that a prospective H-2B employer must offer, advertise in 
recruitment, and pay. 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 (2008 Rule), 73 FR 78020 (Dec. 19, 2008). The 2008 
Rule provided, inter alia, that the prevailing wage would be the 
collective bargaining agreement (CBA) wage rate if the job opportunity 
was covered by an agreement negotiated at arms' length between a union 
and the employer; the Occupational Employment and Wage Statistics 
(OEWS) \4\ survey wage rate if there was no CBA; a survey if an 
employer elected to provide an acceptable survey; or a wage rate under 
the Davis-Bacon Act (DBA) or the McNamara-O'Hara Service Contract Act 
(SCA), if one was available for the occupation in the area of intended 
employment. Id. at 78056. The 2008 Rule and the agency guidance 
implementing it required that when PWDs were based on the OEWS survey, 
the wage had to be structured to contain four tiers to reflect skill 
and experience.\5\ Id. at 78056, 78068. While DOL subjected most 
provisions of the 2008 Rule to the Administrative Procedure Act's (APA) 
notice-and-comment requirements, because the agency had already been 
implementing the four-tier wage structure in the H-2B program pursuant 
to sub-regulatory guidance, DOL did not seek public comments on the use 
of the four-tier structure when promulgating the 2008 Rule. See id. at 
78031.
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    \4\ Prior to March 31, 2021, this survey--conducted by the 
Department's Bureau of Labor Statistics (BLS)--was known as the 
Occupational Employment Statistics (OES) survey. For the sake of 
consistency, however, the Department uses the term OEWS throughout.
    \5\ Because the OEWS survey does not capture information on the 
skills or responsibilities of the workers whose wages are being 
reported, the four-tiered wage structure, adapted from the 
statutorily required four tiers applicable to the H-1B visa program 
under 8 U.S.C. 1182(p), was derived by mathematical formula to 
reflect ``entry level,'' ``qualified,'' ``experienced,'' and ``fully 
competent'' workers. See id. at 78068; Prevailing Wage Determination 
Policy Guidance, Nonagricultural Immigration Programs, Revised 
(revised Nov. 2009) (2009 Prevailing Wage Guidance), available at 
https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/NPWHC_Guidance_Revised_11_2009.pdf.
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    In 2009, a lawsuit was filed under the APA challenging several 
aspects of the 2008 Rule. See Comit[eacute] de Apoyo a los Trabajadores 
Agr[iacute]colas (CATA) v. Solis, No. 09-cv-240, 2010 WL 3431761 (E.D. 
Pa. Aug. 30, 2010) (CATA I). Among the issues raised in that litigation 
was the use of the four-tier wage structure in the H-2B program. In its 
decision, the district court ruled that, substantively, DOL had 
violated the APA by failing to adequately explain its reasoning for 
adopting skill and experience levels as part of the H-2B PWD process. 
Id. at *19. The court also found that the four-tier wage structure was 
a legislative rule subject to the APA's notice-and-comment provision, 
and that DOL had failed to subject it to notice and comment. Id. The 
court ordered promulgation of ``new rules concerning the calculation of 
the prevailing wage rate in the H-2B program that are in compliance 
with the [APA]'' within 120 days. Id. at *27.
    Consequently, after issuing an NPRM on October 5, 2010, DOL 
published a final rule on January 19, 2011. See Wage Methodology for 
the Temporary Non-Agricultural Employment H-2B Program, 75 FR 61578 
(Oct. 5, 2010); Wage Methodology for the Temporary Non-Agricultural 
Employment H-2B Program (2011 Wage Rule), 76 FR 3452, 3465-3467 (Jan. 
19, 2011). The 2011 Wage Rule eliminated the four-tier structure. Id. 
at 3458-3461. The 2011 Wage Rule set the prevailing wage as the highest 
of the OEWS arithmetic mean for each occupational category in the area 
of intended employment; the applicable SCA or DBA wage rate; or the CBA 
wage. The use of employer-provided surveys was eliminated except when 
the job opportunity: (1) was in a geographic location not included in 
the Bureau of Labor Statistics' (BLS) data collection for the OEWS 
(e.g., the Commonwealth of the Northern Mariana Islands); or (2) was 
not ``accurately represented'' within the OEWS job classification used 
in those surveys. Id. at 3466-3467. In deciding to so limit the 
submission and use of employer-provided surveys, the Department stated 
that the OEWS wage survey was ``the most consistent, efficient, and 
accurate means of determining the prevailing wage rate for the H-2B 
program.'' Id. at 3465.
    The effective date of the 2011 Wage Rule was originally set for 
January 1, 2012--a date the CATA plaintiffs challenged, seeking an 
earlier one--but Congress ultimately short-circuited the dispute by an 
enacting an appropriations rider prohibiting the Department from 
implementing the 2011 Wage Rule. Public Law 112-55, 125 Stat. 552, Div. 
B, title V, sec. 546 (Nov. 18, 2011). DOL therefore extended the 
effective date to October 1, 2012. 76 FR 82115 (Dec. 30, 2011). 
Subsequent appropriations contained the same restriction prohibiting 
DOL's use of appropriated funds to implement, administer, or enforce 
the 2011 Wage Rule, necessitating additional rulemaking to further 
delay the effective date of the 2011 Wage Rule.\6\ 77 FR 60040 (Oct. 2, 
2012) (extending the effective date to March 27, 2013); 78 FR

[[Page 90649]]

19098 (Mar. 29, 2013) (extending the effective date to October 1, 
2013).
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    \6\ 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); Consolidated and Further Continuing Appropriations 
Act, 2013, Public Law 113-6, 127 Stat. 198 (Mar. 26, 2013); 
Continuing Appropriations Act, 2014, Public Law 113-46, 127 Stat. 
558 (Oct. 17, 2013); and Joint Resolution Making Further Continuing 
Appropriations for Fiscal Year 2014, Public Law 113-73, 128 Stat. 3 
(Jan. 15, 2014).
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    Given Congress's prohibition against implementation of the 2011 
Wage Rule, the Department continued to operate the H-2B program under 
the 2008 Rule, which CATA I had invalidated but not vacated. The CATA 
plaintiffs, however, sued again and on March 31, 2013, obtained a 
permanent injunction against application and vacatur of the four-tier 
OEWS structure in the 2008 Rule. CATA v. Solis, 933 F. Supp. 2d 700, 
716 (E.D. Pa. 2013) (CATA II). In particular, the court vacated and 
remanded 20 CFR 655.10(b)(2), giving DOL 30 days to come into 
compliance with its ruling finding invalid the four-tier OEWS skill 
level and wage structure. Id. In the interim, DOL was unable to issue 
the vast majority of H-2B PWDs, which were based on the OEWS survey.

C. The 2013 Interim Final Rule

    In compliance with the CATA II court's ruling, DOL published an 
interim final rule (IFR). Wage Methodology for the Temporary Non-
Agricultural Employment H-2B Program, Part 2, 78 FR 24047 (Apr. 24, 
2013) (2013 IFR).\7\ The 2013 IFR became effective on the date of 
publication, with the agencies asserting that they had ``good cause'' 
for an immediate effective date pursuant to 5 U.S.C. 553(d)(3). Given 
the vacatur of the 2008 Rule, the agencies would have been forced to 
cease processing employers' requests for PWDs and temporary labor 
certifications without an immediate effective date and thus unable to 
continue to provide the advice that DHS had determined to be necessary 
under 8 U.S.C. 1184(c)(1)--as implemented in the DHS regulation at 8 
CFR 214.2(h)(6)--for DHS to fulfill its statutory responsibility to 
adjudicate H-2B petitions. Id. at 24050.
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    \7\ DOL and DHS published the 2013 IFR jointly in light of a 
then-recent court decision indicating DOL lacked authority to 
promulgate H-2B rules. See Bayou Lawn & Landscape Servs. v. DOL, 713 
F.3d 1080, 1085 (11th Cir. 2013) (affirming preliminary injunction 
based in part on plaintiffs' likelihood of succeeding on their claim 
that DOL lacked authority to promulgate H-2B rules). Subsequent 
courts, reviewing the matter on the merits, reached the opposite 
conclusion. See Outdoor Amusement Bus. Ass'n v. DHS, 983 F.3d 671, 
685 (4th Cir. 2020) (DOL has authority to promulgate H-2B rules); 
La. Forestry Ass'n v. DOL, 745 F.3d 653, 675 (3d Cir. 2014) (same).
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    The 2013 IFR did not revise or amend 20 CFR 655.10(f) of the 2008 
Rule, leaving intact the permitted use of employer-provided surveys. 
Id. at 24054-24055. Noting that ``DOL still has the concerns expressed 
in the 2011 rule about the consistency, reliability and validity'' of 
employer-provided surveys, the 2013 IFR stated that DOL and DHS invited 
comment on ``whether to permit the continued use of employer-submitted 
surveys.'' Id. at 24055. The 2013 IFR invited comment on the following: 
all aspects of the prevailing wage methodology of 20 CFR 655.10, 
including, among other things, whether the OEWS mean was the 
appropriate basis for determining the prevailing wage; whether wages 
based on the DBA or the SCA should be used to determine the prevailing 
wage and if so, to what extent; comments on the accuracy and 
reliability of private surveys, including ``state-developed'' surveys; 
and whether the continued use of employer-provided surveys should be 
permitted and if so, how to better ensure their methodological 
soundness. Id.\8\
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    \8\ Specifically, the 2013 IFR invited comment on the following 
questions with respect to employer-provided surveys: ``Are there 
methodological standards that can or should be included in the 
regulation that would ensure consistency, validity and reliability 
of employer-provided surveys? Are there industries in which 
employers historically and routinely rely on employer-submitted 
surveys that should be permitted to do so because of the well-
developed, historical, industry-wide practice, or for other reasons? 
Are there state-developed wage surveys, such as state agricultural 
surveys, or surveys from other agencies, such as maritime agencies, 
that could provide data that would be useful in setting prevailing 
wages? Should employer surveys that include data based on wages paid 
to H-2B or other nonimmigrant workers be permitted in establishing a 
prevailing wage that does not adversely affect U.S. workers? If so, 
under what circumstances?'' 78 FR 24055 (Apr. 24, 2013).
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    The comment period closed on June 10, 2013, and the agencies 
received over 300 comments on all aspects of the H-2B wage methodology 
from interested parties.\9\ Meanwhile, because Congress continued to 
prohibit the use of funds to implement the 2011 Wage Rule, DOL 
indefinitely delayed its effective date. See Wage Methodology for the 
Temporary Non-Agricultural Employment H-2B Program; Delay of Effective 
Date (Indefinite Delay Rule), 78 FR 53643, 53645 (Aug. 30, 2013). 
Although the appropriations prohibition was removed as part of the 
Department's fiscal year (FY) 2014 appropriation, Consolidated 
Appropriations Act, 2014, Public Law 113-76, 128 Stat. 5, DOL has not 
since revisited the Indefinite Delay Rule.
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    \9\ A substantial number of comments on the 2013 IFR repeated, 
to a great extent, the same arguments that had been raised in 
connection with the 2011 rulemaking. See 76 FR 3458-3463 (Jan. 19, 
2011).
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D. Vacatur of the 2013 Interim Final Rule

    In 2014, the CATA plaintiffs sued for the third time, challenging 
the 2013 IFR's continued allowance of employer-provided surveys to set 
the prevailing wage under 20 CFR 655.10(f). See CATA v. Perez, No. 
2:14-02657, 2014 WL 4100708 (E.D. Pa. Jul. 23, 2014). In addition, the 
CATA plaintiffs challenged DOL's ongoing use under the 2013 IFR of the 
2009 Prevailing Wage Guidance,\10\ which continued to permit surveys to 
incorporate skill levels at least with respect to employer-provided 
surveys. Id. The district court dismissed the case on procedural 
grounds. On December 5, 2014, however, the Court of Appeals for the 
Third Circuit reversed, vacating both 20 CFR 655.10(f) and the 2009 
Prevailing Wage Guidance. CATA v. Perez, 774 F.3d 173, 191 (3d Cir. 
2014) (CATA III).
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    \10\ The 2009 Prevailing Wage Guidance governed the methodology 
for employer-provided surveys across DOL-administered wage programs. 
See 2009 Prevailing Wage Guidance, available at https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/NPWHC_Guidance_Revised_11_2009.pdf.
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    The CATA III court invalidated the use of employer-provided surveys 
in the H-2B program on both substantive and procedural grounds. First, 
the court held that DOL's failure to explain the broad acceptance of 
employer-provided surveys where an OEWS wage is available was 
procedurally invalid, particularly because this decision was a policy 
change from the 2011 Wage Rule's prohibition of most employer-provided 
surveys as an alternative to the OEWS. Id. at 187-88. Next, the court 
held that the employer-provided survey provision of the 2013 IFR, Sec.  
655.10(f), was arbitrary, and therefore substantively invalid under the 
APA, given DOL's findings in the 2011 Wage Rule, 76 FR 3465 (Jan. 19, 
2011), that the OEWS is the ``most consistent, efficient, and accurate 
means of determining the prevailing wage rate for the H-2B program.'' 
CATA III, 774 F.3d 173 at 189. Further, the court held that Sec.  
655.10(f) was substantively invalid under the APA because it permitted 
wealthy employers to commission surveys that resulted in a lower 
prevailing wage than those paid by less affluent employers without 
means to produce such surveys and resulted in significant variations in 
the prevailing wage within a single occupation in the same geographic 
location. Id. at 189-90. Finally, the court held that the 2009 
Prevailing Wage Guidance violated the APA because it allowed employer-
provided surveys containing tiered wages based on skill levels. This, 
the court held, conflicted with the CATA II order, which invalidated 
the four-tier OEWS structure. Id. at 190-91.
    The CATA III court ultimately ``direct[ed] that private surveys no 
longer be used in determining the mean rate of wage for occupations 
except where an otherwise applicable OE[W]S survey does not provide any 
data for an

[[Page 90650]]

occupation in a specific geographical location, or where the OE[W]S 
survey does not accurately represent the relevant job classification.'' 
Id. DOL immediately ceased accepting employer-provided wage surveys. 80 
FR at 24151 (Apr. 29, 2015).

E. The 2015 Wage Rule, the 2016 Appropriations Rider, and DOL's 
Guidance Regarding the Rider's Effect on the Rule

    Soon after the CATA III decision, the court in Perez v. Perez, No. 
14-cv-682 (N.D. Fla. Mar. 4, 2015), vacated the 2008 Rule and 
permanently enjoined DOL from applying or enforcing it, thus creating a 
regulatory void. DOL had to cease operating the H-2B program briefly 
until it obtained a temporary stay of the Perez court's order until May 
15, 2015. 80 FR at 24151 (Apr. 29, 2015). On April 29, 2015, DOL and 
DHS jointly published two rules: the Temporary Non-Agricultural 
Employment of H-2B Aliens in the United States IFR, 80 FR 24042 (Apr. 
29, 2015), and the 2015 Wage Rule, Wage Methodology for the Temporary 
Non-Agricultural Employment H-2B Program, 80 FR 24146 (Apr. 29, 2015). 
The 2015 Wage Rule acknowledged the CATA III court's substantive 
concerns regarding the validity of employer-provided surveys in the H-
2B program and stated that ``DOL's options for accepting such surveys 
under this final rule are now necessarily more limited than under the 
2013 IFR.'' Id. at 24151. Referring to the questions presented to the 
public in the 2013 IFR for any ``additional data on the accuracy and 
reliability of private surveys covering traditional H-2B occupations to 
allow for further factual findings on the sufficiency of private 
surveys for setting prevailing wage rates,'' the 2015 Wage Rule 
discussed the comments submitted by worker advocacy groups, employers 
and employer associations, and associations of seafood processing 
employers, among others. Id. at 24166-24169.
    After reviewing the comments provided, and recognizing the concerns 
underscored by the CATA III decision, the 2015 Wage Rule reiterated 
DOL's position in the 2011 Wage Rule, stating ``DOL experience 
reviewing employer-provided surveys since 2011 has not provided any 
demonstrable evidence that the wage information produced from 
nongovernment surveys is any more consistent or reliable than DOL 
determined was the case four years ago.'' Id. at 24168. The 2015 Wage 
Rule went on to state that, given DOL's administrative experience 
regarding employer-provided surveys, the comments received following 
the 2013 IFR, and the court's decision in CATA III, ``the Departments 
have decided to allow the submission of employer-provided surveys to 
set the prevailing wage in H-2B in limited circumstances.'' Id. The 
first two such circumstances tracked those endorsed by the court in 
CATA III, permitting ``the use of a nongovernmental employer-provided 
survey to set the prevailing wage only where the OE[W]S survey does not 
provide any data for an occupation in a specific geographical location, 
or where the OE[W]S survey does not accurately represent the relevant 
job classification.'' Id.
    When submitting such a wage survey, an employer was required to 
include ``specific information about the survey methodology, including 
such items as sample size and source, sample selection procedures, and 
survey job descriptions, to allow a determination of the adequacy of 
the data provided and validity of the statistical methodology used in 
conducting the survey.'' 20 CFR 655.10(f)(4). Further, the employer was 
required to attest, via Form ETA-9165, that the survey was not 
conducted by the employer or its agents, that the surveyor either 
contacted a randomized sample of relevant employers or attempted to 
contact them all, and, among other things, that the ``survey includes 
wage data from at least 30 workers and three employers.'' Id. at Sec.  
655.10(f)(4)(i) through (iii).
    Additionally, the 2015 Wage Rule included a ``third, limited 
category of acceptable employer-provided surveys, even where the 
occupation is sufficiently represented in the OE[W]S.'' 80 FR 24169-
24170 (Apr. 29, 2015). In reaching this conclusion, the Departments 
quoted the preamble to the 2011 Wage Rule, which stated ``the 
prevailing wage rate is best determined through reliable Government 
surveys of wage rates, rather than employer-provided surveys that 
employ varying methods, statistics, and surveys.'' Id. at 24170 (citing 
76 FR 3465, Jan. 19, 2011). The Departments stated that, consistent 
with their assessment that government surveys are reliable, ``surveys 
conducted and issued by a state represent an additional category of 
reliable government surveys.'' Id. at 24170. The preamble to the 2015 
Wage Rule further reasoned that as the State-conducted surveys were 
capable of meeting the methodological standards included in the rule, 
and if issued without regard to the interest of any employer in the 
outcome of the wage reported from the survey, such surveys would be 
``generally reliable and an adequate substitute for the OE[W]S.'' Id.
    Shortly after promulgation of the 2015 Wage Rule, however, Congress 
included in the Department's FY 2016 appropriation a provision that 
mandated broader use of employer-provided surveys:

    The determination of prevailing wage for the purposes of the H-
2B program shall be the greater of--(1) the actual wage level paid 
by the employer to other employees with similar experience and 
qualifications for such position in the same location; or (2) the 
prevailing wage level for the occupational classification of the 
position in the geographic area in which the H-2B nonimmigrant will 
be employed, based on the best information available at the time of 
filing the petition. In the determination of prevailing wage for the 
purposes of the H-2B program, the Secretary shall accept private 
wage surveys even in instances where Occupational Employment 
Statistics survey data are available unless the Secretary determines 
that the methodology and data in the provided survey are not 
statistically supported.

Consol. Appropriations Act, 2016, Public Law 114-113, sec. 112, 129 
Stat. 2242, 2599 (Dec. 18, 2015). Every subsequent Appropriations Act 
has included the same provision.\11\ Shortly after the first of the 
appropriations riders, DOL published a Frequently Asked Questions (FAQ) 
on its website stating that it would use the criteria in the 2015 Wage 
Rule to determine whether an employer-provided survey was 
``statistically supported'' within the meaning of the appropriations 
rider.\12\
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    \11\ This language has been included in each subsequent 
appropriation. See Further Consol. Appropriations Act, 2024, Public 
Law 118-47, Div. D, title I, sec. 110, 138 Stat. 460, 646 (2024); 
Consol. Appropriations Act, 2023, Public Law 117-328, Div. H, title 
I, sec. 110, 136 Stat. 4459, 4852 (2023); Consol. Appropriations 
Act, 2022, Public Law 117-103, sec. 110, 136 Stat. 49, 439 (2022); 
Consol. Appropriations Act, 2021, Public Law 116-260, sec. 110, 134 
Stat. 1182, 1564-65 (2020); Further Consol. Appropriations Act, 
2020, Public Law 116-94, sec. 110, 133 Stat. 2534, 2554 (2019); 
Dep't of Defense, Labor, Health and Hum. Serv., and Educ. 
Appropriations Act, 2019, and Continuing Appropriations Act, 2019, 
Public Law 115-245, sec. 111, 132 Stat. 2981, 3065 (2018); Consol. 
Appropriations Act, 2018, Public Law 115-141, sec. 112, 132 Stat. 
348, 712 (2018); Consol. Appropriations Act, 2017, Public Law 115-
31, sec. 112, 131 Stat. 135, 518-19 (2017).
    \12\ See DOL, Emp't & Training Admin., Effects of the 2016 Dep't 
of Labor Appropriations Act at 4 (Dec. 29, 2015), available at 
https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/H2B_Prevailing_Wage_FAQs_DOL_Appropriations_Act.pdf.
---------------------------------------------------------------------------

F. Invalidation of the 2015 Wage Rule

    The United States District Court for the District of Columbia 
issued a decision on December 23, 2022, holding the 2015 Wage Rule--
specifically 20 CFR 655.10(f)(2) and (f)(4)--to be procedurally invalid 
for failure to comply with the notice-and-comment requirement of the 
APA, and further

[[Page 90651]]

holding that DOL's application of the 2015 Wage Rule--specifically 
paragraph (f)(3)--to PWDs accepting a 2021 employer-provided wage 
survey was unlawful. Williams, et al. v. Walsh, et al., 648 F.Supp.3d 
70, 75 (D.D.C. 2022). Regarding the first holding, the court reasoned 
that although the 2015 Wage Rule purported to finalize the 2013 IFR, 
the CATA III decision had vacated the 2013 IFR. Id. at 91. As a result 
of the CATA III vacatur, the Williams court concluded that the agencies 
were required to either engage in a new notice-and-comment procedure or 
invoke the APA's good-cause exception to promulgate the 2015 Wage Rule 
as an IFR. Id. Because the agencies did neither, the court ruled that 
the 2015 Wage Rule was procedurally deficient, specifically 
invalidating paragraphs (f)(2) and (f)(4). Id. Having reached this 
conclusion with respect to the 2015 Wage Rule's procedural defects, the 
Court did not reach Plaintiffs' substantive facial challenges to the 
2015 Wage Rule.
    Regarding the Plaintiffs' as-applied challenge to the rule, the 
Court held that DOL erred in accepting the 2021 wage survey that had 
been submitted by some twenty employers because the survey had been 
expanded beyond the area of intended employment for stated reasons that 
did not meet the requirements of paragraph (f)(3). Id. at 95-96.
    The Court remanded the case to the agencies for further 
consideration consistent with its opinion. Id. at 97-99. This 
rulemaking is being undertaken consistent with the court's order.

G. The Department's Authority To Promulgate This Rule

    As discussed above, the INA obligates DHS to consult with 
``appropriate agencies of the Government'' in considering an employer's 
petition for visas for nonimmigrant workers. 8 U.S.C. 1184(c)(1). DHS 
regulations designate the Secretary of Labor as an appropriate 
consultant regarding the H-2B program, specify that the Secretary shall 
establish procedures for administering the labor certification program, 
and require an employer's petition to employ H-2B workers to be 
accompanied by an approved temporary labor certification from the 
Secretary. 8 CFR 214.2(h)(6)(iii)(D), (iv); see also 20 CFR 655.1. The 
Department's authority to promulgate regulations to structure and 
administer the H-2B temporary labor certification process, including 
the determination of the prevailing wage, has been judicially upheld. 
Outdoor Amusement Bus. Ass'n v. DHS, 983 F.3d 671, 684-89 (4th Cir. 
2020) (DOL possesses independent H-2B rulemaking authority); La. 
Forestry Ass'n v. DOL, 745 F.3d 653, 669 (3d Cir. 2014) (same).\13\
---------------------------------------------------------------------------

    \13\ Although other courts have reached a different conclusion 
at the preliminary injunction stage of litigation challenging the 
Department's authority to issue regulations, Bayou Lawn & Landscape 
Servs., 713 F.3d 1080, 1085 (11th Cir. 2013) (affirming preliminary 
injunction, holding the plaintiffs were likely to succeed on claim 
that DOL lacked authority to promulgate H-2B rules), or under a 
separate theory of rulemaking authority, G.H. Daniels v. Perez, 626 
F. Appx. 205 (10th Cir. 2015) (DHS's 2008 H-2B rule improperly sub-
delegated certification authority to DOL), the Department disagrees 
with the conclusions reached in those cases--which were either not 
merits decisions or non-precedential--regarding its rulemaking 
authority for the reasons explained in this NPRM.
---------------------------------------------------------------------------

    In addition, the language in the appropriations riders discussed in 
Section II.E, above, specifically authorizes the Secretary of Labor to 
determine whether the ``methodology and data'' used in an employer-
provided wage survey is ``statistically supported.'' See, e.g., Further 
Consol. Appropriations Act, 2024, Public Law 118-47, Div. D, title I, 
sec. 110, 138 Stat. 460, 646 (2024); Consol. Appropriations Act, 2023, 
Public Law 117-328, Div. H, title I, sec. 110, 136 Stat. 4459, 4852 
(2023). The methodological and data criteria proposed here implement 
that statutory requirement. Accordingly, as part of its consultative 
role and based on the language in recent appropriations riders, the 
Department possesses clear authority to promulgate the proposed rule.

III. Summary of Proposed Revisions to 20 CFR Part 655; Subpart A; 20 
CFR 655.10

    In compliance with the Williams ruling, the Department hereby 
provides notice and an opportunity to comment on the proposed employer-
provided wage survey provisions of 20 CFR 655.10(f). The Department 
proposes to allow employers to submit wage surveys in the same limited 
circumstances as the 2015 Wage Rule, the current rule, does. 
Specifically, if the job opportunity is not covered by a CBA or a 
professional sports league's rules or regulations, an employer would be 
permitted to submit a survey only if: (1) the survey was independently 
conducted and issued by a State, including any State agency, State 
college, or State university; (2) the survey is submitted for a 
geographic area where the BLS does not collect OEWS survey data, or in 
a geographic area where the OEWS survey provides an arithmetic mean 
only at a national level for workers employed in the Standard 
Occupational Classification (SOC); or (3) the job opportunity is within 
an occupational classification of the SOC system designated as an ``All 
Other'' classification.\14\ The proposed rule, however, would eliminate 
the option that such a survey could report the median wages of workers 
performing the same or substantially similar job duties in the area of 
intended employment. Rather, the proposed rule would only allow the 
submission of a survey that includes the arithmetic mean of the wages 
of those workers.
---------------------------------------------------------------------------

    \14\ As discussed further in Section III.B, below, the 
Department recognizes that the language contained in every 
appropriations act since 2016 supersedes these limitations and 
requires acceptance of any employer-provided wage survey unless it 
determines that the methodology and data in the survey are not 
``statistically supported.'' See n.11, above. The Department 
proposes to retain the same limitations as in the current rule in 
the event that the language is eliminated from or modified in future 
appropriations acts. When Congress annually reenacts a provision in 
appropriations acts, ``common sense suggests--and courts are free to 
presume--that Congress did not consider the language as creating 
permanent law.'' Atlantic Fish Spotters Ass'n v. Evans, 321 F.3d 
220, 227 (1st Cir. 2003) (citing U.S. v. Vulte, 233 U.S. 509, 514 
(1914)).
---------------------------------------------------------------------------

    The proposed rule, like the current rule, would require an 
employer-provided survey to contain specific information about the 
survey methodology, such as sample size and source, sample selection 
procedures, and survey job descriptions, to allow the National 
Prevailing Wage Center (NPWC) to determine the adequacy of the survey 
data and validity of the methodology used to conduct the survey. The 
proposed rule, however, would eliminate the standard survey attestation 
form, Form ETA-9165, Employer-Provided Survey Attestations to Accompany 
H-2B Prevailing Wage Determination Request Based on a Non-OES Survey 
(Form ETA-9165), which H-2B employers must complete and submit under 
the current rule when they request a survey-based prevailing wage. 
Instead, the proposed rule would require the employer to submit the 
survey to the NPWC for evaluation at the same time the employer submits 
its Form ETA-9141 requesting a PWD from the NPWC.
    Additionally, the proposed rule would include new requirements to 
follow-up at least three times with non-respondents and to keep the 
survey open for accepting responses for at least 14 calendar days after 
the issuance of the third follow-up. The follow-up requirement would 
reduce sampling bias, and the additional 14-calendar day period would 
maximize the amount of wage data collected. Together, these two new 
requirements would result in more accurate surveys. The proposed rule 
would, like the current rule, provide that if the minimum sample size 
of 3 employers and 30 workers is not met,

[[Page 90652]]

the geographic area of the survey may be expanded beyond the area of 
intended employment to other contiguous geographic areas in order to 
meet the minimum sample size requirement.
    The Department seeks public comment on all aspects of this proposed 
rule discussed in Sections III.A through III.F below, especially the 
proposed revisions to the current Sec.  655.10(f).

A. Discussion of Proposed Technical Changes to 20 CFR 655.10

    Consistent with the 2015 Wage Rule, the Department proposes the 
following technical changes. First, the proposed rule would retain 
Sec.  655.10(a) with a technical change to spell out the phrase 
``prevailing wage determination'' and placing ``PWD'' in parentheses.
    Second, this proposed rule would retain Sec.  655.10(a) and (b), 
with three technical changes in Sec.  655.10(b) by inserting the word 
``Wage'' between the words ``and Statistics'' and inserting a ``W'' 
into ``OES'' in the parenthetical ``(OES).'' Also, the proposed rule 
would replace the term ``OFLC'' with ``the NPWC'' in Sec.  
655.10(b)(2). These technical changes are for consistency with other 
sections of this proposed rule.
    Third, this proposed rule would retain Sec.  655.10(e) with 
technical changes to: (1) replace the word ``provide'' with the word 
``determine''; (2) change the placement of ``Form'' in the 
parenthetical ``(ETA Form-9141)'' to precede ``ETA''; and (3) replace 
``its'' with the phrase ``the determination and the NPWC's'' for 
clarity and to be consistent with other sections of this proposed rule.

B. Discussion of Proposed Revisions to 20 CFR 655.10(f)(1)

    The Department proposes to allow employers to submit wage surveys 
in the same three circumstances as the current rule does. The first two 
circumstances would remain unchanged, and the third would be revised as 
discussed in Sections III.B.1 through III.B.3, below. The Department, 
however, does not intend to apply or enforce these limitations on wage 
surveys as long as the language contained in the appropriations acts 
discussed above remains in effect. That language requires the Secretary 
to ``accept private wage surveys even in instances where Occupational 
Employment Statistics survey data are available unless the Secretary 
determines that the methodology and data in the provided survey are not 
statistically supported.'' \15\ This language supersedes the current 
Sec.  655.10(f)(1) and would supersede the proposed Sec.  655.10(f)(1) 
as long as that language remains in effect. The Department would apply 
and enforce the proposed Sec.  655.10(f)(1) only if and when Congress 
eliminates that language.
---------------------------------------------------------------------------

    \15\ See n.11, above.
---------------------------------------------------------------------------

1. State Conducted Survey
    Consistent with current Sec.  655.10(f)(1)(i), this proposal would 
permit employers to submit prevailing wage surveys that are 
independently conducted and issued by a State, including any State 
agency, State college, or State university. As stated in the preamble 
to the 2015 Wage Rule, the Department continues to believe that surveys 
that are independently conducted and issued by a State are as reliable 
as ``Government'' surveys.\16\ Since a ``state must independently 
conduct and issue the survey, [this requirement] means that the state 
must design and implement the survey without regard to the interest of 
any employer in the outcome of the wage reported from the survey.'' 
\17\ In addition, a State would have to satisfy the proposed rule's 
methodological and data requirements to be used to establish a PWD.\18\ 
The Department considers State agencies to generally be neutral third 
parties that are free from bias and have no self-interest or motivation 
with respect to the result of the survey. Based on its ``substantial 
experience with wage surveys conducted by the states,'' the Department 
continues to think that surveys conducted by a State agency are 
appropriate as a wage source for the H-2B program provided they meet 
the methodological standards described below.\19\
---------------------------------------------------------------------------

    \16\ See 80 FR 24146, 24170 (Apr. 29, 2015).
    \17\ Id.
    \18\ Id.
    \19\ Id.
---------------------------------------------------------------------------

    Where a State conducts a survey that meets the methodological and 
data requirements in this proposed rule, an employer may attach the 
State-conducted wage survey to a prevailing wage request for 
consideration as a wage source for its job opportunity. While there may 
be concerns about undue influence over the development and 
administration of a survey, the Department proposes to allow the use of 
surveys conducted by State agencies, such as State agriculture or 
maritime agencies, or State colleges and universities. These entities 
must design and implement the survey without regard to the interest of 
any employer in the outcome of the wage reported from the survey. In 
addition, to satisfy this requirement, a State official must approve 
the survey.\20\
---------------------------------------------------------------------------

    \20\ 80 FR 24146, 24170 (Apr. 29, 2015).
---------------------------------------------------------------------------

2. OEWS Data Limitation in Certain Geographic Areas
    Consistent with current Sec.  655.10(f)(1)(ii), the Department 
proposes that employers may submit surveys where the OEWS survey does 
not collect data in a geographic area, or where the OEWS reports a wage 
for the SOC based only on national data. For geographic areas where the 
OEWS does not collect data or does not collect enough data to report a 
wage (e.g., because the sample size is too small), wage surveys could 
provide the Department with access to data it simply would not 
otherwise have. For geographic areas where only an OEWS national wage 
is available, a wage survey could provide data for the geographic area 
in which the job opportunity exists. Thus, this proposed rule reflects 
the Department's view that employers should be permitted to submit wage 
surveys where the Department does not have readily available or 
appropriate OEWS data to issue a prevailing wage for the occupation in 
the area of intended employment where the job opportunity will be 
performed. Acceptance of private wage surveys in these circumstances 
was expressly endorsed by the court in CATA III.\21\
---------------------------------------------------------------------------

    \21\ 774 F.3d at 191 (private surveys may be used ``where an 
otherwise applicable OE[W]S survey does not provide any data for an 
occupation in a specific geographic location'').
---------------------------------------------------------------------------

3. OEWS Data Limitation in Certain SOC Codes
    According to the BLS, the SOC system is used ``to classify workers 
and jobs into occupational categories for the purpose of collecting, 
calculating, analyzing, or disseminating data.'' \22\ Occupations that 
have similar job duties, and in some cases, similar skills, education, 
and/or training, are classified in a distinct detailed SOC code.\23\ 
Under the SOC system, occupations are assigned an SOC code based on the 
worker's job duties, not the worker's job title(s).\24\ When workers do 
not perform job duties described in any distinct detailed occupation, 
the SOC system classifies the occupation as one contained within an 
``All Other'' SOC code.\25\ For example, according to the BLS, an ``All 
Other'' SOC code is 49-9099, Installation, Maintenance, and

[[Page 90653]]

Repair Workers, All Other. The BLS provides these examples of 
occupational titles that would fall under this SOC code: Bowling Alley 
Mechanic, Fabric Awning Repairer, Fire Extinguisher Installer, Gasoline 
Pump Installer, Gunsmith, Parachute Repairer, Sail Repairer.\26\
---------------------------------------------------------------------------

    \22\ See 2018 SOC Manual, available at https://www.bls.gov/soc/2018/soc_2018_manual.pdf, at 1.
    \23\ Id.
    \24\ Id. at 23.
    \25\ Id.
    \26\ Id. at 181. Please note this example is based on the 2018 
SOC codes, which are subject to future updates.
---------------------------------------------------------------------------

    Consistent with the 2015 Wage Rule, this proposed rule would 
continue to permit employers to submit surveys where the job 
opportunity is within an ``All Other'' SOC code. This situation, 
similar to the one described in the preceding section, is one in which 
a wage survey could provide the Department access to information that 
it either simply does not have or is more sufficiently tailored to the 
specific occupation in the employer's job opportunity. To meet this 
requirement, which is currently in Sec.  655.10(f)(1)(iii)(B), an 
employer's job opportunity, as entered on the employer's prevailing 
wage application, must entail job duties requiring ``knowledge, skills, 
abilities, and work tasks that are significantly different than those 
in any SOC classification other than [an] `all other' category.'' \27\
---------------------------------------------------------------------------

    \27\ 80 FR 24146, 24169 (Apr. 29, 2015).
---------------------------------------------------------------------------

    The Department proposes to delete the current Sec.  
655.10(f)(1)(iii)(A) and redesignate current Sec.  655.10(f)(1)(iii)(B) 
as Sec.  655.10(f)(1)(iii). Under the current Sec.  
655.10(f)(1)(iii)(A), the Department accepts an employer-provided 
survey when the employer's job opportunity is not included in an 
occupational classification of the SOC system; and under the current 
Sec.  655.10(f)(1)(iii)(B), the Department accepts an employer-provided 
survey when the job opportunity is within an ``All Other'' SOC code. 
The Department proposes to delete subordinate paragraph (A) because, in 
the Department's experience, a more specific SOC code is invariably 
applicable. In assigning an SOC code, the Department may consider the 
employer's prior filing history.\28\ Acceptance of private wage surveys 
when the job opportunity falls within an ``All Other'' SOC code is 
consistent with the court's decision in CATA III.\29\
---------------------------------------------------------------------------

    \28\ See generally 2018 SOC Manual, available at https://www.bls.gov/soc/2018/soc_2018_manual.pdf.
    \29\ 774 F.3d at 191 (private surveys may be used ``where the 
OE[W]S survey does not accurately represent the relevant job 
classification'').
---------------------------------------------------------------------------

C. Discussion of Proposed Revisions to 20 CFR 655.10(f)(2)

    The proposed rule would require that employer-provided wage surveys 
provide the arithmetic mean of the wages of all workers performing the 
same or substantially similar job duties. This proposed rule uses the 
phrase ``substantially similar,'' which is derived from the 
Department's permanent labor certification regulation at 20 CFR 
656.40(d).\30\ For purposes of this proposed rule, ``workers performing 
the same or substantially similar job duties'' refers to workers that 
are similarly employed in the area of intended employment. The proposed 
rule would eliminate the exception in the current rule that ``if the 
survey provides a median but does not provide an arithmetic mean, the 
prevailing wage applicable to the employer's job opportunity shall be 
the median of the wages of workers similarly employed in the area of 
intended employment.'' \31\ Under this proposed rule, if an employer 
submits a survey that provides only the median wage, the NPWC would 
issue an OEWS wage for such a PWD request.
---------------------------------------------------------------------------

    \30\ See 20 CFR 656.40(d) (``similarly employed'' means ``having 
substantially comparable jobs in the occupational category in the 
area of intended employment'').
    \31\ 20 CFR 655.10(f)(2).
---------------------------------------------------------------------------

    The Department proposes this change to be consistent with the 
methodology applied when the OEWS survey is the wage source used to 
determine the prevailing wage rate. As stated in the preamble to the 
2015 Wage Rule, ``[t]he mean is the average of all wages surveyed in an 
occupation in the geographic area, and in the . . . [occupations in the 
H-2B program], the mean represents the average wage paid to [workers] 
to perform that job. If the prevailing wage is set below the mean, the 
average wage of workers in the occupation would be drawn down, 
resulting in a depressive effect on U.S. workers' wages overall.'' \32\ 
The preamble went on to note that ``the Department has set the wage 
rate at the mean rather than at the median because the mean provides 
equal weight to the wage rate received by each worker in the occupation 
across the wage spectrum and maintaining the OE[W]S mean provides 
regulatory continuity. As a result, when the prevailing wage is based 
on the OE[W]S survey, the Department will set it at the mean because it 
is the most appropriate wage to use in order to avoid immigration 
induced labor market distortions inconsistent with the requirements of 
INA.'' \33\
---------------------------------------------------------------------------

    \32\ 80 FR 24146, 24159 (Apr. 29, 2015).
    \33\ Id.
---------------------------------------------------------------------------

    The Department's experience since the introduction of the 2015 Wage 
Rule is that H-2B employers have generally submitted surveys with the 
arithmetic mean of the wages of all workers performing the same or 
substantially similarly job duties in the area of intended employment 
for establishing an H-2B survey-based prevailing wage. As a result, the 
Department does not believe that elimination of the option to provide a 
survey using a median wage will have a significant practical effect 
because the NPWC rarely receives surveys that only include a median 
wage. Moreover, the Department continues to think that setting the wage 
below the mean would have a depressive effect on wages, and therefore 
this proposed change is consistent with the Department's obligation to 
ensure that U.S. workers' wages are not adversely affected when setting 
a prevailing wage for workers employed in the H-2B program.\34\
---------------------------------------------------------------------------

    \34\ See 8 U.S.C. 1182(a)(5)(A)(i), (p).
---------------------------------------------------------------------------

    Under this proposed paragraph, the Department would continue to 
require that surveys provide the arithmetic mean of the wages of all 
workers similarly employed without regard to the immigration status of 
the workers surveyed. Doing so remains consistent with the Department's 
historical practice in the H-2B program \35\ and would continue to 
promote consistency with the OEWS survey, which includes wage data from 
all workers without regard to their immigration status.\36\ Further, 
commercial wage surveys generally do not exclude workers from the 
survey based on their immigration status, and, where the OEWS does not 
provide adequate information for the occupation or geographic location, 
the Department is concerned that requiring the exclusion of 
nonimmigrant workers would effectively bar employers from using such 
surveys--thus potentially leaving the Department without a reliable 
basis on which to set a prevailing wage. Therefore, as stated in the 
2015 Wage Rule and continued in this proposed rule, the Department 
``will not accept wage surveys that exclude the wages of U.S. workers 
or exclude the wages of nonimmigrant workers.'' \37\
---------------------------------------------------------------------------

    \35\ Id. at 24172.
    \36\ Id.
    \37\ Id.
---------------------------------------------------------------------------

D. Discussion of 20 CFR 655.10(f)(3)

    Consistent with the 2015 Wage Rule, the Department would continue 
to allow, under proposed Sec.  655.10(f)(3), employer-provided surveys 
to cover a geographic area beyond the area of intended employment only 
if: (1) the expansion is limited to geographic areas that are 
contiguous to the area of

[[Page 90654]]

intended employment; (2) the expansion is required to meet either the 
30-worker or 3-employer minimum; and (3) the geographic area is 
expanded no more than necessary to meet these minimum requirements.
    Consistent with the 2015 Wage Rule, a geographic area may be 
expanded in two ways. First, if an employer contracts with a surveyor 
familiar with the area of employment, the surveyor may determine before 
beginning the survey that the survey will not elicit a sufficient 
response to meet the regulatory requirements--for example, if there are 
not enough employers or workers in the local area of employment. In 
those cases, the surveyor may elect, at the outset, to survey a 
geographic area larger than the area of employment. In its submission 
to the NPWC, the survey must explain the decision to expand the survey 
area at the outset, and describe the extent of the expansion and the 
reason why the expansion was needed to meet the regulatory 
requirements.\38\
---------------------------------------------------------------------------

    \38\ See id.
---------------------------------------------------------------------------

    Second, a survey may be expanded incrementally. Expansion would be 
permitted only if the survey of the area of intended employment did not 
yield sufficient wage data to meet the minimum sample size 
requirements. In such circumstances, consistent with current guidance, 
``the geographic area of consideration should not be expanded more than 
is necessary'' to meet either the 30-worker or 3-employer, or both, 
requirements of Sec.  655.10(f)(4)(ii).\39\ For example, as noted in 
the guidance, it would be ``appropriate to survey cities and counties 
that are in close proximity to the area of intended employment rather 
than using a State-wide average wage rate.'' \40\ In all cases where an 
area larger than the area of intended employment is surveyed, the 
survey would have to establish that the expansion was necessary to meet 
either the 30-worker or 3-employer requirements of Sec.  
655.10(f)(4)(ii).\41\
---------------------------------------------------------------------------

    \39\ See General Administration Letter (GAL) 4-95, Interim 
Prevailing Wage Policy for Nonagricultural Immigration Programs (May 
18, 1995) at p. 4, available at https://www.dol.gov/sites/dolgov/files/ETA/advisories/GAL/1995/GAL4-95_attach.pdf. See infra n.42.
    \40\ Id.
    \41\ See GAL 2-98, Prevailing Wage Policy for Nonagricultural 
Immigration Programs (Oct. 31, 1997) at p. 8, available at https://oui.doleta.gov/dmstree/gal/gal98/gal_0298a.pdf.
---------------------------------------------------------------------------

    Further, consistent with current practice, incremental geographic 
area expansion beyond the area of intended employment must be 
consistent with OEWS survey methodology,\42\ meaning that a ``survey's 
expansion may take place across state lines, as long as the new area(s) 
added to the survey [is] contiguous to the area of intended employment 
in which the job opportunity is located and the expansion extends only 
as much as is necessary to satisfy the minimum sample size 
requirement.'' \43\ Any such expansion is limited to geographic areas 
that are contiguous to the area of intended employment because the 
NPWC's ``experience demonstrates that some employers have submitted 
surveys that expanded the survey area using remote geographic areas 
located far from the job opportunity. [The Department] see[s] no reason 
for a survey to ignore areas immediately surrounding the job 
opportunity in favor of geographic areas located large distances from 
the job.'' \44\ For example, in Williams, the surveyor expanded the 
geographic area of the survey without explaining why a statewide survey 
was needed instead of a ``more incremental approach.'' \45\ Thus, the 
Department continues to believe that areas contiguous to the area of 
intended employment, which are closest to the area of intended 
employment, better reflect the wages in the area of intended 
employment. As such, this proposal seeks to guard against the potential 
for wage depression that may result when a survey is expanded to 
geographic areas that are remote from the location of the job 
opportunity and where wages may be lower.
---------------------------------------------------------------------------

    \42\ 80 FR 24146, 24174 (Apr. 29, 2015).
    \43\ See OFLC Frequently Asked Questions and Answers, #32 (Sep. 
1, 2016), available at https://foreignlaborcert.doleta.gov/faqsanswers.cfm (Question: ``The surveyor has not been able to 
elicit a response to the survey in the occupation and area of 
intended employment that meets the minimum sample size requirements 
(i.e., at least 3 employers and 30 workers) of the 2015 H-2B Wage 
Final Rule. May the surveyor expand the geographic area surveyed?'') 
and (Answer: ``Yes, under certain limited conditions, the geographic 
area surveyed may be expanded incrementally until employer-provided 
survey sample size requirement is met (i.e., at least 3 employers 
and 30 workers). A survey may be expanded to cover a geographic area 
larger than the area of intended employment in which the job 
opportunity is located only where that area of intended employment 
does not generate a sufficient sample to meet minimum size 
requirements. Under that condition, the survey may only be expanded 
to geographic areas that are contiguous to the area of intended 
employment only to the extent necessary to generate a sample size 
sufficient to satisfy the minimum sample size requirement. The 
survey's expansion may take place across state lines, as long as the 
new area(s) added to the survey are contiguous to the area of 
intended employment in which the job opportunity is located and the 
expansion extends only as much as is necessary to satisfy the 
minimum sample size requirement. If the surveyor determines after 
surveying the area of intended employment that the survey does not 
meet minimum sample size requirements, it must either conduct a new 
random sample of the expanded area (including the area of intended 
employment) or make a reasonable, good faith effort to survey all 
employers employing workers in the occupation and expanded area 
surveyed.'').
    \44\ 80 FR 24146, 24174 (Apr. 29, 2015).
    \45\ Williams, 648 F. Supp. 3d at 96 (holding DOL erred in 
accepting a statewide survey where the justification for expansion 
of the geographic area required by Sec.  655.10(f)(3) had not been 
provided).
---------------------------------------------------------------------------

    The Department is proposing clarifying guidance on the steps for 
conducting geographic area expansion if the area of intended employment 
surveyed area does not meet the 30-worker and 3-employer requirements 
under proposed Sec.  655.10(f)(4)(ii). In particular, if a survey is 
incrementally expanded beyond the area of intended employment to meet 
the minimum sample size requirements, the surveyor would have to survey 
the newly added area using the same method used to survey the original 
area of intended employment for consistency.\46\
---------------------------------------------------------------------------

    \46\ Id.
---------------------------------------------------------------------------

    Under this proposed rule, if the NPWC determines that the 
geographic area of an employer-provided survey appears to be broader 
than permitted by Sec.  655.10(f)(3), the NPWC will review the survey 
for the reason(s) why and how the geographic area was expanded, as it 
does under current practice. Then, the NPWC may issue a request for 
information for an explanation for the reason(s) why and how the 
geographic area was expanded, if needed. An example of such an 
explanation, or a part of such an explanation, could be that the 
expansion was needed to meet the regulatory requirements because there 
were not enough workers or employers in the area of intended employment 
and the area of intended employment was fully surveyed (i.e., all 
geographic components such as counties and townships, etc.). Consistent 
with current practice, if the NPWC determines the geographic area was 
improperly expanded, the NPWC would reject the survey and issue an OEWS 
wage for the employer's job opportunity.

E. Discussion of Proposed Revisions to 20 CFR 655.10(f)(4)

    Under the current rule, when an employer requests a PWD based on a 
survey, the Department requires the employer to submit the Form ETA-
9165, Employer-Provided Survey Attestations to Accompany H-2B 
Prevailing Wage Determination Request Based on a Non-OES Survey (``Form 
ETA-9165''), with the Form ETA-9141, Application for Prevailing Wage 
Determination (``Form ETA-9141''). This proposed rule would eliminate 
the Form ETA-9165, which was intended to streamline the Department's 
analysis of employer-provided surveys and yield

[[Page 90655]]

consistent results. In the Department's experience, however, using the 
current Form ETA-9165 has proven inadequate to determine whether the 
survey meets the data and methodological requirements of the current 
rule. The Form ETA-9165 is based on an employer's attestations 
regarding an independently conducted survey but in practice, the NPWC 
has requested the survey itself for nearly all survey-based H-2B 
prevailing wage requests to evaluate whether the survey satisfied the 
data and methodological requirements of the regulation. The current 
regulation does not explicitly require that the survey be submitted 
concurrently with the Form ETA-9141. This has necessitated that the 
NPWC contact the employer to submit the actual survey instrument. Thus, 
to align the regulation with the NPWC's practice of reviewing the 
actual survey instrument alongside the submitted Form ETA-9141, the 
Department proposes to require the employer to submit the survey 
simultaneously with the Form ETA-9141 when an employer requests a 
survey-based H-2B prevailing wage from the NPWC.
    The Department therefore proposes to discontinue the Form ETA-9165. 
Doing so would benefit PWD applicants by eliminating the burden of 
completing a form, and would benefit the Department by simplifying the 
survey-based H-2B prevailing wage process. This simplified process, in 
turn, would assist the Department in maintaining the integrity of the 
wage determination process for the H-2B program because the Department 
would have a copy of the survey itself during its review of the 
employer's Form ETA-9141, without needing to rely on the Form ETA-9165 
and without needing to separately request the survey, potentially 
speeding up the determination process. Consequently, the proposal would 
better protect U.S. worker wages against the potential adverse effects 
that the employment of H-2B workers could have as the Department would 
have all necessary information available to make a determination about 
the use of the survey.
    The elimination of the Form ETA-9165 would not affect how employers 
complete the Form ETA-9141. The Department does not propose any changes 
to the Form ETA-9141. Employers would continue to complete the Form 
ETA-9141 as they have been doing. However, the Department proposes to 
revise the General Instructions for the Form ETA-9141 by including in 
the Wage Source Information section instructions to submit the survey 
concurrently with the Form ETA-9141 when an employer seeks a survey-
based PWD.
    Also, the proposed rule would replace the phrase ``the adequacy of 
the data provided and validity of the statistical methodology used in 
conducting the survey'' in paragraph (f)(4) with ``whether the survey 
meets all of the requirements of this section, including the 
following.'' This change is intended to clarify that the survey would 
have to meet the requirements of proposed Sec.  655.10(f)(4)(i) through 
(v), in addition to containing specific information about the survey 
methodology, such as the sample size, sample selection procedures, and 
survey job descriptions.
1. Discussion of Proposed Revisions to 20 CFR 655.10(f)(4)(i)
    Initially, the Department proposes a technical change to the 
regulatory text at Sec.  655.10(f)(4)(i) to clarify that the ``good 
faith'' requirement applies to both methods of conducting surveys 
permitted. That is, the surveyor would have to make a reasonable, good 
faith attempt to either: (1) contact all employers of workers 
performing the same or substantially similar job duties in the 
geographic area surveyed; or (2) conduct a randomized sampling of such 
employers. The Department continues to believe, as it noted in the 
preamble of the 2015 Wage Rule, that ``[p]roper randomization requires 
the surveyor to determine the appropriate `universe' of employers to be 
surveyed before beginning the survey and to select randomly a 
sufficient number of employers to survey to meet the minimum criteria 
pertaining to the number of employers and workers who must be 
sampled.'' \47\ This proposed provision additionally explains what a 
good faith attempt consists of, as discussed below.
---------------------------------------------------------------------------

    \47\ Id.
---------------------------------------------------------------------------

    The proposed rule would make two substantive changes to the current 
Sec.  655.10(f)(4)(i). First, it would replace the phrase ``in the 
occupation'' with ``performing the same or substantially similar job 
duties.'' This change would reflect the reality that the survey is 
conducted before the employer submits its PWD application and the NPWC 
assigns an SOC code (identifying the occupation) based on the 
description of job duties contained in the PWD application. 
Consequently, a survey conducted based on an occupational 
classification would necessarily require speculation about which SOC 
code the NPWC will subsequently assign. As explained in the 2015 Wage 
Rule preamble, to assess whether workers are performing the ``same or 
substantially similar'' job duties, ``the surveyor would take into 
account the nature and duties of the job opportunity, and contact a 
large enough sample of employers to yield usable data for at least 
three employers and 30 workers similarly employed'' \48\ in the 
geographic area surveyed.
---------------------------------------------------------------------------

    \48\ 80 FR 24146, 24173 (Apr. 29, 2015).
---------------------------------------------------------------------------

    Second, the proposed rule would add a new requirement to Sec.  
655.10(f)(4)(i) that at least three follow-up attempts be made to 
contact non-respondents. The contact must be made using the same method 
of contact initially used, and at least two other active methods of 
contact--such as email, telephone, or site visit--across different 
business days and times that are most likely to receive the most 
response. This proposed requirement would reduce sampling bias and 
therefore yield more accurate and representative survey results.
2. Discussion of Proposed Revisions to 20 CFR 655.10(f)(4)(ii)
    Consistent with the 2015 Wage Rule, this proposed rule in Sec.  
655.10(f)(4)(ii) would require surveys submitted under this paragraph 
to include wage data from at least 30 workers and 3 employers. These 
minimums are based, as they were in the 2015 Wage Rule, on criteria 
that BLS OEWS itself uses to provide Office of Foreign Labor 
Certification (OFLC) with wage data not only for the H-2B program, but 
also for other foreign labor certification programs, such as the H-1B 
program and the permanent labor certification program. The OEWS survey 
data has been used by OFLC to produce prevailing wage data for those 
programs since 1998. In October 2020, this arrangement was formalized 
in a memorandum of understanding (MOU) between BLS and OFLC, which was 
amended in January 2021 and runs for 5 years. The MOU describes the 
standards and procedures BLS uses to provide wage data to OFLC, stating 
that BLS will ``report wages'' to OFLC for each occupational 
classification and geographic area ``that pass BLS confidentiality 
criteria and include a minimum of three (3) establishments . . . 
representing no fewer than 30 employees reported across the entire wage 
distribution.'' \49\
---------------------------------------------------------------------------

    \49\ Amended MOU Between the DOL's Employment and Training 
Administration Office of Foreign Labor Certification and Bureau of 
Labor Statistics for the Sharing of Occupational Wage Information; 
see 80 FR 24146, 24173 (Apr. 29, 2015).
---------------------------------------------------------------------------

    These minimum criteria and the other proposed requirements in Sec.  
655.10(f) also satisfy the Appropriations Acts' requirement that 
employer-provided

[[Page 90656]]

wage surveys be ``statistically supported.'' See Further Consol. 
Appropriations Act, 2024, Public Law 118-47, Div. D, title I, sec. 110, 
138 Stat. 460, 646 (2024). Elsewhere, Congress has used more precise 
terms of art, the meanings of which are widely accepted by 
statisticians, such as ``statistically significant'' and 
``statistically valid'' (which appears in the INA itself \50\).\51\ 
Here, however, Congress chose to use the term ``statistically 
supported,'' which does not appear in the U.S. Code. Immediately after 
Congress first enacted the ``statistically supported'' requirement, the 
Department published guidance on its website stating that ``[w]e 
interpret the requirement of the 2016 DOL Appropriations Act that the 
`methodology and data' in a private survey be `statistically supported' 
to be those methodological criteria for surveys set out in the 2015 
Wage Rule.'' \52\ Congress subsequently re-enacted the same language in 
every DOL Appropriations Act since 2016. See n.11, supra. Congress is 
``presumed to be aware of an administrative or judicial interpretation 
of a statute and to adopt that interpretation when it re-enacts a 
statute without substantive change.'' \53\ DOL continues to believe 
that surveys that meet the proposed 3-and-30 minimums BLS has used for 
25 years to provide OEWS survey data to OFLC, along with the other 
criteria BLS uses to provide OEWS survey data to OFLC, and the 
additional survey requirements proposed in Sec.  655.10(f) and 
explained in this preamble, are ``statistically supported'' as required 
by the provision in the Department's appropriation.
---------------------------------------------------------------------------

    \50\ 8 U.S.C. 1153(b)(5)(E)(iii)(I), (v)(I), (v)(II)(aa), 
(v)(II)(cc), (F)(i)(II).
    \51\ For ``statistically significant,'' see, e.g., 29 U.S.C. 
1303(a); 20 U.S.C. 6303a; 43 U.S.C. 1748a-2(b)(3); 21 U.S.C. 
2109(a)(3); 47 U.S.C. 1303(c)(1); 34 U.S.C. 10554(4)(A), 
40101(f)(1). For ``statistically valid,'' see, e.g., 38 U.S.C. 
7731(c)(2)(A); 19 U.S.C. 1677f-1(a)(1), (b), (c)(2)(A), 
(e)(2)(A)(i); 42 U.S.C. 1395(f)(5)(C)(ii)(I), (f)(5)(D); 38 U.S.C. 
3122(a)(1). 7731(c)(2)(A); 19 U.S.C. 1677f-1(a)(1), (b), (c)(2)(A), 
(e)(2)(A)(i); 42 U.S.C. 1395(f)(5)(C)(ii)(I), (f)(5)(D); 38 U.S.C. 
3122(a)(1).
    \52\ Effects of the 2016 Department of Labor Appropriations Act 
(Dec. 29, 2015), available at https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/H-2B_Prevailing_Wage_FAQs_DOL_Appropriations_Act.pdf.
    \53\ Forest Grove School District v. T.A., 557 U.S. 230, 239-40 
(2009).
---------------------------------------------------------------------------

    Under the proposed rule, as a new requirement in paragraph 
(f)(4)(ii), surveyors would have to continue accepting employer 
responses for at least 14 calendar days from the date the third 
notification in proposed paragraph (f)(4)(i) is sent even if responses 
have been received from 3 employers including the wages of 30 workers. 
This additional 14-calendar day period would maximize the opportunity 
to include as much data as possible in the survey so that it is as 
accurate and representative as possible. Also, the additional 14-day 
calendar period seeks to prevent the skewing of results by an employer 
that could occur should the survey conclude as soon as the minimum 
number of responses are received. If the minimum sample size 
requirements are not met, the geographic area of the survey may be 
extended beyond the area of intended employment under proposed Sec.  
655.10(f)(3).
    Consistent with the 2015 Wage Rule, a survey may not report wages 
selectively, include responses that are based on only a portion of the 
workers performing the same or substantially similar job duties or 
limit the wage survey data to include only enough data to meet the 
minimum 30-worker threshold. The survey would have to include wage data 
for all workers performing the same or substantially similar job duties 
regardless of their level of skill, education, seniority, experience, 
or immigration status.\54\ If, after following-up with non-respondents 
as described above, a surveyor could not collect wage data from at 
least 3 employers for at least 30 workers, the surveyor would be 
permitted to expand the survey beyond the area of intended employment 
as discussed above in the section on Sec.  655.10(f)(3) of this 
proposed regulation.
---------------------------------------------------------------------------

    \54\ Id.
---------------------------------------------------------------------------

3. Discussion of Proposed Revisions to 20 CFR 655.10(f)(4)(iii)
    Consistent with the 2015 Wage Rule, in Sec.  655.10(f)(4)(iii), 
bona fide third parties would have to conduct any employer-provided 
surveys submitted under proposed Sec.  655.10(f)(1)(ii) or (iii). This 
proposed rule clarifies that not only would the H-2B employer, its 
agent, and its representative be prohibited from conducting the 
employer's survey, but so would any of the employer's employees and 
their attorney. The proposed rule would exclude these non-bona fide 
third parties to prevent their personal self-interests from affecting 
the reliability of employer-provided surveys, and in the case of 
employees, prevent an employer from placing any undue pressure on the 
employee conducting the survey. As the Department stated in the 
preamble of the 2015 Wage Rule and affirms here, ``[e]ven H-2B 
employers, representatives, agents, and attorneys who are not directly 
involved in the application for which the survey is submitted are 
barred from conducting a wage survey . . . because we conclude that H-
2B employers and the entities that represent them are likely to share 
common interests and biases that may affect the reliability of such 
surveys.'' \55\ The preamble also explained that requiring a bona fide 
third party to conduct an employer-provided survey would ``not bar an 
employer from paying an otherwise bona fide third party to conduct the 
survey. In addition, employers who are eligible to submit a survey 
under proposed Sec.  655.10(f)(1)(ii) or (iii) would be permitted to 
submit a survey conducted and issued by a state.'' \56\
---------------------------------------------------------------------------

    \55\ Id. at 24174.
    \56\ Id.
---------------------------------------------------------------------------

4. Discussion of Proposed Revisions to 20 CFR 655.10(f)(4)(iv)
    Consistent with the 2015 Wage Rule, the proposed rule would require 
employer-provided surveys under proposed Sec.  655.10(f)(1) be 
conducted across industries, which means surveying employers in all 
industries employing workers performing the same or substantially 
similar job duties as those contained in the job opportunity in the 
area of intended employment.\57\ This requirement, the purpose of which 
is to cast as wide a net as possible to obtain the most representative 
data available, would be consistent with the Department's criteria for 
review of employer-provided surveys in the H-1B temporary program and 
permanent labor certification program. Surveying across industries 
provides a broader representation of wage data for jobs requiring the 
same or substantially similar duties, irrespective of the sector or 
segment of the economy where the job duties are being performed. Thus, 
the proposed rule would clarify that ``across industries'' means all 
industries that employ workers performing similar or substantially 
similar job duties. For example, a wage survey for a Landscaping and 
Groundskeeping Workers job opportunity that surveyed only hotels would 
not satisfy the ``across industries'' requirements because industries 
other than hotels employ such workers. Surveying workers performing 
these job duties not only at hotels, but also workers performing 
similar or substantially similar job duties at hospitals, schools, 
country clubs, golf courses, and other outdoor sports venues, among 
others, would provide a better representation of wages within that 
occupation.
---------------------------------------------------------------------------

    \57\ Id. at 24171.

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

[[Page 90657]]

5. Discussion of Proposed Revisions to 20 CFR 655.10(f)(4)(v)
    This proposed rule would continue the requirement under the current 
rule that all types of pay be included in employer-provided wage 
surveys. As stated in the preamble of the 2015 Wage Rule, all types of 
pay include ``the base rate of pay, commissions, cost-of-living 
allowances, deadheading pay, guaranteed pay, hazard pay, incentive pay, 
longevity pay, piece rate, portal-to-portal rate, production bonuses, 
and tips.'' \58\ For example, if an employer guarantees a minimum 
hourly wage, but pays other types of monetary compensation, including 
tips, commissions, or piece rates, in excess of this minimum hourly 
wage, the total of the minimum hourly wage and these additional types 
of compensation would have to be included in the hourly wage paid 
reported in the survey. This proposal remains consistent with the 
methodology of the OEWS survey.\59\ The Department continues to think 
that, as explained in the preamble to the 2015 Wage Rule, ``[i]f we did 
not require inclusion in the survey wage reported of all of the types 
of pay reported to the OE[W]S, those limited surveys permitted by [the 
rule] would necessarily undercut the OE[W]S by not reporting the 
complete wage paid. We understand that employers ordinarily calculate 
the wage paid for OE[W]S purposes by consulting payroll records.'' \60\ 
While the Department recognizes that this requirement will impose some 
burden on employers, given that the requirement is consistent with how 
the OEWS is administered, and given the importance of the Department 
having a complete picture of the compensation paid, the Department does 
not think that the burden outweighs the benefit of this requirement.
---------------------------------------------------------------------------

    \58\ Id. at 24175.
    \59\ See ``How are `wages' defined by the OEWS survey?'' OEWS, 
Frequently Asked Questions, available at https://www.bls.gov/oes/oes_ques.htm.
    \60\ 80 FR 24146, 24175 (Apr. 29, 2015).
---------------------------------------------------------------------------

F. Discussion of Proposed Regulatory Revisions to 20 CFR 655.10(f)(5)

    The current rule requires an employer-provided survey to be: (1) 
the most current edition of the survey; and (2) based on wages paid to 
workers no more than 24 months before the survey was submitted to the 
NPWC. The proposed rule would maintain these same two requirements, but 
the language regarding the second requirement would be changed to 
reflect the proposed new requirement in paragraph (f)(4) that the 
survey must be submitted to the NPWC together with the employer's Form 
ETA-9141.\61\ In addition, the proposed rule would eliminate the first 
sentence currently in Sec.  655.10(f)(5), which states that ``[t]he 
survey must be based upon recently collected data,'' \62\ because the 
remaining sentence specifies the two components of ``recently collected 
data,'' as mentioned above. Therefore, the introductory sentence is 
unnecessary.
---------------------------------------------------------------------------

    \61\ For purposes of comparison, OEWS estimates are based on 
data collected over a 3-year period, with the survey updated every 6 
months based on more recent data. The May 2022 estimates are based 
on responses from six semiannual panels collected over a 3-year 
period: May 2022, November 2021, May 2021, November 2020, May 2020, 
and November 2019. See Technical Notes for May 2022 OEWS Estimates 
(bls.gov), available at https://www.bls.gov/oes/current/oes_tec.htm. 
In addition, in the 1990s, the DOL recommended that State employment 
service agencies (SESAs) use their in-house wage surveys for only 2 
years. See GAL 4-95 at pp. 9-10 (``SESA Conducted Prevailing Wage 
Surveys . . . Length of Time Survey Results are Valid . . . SESAs 
may use survey results for up to 2 years after the data are 
collected. After 2 years, the results of a new survey should be 
implemented.'').
    \62\ 20 CFR 655.10(f)(5).
---------------------------------------------------------------------------

    The requirement that the survey be based on wages paid to workers 
in the prior 24 months was originally codified in the 2008 Rule, 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, 73 FR 78020 (Dec. 
19, 2008), and retained in the 2015 Wage Rule. The 24-month and most-
current-edition standards would, together, continue to protect both 
U.S. and H-2B workers' wages by ensuring that employer-provided surveys 
are based on the most recent wage information available.

IV. Administrative Information

A. Executive Order 12866: Regulatory Planning and Review; Executive 
Order 14094: Modernizing Regulatory Review; and Executive Order 13563: 
Improving Regulation and Regulatory Review

    Under E.O. 12866, the Office of Management and Budget's (OMB) 
Office of Information and Regulatory Affairs (OIRA) determines whether 
a regulatory action is significant and, therefore, subject to the 
requirements of the E.O. and review by OMB. 58 FR 51735 (Oct. 4, 1993). 
Section 3(f) of E.O. 12866, as amended by E.O. 14094, defines a 
``significant regulatory action'' as an action that is likely to result 
in a rule that: (1) has an annual effect on the economy of $200 million 
or more, or adversely affects in a material way the economy, a sector 
of the economy, productivity, competition, jobs, the environment, 
public health or safety, or State, local, Territorial, or Tribal 
Governments or communities; (2) creates serious inconsistency or 
otherwise interferes with an action taken or planned by another agency; 
(3) materially alters the budgetary impacts of entitlement, grants, 
user fees, or loan programs, or the rights and obligations of 
recipients thereof; or (4) raises legal or policy issues arising out of 
legal mandates, the President's priorities, or the principles set forth 
in the E.O. 88 FR 21879 (Apr. 11, 2023). OIRA has designated this NPRM 
as ``not significant'' per E.O. 12866 and waived review.
    E.O. 13563 directs agencies to, among other things, propose or 
adopt a regulation only upon a reasoned determination that its benefits 
justify its costs; the regulation is tailored to impose the least 
burden on society, consistent with achieving the regulatory objectives; 
and in choosing among alternative regulatory approaches, the agency has 
selected those approaches that maximize net benefits. E.O. 13563 
recognizes that some costs and benefits are difficult to quantify and 
provides that, where appropriate and permitted by law, agencies may 
consider and discuss qualitatively values that are difficult or 
impossible to quantify, including equity, human dignity, fairness, and 
distributive impacts.
Outline of the Analysis
    Section IV.A.1 describes the need for the proposed rule, and 
Section IV.A.2 describes the process used to estimate the costs of the 
rule and the general inputs used, such as wages and number of affected 
entities. Section IV.A.3 explains how the provisions of the proposed 
rule would result in costs and cost savings and presents the 
calculations the Department used to estimate them. In addition, Section 
IV.A.4 provides a description of qualitative benefits. Section IV.A.5 
summarizes the estimated 1st-year and 10-year total and annualized 
costs and cost savings of the proposed rule.
Summary of the Analysis
    The Department estimates that the proposed rule would result in 
costs and cost savings. As shown in Exhibit 1, the proposed rule is 
expected to have an annualized cost of $1,285, an annualized cost 
savings of $5,466, and a net cost savings of $4,535 at a discount rate 
of 2 percent.\63\
---------------------------------------------------------------------------

    \63\ The proposed rule is expected to have an undiscounted 
annual cost of $1,369, an undiscounted annual cost savings of 
$4,861, and an undiscounted annual net cost savings of $3,492 in 
2023 dollars.

[[Page 90658]]



                   Exhibit 1--Estimated Monetized Costs and Cost Savings of the Proposed Rule
                                                    [2023 $]
----------------------------------------------------------------------------------------------------------------
                                                             Costs           Cost savings      Net cost savings
----------------------------------------------------------------------------------------------------------------
1st Year............................................             $12,850              $5,359             -$7,492
Undiscounted Annual.................................               1,285               5,359               4,074
Annualized with at a Discount Rate of 2%............               1,431               5,359               4,535
----------------------------------------------------------------------------------------------------------------

    The total cost of the proposed rule is associated with rule 
familiarization and the new requirements that the surveyor must 
continue to accept responses for at least 14 calendar days after 
receiving the third employer response to the survey request. In 
addition, the surveyor must include no fewer than three contacts with 
non-respondents, using the same method of contact initially used, and 
at least two other active methods of contact across different business 
days and times that are most likely to receive the most response. Cost 
savings are the results of the elimination of the Form ETA-9165, 
Employer-Provided Survey Attestations to Accompany H-2B Prevailing Wage 
Determination Request Based on a Non-OES Survey. See the costs and cost 
savings subsections of Section IV.A.3 (Subject-by-Subject Analysis).
1. Need for Regulation
    As discussed further in Section II.F, supra, this NPRM is required 
by a court ruling that, in promulgating the 2015 Wage Rule, the 
agencies failed to comply with the APA's notice-and-comment 
requirements. Williams v. Walsh, 648 F. Supp. 3d 70 (D.D.C. 2022). 
Consequently, the court remanded the rule ``for further consideration 
consistent with'' its opinion. Id. at 99. Additionally, in light of 
issues raised (although not decided) in that litigation, OFLC is 
proposing to revise the data and methodological criteria for employer-
provided wage surveys.
2. Analysis Considerations
    The Department estimated the costs and the cost savings of the 
proposed rule relative to the existing baseline (i.e., the current 
practices for complying, at a minimum, with the H-2B program as 
currently codified at 20 CFR part 655).
    In accordance with the regulatory analysis guidance articulated in 
OMB's Circular A-4 and consistent with the Department's practices in 
previous rulemakings, this regulatory analysis focuses on the likely 
consequences of the proposed rule (i.e., costs, cost savings, and 
qualitative benefits). The analysis covers 10 years (from 2025 through 
2034) to ensure it captures major costs, cost savings, and qualitative 
benefits that accrue over time. The Department expresses all quantified 
impacts in 2023 dollars and uses undiscounted annuals and a discount 
rate of 2 percent, pursuant to Circular A-4.
    Exhibit 2 shows the total number of H-2B PWD requests and the 
number of submissions requesting a survey wage for FYs 2020--2023. The 
Department used this information to estimate the costs and cost savings 
of the proposed rule.

                       Exhibit 2--Number of Unique Submissions for H-2B Survey Requests *
----------------------------------------------------------------------------------------------------------------
                                          Number of H-2B  PWD  Number of H-2B  wage     % of total submissions
                   FY                          requests           survey requests       requesting survey wage
----------------------------------------------------------------------------------------------------------------
2020...................................                11,629                    77                          0.7
2021...................................                14,748                   161                          1.1
2022...................................                24,914                   378                          1.5
2023...................................                24,715                   267                          1.1
                                        ------------------------------------------------------------------------
    Average............................                19,002                   221                          1.1
----------------------------------------------------------------------------------------------------------------
* Data source: OFLC performance data for FY2020-2023.

a. Compensation Rates
    In Section IV.A.3 (Subject-by-Subject Analysis), the Department 
presents the costs, including labor, associated with the implementation 
of the provisions of the proposed rule. Exhibit 3 presents the hourly 
compensation rates for the occupational categories expected to 
experience a change in the number of hours necessary to comply with the 
proposed rule. The Department used the mean hourly wage rate for 
private sector human resources (HR) specialists (SOC code 13-1071).\64\ 
Wage rates are adjusted to reflect total compensation, which includes 
nonwage factors such as overhead and fringe benefits (e.g., health and 
retirement benefits). We use an overhead rate of 17 percent \65\ and a 
fringe benefits rate based on the ratio of average total compensation 
to average wages and salaries in 2023. For private sector employees, we 
use a fringe benefits rate of 42 percent.\66\ We then multiply the 
loaded wage factor and the overhead rate by the wage rate to calculate 
an hourly compensation rate. The Department used the hourly 
compensation rates presented in Exhibit 3 throughout this analysis to 
estimate the labor costs for each provision.
---------------------------------------------------------------------------

    \64\ BLS. (2024). May 2023 National Occupational Employment and 
Wage Estimates: 13-1071--Human Resources Specialists. Retrieved 
from: https://www.bls.gov/oes/current/oes131071.htm.
    \65\ Cody Rice, U.S. Environmental Protection Agency, ``Wage 
Rates for Economic Analyses of the Toxics Release Inventory 
Program,'' June 10, 2002, https://www.regulations.gov/document?D=EPA-HQ-OPPT-2014-0650-0005.
    \66\ BLS. (Mar. 2024). ``Employer Costs for Employee 
Compensation.'' Retrieved from: https://www.bls.gov/news.release/ecec.nr0.htm.

[[Page 90659]]



                                                              Exhibit 3--Compensation Rates
                                                                     [2023 Dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                           Grade     Base hourly                                                            Hourly
                        Position                           level      wage rate      Loaded wage factor          Overhead costs        compensation rate
                                                                            (a)                       (b)                       (c)     (d) = a + b + c
--------------------------------------------------------------------------------------------------------------------------------------------------------
HR Specialist..........................................       N/A       $36.573    $15.36 ($36.57 x 0.42)     $6.22 ($36.57 x 0.17)              $58.15
--------------------------------------------------------------------------------------------------------------------------------------------------------

3. Subject-by-Subject Analysis
    The Department's analysis below covers the costs, cost savings, and 
qualitative benefits of the proposed rule. This proposed rule includes 
the quantified cost of rule familiarization, the unquantified cost of 
additional survey requirements, and the quantified cost savings of 
elimination of the Form ETA-9165, and qualitative discussion of 
benefits.
a. Costs
    The following section describes the quantified and unquantified 
costs of the proposed rule.
i. Rule Familiarization
    If the proposed rule takes effect, H-2B employers who are 
submitting an employer-provided survey would need to familiarize 
themselves with the new regulations. Consequently, this would impose a 
one-time cost in the 1st year.
    To estimate the 1st-year cost of rule familiarization, the number 
of unique H-2B employers who are submitting an employer-provided survey 
(221) was multiplied by the estimated amount of time required to review 
the rule (1 hour). The Department requests public comments and inputs 
regarding this estimate. This number was then multiplied by the hourly 
compensation rate of HR specialists ($58.15 per hour). This calculation 
results in a one-time undiscounted cost of $12,850 in the 1st year 
after the proposed rule takes effect. The annualized cost over the 10-
year period is $1,431 at a discount rate of 2 percent. An undiscounted 
annual cost over the 10-year period is $1,285.
ii. Additional Survey Requirements
    The Department proposes in the NPRM to revise the data and 
methodological criteria for employer-provided wage surveys to require 
that a survey must continue to accept responses for at least 14 
calendar days after receiving the minimum number of required responses 
from at least 3 employers that together include wages for at least 30 
workers. In addition, the surveyor must include no fewer than three 
contacts with non-respondents, using the same method of contact 
initially used, and at least two other active methods of contact across 
different business days and times that are most likely to generate 
responses. The Department expects these new requirements may add a 
small compliance cost to surveyors, but we cannot quantify it due to 
the data limitations. The Department seeks public comments and inputs 
that will help us to quantify this cost impact to surveyors.
b. Cost Savings
    The following section describes the cost savings of the proposed 
rule.
i. Elimination of the Form ETA-9165
    The Department proposes to eliminate the Form ETA-9165, Employer-
Provided Survey Attestations to Accompany H-2B Prevailing Wage 
Determination Request Based on a Non-OES Survey. Each employer would 
have spent 25 minutes to fill out the attestation form if it had not 
been eliminated. To estimate the cost savings per year, the number of 
unique H-2B employers who are expected to submit an employer-provided 
survey (221) was multiplied by the estimated amount of time required to 
fill out the attestation form (25 minutes or 0.417 hours). This number 
was then multiplied by the hourly compensation rate of HR specialists 
($58.15 per hour). This calculation results in an annual cost savings 
of $5,359 after the proposed rule takes effect. The annualized cost 
savings over the 10-year period is $5,359 at a discount rate of 2 
percent and undiscounted annual cost savings at $5,359.
c. Qualitative Benefits Discussion
    The following section describes the benefits of the proposed rule.
i. Improved Accuracy in Prevailing Wage Data
    The Department's proposal would benefit H-2B workers and workers in 
corresponding employment by adding a new condition to Sec.  
655.10(f)(4)(i) that at least three follow-up attempts be made to 
contact non-respondents. This proposed requirement that the surveyor 
make no fewer than three contacts with non-respondents, first using the 
same method of contact initially used, and subsequently two other 
active methods of contact across different business days and times that 
are most likely to generate responses, is intended to reduce sampling 
bias and, therefore, yield more accurate survey results.
    Additionally, under the proposed rule, as a new requirement, 
surveyors would have to continue accepting employer responses for at 
least 14 calendar days from the date the third notification in proposed 
paragraph (f)(4)(i) is sent, even after receiving responses from 3 
employers including the wages of 30 workers. This additional 14-
calendar day period would maximize the opportunity to include as much 
data as possible in the survey so that it is as accurate and 
representative as possible. Also, the additional 14-day calendar period 
would prevent: (1) the skewing of results that could occur should the 
survey conclude as soon as the minimum number of responses are 
received; and (2) the exclusion of available data from the survey.
ii. Greater Efficiency in Employer-Provided Survey Process
    An additional benefit of this proposal would be an increase in 
efficiency in the employer-provided survey process. Employers would be 
required to submit the survey with the Form ETA-9141 when an employer 
requests a survey-based H-2B prevailing wage from the NPWC and such 
survey should contain the necessary information about the survey 
methodology (e.g., sample size and source, sample selection procedures, 
and survey job descriptions). This would reduce the need for the NPWC 
to routinely issue Requests for Information in most cases involving 
employer-provided surveys. Efficiency is inherently valuable as a 
principle of good government and provides benefits to the public at 
large, including reducing the need to routinely issue Requests for 
Information necessary for the Department's analyses.
4. Summary of the Analysis
    Exhibit 4 summarizes the estimated total costs and cost savings of 
the proposed rule over the 10-year analysis period. The Department 
estimates the

[[Page 90660]]

annualized costs of the proposed rule at $1,431 for rule 
familiarization, the annualized cost savings at $5,359 for eliminating 
the Form ETA-9165 and the annualized net cost savings at $4,535, each 
at a discount rate of 2 percent. Unquantified costs include the new 
requirements that the surveyor must continue to accept responses for at 
least 14 calendar days from the date the third notification is sent 
even if responses have been received from 3 employers including the 
wages of 30 workers. The surveyor must also include no fewer than three 
contacts with non-respondents, using the same method of contact 
initially used, and at least two other active methods of contact across 
different business days and times that are most likely to receive the 
most response. Unquantified benefits include improved accuracy in 
prevailing wage surveys due to permitting employer-provided surveys in 
instances where OEWS data is unavailable or insufficient, and increased 
transparency in the employer survey process.

                   Exhibit 4--Estimated Monetized Costs and Cost Savings of the Proposed Rule
                                                    [2023 $]
----------------------------------------------------------------------------------------------------------------
                        Year                                 Costs           Cost savings      Net cost savings
----------------------------------------------------------------------------------------------------------------
2025................................................             $12,850              $5,359              $7,492
2026................................................  ..................               5,359               5,359
2027................................................  ..................               5,359               5,359
2028................................................  ..................               5,359               5,359
2029................................................  ..................               5,359               5,359
2030................................................  ..................               5,359               5,359
2031................................................  ..................               5,359               5,359
2032................................................  ..................               5,359               5,359
2033................................................  ..................               5,359               5,359
2034................................................  ..................               5,359               5,359
Undiscounted annual.................................               1,285               5,359               4,074
Annualized with a Discount Rate of 2%...............               1,431               5,359               4,535
----------------------------------------------------------------------------------------------------------------

B. Regulatory Flexibility Analysis and Small Business Regulatory 
Enforcement Fairness Act and Executive Order 13272: Proper 
Consideration of Small Entities in Agency Rulemaking

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996, requires agencies to determine whether regulations will have a 
significant economic impact on a substantial number of small entities. 
Pursuant to 5 U.S.C. 605(b), the head of the agency (i.e., the 
undersigned Assistant Secretary for Employment and Training), certifies 
that the proposed rule does not have a significant economic impact on a 
substantial number of small entities. On average, small employers who 
are submitting an employer-provided survey will incur a net cost saving 
of $20.52 per year at a discount rate of 2 percent.\67\ This will be 
far less than 1 percent of the revenue for the smallest of small H-2B 
employers. For example, the average annual revenue for firms in the 
landscaping industry (North American Industry Classification System 
code 561730) with fewer than five employees is $238,877.\68\ $20.52 is 
about 0.009 percent of the average revenue of $238,877. The Department 
therefore certifies that the proposed rule does not have a significant 
economic impact on a substantial number of small entities.
---------------------------------------------------------------------------

    \67\ $4,535/221 = $20.52.
    \68\ 2017 Statistics of U.S. Businesses Annual Data Tables by 
Establishment Industry, https://www.census.gov/data/tables/2017/econ/susb/2017-susb-annual.html.
---------------------------------------------------------------------------

C. Paperwork Reduction Act

    The INA, as amended, assigns responsibilities to the Secretary of 
Labor relating to the entry and employment of certain categories of 
immigrant and nonimmigrant foreign workers under the permanent labor 
certification (PERM), H-2B, H-1B, H-1B1, and E-3 programs. The INA 
requires the Secretary of Labor to certify that the employment of 
foreign workers under certain visa classifications will not adversely 
affect the wages and working conditions of similarly employed workers 
in the United States. To render this certification, the Secretary of 
Labor determines the prevailing wage for the occupational 
classification and area of intended employment and ensures the employer 
offers a wage to the foreign worker that equals at least the prevailing 
wage. The Department uses Form ETA-9141 to collect information 
necessary to determine the prevailing wage for the applicable 
occupation and area of intended employment. This information collection 
is subject to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. 
A Federal agency generally cannot conduct or sponsor a collection of 
information, and the public is generally not required to respond to an 
information collection, unless OMB approves it under the PRA and it 
displays a currently valid OMB Control Number. In addition, 
notwithstanding any other provisions of law, no person will generally 
be subject to penalty for failing to comply with a collection of 
information that does not display a valid Control Number. See 5 CFR 
1320.5(a), 1320.6. The Department obtained OMB approval for this 
information collection under Control Number 1205-0508. The Department 
seeks PRA authorization for this information collection for 3 years.
    This information collection request, concerning OMB Control No. 
1205-0508, includes the collection of information related to the 
Department's PWDs. Prior to submitting applications for most labor 
certifications or a labor condition application to the Secretary of 
Labor, employers must obtain a prevailing wage for the job opportunity 
based on the place and type of employment in order to ensure that the 
employment of foreign workers does not adversely affect the wages and 
working conditions of U.S. workers similarly employed. Form ETA-9141, 
Application for Prevailing Wage Determination, is used to collect the 
necessary information from employers to enable the Department to issue 
a prevailing wage for the occupation and location of the job 
opportunity. The Form ETA-9141 is used in the PERM, H-2B, H-1B, H-1B1, 
and E-3 programs administered by the Department. In order to meet its 
statutory responsibilities under the INA, the Department must request 
information from employers seeking to hire and import foreign labor. 
The Department uses the information collected to

[[Page 90661]]

determine the minimum wage that must be offered, advertised in 
recruitment, and paid by an employer to foreign workers in most 
programs.
    The collection of information under the current OMB Control No. 
1205-0508 was approved by OMB on September 8, 2022, and was implemented 
into OFLC systems on February 6, 2024.
    The Department now proposes revisions to this information 
collection, covered under OMB Control No. 1205-0508, to further revise 
the information collection tools based on regulatory changes in this 
proposed rule. As noted above, the current regulations do not 
explicitly require that the survey be submitted concurrently with the 
Form ETA-9141, but the proposed rule, as well as the Form ETA-9141, 
General Instruction, would require that the survey be filed at the same 
time as submission of the Form ETA-9141. Further, the Department 
proposes to eliminate the use of the Form ETA-9165, Employer-Provided 
Survey Attestations to Accompany H-2B Prevailing Wage Determination 
Request Based on a Non-OEWS Survey. The Department proposes to revise 
the Form ETA-9141 to conform with the proposed rule's requirement that 
employers, when seeking a survey-based prevailing wage, submit the 
survey to the Department with the Form ETA-9141 for consideration, 
rather than complete the Form ETA-9165.
    The proposed revisions to the Form ETA-9141, General Instructions, 
and the proposed elimination of Form ETA-9165 and its instructions will 
align information collection requirements with the Department's 
proposed regulatory framework and continue the ongoing efforts to 
provide greater clarity to employers on regulatory requirements greater 
accuracy in PWDs, and greater standardizing and streamlining this 
information collection to reduce employer time and burden in preparing 
applications. The proposed changes will also promote greater efficiency 
and transparency in the review and issuance of PWDs for the 
Department's employment-based foreign labor certification and labor 
condition programs. The information collection includes the Form ETA-
9141, Application for Prevailing Wage Determination (``Form ETA-
9141''); Form ETA-9141, General Instructions (``General 
Instructions''); and Form ETA-9141, Appendix A, Request for Additional 
Worksite(s) (``Appendix A'').
Overview of Information Collection Proposed by This NPRM
    Title: Application for Prevailing Wage Determination.
    Type of Review: Revision of a Currently Approved Information 
Collection.
    OMB Control Number: 1205-0508.
    Affected Public: Private Sector--Businesses or other for-profits, 
not-for profit institutions, and farms.
    Total Estimated Number of Respondents: 120,042.
    Total Estimated Number of Responses: 462,470.
    Total Estimated Annual Time Burden: 211,425 hours.
    Total Estimated Annual Other Costs Burden: $191,769.

D. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4, 
codified at 2 U.S.C. 1501 et seq.) is intended, among other things, to 
curb the practice of imposing unfunded Federal mandates on State, 
local, and Tribal Governments. UMRA requires Federal agencies to assess 
a regulation's effects on State, local, and Tribal Governments, as well 
as on the private sector, except to the extent the regulation 
incorporates requirements specifically set forth in law. Title II of 
the UMRA requires each Federal agency to prepare a written statement 
assessing the effects of any regulation that includes any Federal 
mandate in a proposed or final agency rule that may result in $100 
million or more expenditure (adjusted annually for inflation) in any 1 
year by State, local, and Tribal Governments, in the aggregate, or by 
the private sector. A Federal mandate is any provision in a regulation 
that imposes an enforceable duty upon State, local, or Tribal 
Governments, or upon the private sector, except as a condition of 
Federal assistance or a duty arising from participation in a voluntary 
Federal program.
    This proposed rule does not result in unfunded mandates for the 
public or private sector because private employers' participation in 
the program is voluntary, and State governments are reimbursed for 
performing activities required under the program. The requirements of 
title II of the UMRA, therefore, do not apply, and the Department has 
not prepared a statement under the UMRA.

E. Executive Order 13132 (Federalism)

    This proposed rule would not have substantial direct effects on the 
States, on the relationship between the National Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with sec. 6 of 
E.O. 13132,\69\ it is determined that this proposed rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.
---------------------------------------------------------------------------

    \69\ E.O. 13132, Federalism, 64 FR 43255 (Aug. 10, 1999).
---------------------------------------------------------------------------

F. Executive Order 13175 (Consultation and Coordination With Indian 
Tribal Governments)

    The Department has reviewed this proposed rule in accordance with 
E.O. 13175 \70\ and has determined that it does not have Tribal 
implications. This proposed rule does not have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Tribal 
Governments.
---------------------------------------------------------------------------

    \70\ E.O. 13175, Consultation and Coordination with Indian 
Tribal Governments, 65 FR 67249 (Nov. 9, 2000).
---------------------------------------------------------------------------

List of Subjects in 20 CFR Part 655

    Administrative practice and procedure, Employment, Employment and 
training, Enforcement, Foreign workers, Forest and forest products, 
Fraud, Health professions, Immigration, Labor, Longshore and harbor 
work, Migrant workers, Nonimmigrant workers, Passports and visas, 
Penalties, Reporting and recordkeeping requirements, Unemployment, 
Wages, Working conditions.

    For the reasons discussed in the preamble, the Department of Labor 
proposes to amend 20 CFR part 655 as follows:

PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED 
STATES

0
1. The authority citation for Sec.  655.0 of part 655 is revised and 
the authority citation for subpart A continues to read as follows:

    Authority:  Section 655.0 issued under 8 U.S.C. 
1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 8 U.S.C. 
1103(a)(6), 1182(m), (n), and (t), 1184(c), (g), and (j), 1188, and 
1288(c) and (d); sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2102 
(8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 4978, 
5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102-232, 105 
Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103-206, 
107 Stat. 2428; sec. 412(e), Pub. L. 105-277, 112 Stat. 2681 (8 
U.S.C. 1182 note); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 
(8 U.S.C. 1182 note); 29 U.S.C. 49k; Pub. L. 107-296, 116 Stat. 
2135, as amended; Pub. L. 109-423, 120 Stat. 2900; sec. 6, Pub. L. 
115-218, 132 Stat. 1547 (48 U.S.C. 1806); div. D, title I, sec. 110, 
Pub. L. 118-47, 138 Stat. 460, 646; and 8 CFR 214.2(h)(4)(i) and 
(h)(6)(iii).

[[Page 90662]]

    Subpart A issued under 8 CFR 214.2(h).

* * * * *
0
2. Amend Sec.  655.10 by revising paragraphs (a), (b)(2), (e), and (f) 
to read as follows:


Sec.  655.10   Determination of prevailing wage for temporary labor 
certification purposes.

    (a) Offered wage. The employer must advertise the position to all 
potential workers at a wage at least equal to the prevailing wage 
obtained from the NPWC, or the Federal, State, or local minimum wage, 
whichever is highest. The employer must offer and pay this wage (or 
higher) to both its H-2B workers and its workers in corresponding 
employment. The issuance of a prevailing wage determination (PWD) under 
this section does not permit an employer to pay a wage lower than the 
highest wage required by any applicable Federal, State, or local law.
    (b) * * *
    (1) * * *
    (2) If the job opportunity is not covered by a CBA, the prevailing 
wage for labor certification purposes shall be the arithmetic mean of 
the wages of workers similarly employed in the area of intended 
employment using the wage component of the BLS Occupational Employment 
and Wage Statistics (OEWS) survey, unless the employer provides a 
survey acceptable to the NPWC under paragraph (f) of this section.
* * * * *
    (e) NPWC action. The NPWC will determine the PWD, indicate the 
source, and return the Application for Prevailing Wage Determination 
(Form ETA-9141) with the determination and the NPWC's endorsement to 
the employer.
    (f) Employer-provided survey. (1) If the job opportunity is not 
covered by a CBA, or by a professional sports league's rules or 
regulations, the NPWC will consider a survey provided by the employer 
in making a PWD only if the employer's submission demonstrates that the 
survey falls into one of the following categories:
    (i) The survey was independently conducted and issued by a State, 
including any State agency, State college, or State university;
    (ii) The survey is submitted for a geographic area where the OEWS 
does not collect data, or in a geographic area where the OEWS provides 
an arithmetic mean only at a national level for workers employed in the 
SOC; or
    (iii) The job opportunity is within an occupational classification 
of the SOC system designated as an ``All Other'' classification.
    (2) Any such survey must provide the arithmetic mean of the wages 
of all workers performing the same or substantially similar job duties 
in the area of intended employment.
    (3) Notwithstanding paragraph (f)(2) of this section, the 
geographic area surveyed may be expanded beyond the area of intended 
employment, but only as necessary to meet the requirements of paragraph 
(f)(4)(ii) of this section. Any geographic expansion beyond the area of 
intended employment must include only those geographic areas that are 
contiguous to the area of intended employment.
    (4) In each case where the employer submits a survey under 
paragraph (f)(1) of this section, the employer must submit, 
concurrently with the Form ETA-9141, a copy of the survey containing 
specific information about the survey methodology, including sample 
size and source, sample selection procedures, and survey job 
descriptions, to allow a determination of whether the survey meets all 
the requirements of this section, in addition to the following:
    (i) The surveyor made a reasonable, good faith attempt to either 
contact all employers of workers performing the same or substantially 
similar job duties in the geographic area surveyed or conduct a 
randomized sampling of such employers. No fewer than three contacts 
with non-respondents must be made, first using the same method of 
contact initially used, and subsequently two other active methods of 
contact across different business days and times that are most likely 
to generate survey responses;
    (ii) The survey must include wage data from at least 30 workers 
performing the same or substantially similar job duties and at least 3 
employers of such workers. The survey must continue to remain open to 
accept responses for at least 14 calendar days from the date the third 
notification in paragraph (f)(4)(i) of this section was sent to non-
respondents;
    (iii) If the survey is submitted under paragraph (f)(1)(ii) or 
(iii) of this section, the survey must be administered by a bona fide 
third party. Any H-2B employer or H-2B employer's agent, 
representative, employee, or attorney are not bona fide third parties;
    (iv) The survey must be conducted across industries that employ 
workers performing the same or substantially similar job duties; and
    (v) The wage reported in the survey must include all types of pay.
    (5) The survey must be the most current edition of the survey and 
must be based on wages paid not more than 24 months before the date the 
PWD request is submitted to the NPWC.
* * * * *

Jos[eacute] Javier Rodr[iacute]guez,
Assistant Secretary for Employment and Training, Labor.
[FR Doc. 2024-26481 Filed 11-15-24; 8:45 am]
BILLING CODE 4510-FP-P