[Federal Register Volume 76, Number 124 (Tuesday, June 28, 2011)]
[Proposed Rules]
[Pages 37686-37689]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-16310]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
RIN 1205-AB61
Wage Methodology for the Temporary Non-Agricultural Employment H-
2B Program; Amendment of Effective Date
AGENCY: Employment and Training Administration, Labor.
ACTION: Proposed rule; request for comments.
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SUMMARY: The Department of Labor (the Department or DOL) proposes to
amend the effective date of Wage Methodology for the Temporary Non-
agricultural Employment H-2B Program; Final Rule, 76 FR 3452, January
19, 2011, (the Wage Rule). The Wage Rule revised the methodology by
which the Department calculates the prevailing wages to be
[[Page 37687]]
paid to H-2B workers and United States (U.S.) workers recruited in
connection with a temporary labor certification for use in petitioning
the Department of Homeland Security to employ a nonimmigrant worker in
H-2B status. The effective date of the Wage Rule was set at January 1,
2012.
DATES: Interested persons are invited to submit written comments on the
proposed rule on or before July 8, 2011.
ADDRESSES: You may submit comments, identified by Regulatory
Information Number (RIN) 1205-AB61, by any one of the following
methods:
Federal e-Rulemaking Portal http://www.regulations.gov.
Follow the Web site instructions for submitting comments.
Mail or Hand Delivery/Courier: Please submit all written
comments (including disk and CD-ROM submissions) to Michael S. Jones,
Acting Administrator, Office of Policy Development and Research,
Employment and Training Administration, U.S. Department of Labor, 200
Constitution Avenue, NW., Room N-5641, Washington, DC 20210.
Please submit your comments by only one method. Because of the
short timeframe for this rulemaking, as discussed in further detail
below, the Department will not review comments received by means other
than those listed above or that are received after the comment period
has closed. While the Department is soliciting comments on the proposed
effective date of the Wage Rule, we are not seeking comments relating
to the merits of the provisions contained in the Wage Rule which
already has been subjected fully to the notice and comment process. We
will deem any such comments out of scope and will not consider them.
Additionally, as the U.S. District Court for the Eastern District of
Pennsylvania ruled in Comit[eacute] de Apoyo a los Trabajadores
Agricolas (CATA) v. Solis, Civil No. 2:09-cv-240-LP (E.D. Pa.), the
Immigration and Nationality Act, as amended (INA) does not permit the
Department to consider issues relating to employer hardship as a reason
to delay the effective date of a new wage rule. See CATA v. Solis, Dkt.
No. 119, Memorandum Opinion at 9 (June 15, 2011).
The Department will post all comments received on http://www.regulations.gov without making any change to the comments,
including any personal information provided. The http://www.regulations.gov Web site is the Federal e-rulemaking portal and all
comments posted there are available and accessible to the public. The
Department cautions commenters not to include their personal
information such as Social Security Numbers, personal addresses,
telephone numbers, and e-mail addresses in their comments as such
submitted information will become viewable by the public on the http://www.regulations.gov Web site. It is the commenter's responsibility to
safeguard his or her information. Comments submitted through http://www.regulations.gov will not include the commenter's e-mail address
unless the commenter chooses to include that information as part of his
or her comment.
Postal delivery in Washington, DC may be delayed due to security
concerns. Therefore, the Department encourages the public to submit
comments through the http://www.regulations.gov Web site.
Docket: For access to the docket to read background documents or
comments received, go the Federal eRulemaking portal at http://www.regulations.gov and enter RIN 1205-AB61 in the search field. The
Department will also make all the comments it receives available for
public inspection during normal business hours at the Employment and
Training Administration (ETA) Office of Policy Development and Research
at the above address. If you need assistance to review the comments,
the Department will provide you with appropriate aids such as readers
or print magnifiers. The Department will make copies of the rule
available, upon request, in large print and as an electronic file on
computer disk. The Department will consider providing the proposed rule
in other formats upon request. To schedule an appointment to review the
comments and/or obtain the rule in an alternate format, contact the
Office of Policy Development and Research at (202) 693-3700 (VOICE)
(this is not a toll-free number) or 1-877-889-5627 (TTY/TDD).
FOR FURTHER INFORMATION CONTACT: William L. Carlson, Ph.D.,
Administrator, Office of Foreign Labor Certification, ETA, U.S.
Department of Labor, 200 Constitution Avenue, NW., Room C-4312,
Washington, DC 20210; Telephone (202) 693-3010 (this is not a toll-free
number). Individuals with hearing or speech impairments may access the
telephone number above via TTY by calling the toll-free Federal
Information Relay Service at 1-877-889-5627 (TTY/TDD).
SUPPLEMENTARY INFORMATION:
I. Amendment of Effective Date of the Wage Rule
A. The Prevailing Wage Final Rule
On January 19, 2011, the Department published the Wage Rule. Under
the Wage Rule, the prevailing wage for the H-2B program is based on the
highest of the following: wages established under an agreed-upon
collective bargaining agreement; a wage rate established under the
Davis-Bacon Act (DBA) or the McNamara O'Hara Service Contract Act (SCA)
for that occupation in the area of intended employment; or the
arithmetic mean wage rate established by the Occupational Employment
Statistics (OES) wage survey for that occupation in the area of
intended employment. The Wage Rule also permits the use of private wage
surveys in very limited circumstances. Lastly, the Wage Rule requires
the new wage methodology to apply to all work performed on or after
January 1, 2012. The Department selected the January 1, 2012 effective
date because ``many employers already may have planned for their labor
needs and operations for this year in reliance on the existing
prevailing wage methodology. In order to provide employers with
sufficient time to plan for their labor needs for the next year and to
minimize the disruption to their operations, the Department is delaying
implementation of this Final Rule so that the prevailing wage
methodology set forth in this Rule applies only to wages paid for work
performed on or after January 1, 2012.'' 76 FR 3462, Jan. 19, 2011.
B. The Need for New Rulemaking
On January 24, 2011, the plaintiffs in CATA v. Solis, Civil No.
2:09-cv-240-LP (E.D. Pa.) filed a motion for an order to require the
Department to comply with the Court's August 30, 2010 order,\1\ arguing
that the Wage Rule violated the Administrative Procedure Act (APA)
because ``it did not provide notice to Plaintiffs and the public that
DOL was considering delaying implementation of
[[Page 37688]]
the new regulation and because DOL's reason for delaying implementation
of the new regulation is arbitrary.'' CATA v. Solis, Dkt. No. 103-1,
Plaintiff's Motion for an Order Enforcing the Judgment at 2 (Jan. 24,
2011). On June 15, 2011, the court issued a ruling that invalidated the
January 1, 2012 effective date of the Wage Rule and ordered the
Department to announce a new effective date for the rule within 45 days
from June 15. The basis for the court's ruling was twofold: (1) That
the almost one-year delay in the effective date was not a ``logical
outgrowth'' of the proposed rule, and therefore violated the APA; and
(2) that the Department violated the INA in considering hardship to
employers when deciding to delay the effective date. The court held
that ``it is apparent that in this case the notice of proposed
rulemaking was deficient.'' CATA v. Solis, Dkt. No. 119, Memorandum
Opinion at 8 (June 15, 2011). The court noted that the NPRM said
nothing about a delayed effective date, and accordingly ``the public
would . . . be justified in assuming that any delay in the effective
date would mirror the minimal delays associated with the issuance of
similar wage regulations over the past several decades.'' Id. In
finding a violation of the INA, the court relied extensively on the
1983 district court decision in NAACP v. Donovan, 566 F. Supp. 1202
(D.D.C. 1983), which held that the Department could not phase in a wage
regime based upon a desire to alleviate hardship on small businesses,
because ```[in] administering the labor certification program, DOL is
charged with protection of workers.''' CATA v. Solis, Dkt. No. 119,
Memorandum Opinion at 10 (June 15, 2011) (citing NAACP v. Donovan, 566
F. Supp. at 1206).
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\1\ On August 30, 2010, the U.S. District Court for the Eastern
District of Pennsylvania in CATA v. Solis, Civil No. 2:09-cv-240-LP,
2010 WL 3431761 (E.D. Pa.) ruled that the Department had violated
the Administrative Procedure Act in failing to adequately explain
its reasoning for using skill levels as part of the H-2B prevailing
wage determinations, and failing to consider comments relating to
the choice of appropriate data sets in deciding to rely on OES data
rather than SCA and DBA in setting the prevailing wage rates. The
court ordered the Department to ``promulgate new rules concerning
the calculation of the prevailing wage rate in the H-2B program that
are in compliance with the Administrative Procedure Act no later
than 120 days from the date of this order.'' The order was later
amended to provide the Department with additional time, until
January 18, 2011, to promulgate a final rule.
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C. The Effective Date
The Department proposes that the Wage Rule take effect 60 days from
the date of publication of a final rule resulting from this rulemaking.
The Department anticipates the date of publication of the final rule to
be on or about August 1, 2011; thus, the effective date of the Wage
Rule would be on or about October 1, 2011. Because the Wage Rule, which
was published on January 19, 2011, would have required at least a 60-
day delayed effective date from the date of publication since it is
considered to be a major rule under the Congressional Review Act (CRA),
5 U.S.C. 801, et seq.,\2\ the Department believes that it would be
appropriate to apply a 60-day delayed effective date to the final rule
that sets the effective date of the Wage Rule. The Wage Rule will be
effective for wages paid to H-2B workers and U.S. workers recruited in
connection with an H-2B labor certification for all work performed on
or after the new effective date. A 60-day delayed effective date also
would provide the Office of Foreign Labor Certification (OFLC) within
the Department with the time it needs to implement the wage rule, as
OFLC must issue new prevailing wages for approved work performed on or
after the new effective date. In order to accomplish this, OFLC must
identify all certified H-2B applications which contain dates of work to
be performed on and after the new effective date of the wage rule. This
universe of certifications must then be issued new prevailing wage
determinations in accordance with the wage rule's methodology. This is
a labor intensive activity, as OFLC will have to determine and issue
the new determinations before the new effective date proposed in this
rulemaking for each of these employers. OFLC has determined the
universe of applications to be large, and therefore will require the
60-day delayed effective date in order to complete this task.
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\2\ Under the CRA, a major rule is defined as ``any rule that
the Administrator of the Office of Information and Regulatory
Affairs of the Office of Management and Budget finds has resulted in
or is likely to result in --(A) an annual effect on the economy of
$100,000,000 or more; (B) a major increase in costs or prices for
consumers, individual industries, Federal, State, or local
government agencies, or geographic regions; or (C) significant
adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based
enterprises to compete with foreign-based enterprises in domestic
and export markets. The term does not include any rule promulgated
under the Telecommunications Act of 1996 and the amendments made by
that Act.'' 5 U.S.C. 804(2). As part of the Department's Executive
Order 12866 analysis, OMB determined that the Wage Rule would likely
result in transfers in excess of $100 million annually. See 76 FR
3468, Jan. 19, 2011.
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As mentioned above, the purpose of this rulemaking is to solicit
comments on the proposed effective date of the Wage Rule; therefore,
any comments relating to the merits of the provisions contained in the
Wage Rule will be deemed out of scope and will not be considered.
Furthermore, pursuant to the district court's order, the Department
cannot consider specific examples of employer hardship to delay the
effective date of a new wage rule. See CATA v. Solis, Dkt. No. 119,
Memorandum Opinion at 9 (June 15, 2011).
II. Administrative Information
A. Executive Orders 12866 and 13563
Under Executive Order (E.O.) 12866 and E.O. 13563, the Department
must determine whether a regulatory action is significant and
therefore, subject to the requirements of the E.O. and subject to
review by the Office of Management and Budget (OMB). Section 3(f) of
E.O. 12866 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 $100 million or more or adversely and materially affects
a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local or Tribal
governments or communities (also referred to as ``economically
significant''); (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 novel legal or policy issues arising out of
legal mandates, the President's priorities, or the principles set forth
in the E.O. The Department has determined that this NPRM is not an
economically significant regulatory action under sec. 3(f)(1) of E.O.
12866. The Department, however, has determined that this NPRM is a
significant regulatory action under sec. 3(f)(4) of the E.O. and,
accordingly, OMB has reviewed this NPRM.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) at 5 U.S.C. 603 requires
agencies to prepare a regulatory flexibility analysis to determine
whether a regulation will have a significant economic impact on a
substantial number of small entities. Section 605 of the RFA allows an
agency to certify a rule in lieu of preparing an analysis if the
regulation is not expected to have a significant economic impact on a
substantial number of small entities. Further, under the Small Business
Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 801 (SBREFA), an
agency is required to produce a compliance guidance for small entities
if the rule has a significant economic impact. In the Wage Rule, the
Department stated that it believed that the Wage Rule was not likely to
impact a substantial number of small entities; however, in the interest
of transparency, the Department prepared a Final Regulatory Flexibility
Analysis (FRFA) to assess the impact of this regulation on small
entities, as defined by the applicable Small Business Administration
(SBA) size standards. See 76 FR 3473, Jan. 19, 2011. While the change
in the effective date of the Wage Rule that is being proposed in this
NPRM may change the
[[Page 37689]]
period in which the total cost burdens for small entities would occur,
the Department believes that the amount of the total cost burdens
themselves would not change. Accordingly, the Assistant Secretary of
ETA has notified the Chief Counsel for Advocacy, Small Business
Administration (SBA), under the RFA at 5 U.S.C. 605(b), and certified
that this rule will not have a significant economic impact on a
substantial number of small entities.
C. Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1531) directs agencies to assess the effects of Federal regulatory
actions on State, local, and Tribal governments, and the private
sector. The proposed rule has no Federal mandate, which is defined in 2
U.S.C. 658(6) to include either a ``Federal intergovernmental mandate''
or a ``Federal private sector mandate.'' A Federal mandate is any
provision in a regulation that imposes an enforceable duty upon State,
local, or Tribal governments, or imposes a duty upon the private sector
which is not voluntary.
D. Small Business Regulatory Enforcement Fairness Act of 1996
The Department has determined that this rulemaking does not impose
a significant impact on a substantial number of small entities under
the RFA; therefore, the Department is not required to produce any
compliance guides for small entities as mandated by the SBREFA. The
Department has similarly concluded that this proposed rule is not a
major rule requiring review by the Congress under the SBREFA because it
will not likely result in: (1) An annual effect on the economy of $100
million or more; (2) a major increase in costs or prices for consumers,
individual industries, Federal, State or local government agencies, or
geographic regions; or (3) significant adverse effects on competition,
employment, investment, productivity, innovation, or on the ability of
U.S.-based enterprises to compete with foreign-based enterprises in
domestic or export markets.
E. Executive Order 13132--Federalism
The Department has reviewed this proposed rule in accordance with
E.O. 13132 regarding federalism and has determined that it does not
have federalism implications. The proposed rule does not have
substantial direct effects on States, on the relationship between the
States, or on the distribution of power and responsibilities among the
various levels of government as described by E.O. 13132. Therefore, the
Department has determined that this proposed rule will not have a
sufficient federalism implication to warrant the preparation of a
summary impact statement.
F. Executive Order 13175--Indian Tribal Governments
This proposed rule was reviewed under the terms of E.O. 13175 and
determined not to have Tribal implications. The 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 Indian Tribes. As a result, no Tribal summary impact
statement has been prepared.
G. Assessment of Federal Regulations and Policies on Families
Section 654 of the Treasury and General Government Appropriations
Act, enacted as part of the Omnibus Consolidated and Emergency
Supplemental Appropriations Act of 1999 (Pub. L. 105-277, 112 Stat.
2681) requires the Department to assess the impact of this proposed
rule on family well-being. A rule that is determined to have a negative
effect on families must be supported with an adequate rationale.
The Department has assessed this proposed rule and determines that
it will not have a negative effect on families.
H. Executive Order 12630--Government Actions and Interference with
Constitutionally Protected Property Rights
The proposed rule is not subject to E.O. 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights, because it does not involve implementation of a policy with
takings implications.
I. Executive Order 12988--Civil Justice
The proposed rule has been drafted and reviewed in accordance with
E.O. 12988, Civil Justice Reform, and will not unduly burden the
Federal court system. The Department has developed the proposed rule to
minimize litigation and provide a clear legal standard for affected
conduct, and has reviewed the proposed rule carefully to eliminate
drafting errors and ambiguities.
J. Plain Language
The Department drafted this NPRM in plain language.
K. Paperwork Reduction Act
As part of its continuing effort to reduce paperwork and respondent
burden, the Department conducts a preclearance consultation program to
provide the general public and Federal agencies with an opportunity to
comment on proposed and continuing collections of information in
accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C.
3506(c)(2)(A)). This process helps to ensure that the public
understands the Department's collection instructions; respondents
provide requested data in the desired format; reporting burden (time
and financial resources) is minimized; collection instruments are
clearly understood; and the Department properly assesses the impact of
collection requirements on respondents.
The PRA requires all Federal agencies to analyze proposed
regulations for potential time burdens on the regulated community
created by provisions within the proposed regulations that require the
submission of information. These information collection (IC)
requirements must be submitted to the OMB for approval. Persons are not
required to respond to a collection of information unless it displays a
currently valid OMB control number as required in 5 CFR 1320.11(l) or
it is exempt from the PRA.
The majority of the IC requirements for the current H-2B program
are approved under OMB control number 1205-0466 (which includes ETA
Form 9141 and ETA Form 9142). There are no burden adjustments that need
to be made to the analysis. For an additional explanation of how the
Department calculated the burden hours and related costs, the PRA
package for information collection OMB control number 1205-0466 may be
obtained at http://www.RegInfo.gov.
III. Change of Effective Date of Wage Rule
The Department therefore proposes to amend the ``DATES'' section of
the Wage Rule to read ``This Final Rule is effective [60 DAYS FROM THE
DATE OF PUBLICATION OF THE FINAL RULE RESULTING FROM THIS
RULEMAKING].''
Signed in Washington this 24th day of June, 2011.
Jane Oates,
Assistant Secretary, Employment and Training Administration.
[FR Doc. 2011-16310 Filed 6-24-11; 4:15 pm]
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