[Federal Register Volume 76, Number 229 (Tuesday, November 29, 2011)]
[Rules and Regulations]
[Pages 73508-73509]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-30781]


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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; Delay of Effective Date

AGENCY: Employment and Training Administration, Department of Labor.

ACTION: Final rule; delay of effective date.

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SUMMARY: The Department of Labor (Department) is delaying the effective 
date of the Wage Methodology for the Temporary Non-agricultural 
Employment H-2B Program; Final Rule, 76 FR 3452, Jan. 19, 2011, (the 
Wage Rule) to January 1, 2012 in response to recently enacted 
legislation that prohibits any funds from being used to implement 
administer, or enforce the Wage Rule before January 1, 2012. The Wage 
Rule revised the methodology by which we calculate the prevailing wages 
to be paid to H-2B workers and United States (U.S.) workers recruited 
in connection with a temporary labor certification for use in 
petitioning the Department of Homeland Security to employ a 
nonimmigrant worker in H-2B status.

DATES: The effective date of the rule amending 20 CFR part 655, 
published at 76 FR 45667, August 1, 2011, as further amended at 76 FR 
59896, September 28, 2011, is delayed until January 1, 2012.

FOR FURTHER INFORMATION CONTACT: William L. Carlson, Ph.D., 
Administrator, Office of Foreign Labor Certification, ETA, U.S. 
Department of Labor, 200 Constitution Avenue NW., Room C-4312, 
Washington, DC 20210; Telephone (202) 693-3010 (this is not a toll-free 
number). Individuals with hearing or speech impairments may access the 
telephone number above via TTY by calling the toll-free Federal 
Information Relay Service at 1-(877) 889-5627 (TTY/TDD).

SUPPLEMENTARY INFORMATION: The Department of Labor (Department) 
published the Wage Methodology for the Temporary Non-agricultural 
Employment H-2B Program; Final Rule (the Wage Rule) on January 19, 
2011, 76 FR 3452. The Wage Rule revised the methodology by which we 
calculate the prevailing wages to be paid to H-2B workers and United 
States (U.S.) workers recruited in connection with a temporary labor 
certification for use in petitioning the Department of Homeland 
Security to employ a nonimmigrant worker in H-2B status. The Department 
originally set the effective date of the Wage Rule for January 1, 2012. 
However, due to a court ruling that invalidated the January 1, 2012 
effective date of the Wage Rule,\1\ we issued a Notice of Proposed 
Rulemaking (NPRM) on June 28, 2011, which proposed that the Wage Rule 
take effect 60 days from the date of publication of a final rule 
resulting from the NPRM. 76 FR 37686, June 28, 2011. After a period of 
public comment, we published a Final Rule on August 1, 2011, which set 
the new effective date for the Wage Rule of September 30, 2011 (the 
Effective Date Rule).
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    \1\ CATA v. Solis, Dkt. No. 119, 2011 WL 2414555 (E.D. Pa. June 
16, 2011).
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    Both the Wage Rule and the Effective Date Rule recently were 
challenged in two separate lawsuits \2\ seeking to bar their 
implementation. In consideration of the two pending challenges to the 
Wage Rule and its new effective date, and the possibility that the 
litigation will be transferred to another court,\3\ the Department 
issued a final rule, 76 FR 59896, September 28, 2011, postponing the 
effective date of the Wage Rule from September 30, 2011, until November 
30, 2011, in accordance with the Administrative Procedure Act, 5 U.S.C. 
705.
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    \2\ See Louisiana Forestry Association, Inc., et al. (LFA) v. 
Solis, et al., Civil Docket No. 11-1623 (WD LA, Alexandria 
Division); and Bayou Lawn & Landscape Services, et al. (Bayou) v. 
Solis, et al., Civil Docket No. 11-445 (ND FL, Pensacola Division).
    \3\ On September 19, 2011, the plaintiffs in the CATA litigation 
moved to intervene in the LFA litigation, and also moved to transfer 
venue over the litigation to the Eastern District of Pennsylvania, 
the court in which the CATA case remains pending. The plaintiffs' 
motion to intervene was granted by the U.S. District Court in the 
Western District of Louisiana on Sept. 22, 2011, but its motion 
before the U.S. District Court in the Northern District of Florida 
remains pending.
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    On November 18, 2011, President Obama signed into law the 
Consolidated and Further Continuing Appropriations Act, 2012, which 
provides that ``[n]one of the funds made available by this or any other 
Act for fiscal year 2012 may be used to implement, administer, or

[[Page 73509]]

enforce, prior to January 1, 2012 the [Wage Rule].'' Public Law 112-55, 
Div. B, Title V, Sec.  546 (Nov. 18, 2011). While the Act prevents the 
expenditure of funds to implement, administer, or enforce the Wage Rule 
before January 1, 2012, it does not prohibit the Wage Rule from going 
into effect, which is scheduled to occur on November 30, 2011. When the 
Wage Rule goes into effect, it will supersede and make null the 
prevailing wage provisions at 20 CFR 655.10(b) of the Department's 
existing H-2B regulations, which were promulgated under Labor 
Certification Process and Enforcement for Temporary Employment in 
Occupations Other Than Agriculture or Registered Nursing in the United 
States (H-2B Workers), and Other Technical Changes; Final Rule, 73 FR 
78020, Dec. 19, 2008 (the H-2B 2008 Rule). Allowing the Wage Rule to go 
into effect as planned on November 30, 2011, would therefore render the 
Department unable to issue prevailing wage determinations under the 
2008 H-2B Rule, because it would no longer exist.
    Although dates of need are not included in prevailing wage 
determination requests, it is possible that some of the pending 
requests with the Department would cover work to be performed before 
January 1, 2012, and accordingly, the wage would need to be determined 
in accordance with the 2008 H-2B Rule. However, if the Wage Rule were 
to go into ``effect'' on November 30, 2011, we would be legally 
precluded during the month of December 2011 from issuing prevailing 
wage determinations under the H-2B 2008 Rule. This result would be 
directly contrary to Congressional intent as expressed in its 
Conference Report that ``[i]n making prevailing wage determinations for 
the H-2B nonimmigrant visa program for employment prior to January 1, 
2012, the conferees direct the Secretary of Labor to continue to apply 
the [H-2B 2008 Rule]'' H.R. Rept. No. 112-284 (Conf. Rep.), 157 Cong. 
Rec. H7528 (Nov. 14, 2011). Because of the imminent threat that the 
Department will be unable to issue prevailing wage determinations for 
work to be performed before January 1, 2012, the Department considers 
this situation an emergency warranting the publication of a final rule 
under the good cause exception of the Administrative Procedure Act. See 
5 U.S.C. 553(b)(B) and 553(d)(3). Accordingly, we must further delay 
the effective date of the Wage Rule to January 1, 2012.
    Based on Congressional intent and to avoid an operational hiatus 
during the month of December 2011, the Department finds good cause to 
adopt this rule, effective immediately, and without prior notice and 
comment. See 5 U.S.C. 553(b)(B) and 553(d)(3). We believe that 
immediate action must be taken so that the employment of H-2B workers 
will not adversely affect U.S. workers similarly employed, and that 
employers are able to obtain a temporary non-agricultural workforce 
where there are no U.S. workers available for the job. The Department 
is simply effectuating the intent of Congress that the H-2B 2008 Rule 
should continue to govern prevailing wage determinations for employment 
before January 1, 2012. As such, a delay in promulgation of this rule 
past the date of publication would be impracticable and unnecessary and 
disrupt the program to the detriment of the public interest.

    Signed at Washington, DC, November 23, 2011.
Jane Oates,
Assistant Secretary for Employment and Training.
[FR Doc. 2011-30781 Filed 11-25-11; 11:15 am]
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