[Federal Register Volume 76, Number 251 (Friday, December 30, 2011)]
[Rules and Regulations]
[Pages 82116-82117]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-33523]
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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; Impact on Prevailing Wage
Determinations
AGENCY: Employment and Training Administration, Wage and Hour Division,
Labor.
ACTION: Guidance.
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SUMMARY: The Department of Labor (we or the Department), as a result of
Congressional appropriations language, recently delayed the effective
date of the Wage Methodology for Temporary Non-agricultural Employment
H-2B Program Final Rule (the Wage Rule) to January 1, 2012. This Notice
provides additional guidance to those employers who have received from
the Department either a supplemental or dual prevailing wage
determinations based on a previous effective date of the new prevailing
wage methodology. This guidance provides additional clarification
regarding the wage payment requirements for employers participating in
the H-2B Temporary Non-agricultural program.
DATES: This guidance is effective December 30, 2011.
FOR FURTHER INFORMATION CONTACT: William L. Carlson, Ph.D.,
Administrator, Office of Foreign Labor Certification, Employment and
Training Administration, 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). For further information concerning
the Wage and Hour Division, contact Mary Ziegler, Director, Division of
Regulations, Legislation, and Interpretation, Wage and Hour Division,
U.S. Department of Labor, 200 Constitution Avenue NW., Room S-3510,
Washington, DC 20210; Telephone (202) 693-0071 (this is not a toll-free
number). Individuals with hearing or speech impairments may access the
telephone number above via TTY calling the toll-free Federal
Information Relay Service at 1-(877) 889-5627 (TTY/TDD).
SUPPLEMENTARY INFORMATION: The Department published the Wage Rule on
January 19, 2011, 76 FR 3452. The Wage Rule revised the methodology by
which we calculate the prevailing wage to be paid to H-2B workers and
United States (U.S.) workers recruited in connection with a temporary
labor certification used in petitioning the Department of Homeland
Security to employ a nonimmigrant worker in H-2B status. We originally
set the effective date of the Wage Rule for January 1, 2012. However,
as a result of 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, proposing that the Wage Rule take
effect 60 days from the date of publication of a final rule resulting
from the NPRM. 76 FR 37686, Jun. 28, 2011. We published a Final Rule on
August 1, 2011, which set the new effective date of September 30,
[[Page 82117]]
2011 for the Wage Rule (the Effective Date Rule).
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\1\ CATA v. Solis, Civil Docket No. 09-240, Doc. No. 119, 2011
WL 2414555 (E.D. Pa. June 16, 2011).
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In anticipation of the revised effective date of the Wage Rule, the
Department issued supplemental prevailing wage determinations to those
employers granted labor certification for an H-2B application where
work would be performed on or after September 30, 2011. Those
supplemental determinations were provided to employers to enable them
to meet their amended wage obligations.
Both the Wage Rule and the Effective Date Rule 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 could be
transferred to another court,\3\ the Department issued a final rule, 76
FR 59896, Sep. 28, 2011, postponing the effective date of the 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 December 12, 2011, the LFA court granted a motion to
transfer venue over the litigation to the Eastern District of
Pennsylvania, the court in which the CATA case remains pending.
However, the Bayou court denied the defendant's motion to transfer
the Bayou litigation to the Eastern District of Pennsylvania the
same day.
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Following the postponement of the effective date to November 30,
2011, and in anticipation of the new effective date, the Office of
Foreign Labor Certification (OFLC) issued participating employers two
simultaneous (or dual) wage determinations for work to be potentially
performed before and after the new effective date of the Wage Rule. The
first determination was based on the former regulations that applied
until November 30, and the second determination was based on the new
prevailing wage methodology set forth in the Wage Rule, that was to be
effective for work performed on and after November 30, 2011.
On November 18, 2011, the President signed into law the
Consolidated and Further Continuing Appropriations Act, 2012, Pub. L.
112-55, Div. B, Title V, Sec. 546 (Nov. 18, 2011) (the November
Appropriations Act). The November Appropriations Act contains language
preventing the expenditure of funds to implement, administer, or
enforce the Wage Rule prior to January 1, 2012. Accordingly, the
Department issued a final rule in the Federal Register, 76 FR 73508
(Nov. 29, 2011), again postponing the effective date of the rule, this
time from November 30, 2011, until January 1, 2012. As a result, the
Department issued in the first half of December 2011 prevailing wage
determinations, with the advisory that additional determinations would
be forthcoming.
On December 23, 2011, the President signed into law the
Consolidated Appropriations Act, 2012, which provides that [``[n]one of
the amounts made available under this Act may be used to implement the
[Wage Rule].''] Because of the distinct possibility that we would be
unable to operate the H-2B program for the remainder of FY 2012 if the
effective date of the Wage Rule were not postponed, the Department
determined that this situation constituted an emergency warranting the
publication of a final rule under the good cause exception of the
Administrative Procedure Act to delay the effective date of the Wage
Rule to October 1, 2012. Consequently, the Department is publishing a
final rule to extend the effective date of the Wage Final Rule to
October 1, 2012. See the final rule delaying the effective date of the
H-2B Wage Rule, published elsewhere in this issue of the Federal
Register.
In light of the postponement of the effective date of the Wage Rule
until October 1, 2012, the Department is hereby providing public notice
that the wage determinations previously issued in anticipation of the
effective date of, and in accordance with, the Wage Rule will not be
effective until October 1, 2012, and will then apply only to work
performed on or after that date, if applicable. In addition, we are
hereby providing notice that those prevailing wage determinations
issued under the 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 2008 H-
2B Rule), which were listed as valid until either November 30, 2011 or
December 31, 2011, are now valid for a period of 90 days beyond
December 31, 2011, i.e. until March 30, 2012, and only apply to work
performed on or before September 30, 2012.
Any employer who received an H-2B prevailing wage determination
issued in anticipation of the September 30, 2011, November 30, 2011, or
January 1, 2012 effective dates of the Wage Rule is not required to
pay, and the Department's Wage and Hour Division will not enforce, the
wage provided in those prevailing wage determinations issued in
anticipation of the effective date of the Wage Rule for any work
performed by H-2B workers or U.S. workers recruited in connection with
the H-2B application process until October 1, 2012. Employers are
expected to continue to pay at least the prevailing wage as provided in
a prevailing wage determination issued under the 2008 H-2B Rule for any
work performed before October 1, 2012. Further, employers who received
a supplemental H-2B prevailing wage determination, or a prevailing wage
determination issued in anticipation of the effective date of the Wage
Rule, who are still employing H-2B workers employed under labor
certifications issued in connection with those prevailing wage
determinations, must pay at least the wage issued under the Wage Rule
to any H-2B worker and any U.S. worker recruited in connection with the
labor certification for work performed on or after October 1, 2012.
The Department is providing notice that, as a result of the
December Appropriations Act, it is precluded from addressing issues
raised in Center Director Review requests submitted by employers in
connection with prevailing wage determinations issued in anticipation
of the effective date of, and in accordance with, the Wage Rule.
Last, the Department in anticipation of questions from the filing
community and as a measure of customer service has established the
following email box for questions: [email protected].
Signed at Washington, DC, this 23rd day of December 2011.
Jane Oates,
Assistant Secretary for Employment and Training.
Nancy Leppink,
Deputy Administrator, Wage and Hour Division.
[FR Doc. 2011-33523 Filed 12-27-11; 4:15 pm]
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