[Federal Register Volume 76, Number 229 (Tuesday, November 29, 2011)]
[Rules and Regulations]
[Pages 73509-73510]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-30745]



Employment and Training Administration

Wage and Hour Division

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 

AGENCY: Employment and Training Administration, Wage and Hour Division, 
Department of Labor.

ACTION: Guidance.


SUMMARY: The Department of Labor (Department) recently delayed the 
effective date of the Wage Methodology for Temporary Non-agricultural 
Employment H-2B Program Final Rule, 76 FR 3452, Jan. 19, 2011 (the Wage 
Rule) to January 1, 2012. This notice provides 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 is intended 
to clarify the wage payment requirements for employers participating in 
the H-2B Temporary Non-agricultural program.

DATES: This guidance is effective November 29, 2011.

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-3502, 
Washington, DC 20210; Telephone (202) 693-0406 (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 as 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. The Department 
originally set the effective date of the Wage Rule for January 1, 2012. 
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, Jun. 28, 2011. We published a Final Rule on August 
1, 2011, which set the new effective date of September 30, 2011 for the 
Wage Rule (the Effective Date Rule). In anticipation of the effective 
date of the Wage Rule, the Department issued supplemental prevailing 
wage determinations to those employers who had been granted 
certification for an H-2B application where work would be performed on 
or after September 30, 2011.

    \1\ CATA v. Solis, Dkt. No. 119, 2011 WL 2414555 (E.D. Pa. June 
16, 2011).

    Both the Wage Rule and the Effective Date Rule were challenged in 
two separate lawsuits \2\ seeking to bar their

[[Page 73510]]

implementation. In consideration of the two pending challenges to the 
Wage Rule and its new effective date, and the possibility that the 
litigation may be transferred to another court,\3\ the Department 
issued a Federal Register notice, 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. 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 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 up 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.

    \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 similar 
motion in the Bayou litigation before the U.S. District Court in the 
Northern District of Florida remains pending.

    On November 18, 2011, 2011, the President signed into law the 
Consolidated and Further Continuing Appropriations Act, 2012, H.R. 
2112, 112th Cong. (2011) (enacted). The legislation contains language 
prohibiting the Department from implementing, administering, or 
enforcing, prior to January 1, 2012, the Wage Rule. 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 
nullify 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).
    Since 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, that 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 the 
Conference Report, ``[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). Based on Congressional intent and to avoid an 
operational hiatus during the month of December 2011, the Department 
has published a Final Rule extending the effective date of the Wage 
Rule to apply to work performed on and after January 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 recent postponement of the effective date of the 
Wage Rule until January 1, 2012, the Department is hereby providing 
notice that the wage determinations previously issued under the Wage 
Rule will not be effective until January 1, 2012, and will apply only 
to work performed on or after January 1, 2012. Any employer who has 
received an H-2B prevailing wage determination in anticipation of 
either the September 30, 2011 or November 30, 2011 effective dates is 
not required to pay, and the Department's Wage and Hour Division will 
not enforce, the wage provided in the prevailing wage determination 
issued under 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 January 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 January 1, 2012.
    Further, employers who received a supplemental H-2B prevailing wage 
determination, or a prevailing wage determination issued under the Wage 
Rule, must pay at least that wage to any H-2B worker and any U.S. 
worker recruited in connection with the labor certification for work 
performed on or after January 1, 2012.

    Signed at Washington, DC, this 23rd of November 2011.
Jane Oates,
Assistant Secretary for Employment and Training.
Nancy Leppink,
Deputy Administrator, Wage and Hour Division.
[FR Doc. 2011-30745 Filed 11-25-11; 11:15 am]