Wage Methodology for Temporary Non-agricultural Employment H–2B Program:

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

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.

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:

1. Amendment of Effective Date of the Wage Rule

   1. 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.

   2. 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

   6. Supp. at 1206).

      \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.

   3. 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.

      \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.

      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).

2. Administrative Information

   1. 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.

   2. 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.

   3. 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.

   4. 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.

   5. 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.

   6. 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.

   7. 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.

   8. 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.

1. 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.

   10. Plain Language

       The Department drafted this NPRM in plain language.

   11. 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.

3. 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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