Federal Register / Vol. 78, No. 169 / Friday, August 30, 2013 / Rules and Regulations 53643 

adopted without change or 

interpretation, making public comment 

unnecessary. Therefore, the Commission 

has determined that the notice and 

comment requirements of the 

Administrative Procedure Act do not 

apply. See 5 U.S.C. 553(b). For this 

reason, the requirements of the 

Regulatory Flexibility Act also do not 

apply. See 5 U.S.C. 603, 604. Pursuant 

to the Paperwork Reduction Act, 44 

U.S.C. 3501–3521, the Office of 

Management and Budget (‘‘OMB’’) 

approved the information collection 

requirements in the Amended TSR and 

assigned the following existing OMB 

Control Number: 3084–0097. The 

amendments outlined in this Final Rule 

pertain only to the fee provision 

(§ 310.8) of the Amended TSR and will 

not establish or alter any record 

keeping, reporting, or third-party 

disclosure requirements elsewhere in 

the Amended TSR. 

List of Subjects in 16 CFR Part 310 

Advertising, Consumer protection, 

Reporting and recordkeeping 

requirements, Telephone, Trade 

practices. 

Accordingly, the Federal Trade 

Commission amends part 310 of title 16 

of the Code of Federal Regulations as 

follows: 

PART 310—TELEMARKETING SALES 

RULE 

■ 1. The authority citation for part 310 

continues to read as follows: 

Authority: 15 U.S.C. 6101–6108; 15 U.S.C. 

6151–6155. 

■ 2. Revise § 310.8(c) and (d) to read as 

follows: 

§ 310.8 Fee for access to the National Do 

Not Call Registry. 

* * * * * 

(c) The annual fee, which must be 

paid by any person prior to obtaining 

access to the National Do Not Call 

Registry, is $59 for each area code of 

data accessed, up to a maximum of 

$16,228; provided, however, that there 

shall be no charge to any person for 

accessing the first five area codes of 

data, and provided further, that there 

shall be no charge to any person 

engaging in or causing others to engage 

in outbound telephone calls to 

consumers and who is accessing area 

codes of data in the National Do Not 

Call Registry if the person is permitted 

to access, but is not required to access, 

the National Do Not Call Registry under 

this Rule, 47 CFR 64.1200, or any other 

Federal regulation or law. Any person 

accessing the National Do Not Call 

Registry may not participate in any 

arrangement to share the cost of 

accessing the registry, including any 

arrangement with any telemarketer or 

service provider to divide the costs to 

access the registry among various clients 

of that telemarketer or service provider. 

(d) Each person who pays, either 

directly or through another person, the 

annual fee set forth in § 310.8(c), each 

person excepted under § 310.8(c) from 

paying the annual fee, and each person 

excepted from paying an annual fee 

under § 310.4(b)(1)(iii)(B), will be 

provided a unique account number that 

will allow that person to access the 

registry data for the selected area codes 

at any time for the twelve month period 

beginning on the first day of the month 

in which the person paid the fee (‘‘the 

annual period’’). To obtain access to 

additional area codes of data during the 

first six months of the annual period, 

each person required to pay the fee 

under § 310.8(c) must first pay $59 for 

each additional area code of data not 

initially selected. To obtain access to 

additional area codes of data during the 

second six months of the annual period, 

each person required to pay the fee 

under § 310.8(c) must first pay $30 for 

each additional area code of data not 

initially selected. The payment of the 

additional fee will permit the person to 

access the additional area codes of data 

for the remainder of the annual period. 

* * * * * 

By direction of the Commission. 

Donald S. Clark, 

Secretary. 

[FR Doc. 2013–21141 Filed 8–29–13; 8:45 am] 

BILLING CODE 6750–01–P 

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, Labor. 

ACTION: Final rule; indefinite delay of 

effective date. 

SUMMARY: The Department of Labor 

(Department or we/us) is delaying 

indefinitely the effective date of the 

Wage Methodology for the Temporary 

Non-agricultural Employment H–2B 

Program final rule (2011 Wage Rule), in 

order to comply with recurrent 

legislation that prohibits us from using 

any funds to implement it, and to 

permit time for consideration of public 

comments sought in conjunction with 

an interim final rule published April 24, 

2013, 78 FR 24047. The 2011 Wage Rule 

revised the methodology by which the 

Department calculates the prevailing 

wages to be paid to H–2B workers and 

United States 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 2011 Wage Rule was 

originally scheduled to become effective 

on January 1, 2012, and the effective 

date has been extended a number of 

times, most recently to October 1, 2013. 

We are now delaying the effective date 

of the 2011 Wage Rule indefinitely. This 

rule does not affect the Interim Final 

Rule, 78 FR 24047, published on April 

24, 2013, establishing the current 

prevailing wage methodology for the H– 

2B program; that rule remains in effect. 

DATES: The effective date of the rule 

amending 20 CFR part 655, published at 

76 FR 3452 (January 19, 2011) (referred 

to herein as the 2011 Wage Rule), 

originally effective January 1, 2012, and 

which was previously made effective 

September 30, 2011, at 76 FR 45667 

(August 1, 2011); and delayed to 

November 30, 2011, at 76 FR 59896 

(September 28, 2011); to January 1, 

2012, at 76 FR 73508 (November 29, 

2011); to October 1, 2012, at 76 FR 

82115 (December 30, 2011); to March 

27, 2013, at 77 FR 60040 (October 2, 

2012); and to October 1, 2013, at 78 FR 

19098 (March 29, 2013), is delayed 

indefinitely, effective on September 30, 

2013. The Department will publish a 

later document in the Federal Register 

establishing a new effective date in the 

event of implementation of the 2011 

Wage Rule. 

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 published a final 

rule, Wage Methodology for the 

Temporary Non-agricultural 

Employment H–2B Program, on January 

19, 2011. See 76 FR 3452 (the 2011 

Wage Rule). The 2011 Wage Rule 

revised the methodology by which we 


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53644 Federal Register / Vol. 78, No. 169 / Friday, August 30, 2013 / Rules and Regulations 

1These include the Consolidated Appropriations 

Act of 2012, Public Law 112–74, 125 Stat. 786 (Dec. 

23, 2011); Continuing Appropriations Resolution, 

2013, Public Law 112–175, 126 Stat. 1313 (Sept. 28, 

2012); and Consolidated and Further Continuing 

Appropriations Act, 2013, Public Law 113–6, 127 

Stat. 198 (Mar. 26, 2013) (establishing DOL’s 

appropriations through Sept. 30, 2013). 

2The Department of Labor and DHS issued the 

IFR jointly to dispel questions about the respective 

roles of the two agencies and the validity of the 

Department’s regulations as an appropriate way to 

implement the interagency consultation specified in 

section 214(c)(1) of the INA, 8 U.S.C. 1184(c)(1). See 

Bayou Lawn & Landscape Servs. v. Sec’y of Labor, 

713 F.3d 1080 (11th Cir. 2013) (holding that the 

Department of Labor lacks independent rulemaking 

authority under the INA to issue legislative 

regulations implementing its role in the H–2B 

program). But see La. Forestry Ass’n v. Solis, 889 

F. Supp. 2d 711 (E.D. Pa. 2012) (rejecting claim that 

the Department of Labor lacks authority under the 

INA to administer the H–2B program through 

legislative rules), appeal pending, No. 12–4030 (3d 

Cir.). Due to these inconsistent court rulings about 

the Department’s authority to issue independent 

legislative rules, the Department and DHS together 

issued the IFR revising the prevailing wage 

methodology in the H–2B program. 

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 (DHS) to employ a 

nonimmigrant worker in H–2B status. 

We originally set the effective date of 

the 2011 Wage Rule for January 1, 2012. 

However, as a result of litigation and 

following notice-and-comment 

rulemaking, we issued a final rule, 76 

FR 45667 (Aug. 1, 2011), revising the 

effective date of the 2011 Wage Rule to 

September 30, 2011, and a second final 

rule, 76 FR 59896 (Sept. 28, 2011), 

further revising the effective date of the 

2011 Wage Rule to November 30, 2011. 

Thereafter, we delayed the effective 

date of the 2011 Wage Rule until 

January 1, 2012 in light of the enactment 

on November 18, 2011 of the 

Consolidated and Further Continuing 

Appropriations Act, 2012, which 

provided 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 enforce, prior 

to January 1, 2012 the [Wage Rule].’’ 

Public Law No. 112–55, 125 Stat. 552, 

Div. B, Title V, sec. 546 (Nov. 18, 2011) 

(the November 2011 Appropriations 

Act). In delaying the 2011 Wage Rule’s 

effective date at that time, the 

Department stated that although the 

November 2011 Appropriations Act 

‘‘prevent[ed] the expenditure of funds to 

implement, administer, or enforce the 

[2011] Wage Rule before January 1, 

2012, it [did] not prohibit the [2011] 

Wage Rule from going into effect, which 

[was] scheduled to occur on November 

30, 2011.’’ 76 FR 73508, 73509 (Nov. 29, 

2011). We explained that ‘‘when the 

[2011] 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).’’ Id. Accordingly, we 

determined that it was necessary in light 

of the November 2011 Appropriations 

Act to delay the effective date of the 

2011 Wage Rule to avoid the 

replacement of the wage provisions of 

the H–2B 2008 Rule with a new rule 

that we lacked appropriated funds to 

implement. Such an occurrence would 

have rendered the H–2B program 

inoperable because, as discussed in the 

NPRM, at 78 FR 44055, the issuance of 

a prevailing wage determination is a 

condition precedent to approving an 

employer’s request for an H–2B labor 

certification. See 20 CFR 655.10. As a 

result, the Department issued a final 

rule, 76 FR 73508, which delayed the 

effective date of the 2011 Wage Rule 

until January 1, 2012. 

Subsequent appropriations 

legislation 1 containing the same 

restriction prohibiting the Department’s 

use of appropriated funds to implement, 

administer, or enforce the 2011 Wage 

Rule necessitated subsequent extensions 

of the effective date of that rule. See 76 

FR 82115 (Dec. 30, 2011) (extending the 

effective date to October 1, 2012); 77 FR 

60040 (Oct. 2, 2012) (extending the 

effective date to March 27, 2013); 78 FR 

19098 (Mar. 29, 2013) (extending the 

effective date to October 1, 2013). In 

light of the continued prohibitions on 

the expenditure of the Department’s 

appropriated funds to implement, 

administer, or enforce the 2011 Wage 

Rule, the Department proposed in the 

July 23, 2013 NPRM to delay 

indefinitely the effective date of the 

2011 Wage Rule until such time as the 

rule can be implemented. 

Additionally, the Department, 

together with DHS (the Departments),2

recently promulgated an interim final 

rule (IFR), 78 FR 24047, establishing a 

new wage methodology. This action was 

taken in direct response to Comite de 

Apoyo a los Trabajadores Agricolas 

(CATA) v. Solis,—F. Supp. 2d—, 2013 

WL 1163426 (E.D. Pa. Mar. 21, 2013), in 

which the district court vacated a 

provision of the H–2B 2008 rule, 20 CFR 

655.10(b)(2). That provision required 

that prevailing wages based on the 

Occupational Employment Statistics 

(OES) survey contain tiers that are 

commensurate with the skill required 

for the job; the Department accordingly 

divided the OES wage applicable to the 

occupation in question into four tiers of 

wages to correspond to skill levels. The 

court vacated 20 CFR 655.10(b)(2), 

which was the basis for the four-tiered 

wage, and remanded the matter to the 

Department, ordering the Department to 

come into compliance with the court’s 

order within 30 days. 

In response to CATA v. Solis, the 

Departments issued the IFR on April 24, 

2013. See 78 FR 24047. The 

Departments struck the phrase, ‘‘at the 

skill level,’’ from 20 CFR 655.10(b)(2), 

thus requiring prevailing wage 

determinations issued using the OES 

survey to be based on the mean wage for 

the occupation in the area of intended 

employment without tiers or skill levels. 

See id. at 24053. That revision became 

effective on April 24, 2013, the date of 

publication. The Departments requested 

comments on all aspects of the 

prevailing wage provisions of 20 CFR 

655.10(b), including, among other 

things, whether the OES mean is the 

appropriate basis for determining the 

prevailing wage; whether wages based 

on the Davis-Bacon Act (DBA), 40 

U.S.C. 276a et seq., 29 CFR part 1, or the 

McNamara-O’Hara Service Contract Act 

(SCA), 41 U.S.C. 351 et seq., should be 

used to determine the prevailing wage, 

and if so to what extent; and whether to 

permit the continued use of employersubmitted surveys and ways to 

strengthen their methodology, if 

permitted. The comment period closed 

on June 10, 2013, and the Departments 

are in the process of reviewing those 

comments and determining whether 

further revision to 20 CFR 655.10(b) is 

warranted in light of public comment. 

Because of the confluence of the 

recurrent Congressional prohibition 

against implementation of the 2011 

Wage Rule, which we anticipate will 

continue, and our current review and 

consideration of comments associated 

with the IFR, which revised the wage 

provision of the H–2B regulations that 

was also the subject of the 2011 Wage 

Rule, the Department proposed the 

indefinite delay of the effective date of 

the 2011 Wage Rule on July 23, 2013. 78 

FR 44054. We accepted comments from 

the public on the proposed indefinite 

delay through August 9, 2013. 

We received 36 comments on the 

proposed rule. We received three 

comments that support the delay of the 

effective date of the 2011 Wage Rule. 

Two commenters submitted joint 

comments on the IFR without 

addressing the proposed extension of 

the 2011 Wage Rule. The remaining 


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Federal Register / Vol. 78, No. 169 / Friday, August 30, 2013 / Rules and Regulations 53645 

commenters, many of whom submitted 

identical or nearly identical comments, 

summarily suggested that the 

Department reconsider or delay the 

implementation of the ‘‘new rule’’ or the 

‘‘new wage methodology.’’ We interpret 

these comments to refer to the 

Department’s IFR issued on April 24, 

2013. As noted above, the Departments 

are considering comments submitted in 

response to the IFR and will determine, 

in that separate rulemaking proceeding, 

whether further changes are necessary 

in light of those comments. However, 

comments on the IFR are beyond the 

scope of this rulemaking, which only 

addresses the effective date of the 2011 

Wage Rule. As a result, we have not 

considered comments about the IFR in 

this final rule. 

One commenter challenged generally 

the merits of the 2011 Wage Rule and 

the IFR. As noted above, the relative 

merits of the IFR were not raised in this 

proposed rule, which was limited to the 

proposed indefinite delay of the 

effective date of the 2011 Wage Rule. 

Comments about the IFR are therefore 

beyond the scope of this rulemaking, as 

are the relative merits of the 2011 Wage 

Rule. The same commenter also 

challenged our authority to issue rules 

for the H–2B program, asserting, in part, 

that the issuance of the proposed 

extension of the 2011 Wage Rule 

violates ‘‘the congressional defunding 

legislation,’’ which, in its view, requires 

the rescission of the 2011 Wage Rule 

and precludes its indefinite delay. This 

commenter also asserted that the APA 

does not allow an agency to place a 

regulation ‘‘on a shelf forever’’ and that 

the Department has acted improperly by 

determining that it intends to issue— 

without public comment—the 2011 

Wage Rule upon expiration of ‘‘the 

defunding legislation.’’ 

As explained in the proposed rule, we 

have complied with the restrictions 

imposed on our use of appropriated 

funds to implement, administer, or 

enforce the 2011 Wage Rule. Contrary to 

the commenter’s view, the 

appropriations legislation, by its terms, 

is only applicable for a specified period 

of time and does not supplant the 

substantive provisions of the 2011 Wage 

Rule. Moreover, the proposal to 

indefinitely delay the effective date of 

the rule is consistent with the 

conditions imposed by Congress. As 

noted in the proposed rule, we have 

promulgated a series of notices delaying 

the effective date of the 2011 Wage Rule. 

By doing so, we have clarified the status 

of the rule for the public, thereby 

eliminating any uncertainty or 

confusion as to its status. 

To the extent that the commenter is 

challenging our authority to issue any 

regulations in the H–2B program, we 

disagree for the reasons stated in the 

2011 Wage Rule (76 FR at 3452–3453) 

and the IFR (78 FR at 24049–24051). As 

to the commenter’s additional 

assertions, we have complied fully with 

the Administrative Procedure Act (APA) 

in proposing and adopting as a final rule 

the indefinite delay of the 2011 Wage 

rule. Our future actions likewise will be 

guided by the APA and other statutory 

requirements. The 2011 Wage Rule has 

already been the subject of extensive 

public comment to which we responded 

in detail in the preamble to the 2011 

Wage Rule. The commenter provides no 

authority, and we are aware of none, 

that would require us to reopen the rule 

for comment simply because the 

effective date of the rule has been 

changed. 

In sum, after considering all the 

comments, the Department has decided 

to indefinitely delay the 2011 Wage 

Rule for the reasons stated in the 

proposal. As noted in the proposed rule, 

if the 2011 Wage Rule were to become 

effective, it would supplant the 

revisions made to 20 CFR 655.10(b) in 

the IFR, which were necessary in light 

of the court’s order in CATA v. Solis. In 

that event, we would likely continue to 

be unable to implement the 2011 Wage 

Rule, based on the continuation of the 

Congressional prohibition on its 

implementation. However, if Congress 

lifts the prohibition against 

implementation of the 2011 Wage Rule, 

the Department would need time to 

assess the current regulatory framework, 

to consider any changed circumstances, 

novel concerns or new information 

received, and to minimize disruptions. 

This rule preserves our ability to do so. 

Until such time as Congress no longer 

prohibits the Department from 

implementing the 2011 Wage Rule, the 

effective date of the 2011 Wage Rule is 

delayed indefinitely. If Congress no 

longer prohibits implementation of the 

2011 Wage Rule, the Department will 

publish a document in the Federal 

Register within 45 days of that event 

apprising the public of the status of 20 

CFR 655.10 and the effective date of the 

2011 Wage Rule. This rule does not 

affect the Interim Final Rule, 78 FR 

24047, published on April 24, 2013, 

establishing the current prevailing wage 

methodology for the H–2B program; that 

rule remains in effect. 

Signed: at Washington, DC this 26th of 

August, 2013. 

Eric Seleznow, 

Acting Assistant Secretary for Employment 

and Training. 

[FR Doc. 2013–21132 Filed 8–29–13; 8:45 am] 

BILLING CODE 4510–FP–P 

DEPARTMENT OF LABOR 

Office of Workers’ Compensation 

Programs 

20 CFR Parts 718 and 725 

RIN 1240–AA07 

Black Lung Benefits Act: Standards for 

Chest Radiographs 

AGENCY: Office of Workers’ 

Compensation Programs, Labor. 

ACTION: Direct final rule; withdrawal. 

SUMMARY: The Office of Workers’ 

Compensation Programs (OWCP) 

published a direct final rule in the 

Federal Register on June 13, 2013, 

updating existing film-radiograph 

standards and providing parallel 

standards for submission of digital 

radiographs in connection with claims 

filed under the Black Lung Benefits Act. 

The comment period closed on August 

12, 2013. OWCP is withdrawing the 

direct final rule because the agency 

received significant adverse comment. 

DATES: Effective August 30, 2013, the 

direct final rule published on June 13, 

2013, (78 FR 35549) is withdrawn. 

FOR FURTHER INFORMATION CONTACT: 

Steven Breeskin, Director, Division of 

Coal Mine Workers’ Compensation, 

Office of Workers’ Compensation 

Programs, U.S. Department of Labor, 

200 Constitution Avenue NW., Suite N– 

3464, Washington, DC 20210. 

Telephone: (202) 693–0824 (this is not 

a toll-free number). TTY/TDD callers 

may dial toll-free 1–800–877–8339 for 

further information. 

SUPPLEMENTARY INFORMATION: On June 

13, 2013, OWCP published the direct 

final rule, Black Lung Benefits Act: 

Standards for Chest Radiographs (78 FR 

35549), to update existing filmradiograph standards and provide 

parallel standards for digital 

radiographs submitted in Black Lung 

Benefits Act claims. OWCP stated that 

the rule would go into effect unless the 

agency received significant adverse 

comment; in that event, OWCP stated 

that it would withdraw the direct final 

rule and proceed on the companion 

proposed rule also published in the 

Federal Register on June 13, 2013 (78 

FR 35575). Because OWCP has received 


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