[Federal Register Volume 76, Number 72 (Thursday, April 14, 2011)]
[Notices]
[Pages 21036-21040]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-8968]


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DEPARTMENT OF LABOR

Employment and Training Administration


Application of the Prevailing Wage Methodology in the H-2B 
Program

AGENCY: Employment and Training Administration, Department of Labor.

ACTION: Notice.

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SUMMARY: On January 19, 2011, the Department of Labor (Department) 
published a final rule, Wage Methodology for the Temporary Non-
agricultural Employment H-2B Program (Wage Final Rule),\1\ promulgating 
a new prevailing wage methodology, as proposed in the Department's 
October 5, 2010 Notice of Proposed Rulemaking (NPRM). The prevailing 
wage methodology set forth in the Wage Final Rule applies to wages paid 
for work performed on or after January 1, 2012. Employers whose work 
commences in 2011 and continues into 2012 will have to pay a prevailing 
wage determined under the new prevailing wage methodology for the work 
performed in 2012. In order to ensure that employers accurately attest 
to their need to pay a different wage when the Wage Final Rule is 
effective, the Department has amended the ETA Form 9142, Application 
for Temporary Employment Certification, Appendix B.1, to reflect the 
employer's obligation to pay at least the highest of the most recent 
prevailing wage that the Department issues to the employer and is in 
effect at the time the work is performed.
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    \1\ Wage Methodology for the Temporary Non-agricultural 
Employment H-2B Program, 76 FR 3452, Jan. 19, 2011.

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DATES: This Notice is effective on April 14, 2011.

FOR FURTHER INFORMATION CONTACT: William L. Carlson, PhD, 
Administrator, Office of Foreign Labor Certification, 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 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

    On August 30, 2010, the U.S. District Court in the Eastern District 
of Pennsylvania in Comite[acute] de Apoyo a los Trabajadores Agricolas 
(CATA) v. Solis, Civil No. 2:09-cv-240-LP, 2010 WL 3431761 (E.D. Pa. 
Aug. 30, 2010), 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.'' \2\ The Court ruled 
that the Department had violated the Administrative Procedure Act when 
it did not adequately explain its reasoning for using skill levels as 
part of the H-2B prevailing wage determinations, and when it failed to 
consider comments relating to the choice of appropriate data sets in 
deciding to rely on data from the Bureau of Labor Statistics' 
Occupational Employment Survey (OES) rather than wage rates established 
by the Davis-Bacon Act (DBA) and McNamara O'Hara Service Contract Act 
(SCA) in setting the prevailing wage rates.
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    \2\ The Court later extended the deadline for the publication of 
the Wage Methodology for the Temporary Non-agricultural Employment 
H-2B Program Final Rule until January 18, 2011. CATA v. Solis, Civil 
No. 2:09-cv-240-LP, 2010 WL 3431761, Oct. 27, 2010.
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    In order to comply with the Court-mandated deadline, on October 5, 
2010, the Department issued an NPRM, Wage Methodology for the Temporary 
Non-agricultural Employment H-2B Program, 75 FR 61578, Oct. 5, 2010. 
The NPRM proposed to revise the methodology by which prevailing wages 
are determined in the H-2B program. The Department issued a Final Rule 
on January 19, 2011. In the Wage Final Rule, the Department 
acknowledged that employers already may have made contractual 
arrangements based on the wage methodology in place before the issuance 
of the Wage Final Rule and, in order to provide employers with 
sufficient planning time and to minimize disruption, the Department 
delayed implementation ``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 3452, 3462, Jan. 19, 2011.
    The Department will require all employers who apply for an H-2B 
labor certification (or on whose behalf an H-2B labor certification is 
filed) after the effective date of this Notice to agree, as a condition 
of receiving the H-2B labor certification, to pay the prevailing wage 
rate in effect for the period of work encompassed by their application. 
Since the wages resulting from the Wage Final Rule's methodology will 
be different from the wages under the current methodology, this may 
result in two wage rates being applicable to a single application. 
Because many employers will apply for H-2B workers for periods of up to 
10 months, applications covering work to be performed both before and 
after January 1, 2012, could now begin to be filed.
    Therefore, to ensure that an employer agrees to pay the prevailing 
wage rate in effect for the period of work encompassed by their 
application, the Department has received approval of a revised Appendix 
B.1 (Office of Management and Budget Control Number 1205-0466) of the 
Application for Temporary Employment Certification, which the employer 
must sign and submit with its filed Application signifying its 
agreement to the condition above. The revised form follows this Notice. 
As of the effective date of this Notice, the Department will require 
this amended Appendix B.1 to be submitted with an Application for 
Temporary Employment Certification in order to ensure the employer 
attests to these wage obligations. Where the employer fails to submit 
the signed correct Appendix B.1 and/or where necessary, the National 
Processing Center will send the employer a Request for Information 
requesting the submission of the revised Appendix.
    Persons are not required to respond to this collection of 
information unless it displays a currently valid OMB control number. 
Respondent's reply to these reporting requirements is mandatory to 
obtain the benefits of temporary employment certification (Immigration 
and Nationality Act, Section 101(a)(15)(H)(ii)). Public reporting 
burden for this collection of information is estimated to average 2 
hours 10 minutes per response for H-2A and 2 hours 45 minutes for H-2B, 
including the time for reviewing instructions, searching existing data 
sources, gathering and maintaining the data needed, and completing and 
reviewing the collection of information. Send comments regarding this 
burden estimate to the Office of Foreign Labor Certification, U.S. 
Department of Labor,

[[Page 21037]]

Room C4312, 200 Constitution Avenue, NW., Washington, DC 20210. Do NOT 
send the completed application to this address. All of the forms that 
comprise this collection of information can be found at http://www.foreignlaborcert.doleta.gov/form.cfm.

    Signed in Washington, DC, this 8th day of April 2010.
Jane Oates,
Assistant Secretary, Employment and Training Administration.
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[FR Doc. 2011-8968 Filed 4-13-11; 8:45 am]
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