Federal Register / Vol. 76, No. 229 / Tuesday, November 29, 2011 / Rules and Regulations 73509 

1CATA v. Solis, Dkt. No. 119, 2011 WL 2414555 

(E.D. Pa. June 16, 2011). 

2See 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, 

Continued 

enforce, prior to January 1, 2012 the 

[Wage Rule].’’ Public Law 112–55, Div. 

B, Title V, § 546 (Nov. 18, 2011). 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 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). Allowing the Wage 

Rule to go into effect as planned on 

November 30, 2011, would therefore 

render the Department unable to issue 

prevailing wage determinations under 

the 2008 H–2B Rule, because it would 

no longer exist. 

Although 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, the 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 its Conference Report that 

‘‘[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). Because of the 

imminent threat that the Department 

will be unable to issue prevailing wage 

determinations for work to be performed 

before January 1, 2012, the Department 

considers this situation an emergency 

warranting the publication of a final 

rule under the good cause exception of 

the Administrative Procedure Act. See 5 

U.S.C. 553(b)(B) and 553(d)(3). 

Accordingly, we must further delay the 

effective date of the Wage Rule to 

January 1, 2012. 

Based on Congressional intent and to 

avoid an operational hiatus during the 

month of December 2011, the 

Department finds good cause to adopt 

this rule, effective immediately, and 

without prior notice and comment. See 

5 U.S.C. 553(b)(B) and 553(d)(3). We 

believe that immediate action must be 

taken so that the employment of H–2B 

workers will not adversely affect U.S. 

workers similarly employed, and that 

employers are able to obtain a 

temporary non-agricultural workforce 

where there are no U.S. workers 

available for the job. The Department is 

simply effectuating the intent of 

Congress that the H–2B 2008 Rule 

should continue to govern prevailing 

wage determinations for employment 

before January 1, 2012. As such, a delay 

in promulgation of this rule past the 

date of publication would be 

impracticable and unnecessary and 

disrupt the program to the detriment of 

the public interest. 

Signed at Washington, DC, November 23, 

2011. 

Jane Oates, 

Assistant Secretary for Employment and 

Training. 

[FR Doc. 2011–30781 Filed 11–25–11; 11:15 am] 

BILLING CODE 4510–FP–P 

DEPARTMENT OF LABOR 

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 

Determinations 

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. 

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–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. 

Both the Wage Rule and the Effective 

Date Rule were challenged in two 

separate lawsuits 2 seeking to bar their 


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73510 Federal Register / Vol. 76, No. 229 / Tuesday, November 29, 2011 / Rules and Regulations 

Civil Docket No. 11–445 (ND FL, Pensacola 

Division). 

3On 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. 

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. 

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] 

BILLING CODE 4510–FP–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 117 

[Docket No. USCG–2011–1034] 

Drawbridge Operation Regulations; 

Saugus River, Lynn and Revere, MA 

AGENCY: Coast Guard, DHS. 

ACTION: Notice of temporary deviation 

from regulations. 

SUMMARY: The Commander, First Coast 

Guard District, has issued a temporary 

deviation from the regulation governing 

the operation of the General Edwards 

Bridge at mile 1.7, across the Saugus 

River between Lynn and Revere, 

Massachusetts. The deviation is 

necessary to facilitate scheduled bridge 

rehabilitation. This deviation allows the 

bridge to open upon a 48 hour advance 

notice during the rehabilitation period. 

DATES: This deviation is effective from 

November 21, 2011 through April 24, 

2012. 

ADDRESSES: Documents mentioned in 

this preamble as being available in the 

docket are part of docket USCG–2011– 

1034 and are available online at 

http://www.regulations.gov, inserting 

USCG–2011–1034 in the ‘‘Keyword’’ 

and then clicking ‘‘Search’’. They are 

also available for inspection or copying 

at the Docket Management Facility (M– 

30), U.S. Department of Transportation, 

West Building Ground Floor, Room 

W12–140, 1200 New Jersey Avenue SE., 

Washington, DC, 20590, between 9 a.m. 

and 5 p.m., Monday through Friday, 

except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this rule, call or 

email Mr. John W. McDonald, Project 

Officer, First Coast Guard District, 

john.w.mcdonald@uscg.mil, or 

telephone (617) 223–8364. If you have 

questions on viewing the docket, call 

Renee V. Wright, Program Manager, 

Docket Operations, telephone (202) 

366–9826. 

SUPPLEMENTARY INFORMATION: 


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