73508 Federal Register / Vol. 76, No. 229 / Tuesday, November 29, 2011 / Rules and Regulations 

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., 

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 motion before 

the U.S. District Court in the Northern District of 

Florida remains pending. 

List of Subjects in 17 CFR Part 232 

Incorporation by reference, Reporting 

and recordkeeping requirements, 

Securities. 

Text of the Amendment 

In accordance with the foregoing, 

Title 17, Chapter II of the Code of 

Federal Regulations is amended as 

follows: 

PART 232—REGULATION S–T— 

GENERAL RULES AND REGULATIONS 

FOR ELECTRONIC FILINGS 

■ 1. The authority citation for Part 232 

continues to read in part as follows: 

Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 

77s(a), 77z–3, 77sss(a), 78c(b), 78l, 78m, 78n, 

78o(d), 78w(a), 78ll, 80a–6(c), 80a–8, 80a–29, 

80a–30, 80a–37, and 7201 et seq.; and 18 

U.S.C. 1350. 

* * * * * 

■ 2. Section 232.301 is revised to read 

as follows: 

§ 232.301 EDGAR Filer Manual. 

Filers must prepare electronic filings 

in the manner prescribed by the EDGAR 

Filer Manual, promulgated by the 

Commission, which sets out the 

technical formatting requirements for 

electronic submissions. The 

requirements for becoming an EDGAR 

Filer and updating company data are set 

forth in the updated EDGAR Filer 

Manual, Volume I: ‘‘General 

Information,’’ Version 11 (November 

2011). The requirements for filing on 

EDGAR are set forth in the updated 

EDGAR Filer Manual, Volume II: 

‘‘EDGAR Filing,’’ Version 18 (November 

2011). Additional provisions applicable 

to Form N–SAR filers are set forth in the 

EDGAR Filer Manual, Volume III: ‘‘N– 

SAR Supplement,’’ Version 2 (August 

2011). All of these provisions have been 

incorporated by reference into the Code 

of Federal Regulations, which action 

was approved by the Director of the 

Federal Register in accordance with 5 

U.S.C. 552(a) and 1 CFR Part 51. You 

must comply with these requirements in 

order for documents to be timely 

received and accepted. You can obtain 

paper copies of the EDGAR Filer 

Manual from the following address: 

Public Reference Room, U.S. Securities 

and Exchange Commission, 100 F Street 

NE., Room 1543, Washington, DC 

20549, on official business days 

between the hours of 10 a.m. and 3 p.m. 

Electronic copies are available on the 

Commission’s Web site. The address for 

the Filer Manual is http://www.sec.gov/ 

info/edgar.shtml. You can also inspect 

the document at the National Archives 

and Records Administration (NARA). 

For information on the availability of 

this material at NARA, call (202) 741– 

6030, or go to: http://www.archives.gov/ 

federal_register/code_of_federal_

regulations/ibr_locations.html. 

Dated: November 22, 2011. 

By the Commission. 

Elizabeth M. Murphy, 

Secretary. 

[FR Doc. 2011–30591 Filed 11–28–11; 8:45 am] 

BILLING CODE 8011–01–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, Department of Labor. 

ACTION: Final rule; delay of effective 

date. 

SUMMARY: The Department of Labor 

(Department) is delaying the effective 

date of the Wage Methodology for the 

Temporary Non-agricultural 

Employment H–2B Program; Final Rule, 

76 FR 3452, Jan. 19, 2011, (the Wage 

Rule) to January 1, 2012 in response to 

recently enacted legislation that 

prohibits any funds from being used to 

implement administer, or enforce the 

Wage Rule before January 1, 2012. The 

Wage Rule revised the methodology by 

which we 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 to 

employ a nonimmigrant worker in H–2B 

status. 

DATES: The effective date of the rule 

amending 20 CFR part 655, published at 

76 FR 45667, August 1, 2011, as further 

amended at 76 FR 59896, September 28, 

2011, is delayed until January 1, 2012. 

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 (Department) 

published the Wage Methodology for 

the Temporary Non-agricultural 

Employment H–2B Program; Final Rule 

(the Wage Rule) on January 19, 2011, 76 

FR 3452. The Wage Rule revised the 

methodology by which we 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 to employ a nonimmigrant 

worker in H–2B status. The Department 

originally set the effective date of the 

Wage Rule for January 1, 2012. 

However, 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, 

June 28, 2011. After a period of public 

comment, we published a Final Rule on 

August 1, 2011, which set the new 

effective date for the Wage Rule of 

September 30, 2011 (the Effective Date 

Rule). 

Both the Wage Rule and the Effective 

Date Rule recently were challenged in 

two separate lawsuits 2 seeking to bar 

their implementation. In consideration 

of the two pending challenges to the 

Wage Rule and its new effective date, 

and the possibility that the litigation 

will be transferred to another court,3 the 

Department issued a final rule, 76 FR 

59896, September 28, 2011, postponing 

the effective date of the Wage Rule from 

September 30, 2011, until November 30, 

2011, in accordance with the 

Administrative Procedure Act, 5 U.S.C. 

705. 

On November 18, 2011, President 

Obama signed into law the Consolidated 

and Further Continuing Appropriations 

Act, 2012, which provides 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 


pmangrum on DSK3VPTVN1PROD with RULES
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 


pmangrum on DSK3VPTVN1PROD with RULES