Federal Register / Vol. 79, No. 242 / Wednesday, December 17, 2014 / Notices 75179 

collection request to the Office of 

Management and Budget (OMB) for 

review and approval in accordance with 

the Paperwork Reduction Act of 1995. 

The proposed information collection is 

published to obtain comments from the 

public and affected agencies. 

DATES: Comments are encouraged and 

will be accepted for 60 days until 

February 17, 2015. 

FOR FURTHER INFORMATION CONTACT: If 

you have additional comments 

especially on the estimated public 

burden or associated response time, 

suggestions, or need a copy of the 

proposed information collection 

instrument with instructions or 

additional information, please contact 

Natisha Taylor, Firearms Industry 

Programs Branch, 99 New York Avenue 

NE., Washington, DC 20226 or email at 

fipb-informationcollection@atf.gov . 

SUPPLEMENTARY INFORMATION: Written 

comments and suggestions from the 

public and affected agencies concerning 

the proposed collection of information 

are encouraged. Your comments should 

address one or more of the following 

four points: 

• Evaluate whether the proposed 

collection of information is necessary 

for the proper performance of the 

functions of the agency, including 

whether the information will have 

practical utility; 

• Evaluate the accuracy of the 

agency’s estimate of the burden of the 

proposed collection of information, 

including the validity of the 

methodology and assumptions used; 

• Evaluate whether and if so how the 

quality, utility, and clarity of the 

information to be collected can be 

enhanced; and 

• Minimize the burden of the 

collection of information on those who 

are to respond, including through the 

use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology, 

e.g., permitting electronic submission of 

responses. 

Overview of This Information 

Collection 1140–0046 

1. Type of Information Collection: 

Extension without change of a currently 

approved collection. 

2. The Title of the Form/Collection: 

Certification on Agency Letterhead 

Authorizing Purchase of Firearm for 

Official Duties of Law Enforcement 

Officer. 

3. The agency form number, if any, 

and the applicable component of the 

Department sponsoring the collection: 

Form number: None. 

Component: Bureau of Alcohol, 

Tobacco, Firearms and Explosives, U.S. 

Department of Justice. 

4. Affected public who will be asked 

or required to respond, as well as a brief 

abstract: 

Primary: State, Local, or Tribal 

Government. 

Other: None. 

Abstract: The letter is used by a law 

enforcement officer to purchase 

handguns to be used in his/her official 

duties from a licensed firearm dealer 

anywhere in the country. The letter 

shall state that the officer will use the 

firearm in official duties and that a 

records check reveals that the 

purchasing officer has no convictions 

for misdemeanor crimes of domestic 

violence. 

5. An estimate of the total number of 

respondents and the amount of time 

estimated for an average respondent to 

respond: An estimated 50,000 

respondents will take 8 minutes to 

complete and file the letter. 

6. An estimate of the total public 

burden (in hours) associated with the 

collection: The estimated annual public 

burden associated with this collection is 

6,667 hours. 

If additional information is required 

contact: Jerri Murray, Department 

Clearance Officer, United States 

Department of Justice, Justice 

Management Division, Policy and 

Planning Staff, Two Constitution 

Square, 145 N Street NE., Room 3E– 

405B, Washington, DC 20530. 

Dated: December 11, 2014. 

Jerri Murray, 

Department Clearance Officer for PRA, U.S. 

Department of Justice. 

[FR Doc. 2014–29454 Filed 12–16–14; 8:45 am] 

BILLING CODE 4410–FY–P 

DEPARTMENT OF LABOR 

Office of the Secretary of Labor 

Intent To Issue Declaratory Order 

AGENCY: Office of the Secretary of Labor, 

Department of Labor. 

ACTION: Notice of intent to issue 

declaratory order; request for comment. 

SUMMARY: The Secretary of Labor 

(Secretary) is considering issuing on his 

own motion a declaratory order 

confirming that he has exclusive 

authority to make legal and policy 

determinations based on his statutory 

and regulatory authority to administer 

and enforce the H–2B temporary labor 

certification program. Such a 

declaratory order would remove 

uncertainty about that authority created 

by a decision of the Board of Alien 

Labor Certification Appeals in Island 

Holdings LLC, 2013–PWD–00002 

(BALCA Dec. 3, 2013) (en banc). The 

Secretary issues this Notice pursuant to 

the authority granted in the 

Administrative Procedure Act (APA), 5 

U.S.C. 554(e), to issue declaratory orders 

‘‘to terminate a controversy or remove 

uncertainty.’’ The Secretary will accept 

comments from the public on this 

Notice for 30 days, and may issue a 

declaratory order after consideration of 

all comments received in that 

timeframe. 

DATES: This Notice is effective 

December 17, 2014. Interested persons 

are invited to submit written comments 

on this Declaratory Order on or before 

January 16, 2015. 

ADDRESSES: You may submit comments, 

identified by docket number ETA– 

2014–0003, by any one of the following 

methods: 

• Federal e-Rulemaking Portal 

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 Adele Gagliardi, 

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. Comments received by 

means other than those listed above or 

received after the comment period has 

closed will not be reviewed. The 

Departments 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 

Departments caution commenters not to 

include personal information such as 

Social Security Numbers, personal 

addresses, telephone numbers, and 

email addresses in their comments as 

such 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 email address unless 

the commenter chooses to include that 

information as part of his or her 

comment. 

mstockstill on DSK4VPTVN1PROD with NOTICES

75180 Federal Register / Vol. 79, No. 242 / Wednesday, December 17, 2014 / Notices 

1The Departments issued the 2013 IFR jointly to 

dispel questions that arose contemporaneously with 

its promulgation regarding the respective roles of 

the two agencies and the validity of DOL’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) (concluding that 

plaintiffs are likely to prevail on their allegation 

that the Department of Labor lacks independent 

rulemaking authority under the INA to issue 

legislative regulations implementing its role in the 

H–2B program). However, the Eleventh Circuit in 

Bayou only reviewed the district court’s entry of a 

preliminary injunction against implementation of 

DOL’s H–2B rule issued before the joint IFR. 

Therefore, the Bayou decision only addressed the 

plaintiffs’ likelihood of success on the merits, and 

was not a final judgment on the plaintiffs’ claim 

that DOL is without authority to promulgate 

legislative rules in the H–2B program before the 

issuance of the joint IFR. The latter issue is 

currently before the district court awaiting decision 

on pending motions for summary judgment. As 

noted above and in sharp contrast to the Bayou 

case, in an APA challenge to the 2011 Wage Rule, 

which also tested DOL’s authority to issue 

legislative rules in the H–2B program, the U.S. 

Court of Appeals for the Third Circuit held recently 

that ‘‘DOL has authority to promulgate rules 

concerning the temporary labor certification process 

in the context of the H–2B program, and that the 

2011 Wage Rule was validly promulgated pursuant 

to that authority.’’ La. Forestry Ass’n v. Perez, 745 

F.3d 653, 669 (3d Cir. Feb. 5, 2014); see also G.H. 

Daniels & Assocs., Inc. v. Solis, 2013 WL 5216453, 

*4–5 (D. Colo. Sept. 17, 2013) (DOL has authority 

to issue H–2B legislative rules), appeal pending, 

No. 13–1479 (10th Cir.). 

2The CATA II order was the culmination of a 

years-long period of DOL rulemaking, challenges to 

that rulemaking, and Congressional riders that 

prevented the implementation of the agency’s rules. 

In the preceding CATA I decision, Civ. No. 2:09– 

cv–240–LP, 2010 WL 3431761 (E.D. Pa. 2010), the 

district court concluded that the four-tiered skill 

levels in the 2008 prevailing wage rule were 

implemented without following the Administrative 

Procedure Act’s notice-and-comment requirements. 

However, rather than vacate that methodology, the 

CATA I court left it in place and ordered DOL to 

issue a replacement rule that complied with the 

APA within 120 days. CATA I, slip op. at 27. DOL 

complied with the CATA I order by revising the H– 

2B wage regulation through notice and comment 

procedures (76 FR 3452, Jan. 19, 2011), but 

Congress, through appropriations riders, blocked its 

implementation. For a complete history of events 

leading up to the CATA II order and the IFR, see 

‘‘Notification of Status of the 2011 H–2B Wage 

Rule,’’ 79 FR 14450 (March 14, 2014). 

3As discussed further below in Sec. III, supra, the 

CATA orders anticipated that once DOL issued a 

valid regulatory method for determining the 

prevailing wage, the agency would also issue 

supplemental prevailing wage determinations to 

employers with current labor certifications to 

Postal delivery in Washington, DC, 

may be delayed due to security 

concerns. Therefore, the Departments 

encourage 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 to the Federal 

eRulemaking portal at http://

www.regulations.gov. The Departments 

will also make all the comments either 

Department 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, DOL will provide you 

with appropriate aids such as readers or 

print magnifiers. DOL will make copies 

of the rule available, upon request, in 

large print and as an electronic file on 

computer disk. DOL will consider 

providing the interim final 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 ETA 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: For 

further information, contact William W. 

Thompson, Acting 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 1–800–877–8339. 

SUPPLEMENTARY INFORMATION: 

I. Statutory and Regulatory Background 

The Immigration and Nationality Act 

(INA) establishes the H–2B visa 

classification for a non-agricultural 

temporary worker ‘‘having a residence 

in a foreign country which he has no 

intention of abandoning who is coming 

temporarily to the United States to 

perform . . . temporary [nonagricultural] service or labor if 

unemployed persons capable of 

performing such service or labor cannot 

be found in this country[.]’’ 8 U.S.C. 

1101(a)(15)(H)(ii)(b). The INA further 

requires an importing employer (H–2B 

employer) to petition the Department of 

Homeland Security (DHS) for 

classification of the prospective 

temporary worker as an H–2B 

nonimmigrant, and the petition must be 

made and approved before the 

beneficiary (H–2B worker) can be 

considered eligible for an H–2B visa or 

H–2B status. 8 U.S.C. 1184(c)(1). In 

adjudicating an H–2B petition, the INA 

requires DHS to consult with 

‘‘appropriate agencies of the 

Government[.]’’ Id. 

DHS has determined that in order to 

administer the INA’s H–2B visa program 

it must consult with the Department of 

Labor (DOL) to determine whether U.S. 

workers capable of performing the 

temporary services or labor are available 

and that the foreign worker’s 

employment will not adversely affect 

the wages or working conditions of 

similarly employed U.S. workers. 8 CFR 

214.2(h)(6)(iii)(A). DHS’s regulation 

requires employers to obtain 

certification from DOL that these 

conditions are met prior to submitting a 

petition to DHS. Id. DHS requires DOL 

to ‘‘separately establish for the 

temporary labor program under his or 

her jurisdiction, by regulation at 20 CFR 

655, procedures for administering that 

temporary labor program under his or 

her jurisdiction, and shall determine the 

prevailing wage applicable to an 

application for temporary labor 

certification.’’ 8 CFR 214.2(h)(6)(iii)(D). 

DOL has rulemaking authority to carry 

out DHS’s charge to establish rules 

governing the temporary labor 

certification process. Louisiana Forestry 

Ass’n v. Secretary, U.S. Department of 

Labor, 745 F.3d 653, 669, 672–675 (3rd 

Cir. 2014). DOL’s H–2B regulations 

require a determination whether a 

qualified U.S. worker is available to fill 

the petitioning H–2B employer’s job 

opportunity and whether a foreign 

worker’s employment in the job 

opportunity will adversely affect the 

wages or working conditions of 

similarly employed U.S. workers. See 20 

CFR part 655, subpart A. As part of 

DOL’s labor certification process, DOL 

sets the wage that employers must offer 

and pay foreign workers entering the 

country on an H–2B visa. See 20 CFR 

655.10. 

On April 24, 2013, DHS and DOL (the 

Departments) issued an interim final 

rule (IFR) that revised DOL’s method of 

determining the prevailing wage in the 

H–2B program.1 Wage Methodology for 

the Temporary Non-Agricultural 

Employment H–2B Program, Part 2, 78 

FR 24,047 (Apr. 24, 2013). The IFR was 

a direct response to a court order 

vacating a portion of the DOL’s 

prevailing wage methodology and 

requiring the agency to come into 

compliance within 30 days. Comite de 

Apoyo a los Trabajadores Agricolas 

(CATA) v. Solis, 933 F. Supp. 2d 700 

(E.D. Pa. 2013) (CATA II). The CATA II 

Court found that the 2008 regulation 

then being implemented to set the H–2B 

prevailing wage, which required the 

issuance of prevailing wages based on 

four artificial skill levels that were 

wholly irrelevant to unskilled H–2B 

work, violated the INA by allowing 

employers to pay substandard wages 

that harm the domestic labor 

market.2 CATA II, 933 F. Supp. 2d at 

713.3 As a result, the IFR set a new, 

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Federal Register / Vol. 79, No. 242 / Wednesday, December 17, 2014 / Notices 75181 

correct the unlawful wage issued with those extant 

certifications. 

legally valid prevailing wage standard to 

allow for an immediate adjustment of 

the wage rates for workers currently 

employed under the vacated 2008 wage 

rule. 78 FR at 24,056. In order to comply 

with the CATA II order, the preamble to 

the IFR notified the regulated 

community that the new prevailing 

wage rate under the IFR would apply to 

all employers currently employing H– 

2B workers in the U.S. upon individual 

notification to the employer of a new 

prevailing wage determination. Id. at 

24,055. 

To implement the IFR, on April 25, 

2013, DOL issued an ‘‘FAQ’’ on its Web 

site informing the public that 

‘‘[e]mployers who have H–2B workers 

performing work that is based on the 

[vacated 2008 regulation] on or after 

April 24, 2013, will receive a new 

prevailing wage determination in 

accordance with the Wage Methodology 

IFR.’’ Employment and Training 

Administration, Frequently Asked 

Questions, Interim Final Rule, Wage 

Methodology for the Temporary NonAgricultural Employment H–2B 

Program, Part 2, at 1 (Apr. 25, 2013). 

DOL also advised the public, consistent 

with the statement in the preamble to 

the IFR, that ‘‘employers are required to 

offer and pay [the new IFR] wage for any 

work performed on or after the date the 

employer receives the supplemental 

determination.’’ Id. In addition, DOL 

indicated that employers were 

permitted under the regulation to file an 

appeal of any supplemental prevailing 

wage determination, but not based on a 

challenge to the occupational 

classification, because employers 

should have already raised that issue 

when they received their original 

prevailing wage determinations. Id. at 2. 

Immediately following the publication 

of the IFR, DOL issued supplemental 

prevailing wage determinations to all 

H–2B employers subject to the IFR, 

including employers currently 

employing H–2B workers under the 

vacated 2008 wage regime. In each 

supplemental prevailing wage 

determination, DOL informed the 

employer of its ability to seek a 

redetermination of the supplemental 

prevailing wage determination, 

pursuant to 20 CFR 655.10(g). On 

August 12, 2013, DOL completed the 

processing of new and supplemental 

prevailing wage determinations for all 

cases falling within the scope of the IFR. 

II. The Island Holdings Challenge 

Island Holdings, LLC, filed 

applications for labor certification with 

DOL in early 2013 for multiple H–2B 

nonimmigrant workers with proposed 

dates of employment into November 

2013. When filing its applications for 

H–2B certification, Island Holdings 

agreed to pay the wage rate that equals 

or exceeds the highest of the most recent 

prevailing wage rate that is or will be 

issued by DOL for the time period the 

H 2B workers perform work in the 

United States. See ETA Form 9142— 

Appendix B.1. Before the publication of 

the IFR, DOL certified three Island 

Holdings’ applications with prevailing 

wages based on the 2008 wage 

methodology, and these prevailing 

wages were valid generally through the 

end of 2013. Shortly after DOL 

published the IFR, the agency issued to 

Island Holdings three supplemental 

prevailing wage determinations 

(SPWDs) informing the company that it 

was required to pay new prevailing 

wage rates, as applicable under the IFR. 

On May 23, 2013, Island Holdings 

filed an administrative appeal of DOL’s 

supplemental prevailing wage 

determinations with the Board of Alien 

Labor Certification Appeals (BALCA), a 

group of Administrative Law Judges 

(ALJs) empowered to hear and decide 

appeals involving alien labor 

certification. 20 CFR 655.11(e); 

655.33(e). The BALCA remanded the 

matter back to DOL to address Island 

Holdings’ request for a redetermination 

under 20 CFR 655.10(g). Island Holdings 

subsequently sought a redetermination 

of DOL’s supplemental prevailing wage 

determinations, but DOL determined 

that the agency’s initial wage 

adjustments under the IFR were correct. 

Consistent with its statement in the IFR, 

DOL informed Island Holdings that the 

CATA II Court’s vacatur order required 

the agency to replace the vacated 2008 

prevailing wage rates with the valid 

prevailing wage rates under the IFR. 

DOL also informed Island Holdings that 

by signing ETA Form 9142, Appendix 

B.1, the company agreed, as a condition 

for importing foreign workers, that it 

would pay the prevailing wage rate in 

effect at the time the company 

employed H–2B workers in the United 

States. Because the 2008 wage rates had 

been vacated and were no longer in 

effect, DOL informed Island Holdings 

that the new IFR wage rates controlled. 

Island Holdings again sought an 

administrative appeal of DOL’s 

supplemental prevailing wage 

determinations under the IFR, which 

the BALCA docketed for en banc 

review. On December 3, 2013, the 

BALCA purportedly vacated DOL’s 

supplemental prevailing wage 

determinations under the IFR. See 

Island Holdings LLC, 2013–PWD–00002 

(BALCA Dec. 3, 2013) (en banc). 

Contrary to the Secretary of Labor’s 

interpretation of the IFR stated in the 

preamble, the BALCA determined that 

DOL lacks the authority to issue 

supplemental prevailing wage 

determinations in cases where DOL has 

already approved labor certification 

applications based on the vacated 2008 

prevailing wage rule. The BALCA 

rejected DOL’s position, as stated in the 

preamble to the IFR, that the CATA II 

Court’s vacatur order requires DOL to 

issue supplemental prevailing wage 

determinations to replace the vacated 

2008 prevailing wage rates for all work 

performed by H–2B nonimmigrant 

workers after the issuance of the IFR. In 

addition, the BALCA determined that 

DOL lacks authority to require 

employers to pay the highest of the most 

recent prevailing wage that is or will be 

issued by DOL to the employer for the 

time period H–2B workers perform labor 

or services in the United States, despite 

the employer’s signed agreement on 

ETA Form 9142, Appendix B.1, to pay 

the adjusted prevailing wage rate. 

On December 11, 2013, CATA filed a 

civil action challenging the BALCA’s 

Island Holdings decision as arbitrary, 

capricious, and in excess of law under 

the Administrative Procedure Act. 

CATA v. Perez,—FRD.—,2014 WL 

3629528 (E.D. Pa. 2014) (CATA III). On 

January 10, 2014, CATA moved for 

summary judgment, seeking an order 

vacating the BALCA’s decision. CATA 

argued that the BALCA, as subordinate 

Administrative Law Judges, lacks the 

authority to overrule the Secretary of 

Labor on issues of law and policy. Even 

if the BALCA had such authority, CATA 

contended that the BALCA’s decision is 

an unreasonable and substantive 

alteration of the agency’s legislative rule 

under the IFR, which violates the 

requirements of notice and comment 

rulemaking. In its pleadings, the 

Department of Labor agreed that Island 

Holdings does not represent the legal or 

policy decision of the Secretary of Labor 

as reflected in the IFR. The Department 

stated that the ‘‘BALCA’s Island 

Holdings decision represents a 

resolution of that individual case which 

is not subject to further administrative 

review . . ., but the BALCA’s decision 

does not represent the legal position of 

the Secretary of Labor.’’ On December 

20, 2013, while the CATA III case was 

pending, DOL stayed further action on 

all pending supplemental prevailing 

wage determinations (approximately 

1050 SPWDs), and has not yet taken any 

further action on them. 

On July 23, 2014, the district court 

dismissed CATA’s complaint, 

concluding that the plaintiffs were 

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75182 Federal Register / Vol. 79, No. 242 / Wednesday, December 17, 2014 / Notices 

4When it published the new ETA Form 9142 

requiring employers seeking a labor certification to 

swear under penalty of perjury that they would pay 

at least the prevailing wage that ‘‘is or will be issued 

by the Department’’ during the course of the 

certified employment, the Department explained 

that when a new wage rate became effective as a 

result of a revision to the methodology to determine 

the prevailing wage, employers would be required 

to pay the prevailing wage rate in effect for the 

period of work encompassed by their application, 

which could result in two wage rates being 

applicable to a single application. 76 FR 21,036. 

Employers have been voluntarily signing this 

attestation for over three years. 

without standing because there was no 

showing of agency action applying 

Island Holdings to CATA or its 

members. CATA III,—FRD.—,2014 WL 

3629528, *7–8, The district court also 

held that the case did not involve final 

agency action because ‘‘it is . . . the 

Secretary of Labor, and not the BALCA, 

that ultimately makes the policies and 

rules governing H–2B prevailing 

wages.’’ Id. at 8. Finally, the court 

concluded that because the DOL was 

presently engaged in rulemaking to 

revise the H–2B wage methodology, 

adjudication would be premature 

because the agency may address the 

issue in that context. Id. at 8–10. 

III. Basis for Declaratory Order 

The BALCA’s Island Holdings 

decision has created uncertainty about 

the Secretary of Labor’s authority to set 

law and policy in the H–2B program 

generally, and about the immediate 

application of the revised wage 

regulation in the IFR to employers with 

H–2B workers employed at the time of 

the IFR but with prevailing wages set 

under the vacated 2008 wage rule. The 

decision has further cast uncertainty on 

the legal status of the pending 

supplemental prevailing wage 

determinations that DOL stayed shortly 

after the BALCA’s decision. DOL’s 

expectation was that the CATA III 

litigation, which squarely framed the 

issue whether the BALCA’s Island 

Holdings decision exceeded the scope of 

its authority, would dispose of the 

matter in the Secretary’s favor and 

resolve the uncertainty created by the 

BALCA. However, the district court 

chose to stay its hand, and returned 

resolution of the issue to DOL. Although 

the agency is currently preparing 

rulemaking to address issues involving 

the methodology to set the H–2B 

prevailing wage, that rulemaking cannot 

address the determination of rights and 

obligations under a prior rule, Bowen v. 

Georgetown University Hosp., 488 U.S. 

204, 208–211 (1988), and in any event 

will not be finalized until 2015 at the 

earliest. 

The BALCA’s Island Holdings 

decision does not reflect the legal 

position of the Secretary of Labor 

because the BALCA erroneously 

rejected the Secretary of Labor’s own 

plain interpretation of the relevant 

regulatory provisions, as reflected in the 

preamble to the IFR and a separate 

notice amending ETA Form 9142, 

requiring H–2B employers to attest that 

they will pay at least the prevailing 

wage that ‘‘is or will be issued by the 

Department’’ during the course of the 

certified employment. See 78 FR at 

24,055; 76 FR 21,036 (Apr. 14, 2011).4

In dismissing the Secretary’s preamble 

discussions, the BALCA ignored the 

established principle that a preamble 

statement to a rule constitutes the best 

evidence of the agency’s 

contemporaneous interpretation of a 

regulation, to which the courts owe 

substantial deference. See Public Citizen 

v. Carlin, 184 F.3d 900, 911 (D.C. Cir. 

1999); cf. Dearborn Public Schools, 

1991–INA–222 (BALCA Dec. 7, 1993) 

(en banc), (BALCA, as a non-Article III 

court, lacks inherent authority to rule on 

the validity of a regulation). 

Moreover, the BALCA’s decision in 

Island Holdings that the Department is 

without authority to issue supplemental 

prevailing wage determinations is in 

direct opposition to the district court’s 

orders in the CATA case, and 

potentially leaves the Department 

susceptible to conflicting legal 

obligations. CATA I ordered DOL to 

issue a new wage regulation that 

followed APA procedures. While DOL 

was drafting its new wage regulation to 

comply with CATA I, the district court 

concluded that it need not order DOL to 

issue conditional labor certifications to 

employers seeking to hire H–2B workers 

that would require employers to agree to 

pay a prevailing wage set by the new 

methodology as soon as that 

methodology became effective. Rather, 

the court specifically held that nothing 

in the existing H–2B regulations 

precluded DOL from issuing 

certifications conditioned on a promise 

to pay a new prevailing wage as soon as 

one became effective. CATA I, 2010 WL 

4823236, at *2–3 (Nov. 24, 2010). The 

agency complied with the CATA I order 

in 2011 by issuing a new wage rule. 76 

FR 3452. Congress then barred that 2011 

wage rule from being implemented 

through a series of appropriations 

riders, causing the agency to continue 

applying the invalid 2008 wage rule. 

The court in CATA II then vacated the 

2008 wage rule, concluding that 

prevailing wage determinations issued 

based upon the four-tiered wage rates in 

that rule resulted in adverse effect on 

U.S. workers’ wages, and that the labor 

certifications based on such prevailing 

wages ‘‘exceed the bounds of DOL’s 

delegated authority.’’ 933 F. Supp. 2d at 

711–712. The court also found that the 

four-tiered wages required by the 2008 

rule violated section 706(2)(A) of the 

APA, because it had consequences that 

‘‘plainly contradict congressional policy 

and render the 2008 Wage Rule 

invalid[.]’’ Id. at 713. Once the court 

vacated the 2008 wage rule, it ceased to 

exist and DOL was obligated to move 

quickly to issue a valid replacement rule 

to fill the void. Harper v. Virginia Dep’t 

of Taxation, 509 U.S. 86, 97 (1993); 

Nat’l Fuel Gas Supply Corp. v. FERC, 59 

F.3d 1281, 1289 (D.C. Cir. 1995). 

Taken together, these rulings make it 

clear that the CATA court expected that 

once DOL issued a valid regulatory 

method for determining the prevailing 

wage, the agency would also issue 

supplemental prevailing wage 

determinations to employers with 

current labor certifications to correct the 

unlawful wage issued with those extant 

certifications. The Secretary determined 

that the court’s orders obliged the 

Department to issue the SPWDs, and 

that judgment is reflected in the IFR and 

its implementing guidance. The 

BALCA’s Island Holdings decision 

directly controverts the CATA orders 

and, if abided, leaves the Department 

vulnerable to continuing legal 

challenges based on prevailing wage 

determinations invalidated by the IFR 

on April 24, 2013. 

Even if DOL were not required under 

the CATA Court’s decisions to adjust the 

prevailing wage obligations of H–2B 

employers under the IFR, the BALCA 

still erred in determining that DOL was 

not authorized to issue supplemental 

prevailing wage determinations. In 

2011, DOL amended its ETA Form 9142, 

Appendix B.1, to require an agreement 

from all H–2B employers, as a condition 

for importing H–2B nonimmigrant 

workers, to pay the prevailing wage rate 

in effect for the pay period of work 

encompassed by the employer’s labor 

certification application for H–2B 

nonimmigrant workers. 76 FR at 

21,036–39. In the preamble to the 

Federal Register notice announcing the 

amendment to ETA Form 9142, 

Appendix B.1, the Assistant Secretary of 

Labor stated that DOL requires all 

employers who apply for an H–2B labor 

certification 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 the 

employers’ labor certification 

applications. Id. at 21,036. When 

publishing the IFR, the Secretary of 

Labor again stated that all employers are 

required to comply with this condition 

after receiving a supplemental 

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Federal Register / Vol. 79, No. 242 / Wednesday, December 17, 2014 / Notices 75183 

5Even under a split enforcement regime where 

Congress delegates to a neutral adjudicatory board 

the authority to hear claims or sanctions brought by 

the agency with enforcement authority, the 

Supreme Court has held that the enforcement 

agency with authority to administer the statute has 

jurisdiction to issue binding interpretations of the 

agency’s regulation. See Martin v. OSHRC, 499 U.S. 

144, 154–55 (1991). A neutral adjudicatory board 

outside the agency does not have authority to issue 

binding interpretations of law because the purpose 

of the adjudicatory board is to determine whether 

the agency’s action is consistent with the 

regulation, which the agency defines in the first 

instance. Id. Martin’s principle that the enforcement 

agency has policy making authority has even more 

force in this case, where DOL does not operate 

under a split enforcement regime in H–2B context 

and a single agency has retained to itself all 

enforcement functions. 

prevailing wage determination under 

the IFR. 78 FR at 24,055. Thus, DOL’s 

issuance of supplemental prevailing 

wage determinations under the IFR is 

authorized by the contractual conditions 

to which the employers agreed when 

signing ETA Form 9142, Appendix B.1, 

and the Secretary’s interpretation of the 

scope of the IFR wage obligations for 

employers currently employing H–2B 

workers under wage rates that have been 

vacated or rendered legally erroneous. 

In the case under review, Island 

Holdings willingly agreed to the wage 

adjustment conditions when the 

company signed ETA Form 9142, 

Appendix B.1. Island Holdings agreed to 

pay the wage rate that equals or exceeds 

the highest of the most recent prevailing 

wage rate that is or will be issued by 

DOL for the time period the H–2B 

workers perform work in the United 

States. Because Island Holdings 

specifically agreed to contractual terms 

set by DOL as a condition for importing 

foreign workers, the company remains 

bound to those contractual terms. 

Woodside Village v. Secretary of Labor, 

611 F.2d 312, 315 (9th Cir. 1980); 

Vulcan Arbor Hill Corp. v. Reich, 81 

F.3d 1110, 1115–16 (D.C. Cir. 1996). 

Island Holdings, and all similarly 

situated H–2B employers, remain bound 

by the voluntary and unconditional 

promise to pay the wage rate that equals 

or exceeds the highest of the most recent 

prevailing wage rate that is or will be 

issued by DOL for the time period the 

H–2B workers perform work in the 

United States, including the new IFR 

wage rates. Frederick County Fruit 

Growers v. Martin, 968 F.2d 1265, 1269 

(D.C. Cir. 1992). The Secretary’s 

position on this issue was clearly stated 

in the preamble to the IFR, which 

indicated that employers are required to 

pay the higher IFR wage rates based on 

the employers’ signed agreements under 

Appendix B.1 to ETA Form 9142. 78 FR 

at 24055. Therefore, the BALCA’s 

determination that employers are not 

required to pay the adjusted wage rates 

under the supplemental prevailing wage 

determinations was a legal error issued 

contrary to the Secretary’s clear 

direction on this precise issue under the 

IFR. 

Accordingly, pursuant to the 

authority granted to DOL under 5 U.S.C. 

554(e), the Secretary is now considering 

issuing on his own motion a declaratory 

order to clarify his authority to set law 

and policy in the H–2B labor 

certification program, and to resolve the 

controversy arising from the BALCA’s 

legally erroneous decision. The 

BALCA’s Island Holdings decision does 

not represent the legal or policy position 

of the Secretary of Labor. The 

Administrative Law Judges composing 

the BALCA are subordinate employees 

of the agency. See 5 U.S.C. 3105; 52 FR 

at 11,217; Dep’t of Justice, Legal Counsel 

Opinion, 14 Op. O.L.C. 1, 2–3 (1990). It 

is a basic principle of administrative 

law that the agency makes law and 

policy, not subordinate ALJs. See Ho v. 

Donovan, 569 F.3d 677, 682 (7th Cir. 

2009); Croplife v. EPA, 329 F.3d 876, 

882 (D.C. Cir. 2003); Iran Air v. 

Kugelman, 996 F.2d 1253, 1260 (D.C. 

Cir. 1993); Nash v. Bowen, 869 F.2d 675, 

680 (2d Cir. 1989); Admin. Conf. of the 

United States, Recommendation 92–7, 

57 FR 61,759, 61,763 (Dec. 29, 1992). 

The BALCA ALJs’ authority is limited to 

non-lawmaking functions, including 

determining issues of fact and applying 

undisputed law to the facts of an 

employer’s particular case. 

Apart from the general principle of 

administrative law that the BALCA ALJs 

do not have authority to speak for the 

agency on questions of law and policy, 

under DOL’s regulation the BALCA does 

not have delegated authority to speak 

for the agency. Unlike the Secretary’s 

express delegation of his authority to 

the Administrative Review Board (ARB), 

see 77 FR 69378 (Secretary’s Order 1– 

2012), the agency has never endowed 

the BALCA with authority to speak for 

the Secretary on legal issues, see 52 FR 

at 11,217–18. Courts have recognized 

that the ARB speaks for the agency 

because it has delegated authority, see 

Sasse v. DOL, 409 F.3d 773, 778–79 (6th 

Cir. 2005), but the BALCA lacks such 

delegation. Although the agency’s 

administrative appellate regime may 

terminate with the BALCA’s review 

because there is no procedure for 

appealing to a higher agency official, 

that termination does not create 

delegated authority in the BALCA to 

make law or policy for the agency. The 

lack of further administrative review 

simply means that the BALCA’s 

decision is the final agency action for 

purposes of judicial review. See 5 U.S.C. 

704; cf. Tom C. Clark, Attorney 

General’s Manual on the Administrative 

Procedure Act 83 (1947). However, as a 

neutral fact finder and arbiter of an 

employer’s complaint, the BALCA’s 

decisions do not necessarily represent 

the agency’s authoritative interpretation 

of the regulation. Cf. Martin v. 

Occupational Safety and Health Review 

Comm’n, 499 U.S. 144, 154–55 (1991).5

The Secretary establishes H–2B wage 

policy and any related, governing legal 

standards. If the Secretary determines 

that the BALCA’s decision rests on a 

legal error or departs from the 

Secretary’s announced legal 

interpretation or policy, the Secretary 

may issue in his discretion a declaratory 

order overruling the BALCA. 5 U.S.C. 

554(e). 

The Secretary proposes issuing a 

declaratory order to overrule the 

BALCA’s decision and legal conclusions 

in Island Holdings, and to reaffirm the 

Secretary’s interpretation of the 

regulations, as stated in the preamble to 

the IFR. The Secretary does not intend 

through the proposed declaratory order 

to create a new rule, but seeks to resolve 

and clarify the agency’s prior 

interpretation of the H–2B regulation 

and apply this interpretation, as 

originally intended, to the undisputed 

facts in Island Holdings. Thus, the 

proposed declaratory order is limited to 

the concrete and narrow question of law 

about the scope of the IFR as applied to 

the factual scenario in Island Holdings, 

which order will eliminate confusion 

and uncertainty created by the Island 

Holdings decision related to the 

Secretary’s authority to set law and 

policy in the H–2B program, and the 

related status of the supplemental 

prevailing determinations issued to the 

employer in Island Holdings under the 

IFR. In addition, a final declaratory 

order on this issue will also establish 

binding precedent for resolution of all 

supplemental prevailing wage 

determinations under the IFR involving 

similarly situated parties. Following the 

issuance of such an order, the 

supplemental prevailing wage 

determinations at issue in Island 

Holdings and any similar pending cases 

will be handled and finally resolved in 

accordance with the final declaratory 

order. 

Since the proposed declaratory order 

involves solely questions of law and the 

application of law to undisputed facts 

relating to the issuance of the 

supplemental prevailing wage 

determinations in Island Holdings, the 

Secretary seeks comment from the 

public in the nature of legal briefing 

related to the proposed legal 

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75184 Federal Register / Vol. 79, No. 242 / Wednesday, December 17, 2014 / Notices 

determinations stated in this notice. In 

order to establish the record for this 

adjudicatory proceeding, the 

Department will provide access to the 

following documents on the http://

www.regulations.gov Web site under the 

docket number ETA–2014–0003: (1) The 

Department’s April 24, 2013 Interim 

Final Rule; (2) the CATA I and CATA II 

decisions; and (3) the Island Holdings 

decision. 

Signed: at Washington, DC, this 2nd of 

December 2014. 

Thomas E. Perez, 

Secretary of Labor. 

[FR Doc. 2014–28823 Filed 12–16–14; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

[TA–W–85,058] 

Learjet Inc., a Kansas Corporation, a 

Wholly Owned Indirect Subsidiary of 

Bombardier, Inc., Including On-Site 

Leased Workers From Additional 

Technical Support, Inc., Aero 

Structures Analysis Partners, LLC, 

Aerotek Aviation, Black Diamond 

Networks, Bruce Lutz Consultant, 

Choson Resource, CJ Johnson 

Enterprises, Inc. Daca International, 

Dark Space, Inc., Donatech 

Corporation, Experts Technical 

Staffing, Foster Design Co., Inc., 

Global Contract Professionals, Inc., HiTek Professionals, Inconen, Johnson 

Service Group, Jonas Services, Inc., 

Noramtec, Owens Aerospace Of 

America, Inc., PDS Engineering, PDS 

Production, PCO Innovation, Precision 

Personnel, Precision Resources Co., 

Inc., Spencer Reed Group, Strom, 

Valper Engineering, Volt Technical 

Resources, LLC and Advanced 

Technology Innovation Corporation, 

Wichita, Kansas; Amended 

Certification Regarding Eligibility To 

Apply for Worker Adjustment 

Assistance 

In accordance with Section 223 of the 

Trade Act of 1974, as amended (‘‘Act’’), 

19 U.S.C. 2273, the Department of Labor 

issued a Certification of Eligibility to 

Apply for Worker Adjustment 

Assistance on May 6, 2014, applicable 

to workers of Learjet Inc., a Kansas 

Corporation, a wholly owned indirect 

subsidiary of Bombardier, Inc., 

including on-site leased workers from 

Additional Technical Support, Inc., 

Aero Structures Analysis Partners, LLC, 

Aerotek Aviation, Black Diamond 

Networks, Bruce Lutz Consultant, 

Choson Resource, CJ Johnson 

Enterprises, Inc. Daca International, 

Dark Space, Inc., Donatech Corporation, 

Experts Technical Staffing, Foster 

Design Co., Inc., Global Contract 

Professionals, Inc., Hi-Tek Professionals, 

Inconen, Johnson Service Group, Jonas 

Services, Inc., Noramtec, Owens 

Aerospace Of America, Inc., PDS 

Engineering, PDS Production, PCO 

Innovation, Precision Personnel, 

Precision Resources Co., Inc., Spencer 

Reed Group, Strom, Valper Engineering, 

and Volt Technical Resources, LLC, 

Wichita, Kansas. 

At the request of company official, the 

Department reviewed the certification 

for workers of the subject firm. The 

workers were engaged in the production 

of aircraft. 

The company reports that workers 

leased from Advanced Technology 

Innovation Corporation were employed 

on-site at Learjet Inc., Wichita, Kansas. 

The Department has determined that 

these workers were sufficiently under 

the control of the subject firm to be 

considered leased workers. 

Based on these findings, the 

Department is amending this 

certification to include workers leased 

from Advanced Technology Innovation 

Corporation, working on-site at the 

Wichita, Kansas location of Learjet Inc., 

a Kansas Corporation, a wholly owned 

indirect subsidiary of Bombardier, Inc. 

The amended notice applicable to 

TA–W–85,058 is hereby issued as 

follows: 

‘‘All workers of Learjet Inc., a Kansas 

Corporation, a wholly-owned subsidiary of 

Bombardier, Inc., including on-site leased 

workers from Additional Technical Support, 

Inc., Aero Structures Analysis Partners, LLC, 

Aerotek Aviation, Black Diamond Networks, 

Bruce Lutz Consultant, Choson Resource, CJ 

Johnson Enterprises, Inc. Daca International, 

Dark Space, Inc., Donatech Corporation, 

Experts Technical Staffing, Foster Design Co., 

Inc., Global Contract Professionals, Inc., HiTek Professionals, Inconen, Johnson Service 

Group, Jonas Services, Inc., Noramtec, Owens 

Aerospace Of America, Inc., PDS 

Engineering, PDS Production, PCO 

Innovation, Precision Personnel, Precision 

Resources Co., Inc., Spencer Reed Group, 

Strom, Valper Engineering, Volt Technical 

Resources, LLC, and Advanced Technology 

Innovation Corporation, Wichita, Kansas, 

who became totally or partially separated 

from employment on or after February 6, 

2013 through May 6, 2016, and all workers 

in the group threatened with total or partial 

separation from employment on the date of 

certification through May 6, 2016, are eligible 

to apply for adjustment assistance under 

Chapter 2 of Title II of the Trade Act of 1974, 

as amended.’’ 

Signed in Washington, DC this 4th day of 

December, 2014. 

Michael W. Jaffe, 

Certifying Officer, Office of Trade Adjustment 

Assistance. 

[FR Doc. 2014–29510 Filed 12–16–14; 8:45 am] 

BILLING CODE 4510–FN–P 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

[TA–W–82,920] 

Cooper Interconnect, LLC, A 

Subsidiary of Eaton Corporation, 

Including On-Site Leased Workers 

From Aerotek, Adecco, J&J Staffing, 

Superior Talent and Randstad, Salem, 

New Jersey; Amended Certification 

Regarding Eligibility To Apply for 

Worker Adjustment Assistance 

In accordance with Section 223 of the 

Trade Act of 1974, as amended (‘‘Act’’), 

19 U.S.C. 2273, the Department of Labor 

issued a Certification of Eligibility to 

Apply for Worker Adjustment 

Assistance on July 30, 2013, applicable 

to workers of GDF SUEZ Mt. Tom Power 

Plant, a subsidiary of Cooper 

Interconnect, LLC, a subsidiary of Eaton 

Corporation, including on-site leased 

workers from Aerotek, Addeco, J&J 

Staffing and Superior Talent Resources, 

Salem, New Jersey. The Department’s 

notice of determination was published 

in the Federal Register on August 27, 

2013 (78 FR 52978). 

In response to a request by the state 

workforce office in Trenton, New Jersey, 

the Department reviewed the 

certification for workers of the subject 

firm. The workers were engaged in the 

production of electrical connectors. 

The investigation confirmed that 

leased workers from Randstad worked 

on-site at the subject firm. 

Based on these findings, the 

Department is amending this 

certification to include on-site leased 

workers from Randstad, Salem, New 

Jersey. 

The amended notice applicable to 

TA–W–82,920 is hereby issued as 

follows: 

‘‘All workers of Cooper Interconnect, LLC, 

a subsidiary of Eaton Corporation, including 

on-site leased workers from Aerotek, Adecco, 

J&J Staffing, Superior Talent Resources and 

Randstad, Salem, New, who became totally 

or partially separated from employment on or 

after July 18, 2013, through July 30, 2015, 

and all workers in the group threatened with 

total or partial separation from employment 

on the date of certification through two years 

from the date of certification, are eligible to 

apply for adjustment assistance under 

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