Federal Register / Vol. 78, No. 79 / Wednesday, April 24, 2013 / Rules and Regulations 24047 

(7) No later than after the last flight of the 

day, perform a one-time inspection by 

removing the bearings and inspecting for a 

separation, a crack, or an extrusion. This 

inspection is not a daily inspection. If there 

is a separation, crack, or extrusion, before 

further flight, replace the four bearings with 

airworthy bearings. 

(g) Special Flight Permits 

Special flight permits are prohibited by 

this AD. 

(h) Alternative Methods of Compliance 

(AMOCs) 

(1) The Manager, Safety Management 

Group, FAA, may approve AMOCs for this 

AD. Send your proposal to: Robert Grant, 

Aviation Safety Engineer, Safety Management 

Group, FAA, 2601 Meacham Blvd., Fort 

Worth, Texas 76137; telephone (817) 222– 

5110; email robert.grant@faa.gov. 

(2) For operations conducted under a 14 

CFR part 119 operating certificate or under 

14 CFR part 91, subpart K, we suggest that 

you notify your principal inspector, or 

lacking a principal inspector, the manager of 

the local flight standards district office or 

certificate holding district office, before 

operating any aircraft complying with this 

AD through an AMOC. 

(3) AMOCs approved previously in 

accordance with Emergency Airworthiness 

Directive No. 2012–21–51, dated October 17, 

2012, are approved as AMOCs for the 

corresponding requirements in paragraph 

(f)(7) of this AD. 

(i) Additional Information 

(1) Eurocopter Emergency Alert Service 

Bulletin (EASB) No. 01.00.65, Revision 2, 

dated November 2, 2012, which is not 

incorporated by reference, contains 

additional information about the subject of 

this AD. For service information identified in 

this AD, contact American Eurocopter 

Corporation, 2701 N. Forum Drive, Grand 

Prairie, TX 75052; telephone (972) 641–0000 

or (800) 232–0323; fax (972) 641–3775; or at 

http://www.eurocopter.com/techpub.You 

may review a copy of the service information 

at the FAA, Office of the Regional Counsel, 

Southwest Region, 2601 Meacham Blvd., 

Room 663, Fort Worth Texas 76137. 

(2) The subject of this AD is addressed in 

European Aviation Safety Agency Emergency 

AD No. 2012–0217–E, dated October 19, 

2012. 

(j) Subject 

Joint Aircraft Service Component (JASC) 

Code: 6400: Tail Rotor. 

Issued in Fort Worth, Texas, on April 11, 

2013. 

Lance T. Gant, 

Acting Directorate Manager, Rotorcraft 

Directorate, Aircraft Certification Service. 

[FR Doc. 2013–09420 Filed 4–23–13; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF HOMELAND 

SECURITY 

8 CFR Part 214 

[CIS No. 2536–13] 

RIN 1615–AC02 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

20 CFR Part 655 

RIN 1205–AB69 

Wage Methodology for the Temporary 

Non-Agricultural Employment H–2B 

Program, Part 2 

AGENCY: Employment and Training 

Administration, Labor; U.S. Citizenship 

and Immigration Services, DHS. 

ACTION: Interim final rule; request for 

comments. 

SUMMARY: The Department of Homeland 

Security (DHS) and the Department of 

Labor (DOL) (jointly referred to as the 

Departments) are amending regulations 

governing certification for the 

employment of nonimmigrant workers 

in temporary or seasonal nonagricultural employment. This interim 

final rule revises how DOL provides the 

consultation that DHS has determined is 

necessary to adjudicate H–2B petitions 

by revising the methodology by which 


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24048 Federal Register / Vol. 78, No. 79 / Wednesday, April 24, 2013 / Rules and Regulations 

1 In the Territory of Guam, the petitioner must 

apply to the Governor of Guam for a temporary 

labor certification. See 8 CFR 214.2(h)(6)(iii). 

DOL calculates the prevailing wages to 

be paid to H–2B workers and U.S. 

workers recruited in connection with 

the application for certification; the 

prevailing wage is then used in 

petitioning DHS to employ 

nonimmigrant workers in H–2B status. 

DOL and DHS are jointly issuing this 

rule in response to the court’s order in 

Comite ́ de Apoyo a los Trabajadores 

Agricolas v. Solis, which vacated 

portions of DOL’s current prevailing 

wage rate regulation, and to ensure that 

there is no question that the rule is in 

effect nationwide in light of other 

outstanding litigation. This rule also 

contains certain revisions to DHS’s H– 

2B rule to clarify that DHS is the 

Executive Branch agency charged with 

making determinations regarding 

eligibility for H–2B classification, after 

consulting with DOL for its advice about 

matters with which DOL has expertise, 

particularly, in this case, questions 

about the methodology for setting the 

prevailing wage in the H–2B program. 

DATES: This interim final rule is 

effective April 24, 2013. Interested 

persons are invited to submit written 

comments on this interim final rule on 

or before June 10, 2013. 

ADDRESSES: You may submit comments, 

identified by Regulatory Information 

Number (RIN) 1205–AB69, 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 Michael Jones, Acting 

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. 

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: 

Regarding 8 CFR Part 214: Kevin J. 

Cummings, Chief, Business and Foreign 

Workers Division, Office of Policy and 

Strategy, U.S. Citizenship and 

Immigration Services, Department of 

Homeland Security, 20 Massachusetts 

Ave. NW., Suite 1100, Washington, DC 

20529–2120, telephone (202) 272–1470 

(not a toll-free call). 

Regarding 20 CFR Part 655: 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: 

I. The H–2B Program, the Prevailing 

Wage Methodology and Revisions to 8 

CFR 216.2(h)(6) and 20 CFR 655.10(b) 

A. The Department of Homeland 

Security’s Role in the H–2B Program 

As provided by section 

101(a)(15)(H)(ii)(b) of the Immigration 

and Nationality Act (INA or Act), 8 

U.S.C. 1101(a)(15)(H)(ii)(b), the H–2B 

visa classification for non-agricultural 

temporary workers is available to a 

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 other 

[than agricultural] temporary service or 

labor if unemployed persons capable of 

performing such service or labor cannot 

be found in this country.’’ Section 

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

requires an importing employer to 

petition DHS for classification of the 

prospective temporary worker as an H– 

2B nonimmigrant as a prerequisite to 

the worker obtaining an H–2B visa or 

being granted H–2B status. U.S. 

Citizenship and Immigration Services 

(USCIS) is the component agency within 

DHS that adjudicates H–2B petitions. 

See 8 CFR 214.2(h)(6) et seq. 

Section 214(c)(1) of the INA requires 

DHS to consult with ‘‘appropriate 

agencies of the Government’’ before 

adjudicating an H–2B petition. DHS has 

determined that, under this statutory 

provision, it must consult with DOL as 

part of the process of adjudicating H–2B 

petitions because DOL is the agency best 

situated to provide advice regarding 

whether ‘‘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). DHS, in 

conjunction with DOL, has determined 

that the best way to provide this 

consultation is by requiring the 

employer (other than in the Territory of 

Guam),1 prior to filing an H–2B petition, 

to first apply for a temporary labor 

certification from the Secretary of Labor. 

8 CFR 214.2(h)(6)(iii)(A). The temporary 

labor certification serves as DOL’s 

advice to DHS that the employer has 

tried unsuccessfully to recruit sufficient 

U.S. workers at a DOL-determined 

prevailing wage for the position for 

which it now seeks H–2B workers, and 

that the employer has provided 

assurance that it will pay its H–2B 

workers and any successfully recruited 

U.S. workers at least the same prevailing 

wage. Thus, the certification serves as 

expert consultation and advice to USCIS 

on whether U.S. workers capable of 


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Federal Register / Vol. 78, No. 79 / Wednesday, April 24, 2013 / Rules and Regulations 24049 

2As discussed further below, the 2011 Wage Rule 

has not been implemented due to Congressional 

prohibition contained in riders to DOL’s 

appropriations. 

3Accord G.H. Daniels & Assocs. v. Solis, No. 12– 

cv–1943–CMA (D. Col. Sept. 17, 2012), Doc. 38 

(Mot. Hrg. Tr.) at 4 (concurring with Louisiana 

Forestry opinion and rejecting, in the context of an 

enforcement action under the 2008 H–2B rule, the 

argument that DOL lacks rulemaking authority). 

performing the services or labor are 

available, and whether the employment 

of the foreign worker(s) will adversely 

affect the wages and working conditions 

of similarly employed U.S. workers. The 

fulfillment of the required consultation 

with DOL in this fashion represents 

good and efficient government, 

inasmuch as it avoids potentially 

significant and unnecessary cost that the 

federal government would otherwise 

incur if it was required to replicate 

within DHS the unique expertise 

already existing within DOL. DHS and 

DOL recognize the Congressional aim in 

enacting the consultation requirement 

in section 214(c)(1) of the INA to 

effectively utilize governmental 

resources by requiring DHS to solicit the 

expertise of other Federal agencies 

without having to independently and 

needlessly develop the same or 

overlapping expertise simply as a means 

to question the advice it receives. Under 

current DHS regulations, an employer 

may not file a petition with USCIS for 

an H–2B temporary worker unless it has 

received a labor certification from the 

Secretary of Labor (or the Governor of 

Guam, as appropriate). 8 CFR 

214.2(h)(6)(iii)(C), (iv)(A), (vi)(A). DHS 

relies on DOL’s advice in this area, as 

the appropriate government agency with 

expertise in labor market questions, to 

fulfill DHS’s statutory duty of 

determining that unemployed persons 

capable of performing the relevant 

service or labor cannot be found in the 

United States and to approve H–2B 

petitions. INA 101(a)(15)(H)(ii)(b) (8 

U.S.C. 1101(A)(15)(H)(ii)(b)); and INA 

214(c)(1), (8 U.S.C. 1184(c)(1)). 

B. The Department of Labor’s Role in 

the H–2B Program 

The Secretary of Labor’s 

responsibility for the H–2B program is 

carried out by two agencies within DOL. 

Applications for temporary labor 

certification are processed by ETA’s 

Office of Foreign Labor Certification, the 

agency to which the Secretary of Labor 

has delegated those responsibilities 

described in the USCIS H–2B 

regulations. Enforcement of the 

attestations and assurances made by 

employers on H–2B applications 

granted temporary labor certification is 

conducted by the Wage and Hour 

Division (WHD) under enforcement 

authority delegated to it by DHS on 

January 16, 2009 (effective January 18, 

2009). See 8 U.S.C. 1184(c)(14)(B). 

C. The Consultative Function in the 

Administration and Implementation of 

the H–2B Program 

Since 1968, DHS’s, and its 

predecessor INS’s, consultation with 

DOL in the H–2 non-agricultural 

program has been implemented through 

the agencies’ use of a combination of 

legislative rules and guidance 

documents. As noted above, DHS’s 

current consultation with DOL in the H– 

2B program under Section 214(c)(1) of 

the INA is based on DHS’s regulatory 

requirement that an employer first 

obtain a temporary labor certification 

from the Secretary of Labor establishing 

that U.S. workers capable of performing 

the services or labor are not available, 

and that the employment of the foreign 

worker(s) will not adversely affect the 

wages and working conditions of 

similarly employed U.S. workers. 8 CFR 

214.2(h)(6)(iii). The first step in DOL’s 

certification process is the 

determination of the prevailing wage in 

the occupation that is the subject of the 

application for temporary labor 

certification. DOL has established a 

methodology for its determination of the 

prevailing wage rate through regulation, 

20 CFR 655.10, and this regulation now 

requires revision in light of Comite ́ de 

Apoyo a los Trabajadores Agricolas 

(CATA) v. Solis, Civ. No. 09-cv-240, 

(E.D. Pa.) (March 21, 2013), which is 

discussed in greater detail below. 

DOL’s authority to issue its own 

legislative rules to carry out its duties 

under the INA has been challenged in 

litigation. Specifically, a group of 

employers challenged the regulations 

DOL issued on February 21, 2012, (77 

FR 10038) (2012 H–2B rule) 

implementing its consultative 

responsibilities under the H–2B 

program. The 2012 rule implements all 

of DOL’s responsibilities under the H– 

2B program except for determining the 

prevailing wage, which, as noted above, 

is now set forth in a separate regulation 

at 20 CFR 655.10. In their challenge to 

DOL’s 2012 H–2B rule, the employers 

argued that DOL does not have 

independent rulemaking authority to 

issue the 2012 rule under the H–2B 

program. On April 1, 2013, the U.S. 

Court of Appeals for the Eleventh 

Circuit upheld a district court decision 

that granted a preliminary injunction 

against enforcement of the 2012 H–2B 

rule on the ground that the employers 

are likely to prevail on their allegation 

that DOL lacks H–2B rulemaking 

authority. Bayou Lawn & Landscape 

Servs. et al. v. Secretary of Labor,— 

F.3d—, 2013 WL 1286129, No. 12– 

12462 (11th Cir. Apr. 1, 2013). The court 

stated that, ‘‘DHS was given overall 

responsibility, including rulemaking 

authority, for the H–2B program. DOL 

was designated a consultant. It cannot 

bootstrap that supporting role into a coequal one.’’ 2013 WL 1286129 at *2. 

In substantial contrast, when faced 

with a similar employer challenge to 

DOL’s rulemaking authority with 

respect to an H–2B wage rule issued on 

January 19, 2011 (76 FR 3452) (2011 

Wage Rule),2 the district court in 

Louisiana Forestry Ass’n v. Solis, 889 

F.Supp.2d 711 (E.D. Pa. 2012), held that 

DOL does have independent H–2B 

rulemaking authority. The court stated 

‘‘the history of the H–2B program 

demonstrates Congress’s expectation 

that the DOL would engage in legislative 

rulemaking * * * at the time of [the 

Immigration Reform and Control Act 

(IRCA)]’s enactment, the DOL 

regulations governing the labor 

certification process for nonagricultural, unskilled guest workers 

already had been in place for many 

years. There is no evidence that 

Congress intended to alter or disrupt the 

DOL’s rulemaking when it enacted IRCA 

and created the H–2B visa program.’’ 

889 F.Supp.2d at 728. The court also 

approved of DHS’s decision to 

‘‘consult’’ with DOL by adopting the 

labor certification requirement, finding 

persuasive the DHS rationale that it 

does not have the expertise to make 

labor market determinations. 889 

F.Supp.2d at 724–25. Oral argument is 

currently scheduled for May 2013 in the 

U.S. Court of Appeals for the Third 

Circuit in that lawsuit.3

Notwithstanding the Eleventh 

Circuit’s decision in Bayou, or the 

Departments’ joint issuance of this 

interim rule, DOL and DHS continue to 

maintain, as the Louisiana Forestry 

Association court held, that DOL does 

have independent legislative 

rulemaking authority for the H–2B 

program. However, due to these 

inconsistent court rulings on DOL’s 

authority to issue independent 

legislative rules, DOL and DHS are 

issuing this joint regulation revising the 

prevailing wage methodology in the H– 

2B program in order to respond to the 

court order in CATA v. Solis, and also 

to dispel questions regarding the 

respective roles of the two agencies and 

the validity of DOL’s regulations as an 

appropriate way to implement the 

consultation specified in section 

214(c)(1) of the INA. DHS has 

determined that, under section 214(c)(1) 

of the INA, it must consult with DOL as 


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24050 Federal Register / Vol. 78, No. 79 / Wednesday, April 24, 2013 / Rules and Regulations 

4 DHS (and the former Immigration and 

Naturalization Service, Department of Justice, 

which was charged with administration of the H– 

2B program prior to enactment of the Homeland 

Security Act of 2002, Public Law 107–296, 116 Stat. 

2142) has long recognized that DOL is the 

appropriate agency with which to consult regarding 

the availability of U.S. workers and for assuring that 

wages and working conditions of U.S. workers are 

not adversely affected by the use of H–2B workers. 

See 55 FR 2606, 2617 (Jan. 26, 1990). 

5See General Administration Letter (GAL) 10–84, 

‘‘Procedures for Temporary Labor Certifications in 

Non Agricultural Occupations’’ (April 23, 1984), 

6See http://wdr.doleta.gov/directives. 

the agency with expertise on labor 

market questions, which includes 

determining the prevailing wages that 

must be paid to workers in connection 

with the H–2B program, when 

adjudicating H–2B petitions.4 DHS and 

DOL have determined that the best way 

for DOL to fill this statutory role as a 

consultant to DHS is for DOL to provide 

its advice with respect to whether U.S. 

workers capable of performing the 

services or labor are available, and 

whether the employment of the foreign 

worker(s) will adversely affect the wages 

and working conditions of similarly 

employed U.S. workers. DHS and DOL 

have further determined that the most 

effective method for DOL to provide this 

advice—a key component of which is 

establishing the prevailing wage 

methodology—is by setting forth in 

regulations the standards it will use to 

advise DHS regarding whether U.S. 

workers capable of performing the 

services or labor are unavailable and 

whether the employment of the H–2B 

workers will not adversely affect the 

wages and working conditions of 

similarly employed U.S. workers. DOL’s 

rules, including this prevailing wage 

rule, set the standards by which 

employers demonstrate to DOL that they 

have tested the labor market and found 

no or insufficient numbers of U.S. 

workers, and also set the standards by 

which employers demonstrate to DOL 

that the offered employment does not 

adversely affect US workers. By setting 

forth this structure in regulations, DHS 

and DOL will ensure the provision of 

this advice by DOL is consistent, 

transparent, and provided in the form 

that is most useful to DHS. 

This interim final rule is necessary 

because, in the absence of regulations to 

structure DOL’s consultative 

responsibilities, DOL will be forced to 

cease processing employers’ requests for 

prevailing wage determinations and 

temporary labor certifications and thus 

will be unable to continue to provide 

the advice that DHS has determined is 

necessary under section 214(c)(1) of the 

INA for DHS to fulfill its statutory 

responsibility under section 

101(a)(15)(H)(ii)(b) of the INA to 

adjudicate H–2B petitions, as 

implemented in the DHS regulation at 8 

CFR 214.2(h)(6). In particular, this will 

leave DHS incapable of meeting its 

statutory responsibility to meaningfully 

consult with DOL, the Government 

agency DHS has determined is the 

appropriate agency with the requisite 

expertise with respect to labor market 

questions. Without this statutory 

consultation, USCIS will be unable to 

adjudicate H–2B petitions, as 214(c)(1) 

of the INA requires that a petition 

cannot be adjudicated by DHS ‘‘until 

after consultation with appropriate 

agencies of the Government.’’ Further, 

in order to maintain the integrity of the 

consultative process, and provide DHS 

with the best possible advice relating to 

the U.S. labor market concerns required 

by section 101(a)(15)(H)(ii)(b) of the 

INA, DOL must have certainty that it 

can enforce the assurances provided by 

employers who desire to participate in 

the H–2B program, such as those 

relating to the wages and working 

conditions that must be offered to H–2B 

workers and U.S. workers recruited in 

connection with the application for 

certification. 

In order to ensure that there can be no 

question about the authority for and 

validity of the DOL’s regulations 

governing the methodology for 

determining prevailing wages in the H– 

2B program, DHS and DOL are jointly 

publishing this regulation, which 

implements a key component of DHS’s 

determination that it must consult with 

DOL on the labor market questions 

relevant to its adjudication of H–2B 

petitions. This regulation also executes 

DHS’s and DOL’s determination that 

implementation of the consultative 

relationship may be established through 

jointly adopted regulations that 

determine the method by which DOL 

will provide the necessary advice to 

DHS. Accordingly, DHS is amending its 

own regulations at 8 CFR 

214.2(h)(6)(iii)(D) to clarify that DOL 

will establish regulatory procedures for 

administering elements of the program 

necessary to provide DHS with the 

requisite advice with respect to the 

labor market. This amendment will 

underscore that the consultative process 

has occurred and that DHS adopts 

DOL’s prevailing wage methodology as 

part of the advice required for the 

administration of temporary labor 

certifications. 

D. The Determination of the Prevailing 

Wage 

To comply with its obligations under 

the program, an employer must pay the 

H–2B workers hired in connection with 

the application a wage that will not 

adversely affect the wages of U.S. 

workers similarly employed. DOL’s H– 

2B procedures have always provided 

that adverse effect is prevented by 

requiring H–2B employers to offer and 

pay at least the prevailing wage to the 

H–2B workers and those U.S. workers 

recruited in connection with the job 

opportunity. To facilitate compliance 

with this requirement, DHS and DOL 

have set forth a number of specific 

provisions governing the system by 

which DOL will determine the 

prevailing wage for the job opportunity 

for which temporary labor certification 

is being sought. 

From the outset of the H–2B program, 

DOL directed that the same prevailing 

wage procedures be used for the 

permanent and H–2B labor certification 

programs and the H–1B labor condition 

application program. Although DOL did 

not promulgate a separate prevailing 

wage methodology until 1995, DOL 

provided guidance to the States, which 

provided prevailing wage 

determinations until 2010, on the 

administration of the H–2 

nonagricultural program (a predecessor 

of the H–2B program) requiring the 

States to determine the prevailing wage 

in accordance with regulations for the 

permanent program at 20 CFR 656.40.5

In 1995, DOL issued separate prevailing 

wage guidance through GAL 4–95, 

‘‘Interim Prevailing Wage Policy for 

Nonagricultural Immigration Programs’’ 

(May 18, 1995), Attachment I,6 and 

again in 1998, through GAL 2–98, 

‘‘Prevailing Wage Policy for 

Nonagricultural Immigration Programs’’ 

(November 30, 1998) that continued to 

extend the provisions of § 656.40 to the 

H–2B program. Under the two GALs, 

payment of the rates determined under 

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., was 

mandatory for H–2B occupations for 

which such wage determinations 

existed. Starting in 1998, in the absence 

of SCA or DBA wage rates, prevailing 

wage determinations were based on the 

Occupational Employment Statistics 

(OES) wage survey, compiled by the 

Bureau of Labor Statistics (BLS). The 

OES wage survey produces employment 

and wage estimates for approximately 

800 occupations and is based upon 

wage data covering full-time and parttime workers who are given monetary 

compensation for their labor or services. 

The OES survey is published annually 

and features data broken out both by 

geographic area and industry. The wage 

estimates in the survey are made 


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Federal Register / Vol. 78, No. 79 / Wednesday, April 24, 2013 / Rules and Regulations 24051 

7http://www.foreignlaborcert.doleta.gov/pdf/ 

NPWHC_Guidance_Revised_11_2009.pdf. 

8The invalidated provision from the 2008 rule 

read: ‘‘If the job opportunity is not covered by a 

CBA, the prevailing wage for labor certification 

purposes shall be the arithmetic mean, except as 

provided in paragraph (b)(4) of this section, of the 

wages of workers similarly employed at the skill 

level in the area of intended employment. The wage 

component of the BLS Occupational Employment 

Statistics Survey (OES) shall be used to determine 

the arithmetic mean, unless the employer provides 

a survey acceptable to OFLC under paragraph (f) of 

this section.’’ (emphasis added). 

available at the national, State and 

metropolitan and nonmetropolitan area 

levels. The OES survey directly collects 

a wage rate for all occupations defined 

by the Office of Management and 

Budget’s (OMB) occupational 

classification system, the Standard 

Occupational Classification (SOC). 

Employers have also been able to use 

wages based on private wage surveys 

that meet Department standards since at 

least 1995. 

Both the 1995 and the 1998 GALs 

provided that, absent a DBA or SCA 

rate, DOL would issue prevailing wage 

determinations at two levels or tiers, an 

entry-level wage and an experienced 

wage. At that time, there were not many 

H–2B program users, and new 

prevailing wage procedures were 

designed primarily to address the needs 

of the permanent and H–1B programs, 

which were dominated by job 

opportunities in higher skilled 

occupations. There was considerable 

desire on the part of permanent and H– 

1B program users to have DOL create a 

multi-tiered wage structure to reflect the 

widely-held view that workers in 

occupations that require sophisticated 

skills and training receive higher wages 

based on those skills. Since the OES 

survey captures no information about 

actual skills or responsibilities of the 

workers whose wages are being 

reported, the two-tier wage structure 

introduced in 1998 was based on the 

assumption that the mean wage of the 

lowest paid one-third of the workers 

surveyed in each occupation could 

provide a reasonable proxy for the 

entry-level wage. DOL did not conduct 

any meaningful economic analysis to 

test the validity of that assumption and, 

most significantly, it did not consider 

whether assumptions about wages and 

skill levels for higher skilled 

occupations might be less valid when 

applied to lower skilled occupations. In 

December 2004, DOL revised its 

regulation governing the permanent 

program. 69 FR 77326, Dec. 27, 2004. 

These revisions included changes to 20 

CFR 656.40, which governed the 

procedures for determining the 

prevailing wage. In particular, these 

revisions eliminated the requirement 

that SCA/DBA wage determinations be 

treated as the prevailing wage where 

such determinations existed. The 

regulation provided that use of available 

SCA/DBA wage rates would be only at 

the option of the employer. 

The preamble to the permanent 

regulation, 69 FR 77326–27, also 

discusses Congress’s enactment of the 

H–1B Visa Reform Act in the 

Consolidated Appropriations Act of 

2005, Public Law 108–447, Div. J., Title 

IV, section 423, which amended section 

212(p)(4) of the INA, 8 U.S.C. 

1182(p)(4), relating to the H–1B visa 

program. This legislation required DOL 

to issue prevailing wages at four levels 

when the prevailing wages were based 

upon a government survey. The 

legislation mandated how to calculate 

the four levels through a mathematical 

formula that created two additional 

wage levels in between the existing two 

level wages. Section 656.40 of 20 CFR, 

the regulation implementing the H–1B 

Visa Reform Act, only specifically 

referenced prevailing wages established 

for the permanent and H–1B programs. 

Soon after the enactment of the new 

regulations, DOL issued comprehensive 

guidance on prevailing wage 

determinations. Following the practice 

in place since 1984, this guidance also 

applied to the H–2B program. ETA 

Prevailing Wage Determination Policy 

Guidance, Non-agricultural Immigration 

Programs, May 2005, revised November 

2009.7 The guidance included the use of 

the four levels and the elimination of 

the mandatory application of the SCA/ 

DBA wage determinations. 

In 2008, DOL issued regulations 

governing DOL’s role in the H–2B 

temporary worker program. 73 FR 

78020, Dec. 19, 2008 (the 2008 rule). 

The 2008 rule addressed some aspects 

of the 2005 prevailing wage guidance, 

and adopted the four-level wages from 

the prior guidance by requiring wages 

based on the OES mean to reflect four 

‘‘skill levels.’’ See 20 CFR 655.10(b)(2).8

As described above, this guidance 

converted the two-level wages, 

containing an entry level and 

experienced wage, into a four-tier 

system by mathematically adjusting the 

two tiers in the manner prescribed by 

Congress in the context of H–1B 

specialty occupations. The 2008 rule 

provided that the prevailing wage 

would be the collective bargaining 

agreement (CBA) wage rate, if the job 

opportunity was covered by an 

agreement negotiated at arms’ length 

between the union and the employer; 

the OES four-tier wage rate if there was 

no CBA; a survey if an employer elected 

to provide an acceptable survey; or a 

DBA or SCA rate if the employer elected 

to use those determinations. See 20 CFR 

655.10(b). DOL did not seek comments 

on the use of the four-level wage 

methodology for determining prevailing 

wages when promulgating the 2008 rule. 

73 FR 78031. 

E. CATA v. Solis and the 2011 Wage 

Rule 

In early 2009, a lawsuit was filed 

challenging various aspects of DOL’s H– 

2B procedures included in the 2008 

rule. Comite ́ de Apoyo a los 

Trabajadores Agricolas (CATA) v. Solis, 

Civ. No. 09–cv–240, 2010 WL 3431761 

(E.D. Pa. 2010). Among the issues raised 

in this litigation were the use of the 

four-level wage structure in the H–2B 

program and the optional use of SCA 

and DBA wages. In an August 30, 2010 

decision, the court ruled that DOL had 

violated the Administrative Procedure 

Act (APA) by failing to adequately 

explain its reasoning for adopting skill 

levels as part of the H–2B prevailing 

wage determination process, and by 

failing to accept comments relating to 

the choice of appropriate data sets in 

deciding to rely on OES data rather than 

SCA and DBA in setting the prevailing 

wage rates. The court ordered DOL 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.’’ CATA, 

2010 WL 3431761, at *27. 

Following the CATA court’s 2010 

ruling, and following consultation with 

DHS, DOL engaged in rulemaking to 

address both substantive and procedural 

concerns about setting prevailing wages 

in the H–2B program. DOL published a 

Notice of Proposed Rulemaking (NPRM) 

in accordance with the court’s order. 75 

FR 61578, Oct. 5, 2010. The NPRM 

proposed to eliminate the use of the 

four-level wage structure for the H–2B 

program in favor of the mean OES wage 

for each occupational category. It also 

provided that available SCA and DBA 

wage determination rates for those 

occupations for which H–2B 

certification is sought, or collective 

bargaining agreement wages, if such an 

agreement exists, would be used if they 

reflected higher wages than the OES 

wage. The NPRM also proposed to 

eliminate the use of employer-provided 

surveys in the H–2B program. 

After a thorough review of the 

comments, and with input from DHS, 

DOL promulgated a final rule, with 

some modifications relating to surveys. 

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

Wage Rule). DOL determined that ‘‘there 

are no significant skill-based wage 


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9 DOL originally set the effective date of the Wage 

Rule for January 1, 2012. However, as a result of the 

CATA litigation and following notice-and-comment 

rulemaking, DOL issued a final rule, 76 FR 45667, 

August 1, 2011, revising the effective date of the 

2011 Wage Rule to September 30, 2011, and a 

second final rule, 76 FR 59896, September 28, 2011, 

further revising the effective date of the 2011 Wage 

Rule to November 30, 2011. 

10These include the Consolidated Appropriations 

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

which was enacted on December 23, 2011; 

Continuing Appropriations Resolution, 2013, Public 

Law 112–175, 126 Stat. 1313, which was enacted 

on September 28, 2012; and Consolidated and 

Further Continuing Appropriations Act, 2013, 

Public Law 113–6, 127 Stat. 198, enacted on March 

26, 2013, which establishes DOL’s appropriations 

through September 30, 2013. 

11Because of the prohibition on expenditures to 

implement the 2011 Wage Rule, its effective date 

has been extended to January 1, 2012, 76 FR 73508 

(Nov. 29, 2011); to October 1, 2012, 76 FR 82115 

(Dec. 30, 2011); to March 27, 2013, 77 FR 60040 

(Oct. 2, 2012); and to October 1, 2013, 78 FR 19098 

(posted on the public Web site of the Office of the 

Federal Register on March 26, 2013, and appeared 

in print on March 29, 2013). 

differences in the occupations that 

predominate in the H–2B program, and 

to the extent such differences might 

exist, those differences are not captured 

by the existing four-tier wage structure.’’ 

Id. at 3460. DOL found that in 2010 

almost 75 percent of H–2B jobs were 

certified at a Level 1 wage, which is 

defined as the mean of the lowest onethird of all reported wages, and over a 

several year period, approximately 96 

percent of the prevailing wages issued 

were lower than the mean of the OES 

wage rates for the same occupation. Id. 

at 3463. In the low-skilled occupations 

in the H–2B program, the mean 

‘‘represents the wage that the average 

employer is willing to pay for unskilled 

workers to perform that job.’’ Id. 

Therefore, DOL concluded that the use 

of skill levels adversely affected U.S. 

workers because it ‘‘artificially lowers 

[wages] to a point that [they] no longer 

represent[] a market-based wage for that 

occupation.’’ Id. The application of the 

four levels set a wage ‘‘below what the 

average similarly employed worker is 

paid.’’ Id.; see also 75 FR 61577, 61580– 

81. DOL concluded that ‘‘the net result 

is an adverse effect on the [U.S.] 

worker’s income.’’ 76 FR 3463. 

The 2011 Wage Rule permitted the 

use of employer-submitted surveys only 

in very limited circumstances, such as 

where the job opportunity is not 

covered by a CBA and is not accurately 

represented within the available wage 

data under the DBA, SCA, or OES. 76 

FR 3467. In those circumstances, the 

employer could submit a wage survey 

that would be used if it met the 

methodological standards that were 

applicable to employer-submitted 

surveys in the 2008 rule. Compare 20 

CFR 655.10(f)(2), (3)(i) and (ii) (2012 

ed.) with 20 CFR 655.10(b)(7)(iv), (v)(A) 

and (B) (2012 ed. Note). 

The 2011 Wage Rule required the use 

of wage determinations based on the 

DBA and SCA if a job opportunity 

involved an ‘‘occupation in the area of 

intended employment * * * for which 

such a wage has been determined.’’ 20 

CFR 655.10(b)(2) (2012 ed. Note). 

Finally, the 2011 Wage Rule concluded 

that the prevailing wage would be the 

highest of the wage rates established in 

the various wage sources—the 

applicable CBA wage, the arithmetic 

mean as found in the OES, or the 

applicable DBA or SCA wage—because 

that approach would be most consistent 

with DOL’s responsibility to avoid an 

adverse effect on wages of similarly 

employed U.S. workers. After two 

adjustments to the effective date of the 

2011 Wage Rule, it was set to become 

effective on November 30, 2011.9

F. Congressional Response to the 2011 

Wage Rule 

On November 18, 2011, Congress 

enacted the Consolidated and Further 

Continuing Appropriations Act, 2012, 

Public Law 112–55, 125 Stat. 552 

(November 2011 Appropriations Act), a 

spending bill that contained DOL’s 

appropriations. That Act 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 

[2011 Wage Rule].’’ Public Law 112–55, 

div. B, tit. V, § 546 (Nov. 18, 2011). The 

conference report accompanying the 

November 2011 Appropriations Act 

stated that the purpose of the 

postponement was to ‘‘allow Congress 

to address’’ the 2011 Wage Rule. H.R. 

Rep. No. 112–284 (2011) (Conf. Rep.). 

Since the enactment of the November 

2011 Appropriations Act, each 

subsequently enacted appropriations act 

has contained the same prohibition 

preventing implementation of the 2011 

Wage Rule.10 Because the Department 

was prohibited from spending funds to 

implement the 2011 Wage Rule, it was 

necessary to revert to the 2008 wage 

provisions for as long as the 2011 Wage 

Rule was blocked legislatively. The 

program could not continue to function 

without a wage rule in effect, and the 

2008 rule was the only available option. 

In order to prevent the nullification of 

the wage provisions of the 2008 H–2B 

rule, 20 CFR 655.10, which would have 

occurred had the 2011 Wage Rule taken 

effect, DOL has extended the effective 

date of the 2011 Wage Rule four times.11

Implementation of the effective date of 

the 2011 Wage Rule is currently 

extended to October 1, 2013. 

G. Further Activity in CATA v. Solis 

As a result of the appropriations 

riders, DOL continued to rely upon the 

2008 rule, including its prevailing wage 

provisions. On September 27, 2012, the 

CATA plaintiffs filed a motion for 

preliminary and permanent injunction 

seeking to prevent DOL from using the 

four-level wage system in determining 

H–2B prevailing wages. Memorandum 

of Law in Support of Plaintiffs’ Motion 

for a Temporary Restraining Order and 

Preliminary and Permanent Injunctive 

Relief, CATA v. Solis, Dkt. 152. 

Accordingly, they asked the court to 

vacate the phrase ‘‘at the skill level’’ 

from the prevailing wage formula at 20 

CFR 655.10(b)(2). Id. at 1. Plaintiffs 

argued that DOL’s continued reliance on 

the four-level OES wages contravened 

the court’s 2010 holding that the 

provision was procedurally invalid. Id. 

at 1–2. Plaintiffs further argued that 

continued reliance on the four-level 

OES wages was in derogation of DOL’s 

own finding, described in promulgating 

the 2011 Wage Rule, that the use of the 

four-level structure created an adverse 

effect on workers’ wages. Id. 

On March 21, 2013, the CATA court 

issued a permanent injunction against 

the operation of the skill levels 

contained in the wage provision, 20 CFR 

655.10(b)(2), of the 2008 rule. CATA v. 

Solis, l F.Supp. l, 2013 WL 1163426, 

*13 (E.D. Pa. 2013) (CATA II). The court 

noted that DOL continued to use the 

prevailing wage provisions of the 2008 

rule, ‘‘nearly thirty (30) months after 

Judge Pollak invalidated the Rule, and 

two years after the DOL found that the 

Rule violates the DOL’s statutory and 

regulatory mandates.’’ Id. at *5. The 

court held that DOL has authority to 

grant labor certifications only if it can 

assure that they will not adversely affect 

the wages and working conditions of 

U.S. workers. Id. at *8. Because 

prevailing wage determinations issued 

based upon the four-level OES wage 

rates do result in adverse effect, the 

labor certifications based on such 

prevailing wages ‘‘exceed the bounds of 

DOL’s delegated authority.’’ Id. The 

court also found that the four-level 

component of the 2008 rule violated 

section 706(2)(A) of the APA, because it 

had consequences that ‘‘plainly 

contradict congressional policy.’’ Id. at 

*10. The court rejected DOL’s request to 

leave the 2008 rule in effect while it 

promulgated another regulation in order 

to avoid disruption to the H–2B 

program, stating that in these 

circumstances ‘‘to leave an invalid rule 

in place is for a reviewing court to 


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12However, if a job opportunity for which a 

prevailing wage determination is sought is covered 

by a collective bargaining agreement, or the wage 

can be set based on the employer’s voluntary 

reliance on the SCA, the DBA, or the submission 

of an acceptable private wage survey, DOL may 

issue a prevailing wage determination and comply 

with the March 21 court order. 

legally sanction an agency’s disregard of 

its statutory or regulatory mandate.’’ Id. 

at *11. The court further stated that 

vacating the four-level component of the 

2008 rule ‘‘will only disrupt the H–2B 

program to the extent that the DHS and 

DOL use the program to issue H–2B 

visas that they are expressly prohibited 

from granting.’’ Id. at *12. Accordingly, 

the court vacated section 655.10(b)(2), 

remanded the matter to DOL, and gave 

DOL 30 days to come into compliance. 

Id. at *13. As a result of the court’s 

order, DOL is currently unable to issue 

a prevailing wage determination based 

on the OES survey, which is the basis 

of more than 95 percent of DOL’s H–2B 

prevailing wage determinations.12

Therefore, under the court’s order, we 

must now act expeditiously to close the 

regulatory gap created by the court order 

and promulgate a regulation that sets 

prevailing wages in the H–2B program 

in a manner that does not adversely 

affect U.S. workers’ wages, so that DOL 

may provide the advice DHS has 

determined is necessary for it to 

adjudicate H–2B petitions. 

H. The Interim Wage Methodology 

The wage methodology in the 2008 

rule requires that if a job opportunity is 

covered by a collective bargaining 

agreement, the prevailing wage 

applicable to that job is the wage set in 

the CBA. 20 CFR 655.10(b)(1). However, 

if the job opportunity for which a 

prevailing wage determination is sought 

is not covered by a CBA, the prevailing 

wage is determined according to 20 CFR 

655.10(b)(2). Under that now-vacated 

provision, the prevailing wage was the 

arithmetic mean of the OES wages of 

workers similarly employed ‘‘at the skill 

level’’ in the area of intended 

employment. 20 CFR 655.10(b)(2). Other 

wage provisions of the 2008 rule were 

not vacated. First, the 2008 rule also 

permits employers to submit their own 

wage surveys in lieu of the OES wage, 

under certain conditions. 20 CFR 

655.10(b)(4), (f). In addition, employers 

are permitted, but not required, to use 

wage determinations issued by DOL 

under either the DBA or SCA. 20 CFR 

655.10(b)(5). 

By contrast, as noted above, the 2011 

Wage Rule establishes a regime in 

which the prevailing wage would be the 

‘‘highest of’’ either the wage applicable 

under the CBA, the DBA, the SCA, or 

the OES mean. 20 CFR 655.10(b)(1)–(3) 

(2012 ed. Note). The 2011 Wage Rule 

eliminates from the OES mean the fourlevel wages, and disallows the use of 

employer-submitted surveys if the 

prevailing wage could be determined 

based on the OES, the DBA, or the SCA. 

20 CFR 655.10(b)(3), (6), (7) (2012 ed. 

Note). In the very limited circumstances 

in which employer-submitted surveys 

would be permitted, the 2011 Wage 

Rule continues DOL’s role in reviewing 

such surveys for methodological 

soundness. 20 CFR 655.10(b)(7) (2012 

ed. Note). 

1. Prevailing Wages Based on the OES 

In developing the wage methodology 

for this interim final rule in order to 

provide the requisite advice to DHS, 

DOL will not divide the OES wage into 

four levels because the CATA court has 

concluded, based on DOL’s 

administrative findings, 76 FR 3463, 

that the four levels substantively violate 

the INA, and has vacated that aspect of 

the 2008 rule. CATA II, 2013 WL 

1163426, at *9–10. The OES wage 

survey formed the basis of the 

prevailing wage determination in both 

the 2008 and 2011 rules. Therefore, in 

order to avoid creating an adverse effect 

on U.S. workers, DOL will base 

prevailing wage determinations on the 

arithmetic mean wage established in the 

OES survey, without the four levels. The 

prevailing wage will no longer be the 

mean of the particular wage level, but 

will be the overall mean of all persons 

in the occupation in question. 

Accordingly, this interim rule 

promulgates the regulatory text 

contained in the 2008 version of 20 CFR 

655.10(b)(2), but strikes from that 

provision the phrase, ‘‘at the skill 

level.’’ Striking this phrase from the 

2008 version of 20 CFR 655.10(b)(2) 

results in the use of the OES mean 

without the wage tiers. See revised 20 

CFR 655.10(b)(2) below. 

The OES survey is an appropriate 

basis for issuing H–2B prevailing wages 

because it is among the largest, most 

comprehensive, and continuous 

statistical survey programs of the 

Federal Government. The OES collects 

data from more than 1 million 

establishments, and salary information 

is available for all occupations in the 

SOC. Occupational wage data is 

available at state levels and at 

metropolitan and nonmetropolitan area 

levels within a state. For these reasons, 

the OES is also used in other foreign 

labor certification programs 

administered by DOL. See 76 FR 3458. 

DOL has decided to use the OES mean 

as the appropriate wage level in the H– 

2B program because almost all H–2B 

jobs involve unskilled occupations 

requiring few or no skill differentials 

(such as landscape laborer, 

housekeeping cleaner, forestry worker, 

and amusement park worker). There is 

no basis, under the existing statutory 

and regulatory framework, for creating 

wage levels since there are no skillbased wage differentials in these 

occupations. See 76 FR 3458–60. As 

DOL concluded in 2011, there was no 

justification for stratifying wage levels 

to artificially create wage-based skill 

levels when in fact there is no great 

difference in skill levels with which to 

stratify the job. Moreover, based on 

publicly available program data, DOL 

found during notice and comment 

rulemaking leading up to the 2011 rule 

that the predominance of Level I wages 

under the 2008 rule’s four-tier regime 

results in an adverse impact on 

similarly situated U.S. workers, in 

violation of the INA. 75 FR 61580; 76 FR 

3463. Under these circumstances, DOL 

cannot continue using the four-tier wage 

regime without violating the INA and 

USCIS’s regulations. CATA II, 2013 WL 

1163426, *8. In addition, DOL has the 

capacity to operationalize the OES mean 

wage rate at once based on the 

immediately available data from the 

Bureau of Labor Statistics, which will 

allow DOL to issue prevailing wage 

determinations without delay. This will 

allow for the smoothest transition with 

the least disruption and cost to the 

Department while acting in compliance 

with the CATA II court’s vacatur and 

remand order. 

The Departments invite comments on 

whether the OES mean is the 

appropriate basis for determining the 

prevailing wage. 

2. Prevailing Wages Based on Collective 

Bargaining Agreements 

Similarly, both the 2008 and 2011 

wage rules use the CBA wage as an 

alternate basis for determining the 

prevailing wage. DOL has left the CBA 

provision of the 2008 wage rule, 20 CFR 

655.10(b)(1), intact. DOL and DHS invite 

comment on whether the CBA wage 

should continue to be used as the 

prevailing wage in all instances in 

which there is a CBA wage, or whether 

the CBA wage should only be required 

if it is higher than the OES wage. 

3. Prevailing Wages Based on the DavisBacon Act and the Service Contract Act 

As noted above, DOL historically 

relied on the prevailing wage 

regulations used for permanent labor 

certifications, as codified at 20 CFR 

656.40, to determine prevailing wages in 

the H–2B program. In versions of 

section 656.40(a)(1) that pre-date 2005, 


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13See http://www.foreignlaborcert.doleta.gov/ 

pdf/NPWHC_Guidance_Revised_11_2009.pdf at 14– 

16. 

wage rates were set at the levels 

mandated by the DBA and the SCA ‘‘if 

the job opportunity is in an occupation 

which is subject to a wage 

determination’’ in the area of intended 

employment under either statute. In 

2008, DOL eliminated the requirement 

to apply DBA and SCA wages, and 

allowed employers to request 

voluntarily a prevailing wage based on 

those sources. The 2011 Wage Rule 

reinstated the mandatory use of the DBA 

and the SCA if they were the highest 

rate ‘‘for the occupation in the area of 

intended employment if the job 

opportunity is in an occupation for 

which such a wage rate has been 

determined.’’ 20 CFR 655.10(b)(2) (2012 

ed. Note). 

For purposes of this interim rule, DOL 

has decided to continue the 2008 rule’s 

approach, which permits, but does not 

require, an employer to use a prevailing 

wage determination based on the DBA 

or SCA. However, nothing precludes an 

employer from paying a higher DBA or 

SCA wage should they choose to do so. 

In addition, any employer employing 

H–2B and corresponding workers on 

particular contracts subject to the DBA 

or the SCA must comply with the wage 

provisions under DBA or SCA. 

The mandate to prevent adverse effect 

has existed for many years in the 

immigration programs administered by 

DOL and, except for certain unique 

requirements of the H–2A program, has 

always been implemented by a 

requirement that employers offer and 

pay the prevailing wage, however 

defined or calculated. The three 

prevailing wage rates used in this 

interim final rule (OES mean, SCA and 

DBA) all are determined by DOL, albeit 

using different methodologies and 

samples. Nevertheless, these three rates 

are based on actual wages being paid to 

workers in the particular area for the 

same kind of work for which H–2B 

workers are sought. Therefore, although 

there are various ways to define or 

calculate the prevailing wage rate, DOL 

and DHS conclude that, under the 

present circumstances in which we 

must act expeditiously in response to 

the CATA II order, the use of any of 

these three wage rates will serve to meet 

DOL’s obligation to determine whether 

U.S. workers are available for the 

position and that the employment of H– 

2B workers will not adversely affect 

U.S. workers similarly employed. 

Adopting this standard from the 2008 

rule with respect to the SCA and the 

DBA wages will allow for more efficient 

and consistent prevailing wage 

determinations that are in compliance 

with the INA and USCIS’s regulations. 

It will allow DOL to begin to issue wage 

determinations upon publication of this 

interim rule, and begin to eliminate as 

quickly as possible the backlog of 

prevailing wage determination requests 

that has built up since the CATA II 

order. Approaches other than the 

voluntary application of the DBA and 

SCA wage rates (such as the ‘‘higher of’’ 

standard used in the 2011 Wage Rule) 

would require DOL to determine 

whether multiple wage rates exist for 

every application and would 

significantly impede DOL’s ability to 

issue new prevailing wages to those 

employers in the backlog as well as to 

employers who previously received the 

now-invalidated prevailing wages. Any 

delay in issuing new prevailing wage 

rates would work to the detriment of 

employees working under the nowinvalidated rates because it would 

extend the time period during which 

they would be paid under those invalid 

rates. Additionally, it would prolong the 

depressive effect on the wages of 

similarly-employed U.S. workers, which 

was the ground for vacatur in the CATA 

II order. 

DOL and DHS seek comment on the 

use of the DBA and the SCA in making 

prevailing wage determinations, and if 

these wage rates should apply, to what 

extent. DBA and SCA wage 

determinations, when they exist for the 

occupation for which certification is 

being sought and in the area of intended 

employment, could be used in the H–2B 

program in at least three possible ways: 

a. They will apply if they represent 

the highest available prevailing wage 

determination for the job opportunity in 

question. This is the approach used in 

the 2011 rule. 

b. They are available to the employer 

if it chooses to rely on them for that job 

opportunity, regardless whether the 

wage is the highest or lowest available. 

This is the approach used in the 2008 

rule and in this interim final rule. 

c. They constitute the only prevailing 

wage determination applicable to that 

job opportunity unless there is a CBA 

wage. This is the approach that was 

followed before 2005. 

DOL and DHS invite comments on these 

and other alternatives that may be 

considered, especially the reasons for or 

against the use of a particular option. 

Comments on use of the SCA and/or the 

DBA in setting prevailing wages will be 

thoroughly considered, and the 

Departments will explain fully the 

policy adopted on these issues 

following comment. 

4. Prevailing Wages Based on EmployerSubmitted Surveys 

DOL’s 2008 rule permits employers to 

submit independent wage surveys under 

certain guidelines, and provides for an 

appeal process in the event of a dispute. 

Under the 2008 regulation, if an 

employer submits a survey, it must 

‘‘provide specific information about the 

survey methodology, including such 

items as sample size and source, sample 

selection procedures, and survey job 

descriptions, to allow’’ DOL to 

determine the adequacy of the data 

provided and validity of the statistical 

methodology used in conducting the 

survey. 20 CFR 655.10(f)(2). DOL has 

issued guidance that sets out the 

standards by which it will determine 

the adequacy and validity of the survey 

methodology.13 In addition, the survey 

must be based upon recently collected 

data, i.e., generally within 24 months of 

the date of submission. 20 CFR 

655.10(f)(3)(ii). 

In the 2011 rule, DOL concluded that, 

given the quality, reliability and 

consistency of the three public surveys 

that would be used to make prevailing 

wage determinations—the OES, the 

DBA and the SCA—we would allow the 

submission of other surveys by 

employers as the basis for a prevailing 

wage determination only in limited 

circumstances. Those circumstances 

include specific situations in which the 

public surveys may not provide useful 

wage information about, for instance, 

geographic locations that are not 

included in BLS’s data collection area 

(such as the Commonwealth of the 

Northern Mariana Islands), where the 

job opportunity is not accurately 

represented within the job classification 

used in the OES, DBA or SCA surveys, 

or where the job opportunity is not 

accurately represented within the 

Standard Occupational Classification 

System published by the BLS. In 

virtually all other cases, the prevailing 

wage determination would be made 

based on the OES, the DBA or the SCA 

wages. However, if circumstances 

permitted the use of an employersubmitted survey as the basis for a 

prevailing wage determination, the 2011 

regulation required the same ‘‘fresh’’ 

data standards as did the 2008 rule, and 

also required that DOL review the 

survey methodology in the same manner 

as the 2008 rule. 20 CFR 655.10(b)(7) 

(2012 ed. Note). 

This interim final rule will permit the 

use of employer-provided surveys in 

lieu of wages derived from the other 

sources, in order for DOL to provide the 

advice DHS has determined is necessary 

for it to adjudicate H–2B petitions. 

Accordingly, we do not revise or amend 


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in this interim rule 20 CFR 655.10(b)(4) 

and (f) of the 2008 rule. However, DOL 

still has the concerns expressed in the 

2011 rule about the consistency, 

reliability and validity of these surveys, 

as well as the costs and delays involved 

in DOL’s review of surveys. 76 FR 3465– 

67. The Department would like to 

collect additional data on the accuracy 

and reliability of private surveys 

covering traditional H–2B occupations 

to allow for further factual findings on 

the sufficiency of private surveys for 

setting prevailing wage rates. Therefore, 

DOL and DHS invite comment on 

whether to permit the continued use of 

employer-submitted surveys, and 

especially seek input on the ways in 

which, if permitted, the validity and 

reliability of employer-submitted 

surveys can be strengthened. Are there 

methodological standards that can or 

should be included in the regulation 

that would ensure consistency, validity 

and reliability of employer-provided 

surveys? Are there industries in which 

employers historically and routinely 

rely on employer-submitted surveys that 

should be permitted to do so because of 

the well-developed, historical, industrywide practice, or for other reasons? Are 

there state-developed wage surveys, 

such as state agricultural surveys, or 

surveys from other agencies, such as 

maritime agencies, that could provide 

data that would be useful in setting 

prevailing wages? Should employer 

surveys that include data based on 

wages paid to H–2B or other 

nonimmigrant workers be permitted in 

establishing a prevailing wage that does 

not adversely affect U.S. workers? If so, 

under what circumstances? See 

655.10(b)(7)(vi) (2012 ed. Note). 

I. The Interim Final Rule is Effective 

Immediately 

The CATA II court order vacating 20 

CFR 655.10(b)(2) in the 2008 rule 

prevents DOL from issuing any 

prevailing wage determinations based 

on the four-tiered version of the OES 

survey. Because prevailing wage 

determinations are a condition 

precedent to an employer’s filing an 

application for temporary labor 

certification, which is the means by 

which DOL provides the advice that 

DHS has determined is necessary, and 

there is no prior regulation that DOL can 

use to issue prevailing wage 

determinations based on the OES, DOL 

has suspended issuance of prevailing 

wage determinations and certification of 

the vast majority of those applications 

(those which had not requested a 

determination based on a CBA, the 

DBA, the SCA, or an employer-provided 

survey) until this interim wage 

methodology becomes effective. Due to 

the suspension of most wage 

determinations created by the CATA II 

court order, and because DOL has only 

30 days to comply with the court’s 

order, this interim rule is effective 

immediately. In response to the vacatur 

of the existing wage rule and in order to 

come into compliance quickly, this rule 

applies to all requests for prevailing 

wage determinations and applications 

for temporary labor certification in the 

H–2B program issued on or after the 

effective date of this interim rule. Upon 

individual notification to the employer 

of a new prevailing wage, the new wage 

methodology will also apply to all 

previously granted H–2B temporary 

labor certifications for any work 

performed on or after the effective date 

of this interim rule. In addition to the 

requirements that follow directly from 

the CATA II court’s vacatur, the 

employer’s obligation to pay the wage 

under the interim rule is reflected in 

Appendix B.1 to the ETA Form 9142, 

H–2B Application for Temporary 

Employment Certification, in which 

employers have certified as a condition 

of employment under the H–2B program 

that they will offer and pay ‘‘the most 

recent prevailing wage * * * issued by 

the Department to the employer for the 

time period the work is performed[.]’’ 76 

FR 21039. 

Further, on April 1, 2013, the U.S. 

Court of Appeals for the Eleventh 

Circuit upheld a district court decision 

that granted a preliminary injunction 

against enforcement of DOL’s 2012 H– 

2B comprehensive rule on the ground 

that the plaintiffs (employers) are likely 

to prevail on their allegation that DOL 

lacks H–2B rulemaking authority. Bayou 

Lawn & Landscape Servs. v. Sec’y of 

Labor, ___ F.3d ___, 2013 WL 1286129, 

No. 12–12462 (11th Cir. Apr. 1, 2013). 

DOL and DHS strongly disagree with the 

Eleventh Circuit’s decision and are 

defending on appeal to the U.S. Court of 

Appeals for the Third Circuit the district 

court’s decision in Louisiana Forestry 

Ass’n v. Solis, 889 F. Supp. 2d 711 (E.D. 

Pa. 2012), which came to the conclusion 

that DOL does have independent H–2B 

rulemaking authority. Nevertheless, 

DHS and DOL have concluded it is 

necessary to dispel any questions about 

the validity of the H–2B program or how 

it operates. As explained above, DHS 

has determined that, to exercise its 

statutory responsibilities to administer 

the H–2B program, it requires advice 

from DOL regarding the labor market, 

and DOL is unable to provide a key 

component that underlies this advice, 

namely the prevailing wage 

determination, without being assured a 

valid rule is in place. Therefore, based 

upon the Eleventh Circuit’s affirmance 

of the preliminary injunction against the 

implementation of the 2012 rule, DOL 

and DHS are making effective 

immediately this interim final rule and 

revising DHS’s regulations to resolve 

any doubt about the consultative role 

DOL plays in in the H–2B program with 

respect to prevailing wage 

determinations. However, this wage 

methodology is established on an 

interim basis while the public submits 

comments on the methodology, and 

DOL and DHS will promulgate a final 

rule following thorough consideration of 

the comments received. DOL and DHS 

will act as quickly as possible in 

reviewing comments and in 

promulgating a final wage methodology 

regulation in light of those comments. 

The Administrative Procedure Act 

(APA) authorizes agencies to make a 

rule effective immediately without 

public participation upon a showing of 

good cause. 5 U.S.C. 553(b)(B),(d)(3). 

The APA’s good cause exception to 

public participation and a delayed 

effective date applies upon a finding 

that those procedures are 

‘‘impracticable, unnecessary, or contrary 

to the public interest.’’ 5 U.S.C. 

553(b)(B). Under the APA, 

‘‘‘(i)mpracticable’ means a situation in 

which the due and required execution 

of the agency functions would be 

unavoidably prevented by its 

undertaking public rule-making 

proceedings.’’ S. Rep. No.752, 79th 

Cong., 1st Sess. 200 (1945). The 

‘‘‘[p]ublic interest’ supplements * * * 

‘impracticable’ [and] requires that 

public rule-making procedures shall not 

prevent an agency from operating.’’ Id. 

In this case, DOL and DHS consider 

that it is impracticable to adopt a new 

prevailing wage methodology, which is 

the first step in DOL’s consultative role 

in assessing employers’ requests for 

temporary labor certifications, only after 

the consideration of public comments 

and the passage of 30 days following the 

publication of a final rule, as normally 

required by the APA (and after 60 days, 

pursuant to the Congressional Review 

Act’s provision for major rules). 5 U.S.C. 

553(b), (d); 5 U.S.C. 801. DHS and DOL 

must act under an extremely short 

deadline, outside the control of either 

agency, to come into compliance with 

the CATA II court’s vacatur order. 

Neither DHS nor DOL may use the 

vacated 2008 prevailing wage rule, 

which effectively leaves the 

Departments without a wage regime by 

which they may operate a 

congressionally created program. DOL 

and DHS must take action within 30 

days to come into compliance with the 


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14This forecast estimate of incoming H–2B 

prevailing wage requests includes the 4.4 percent 

decrease in H–2B prevailing wage requests 

submitted so far in this fiscal year (FY 2013) as 

compared the number of H–2B prevailing wage 

requests submitted during the same time period last 

fiscal year (FY 2012). 

15This figure does not include any Form I–129 

H–2B petitions filed at DHS from Guam. 

CATA II court order, and also must 

establish as quickly as possible a wage 

methodology so that DOL may fully 

resume providing advice that DHS 

requires by issuing prevailing wage 

determinations, which is a condition 

precedent to an employer’s application 

for temporary labor certification. If this 

interim wage methodology did not 

become effective until after the 

submission and consideration of 

comments and after a 30-day period 

following the publication of a final rule, 

DOL’s H–2B certifications and DHS’s H– 

2B petition adjudications would be 

suspended for that period of time, likely 

several months. Under such a scenario, 

the H–2B program could not operate, 

which would have the dual effects of 

depriving employers of H–2B workers 

and depriving workers, both U.S and 

foreign, of job opportunities with legally 

sustainable wages. 

Moreover, under the CATA II court’s 

order, and DOL’s own factual findings, 

the U.S. workers and H–2B workers 

currently employed under approved 

certifications, based on the invalid wage 

rates under the 2008 rule, are being 

underpaid in violation of the INA. 

CATA II, 2013 WL 1163426, *11–12; 76 

FR 3463. To come into compliance with 

the court’s order and to ensure that DHS 

and DOL fulfill the statutory mandate to 

protect the domestic labor market, DHS 

and DOL must immediately set new and 

legally valid prevailing wage rate 

standards to allow for an immediate 

adjustment of the wage rates for these 

currently employed workers. Further 

delay in setting a legally valid 

prevailing wage regime will cause 

continued harm to U.S. workers, foreign 

workers, and the domestic labor market. 

In addition, the Departments must 

forego full notice and comment 

rulemaking to provide immediate 

regulatory guidance for the operation of 

the H–2B program, which will avoid 

continued confusion and disruption to 

sectors of the economy that may need to 

supplement their workforce with H–2B 

workers. The ongoing suspension of the 

H–2B program beyond the period it has 

taken DOL and DHS to issue this 

interim rule would create a significant 

impact on the H–2B program. For 

instance, as of late March (shortly after 

the CATA II court order), DOL had in 

process approximately 287 applications 

for H–2B prevailing wage 

determinations. Over the next month, 

DOL anticipates receiving requests for 

an additional 265 H–2B prevailing wage 

determinations. As shown below in 

Table 1, based on present and historical 

filing trends, we anticipate receiving an 

estimated additional 3,023 H–2B 

prevailing wage requests over the next 

six months, the amount of time it would 

likely take to fully implement the APA 

procedures related to public 

participation and a 30-day delay in the 

effective date.14

TABLE 1—SIX-MONTH FORECAST OF

H–2B PREVAILING WAGE APPLICATIONS

Month 

Month by 

month 

forecast 

March–April ................................... 265 

May ............................................... 456 

June .............................................. 355 

July ............................................... 377 

August ........................................... 675 

September .................................... 1,160 

Total ....................................... 3,023 

Therefore, the suspension of processing 

OES-based prevailing wage 

determinations for this period of time 

will create a significant backlog for 

DOL’s National Prevailing Wage Center. 

Without this fundamental advice from 

DOL, DHS will be unable to adjudicate 

H–2B petitions, which will significantly 

hinder employers’ ability to use the 

program to meet temporary labor 

shortages and will deprive workers of 

job opportunities during that 

suspension. 

A months-long program suspension 

would also significantly delay the 

issuance of temporary labor 

certifications, which, under the 

Departments’ consultative framework, 

are a predicate to H–2B petitions 

adjudicated by USCIS. The INA limits 

the number of H–2B visas to 66,000 

visas per year, one half of which, or 

33,000, can be allocated during the first 

six months of each fiscal year, and the 

remainder of which may be allocated 

during the second half of each fiscal 

year. For applications for temporary 

labor certification filed in October 2013, 

recruitment of U.S. workers would 

typically begin as early as June 1, 2013. 

Requests for prevailing wage 

determinations are generally made 

between 30 and 60 days in advance of 

when prevailing wage determinations 

are needed, i.e., by April or May of 

2013. Because an extended suspension 

of H–2B prevailing wage determinations 

will prevent the required recruitment of 

U.S. workers before filing a temporary 

labor certification application, and H– 

2B petitions cannot be filed with USCIS 

without an approved temporary labor 

certification application, the process 

will be backlogged significantly, and 

employers will forego workers necessary 

to conduct business and workers will 

forfeit job opportunities. Moreover, if 

DOL took months to implement a new 

wage methodology after notice and 

comment, upon resuming the issuance 

of prevailing wages, there would be a 

large backlog and unusually longer wait 

times that would have an adverse 

impact on employers’ ability to file 

timely petitions for H–2B workers and 

for DHS to timely adjudicate those 

petitions. As of April 10, 2013, there are 

approximately 682 H–2B petitions, 

consisting of around 10,117 

beneficiaries, on hold at DHS.15

Finally, DHS and DOL note that the 

regulated public already had a 

significant opportunity to comment on 

the substantive prevailing wage regime 

that DHS and DOL are adopting through 

this interim final rule. DOL already 

accepted public comments on the 

proposed use of the mean OES wage 

rates for the H–2B program. 75 FR 

61580–87. DOL subsequently 

considered and responded to public 

comments on this issue. 76 FR 3458–67. 

In addition to the reasons stated above, 

the Departments find good cause to 

implement the prevailing wage 

standards in this interim final rule 

immediately on a temporary basis 

because the regulated public is familiar 

with the prevailing wage regime 

adopted in this rule. The Departments 

do not contend that public comments 

will not be helpful; rather, under the 

particular circumstances and history of 

this program, the emergency situation 

created by the CATA II court’s order 

justifies an immediate effectiveness of a 

prevailing wage standard of which the 

regulated public is well aware. The 

Departments still request and will 

accept and consider additional public 

comments on all of the prevailing wage 

issues addressed in this interim final 

rule. 

For these good and sufficient reasons, 

DOL and DHS have determined that 

there is good cause to dispense with the 

APA’s notice and public comment and 

30-day effective date requirements. 

II. Regulatory Procedures 

A. Executive Order 12866 

Under Executive Order (E.O.) 12866, 

DOL and DHS must determine whether 

a regulatory action is economically 

significant and therefore subject to the 

requirements of the E.O. and to review 


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16 In FY 2011 and 2012, a total of 72,037 

prevailing wage determinations were issued by the 

Department of Labor’s National Prevailing Wage 

Center (NPWC) for employers seeking wage rates for 

H–2B workers. Of the 72,037, 59,694 

determinations (82.9%) were based on the OES and 

12,343 determinations were based on a collective 

bargaining agreement (CBA), the Davis-Bacon Act 

(DBA), or the Service Contract Act (SCA) prevailing 

wage, or employer-submitted wage surveys. 

by OMB. Section 3(f) of the E.O. defines 

an economically significant regulatory 

action as an action that is likely to result 

in a rule that: (1) Has an annual effect 

on the economy of $100 million or 

more, or adversely and materially affects 

a sector of the economy, productivity, 

competition, jobs, the environment, 

public health or safety, or State, local or 

tribal governments or communities (also 

referred to as economically significant); 

(2) creates serious inconsistency or 

otherwise interferes with an action 

taken or planned by another agency; (3) 

materially alters the budgetary impacts 

of entitlement grants, user fees, or loan 

programs, or the rights and obligations 

of recipients thereof; or (4) raises novel 

legal or policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the E.O. 

IV. Administrative Information 

A. Executive Orders 12866 and 13563 

Under Executive Order (E.O.) 12866 

and E.O. 13563, the Departments must 

determine whether a regulatory action is 

significant and therefore subject to the 

requirements of the E.O. and to review 

by OMB. Section 3(f) of the E.O. defines 

a significant regulatory action as an 

action that is likely to result in a rule 

that: (1) Has an annual effect on the 

economy of $100 million or more, or 

adversely and materially affects a sector 

of the economy, productivity, 

competition, jobs, the environment, 

public health or safety, or State, local or 

tribal governments or communities (also 

referred to as economically significant); 

(2) creates serious inconsistency or 

otherwise interferes with an action 

taken or planned by another agency; (3) 

materially alters the budgetary impacts 

of entitlement grants, user fees, or loan 

programs, or the rights and obligations 

of recipients thereof; or (4) raises novel 

legal or policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the E.O. 

The Departments have determined 

that this interim final rule is an 

economically significant regulatory 

action under section 3(f)(1) of E.O. 

12866. In response to the court’s March 

22, 2013 order in CATA II, which 

vacated the prevailing wage 

methodology in 8 CFR 655.10(b)(2) 

because of its depressive effect on 

wages, the Department of Labor has 

been unable to provide prevailing wage 

determinations calculated according to 

four skill levels based on the OES mean 

wage. The Department has, however, 

continued to provide prevailing wage 

determinations based on those portions 

of section 655.10(b) that the court did 

not vacate, i.e., those determinations 

based on the applicable collective 

bargaining wage or those determinations 

in which the employer has requested a 

wage based on an applicable Service 

Contract Act wage, Davis Bacon Act 

wage, or an appropriate private wage 

survey. No more than approximately 

five percent of all prevailing wage 

requests are based on these wages. The 

revision to section 655.10(b)(2) will 

bring the Department into compliance 

with the court’s order by establishing a 

prevailing wage based on the OES mean 

without four tiers, thereby eliminating 

any depressive effect on wages. This 

will allow the Department to resume 

issuing prevailing wages to all 

employers requesting them. In order to 

evaluate the economic impact of this 

interim final rule, it is necessary to 

project what would happen in the future 

if the rule is not adopted and to 

compare this to what is expected to 

happen in the future if the rule is 

adopted. In this case, the Department is 

unable to project what would happen to 

wage and visa requests under the 

program since the majority of wage 

requests have been made based on the 

four-tiered wage methodology, which is 

no longer available. The Department has 

been unable to estimate the economic 

effects of the rule, but has determined 

that due to the change in the prevailing 

wage provisions, this interim final rule 

is likely an economically significant 

regulatory action under section 3(f)(1) of 

E.O. 12866, because without the rule H– 

2B applications might fall precipitously. 

The analysis below is not an estimate of 

the effect of the rule, but instead 

quantifies the economic significance of 

the interim final rule’s change in the 

prevailing wage provisions when 

compared to the wage provisions under 

the previous wage rule. 

The Departments’ economic analysis 

under this section is limited to meeting 

the requirements under Executive 

Orders 12866 and 13563. The 

Departments did not use the economic 

analysis under this section as a factor or 

basis for determining the scope or extent 

of the Departments’ obligations under 

the Immigration and Nationality Act, as 

amended. 

Need for Regulation 

The Departments have determined 

that a new wage methodology is 

necessary for the H–2B program, based 

on the recent court decision in CATA v. 

Solis vacating section 655.10(b)(2) of the 

2008 rule because it did not adequately 

ensure that U.S. workers were not 

adversely affected by the employment of 

H–2B workers and the 2008 rule had not 

been properly promulgated under the 

APA. The Departments are issuing the 

interim final rule pursuant to the court’s 

order requiring the Department of Labor 

to come into compliance with its ruling 

within 30 days. 

According to the distribution of the 

59,694 H–2B prevailing wage 

determinations the Department of Labor 

issued based on the Occupational 

Employment Statistics (OES) wage 

survey in FY 2011 and 2012,16 72.3 

percent of H–2B prevailing wage 

determinations based on the OES were 

at Level I. The percentages of H–2B 

prevailing wage determinations based 

on the OES at Levels II, III, and IV were 

14.4, 5.9, and 7.4, respectively. In over 

90 percent of those cases, the H–2B 

prevailing wage was determined at the 

wage rate lower than the mean of the 

OES wage rates for the same occupation. 

As the Department of Labor found in 

its 2011 Final Wage Rule, 76 FR 3452, 

3458–63 (Jan. 19, 2011), and as the 

CATA court concurred, this distribution 

of wage rates does not adequately 

protect U.S. workers from adverse effect. 

Therefore, as explained in the preamble 

to this interim rule, because the OES 

mean wage rate conforms more closely 

to the wages actually paid by employers 

in the area for the occupation, the 

Departments have decided to use the 

OES mean when the certified prevailing 

wage is based on the OES survey. Using 

the arithmetic mean is one way to 

ensure that H–2B workers are paid a 

wage that will not adversely affect the 

wages of similarly employed U.S. 

workers. 

2. Economic Analysis 

The Departments’ analysis below 

compares the expected impacts of this 

interim final rule to the baseline (i.e., 

the 2008 rule). According to the 

principles contained in OMB Circular 

A–4, the baseline for this rule would be 

the situation that exists if this interim 

final rule is not adopted. Thus, the 

baseline for this H–2B prevailing wage 

regulation is the four-tier wage structure 

derived from the OES wage survey, as 

implemented in the 2008 rule. The 2008 

rule also permits the use of certain 

employer-submitted surveys, the DBA, 

or the SCA wages as the basis for a 

prevailing wage determination. The 

2008 rule also requires the use of the 

CBA wage rate when a CBA exists that 

was negotiated at arms’ length. 


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24058 Federal Register / Vol. 78, No. 79 / Wednesday, April 24, 2013 / Rules and Regulations 

17 Depending on the scope of work required by H– 

2B workers, multiple prevailing wage 

determinations may be needed if the work will be 

performed in multiple locations for a certified or 

partially-certified application (such as those 

involving carnival or reforestation workers). While 

the Department of Labor’s program database collects 

the total number of H–2B workers certified for each 

certified or partially-certified application, the 

Department of Labor has limited information about 

H–2B workers certified on the same application 

who were paid different prevailing wages because 

they performed work in multiple locations. In this 

analysis for the certified and partially-certified 

applications with multiple prevailing wage rates, 

we used prevailing wage rates that occurred most 

frequently in each application for certification. 

18The Departments weighted the wage 

differentials by the number of certified workers as 

opposed to the number of workers requested 

because a decrease in number of workers granted 

may occur for reasons other than that a U.S. worker 

was hired in response to the recruitment. 

19The stratified random sample chosen was 

consistent with standard statistical methods. 

20This is an upper bound estimate because, due 

to the lack of data on employer surveys in our 

sample, we were not able to fully calculate the 

increase in the weighted average hourly wage. Our 

estimate of the increase in the weighted average 

hourly wage at $2.12 was calculated as the 

difference between the OES mean wage (or the SCA 

or DBA wage, whichever is lower) and the wage 

actually certified. However, we assume that 

employers would choose an available survey wage 

where it is lower than the OES mean wage and the 

SCA and/or DBA wage. Therefore, our estimated 

weighted average hourly wage increase is likely an 

overestimate. We also did not have data on CBA 

rates. However, if an employer has a higher CBA 

rate, this interim final rule will not result in a 

transfer payment because the employer already 

would be legally bound to pay the CBA wage. 

This interim final rule establishes that 

when the prevailing wage determination 

is based on the OES, the wage rate is the 

arithmetic mean of the OES wages for a 

given area of employment and 

occupation. The median does not 

represent the most predominant wage 

across a distribution. The median wage 

represents only the midpoint of the 

range of wage values; it does not 

account for the actual average. The 

mean is widely considered to be the best 

measure of central tendency for a 

normally distributed sample, as it is the 

measure that includes all the values in 

the data set for its calculation, and any 

change in any of the wage rates will 

affect the value of the mean. The 

Department has traditionally relied on 

arithmetic means for wage programs and 

has determined that these reasons make 

continuing reliance on the mean, rather 

than the median, logical. This interim 

final rule eliminates the four-tier wage 

structure of the 2008 final rule. For the 

purposes of this interim final rule, the 

Departments have decided to retain the 

component of the 2008 final rule that 

permits, but does not require, an 

employer to use a prevailing wage 

determination based on employerprovided alternatives from legitimate 

sources such as employer-submitted 

surveys, DBA, or SCA wage 

determinations. It also retains the 

component of the 2008 final rule that 

requires the use of an applicable CBA 

wage rate, if one exists. Finally, this 

interim final rule retains the 

requirement that employers offer H–2B 

workers and U.S. workers hired in 

response to the required H–2B 

recruitment a wage that is at least equal 

to the highest of the prevailing wage, or 

the Federal, State or local minimum 

wage. 

The change in the method of 

determining prevailing wages under this 

interim final rule will result in 

additional compensation for both H–2B 

workers and U.S. workers hired in 

response to the required recruitment. In 

this section, the Departments discuss 

the relevant costs, transfers, and benefits 

that may apply to this interim final rule. 

The Departments calculated the 

change in hourly wages that would 

result from the interim final rule by 

comparing the prevailing wage rates to 

the H–2B hourly wages actually 

certified by standard occupational 

classification (SOC) code and county of 

employment, using a randomly selected 

sample of 512 certified or partially 

certified H–2B applications from FY 

2012. Under this interim final rule, the 

Departments will base prevailing wage 

determinations on the OES mean wage, 

the SCA or DBA wage, the CBA wage, 

or wage based on an employersubmitted survey. 

Using certified and partially certified 

applications from the random sample, 

we calculated the increase in wages as 

the difference between the prevailing 

wages and the H–2B hourly wages 

actually certified in FY 2012.17 We 

weighted this differential by the number 

of certified workers on each certified or 

partially certified application.18 We 

then summed those products to 

calculate the weighted average wage 

differential for the randomly selected 

sample drawn from FY 2012 H–2B 

program data. 

The equation below shows the 

formula that we used to calculate the 

weighted average wage differential 

(WWD). In the formula, ‘‘Prevailing 

Wage’’ is the arithmetic mean of the 

OES-reported wage, the SCA or DBA 

wage, whichever is lowest. 

In order to accurately calculate the 

expected changes in hourly wages 

relative to the baseline, the Departments 

used wage data for each county where 

the H–2B work was expected to be 

performed. The Department of Labor’s 

program database does not contain all 

work locations for the H–2B 

certifications; further, the employer’s 

address frequently does not represent 

the area where the work actually takes 

place. Consequently, the Departments 

used a stratified random sample of 512 

certified or partially-certified 

applications from FY 2012 H–2B 

program data 19 and conducted a 

manual extraction of area-ofemployment data from these certified 

H–2B applications, including the city, 

county, state, and zip code 

corresponding to the area of 

employment. 

Using this sample data, we estimated 

that this interim final rule’s change in 

the method of determining wages will 

result in, at most, a $2.12 increase 20 in 

the weighted average hourly wage for 

H–2B workers and similarly employed 

U.S. workers hired in response to the 

recruitment required as part of the H– 

2B application. 

The Departments provide an 

assessment of transfer payments 

associated with increases in wages 

resulting from the change in the wage 

determination method. Transfer 

payments, as defined by OMB Circular 

A–4, are payments from one group to 

another that do not affect total resources 

available to society. Transfer payments 

are associated with a distributional 

effect but do not result in additional 

benefits or costs to society. The primary 

recipients of transfer payments reflected 

in this analysis are H–2B workers and 

U.S. workers hired in response to the 

required recruitment under the H–2B 

program. The primary payers of transfer 

payments reflected in this analysis are 

H–2B employers. Under the higher wage 

obligation established in this interim 

final rule, those employers who 


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21Although employers may pass costs onto their 

customers, data does not exist from which to 

estimate the amount or extent to which costs would 

be absorbed by customers. Therefore, the 

Departments are not able to quantify this cost offset. 

22The output reduction impact of reducing labor 

demand may be in some cases partially offset by 

capital substitution and organizational substitution 

productivity effects. When substitution occurs, the 

deadweight loss is reduced. 

23Hamermesh estimated that the elasticity of 

labor demand ranged from –0.21 to –0.45 by 

industry with an average of about –0.30 

(Hamermesh Daniel S., Labor Demand, Princeton 

and Chichester, U.K.: Princeton University Press, 

1993). Although this is a 20-year old study, it has 

been cited recently by Leif Danzier (2007) and 

Pedro Trivin (2012). We did not use these more 

recent studies of elasticity of labor demand because 

they are limited to the manufacturing sector or lowwage workers. 

24 79,305—(79,305 ¥ 6.4%) = 74,229. 

25The Department’s data on certified applications 

cannot be used to determine the actual number of 

H–2B workers in the country. Certifications are 

made without regard to the cap on the number of 

H–2B workers admissible each year and are not 

intended to indicate whether a worker actually 

entered the country to fill a position. 

participate in the H–2B program are 

likely to be those that have the greatest 

need to access the H–2B program. 

The H–2B program is capped at 

66,000 visas issued per year but H–2B 

workers with existing visas may remain 

in the country for two additional years 

if an H–2B employer petitions for them 

to remain. Assuming, as the Department 

of Labor did in its 2011 Final Wage 

Rule, that half of all such workers 

(33,000) in any year stay at least one 

additional year, and half of those 

workers (16,500) stay a third year, there 

will be a total of 115,500 H–2B workers 

in a given year. That is, in our 

calculations, we used 66,000 as the 

annual number of new entrants and 

115,500 as the total number of H–2B 

workers in a given year. 

In the remaining sections of this 

analysis, we first present the estimated 

costs resulting from the interim final 

rule, including an increase in H–2B 

employer expenses that could lead to a 

decrease in production. The 

Departments predict that most of these 

costs, which would result from a 

decrease in current H–2B participation 

by employers who cannot afford the 

increased labor costs, or who can more 

easily fill empty positions with U.S. 

workers, will be borne by the additional 

employers who have the need for 

additional temporary labor but do not 

currently participate in the H–2B 

program. We then discuss the transfers 

from H–2B workers to U.S. workers and 

from employers to U.S. and H–2B 

workers resulting from the change in 

wage determination methodology. 

i. Costs 

In standard economic models of labor 

supply and demand, an increase in the 

wage rate represents an increase in 

production costs to employers, which 

leads to a reduction in the demand for 

labor. Because production costs increase 

with an increase in the wage rate, a 

resulting decrease in profits is possible 

for H–2B employers that are unable to 

increase prices to cover the labor cost 

increase. Some H–2B employers, 

however, can be expected to offset the 

cost increase by increasing the price of 

their products or services.21 In addition, 

workers who would have been hired at 

a lower wage rate may not be hired at 

the higher wage rate, resulting in 

forgone earnings for H–2B and U.S. 

workers. In this sense, to the extent that 

the higher wages imposed by the rule 

result in lower employment and lower 

output by firms that had employed 

those workers, the lost profits on the 

foregone output and the lost net wages 

to the foregone workers represent a 

deadweight loss. In economics, a 

deadweight loss is a loss of economic 

efficiency that can occur when 

equilibrium for a good or service is not 

optimal. This effect will be magnified 

during years in which the H–2B visa cap 

is not reached.22

The Department of Labor certified 

employers for 79,305 H–2B positions on 

average for both FY 2011 and 2012. This 

number reflects the number of positions 

certified, rather than the number of 

actual workers who entered the program 

to fill those positions because, as 

previously stated, the H–2B program is 

capped at 66,000 visas per year. Using 

this number of certified positions to 

represent the quantity of labor 

demanded, and assuming an elasticity 

of labor demand of ¥0.3,23 a $2.12 (21.4 

percent) increase in the average H–2B 

prevailing wage rate would result in a 

6.4 percent decline in the number of H– 

2B positions requested by employers, 

for a remaining total of 74,229 H–2B 

certified positions,24 which is still larger 

than the maximum number of visas 

allowed under the H–2B program. 

Therefore, any loss of production 

resulting from some employers 

dropping out of the program will be 

offset by the increase in production by 

other employers who would then be 

able to fill previously vacant positions. 

Thus, the Departments believe that for 

years in which the number of certified 

positions exceeds the number of 

positions available under the annual 

cap, there will be no deadweight loss in 

the market for H–2B workers even if 

some employers do not participate in 

the program as a result of the higher H– 

2B wages. Indeed, the higher wages 

expected to result from the interim final 

rule could in turn result in a more 

efficient distribution of H–2B visas to 

employers who can less easily attract 

available U.S. workers. The 

Departments believe that, under this 

interim final rule, those employers who 

can more easily attract U.S. workers will 

be dissuaded from attempting to 

participate in the H–2B program, so that 

those employers participating in the H– 

2B program after the rule is in place will 

be those that have a greater need for the 

program, on average, than those 

employers not participating in the H–2B 

program. Therefore, there would be no 

appreciable decline in the total 

employment under the program. 

ii. Transfers 

The change in the method of 

determining the prevailing wage rate 

results in transfers from H–2B workers 

to U.S. workers and from U.S. 

employers to both U.S. workers and H– 

2B workers. A transfer from H–2B 

workers to U.S. workers arises because, 

as wages increase, jobs that would 

otherwise be occupied by H–2B workers 

will be more acceptable to a larger 

number of U.S. workers who will apply 

for the jobs. Additionally, faced with 

higher H–2B wages, some employers 

may find domestic workers relatively 

less expensive and may choose not to 

participate in the H–2B program and, 

instead, employ U.S. workers. Although 

some of these U.S. workers may be 

drawn from other employment, some of 

them may otherwise be or remain 

unemployed or out of the labor force 

entirely, earning no compensation. 

The Departments are not able to 

quantify these transfers with precision. 

Difficulty in calculating these transfers 

arises primarily from uncertainty about 

the number of U.S. workers currently 

collecting unemployment insurance 

benefits who would become employed 

as a result of this rule. 

To estimate the total transfer to all H– 

2B workers that results from the 

increase in wages due to application of 

the interim final rule’s new prevailing 

wage determination method, the 

Departments multiplied the weighted 

average wage differential ($2.12) by the 

total number of H–2B workers in the 

United States in a given year 

(115,500).25 We estimated the total 

impact incurred due to the increase in 

wages at $371.82 million per year. For 

the number of hours worked per day, we 

used 7 hours as typical. For the number 

of days worked, we assumed that the 

employer would retain the H–2B worker 

for the maximum time allowed (10 

months or 304 days) and would employ 

the workers for 5 days per week. Thus, 


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24060 Federal Register / Vol. 78, No. 79 / Wednesday, April 24, 2013 / Rules and Regulations 

the total number of days worked equals 

217 (304 × 5⁄7). The following equation 

shows the formula used to compute the 

total impact per year, which likely will 

be lower due to the use of other lower 

wage rates: 

The increase in the prevailing wage 

rates induces a transfer from 

participating employers not only to H– 

2B workers, but also to U.S. workers 

hired in response to the required H–2B 

recruitment. The higher wages are 

beneficial to U.S. workers because they 

enhance workers’ ability to meet the 

cost of living and to spend money in 

their local communities, which has the 

secondary impact of increasing 

economic activity and, therefore, 

generates employment in the 

community. An additional transfer is 

increased remittances to the H–2B 

worker’s home country. The 

Departments, however, do not have data 

on the remittances made by H–2B 

workers to their countries of origin. Our 

calculations also do not include the 

wage increase for U.S. workers hired in 

response to the required recruitment 

because of the lack of data on these 

workers. The annual transfer of this 

interim final rule was calculated based 

on the stratified random sample of 512 

certified or partially-certified 

applications from FY 2012 H–2B 

program data, which are the most recent 

data available. Because we are assuming 

no statutory increases in the number of 

H–2B visas available for entry in a given 

year or in the maximum employment 

period of 10 months per year, it is 

unlikely that the selection of a different 

fiscal year (or years) would significantly 

affect the amount of transfers calculated 

in this analysis. 

B. Regulatory Flexibility Act 

The Regulatory Flexibility Act, 5 

U.S.C. 601 et seq. (RFA), imposes 

certain requirements on Federal rules 

that are subject to the notice and 

comment requirements of section 553(b) 

of the APA (5 U.S.C. 551 et seq.) and 

that are likely to have a significant 

economic impact on a substantial 

number of small entities. Under Section 

553(b) of the APA, a general notice of 

proposed rulemaking is not required 

when an agency, for good cause, finds 

that notice and public comment thereon 

are impracticable, unnecessary, or 

contrary to the public interest. This 

interim final rule is exempt from the 

requirements of section 553(b) of the 

APA because DOL and DHS have made 

a good cause finding earlier in this 

preamble that a general notice of 

proposed rulemaking is impracticable 

and contrary to the public interest. 

Therefore, the RFA does not apply, and 

the Departments are not required to 

either certify that the rule would not 

have a significant economic impact on 

a substantial number of small entities or 

conduct a regulatory flexibility analysis. 

Consistent with the policy of the RFA, 

the Departments encourage the public to 

submit comments that suggest 

alternative rules that accomplish the 

stated purpose of this interim final rule 

and minimize the impact on small 

entities. 

C. Unfunded Mandates Reform 

Executive Order 12875—This rule 

will not create an unfunded Federal 

mandate upon any State, local or tribal 

government. 

Unfunded Mandates Reform Act of 

1995—This rule does not include any 

Federal mandate that may result in 

increased expenditures by State, local, 

and tribal governments, in the aggregate, 

of $100 million or more. It also does not 

result in increased expenditures by the 

private sector of $100 million or more, 

because participation in the H–2B 

program is entirely voluntary. 

D. Paperwork Reduction Act 

This interim rule contains no new 

information collection requirements for 

purposes of the Paperwork Reduction 

Act of 1995 (44 U.S.C. 3501 et seq.). 

E. The Congressional Review Act 

Consistent with the Congressional 

Review Act, 5 U.S.C. 808(2), this interim 

final rule will take effect immediately 

because the Departments have found, as 

stated earlier in this preamble, that there 

is good cause to conclude that notice, 

the opportunity for public participation, 

and a delay in the effective date are 

impracticable and contrary to the public 

interest. However, consistent with the 

CRA, 5 U.S.C. 801, DOL will, upon 

publication, submit to Congress and the 

Comptroller General of the United 

States the reports required by the Act. 

F. Executive Order 13132—Federalism 

DOL and DHS have reviewed this 

Final Rule in accordance with E.O. 

13132 regarding federalism and has 

determined that it does not have 

federalism implications. The rule does 

not have substantial direct effects on 

States, on the relationship between the 

States, or on the distribution of power 

and responsibilities among the various 

levels of Government as described by 

E.O. 13132. Therefore, DOL has 

determined that this rule will not have 

a sufficient federalism implication to 

warrant the preparation of a summary 

impact statement. 

G. Executive Order 13175—Indian 

Tribal Governments 

This interim rule was reviewed under 

the terms of E.O. 13175 and determined 

not to have tribal implications. The rule 

does not have substantial direct effects 

on one or more Indian tribes, on the 

relationship between the Federal 

Government and Indian tribes, or on the 

distribution of power and 

responsibilities between the Federal 

Government and Indian tribes. As a 

result, no tribal summary impact 

statement has been prepared. 

H. Assessment of Federal Regulations 

and Policies on Families 

Section 654 of the Treasury and 

General Government Appropriations 

Act, enacted as part of the Omnibus 

Consolidated and Emergency 

Supplemental Appropriations Act of 

1999 (Pub. L. 105–277, 112 Stat. 2681) 

requires the Departments to assess the 

impact of this interim rule on family 

well-being. A rule that is determined to 

have a negative effect on families must 

be supported with an adequate 

rationale. The Departments have 

assessed this interim rule and 

determined that it will not have a 

negative effect on families. 

I. Executive Order 12630—Government 

Actions and Interference With 

Constitutionally Protected Property 

Rights 

This interim rule is not subject to E.O. 

12630, Governmental Actions and 

Interference with Constitutionally 

Protected Property Rights, because it 


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Federal Register / Vol. 78, No. 79 / Wednesday, April 24, 2013 / Rules and Regulations 24061 

does not involve implementation of a 

policy with takings implications. 

J. Executive Order 12988—Civil Justice 

This interim final rule has been 

drafted and reviewed in accordance 

with E.O. 12988, Civil Justice Reform, 

and will not unduly burden the Federal 

court system. The Departments have 

developed the interim final rule to 

minimize litigation and provide a clear 

legal standard for affected conduct, and 

has reviewed the rule carefully to 

eliminate drafting errors and 

ambiguities. 

K. Plain Language 

DOL and DHS have drafted this 

interim rule in plain language. 

List of Subjects 

8 CFR Part 214 

Administrative practice and 

procedure, Aliens, Employment, 

Foreign officials, Health professions, 

Reporting and recordkeeping 

requirements, Students. 

20 CFR Part 655 

Administrative practice and 

procedure, Employment, Employment 

and training, Enforcement, Foreign 

workers, Forest and forest products, 

Fraud, Health professions, Immigration, 

Labor, Longshore and harbor work, 

Migrant workers, Nonimmigrant 

workers, Passports and visas, Penalties, 

Reporting and recordkeeping 

requirements, Unemployment, Wages, 

Working conditions. 

Department of Homeland Security 

8 CFR Chapter I 

Authority and Issuance 

Accordingly, for the reasons stated in 

the joint preamble and pursuant to the 

authority vested in me as the Secretary 

of Homeland Security, part 214 of 

chapter I of title 8 of the Code of Federal 

Regulations is amended as follows: 

PART 214—NONIMMIGRANT CLASSES 

■ 1. The authority citation for part 214 

continues to read as follows: 

Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 

1184, 1186a, 1187, 1221, 1281, 1282, 1301– 

1305 and 1372; sec. 643, Pub. L. 104–208, 

110 Stat. 3009–708; Public Law 106–386, 114 

Stat. 1477–1480; section 141 of the Compacts 

of Free Association with the Federated States 

of Micronesia and the Republic of the 

Marshall Islands, and with the Government 

of Palau, 48 U.S.C. 1901 note, and 1931 note, 

respectively; 48 U.S.C. 1806; 8 CFR part 2. 

■ 2. Section 214.2 is amended by 

revising paragraph (h)(6)(iii)(D) to read 

as follows: 

§ 214.2 Special requirements for 

admission, extension, and maintenance of 

status. 

(h) * * * 

(6) * * * 

(iii) * * * 

(D) The Governor of Guam shall 

separately establish procedures for 

administering the temporary labor 

program under his or her jurisdiction. 

The Secretary of Labor shall 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 for that 

temporary labor program in accordance 

with the Secretary of Labor’s regulation 

at 20 CFR 655.10. 

Department of Labor 

20 CFR Part 655 

Authority and Issuance 

Accordingly, for the reasons stated in 

the joint preamble and pursuant to the 

authority vested in me as the Acting 

Secretary of Labor of the United States, 

part 655 of title 20 of the Code of 

Federal Regulations is amended as 

follows: 

PART 655—TEMPORARY 

EMPLOYMENT OF FOREIGN 

WORKERS IN THE UNITED STATES 

■ 3. The authority citation for part 655 

is revised to read as follows: 

Authority: Section 655.0 issued under 8 

U.S.C. 1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) 

and (ii), 8 U.S.C. 1103(a)(6), 1182(m), (n) and 

(t), 1184(c), (g), and (j), 1188, and 1288(c) and 

(d); sec. 3(c)(1), Pub. L. 101–238, 103 Stat. 

2099, 2102 (8 U.S.C. 1182 note); sec. 221(a), 

Pub. L. 101–649, 104 Stat. 4978, 5027 (8 

U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102– 

232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 

note); sec. 323(c), Pub. L. 103–206, 107 Stat. 

2428; sec. 412(e), Pub. L. 105–277, 112 Stat. 

2681 (8 U.S.C. 1182 note); sec. 2(d), Pub. L. 

106–95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 

note); 29 U.S.C. 49k; Pub. L. 109–423, 120 

Stat. 2900; 8 CFR 214.2(h)(4)(i); and 8 CFR 

214.2(h)(6)(iii). 

■ 4. Amend § 655.10 by revising 

paragraph (b)(2) to read as follows: 

§ 655.10 Determination of prevailing wage 

for temporary labor certification purposes. 

* * * * * 

(b) * * * 

(2) If the job opportunity is not 

covered by a CBA, the prevailing wage 

for labor certification purposes shall be 

the arithmetic mean, except as provided 

in paragraph (b)(4) of this section, of the 

wages of workers similarly employed in 

the area of intended employment. The 

wage component of the BLS 

Occupational Employment Statistics 

Survey (OES) shall be used to determine 

the arithmetic mean, unless the 

employer provides a survey acceptable 

to OFLC under paragraph (f) of this 

section. 

* * * * * 

Signed at Washington, DC, this 19th of 

April 2013. 

Janet Napolitano, 

Secretary of Homeland Security. 

Seth D. Harris, 

Acting Secretary of Labor. 

[FR Doc. 2013–09723 Filed 4–22–13; 4:15 pm] 

BILLING CODE 9111–97–P; 4510–FP–P 

DEPARTMENT OF THE INTERIOR 

National Indian Gaming Commission 

25 CFR Part 547 

RIN 3141–AA27 

Minimum Technical Standards for 

Class II Gaming Systems and 

Equipment 

AGENCY: National Indian Gaming 

Commission. 

ACTION: Final rule. 

SUMMARY: The National Indian Gaming 

Commission (NIGC or Commission) is 

amending its rules regarding technical 

standards for Class II gaming systems 

and equipment to harmonize the 

charitable gaming exemption amount in 

the technical standards with the 

charitable gaming exemption amount in 

its Class II minimum internal control 

standards. 

DATES: The effective date of these 

regulations is May 24, 2013. 

FOR FURTHER INFORMATION CONTACT: 

Michael Hoenig, Senior Attorney, 

National Indian Gaming Commission, 

1441 L Street NW., Suite 9100, 

Washington, DC 20005. Email: 

michael_hoenig@nigc.gov; telephone: 

202–632–7003. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Indian Gaming Regulatory Act 

(IGRA or the Act), Public Law 100–497, 

25 U.S.C. 2701 et seq., was signed into 

law on October 17, 1988. The Act 

established the Commission and set out 

a comprehensive framework for the 

regulation of gaming on Indian lands. 

The Act requires the Commission to 

‘‘monitor class II gaming conducted on 

Indian lands on a continuing basis’’ and 

to ‘‘promulgate such regulations and 


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