[Federal Register Volume 76, Number 72 (Thursday, April 14, 2011)]
[Notices]
[Pages 21036-21040]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-8968]
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DEPARTMENT OF LABOR
Employment and Training Administration
Application of the Prevailing Wage Methodology in the H-2B
Program
AGENCY: Employment and Training Administration, Department of Labor.
ACTION: Notice.
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SUMMARY: On January 19, 2011, the Department of Labor (Department)
published a final rule, Wage Methodology for the Temporary Non-
agricultural Employment H-2B Program (Wage Final Rule),\1\ promulgating
a new prevailing wage methodology, as proposed in the Department's
October 5, 2010 Notice of Proposed Rulemaking (NPRM). The prevailing
wage methodology set forth in the Wage Final Rule applies to wages paid
for work performed on or after January 1, 2012. Employers whose work
commences in 2011 and continues into 2012 will have to pay a prevailing
wage determined under the new prevailing wage methodology for the work
performed in 2012. In order to ensure that employers accurately attest
to their need to pay a different wage when the Wage Final Rule is
effective, the Department has amended the ETA Form 9142, Application
for Temporary Employment Certification, Appendix B.1, to reflect the
employer's obligation to pay at least the highest of the most recent
prevailing wage that the Department issues to the employer and is in
effect at the time the work is performed.
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\1\ Wage Methodology for the Temporary Non-agricultural
Employment H-2B Program, 76 FR 3452, Jan. 19, 2011.
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DATES: This Notice is effective on April 14, 2011.
FOR FURTHER INFORMATION CONTACT: William L. Carlson, PhD,
Administrator, Office of Foreign Labor Certification, U.S. Department
of Labor, 200 Constitution Avenue, NW., Room C-4312, Washington, DC
20210; telephone: (202) 693-3010 (this is not a toll-free number).
Individuals with hearing or speech impairments may access the telephone
number above via TTY by calling the toll-free Federal Information Relay
Service at 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
Background
On August 30, 2010, the U.S. District Court in the Eastern District
of Pennsylvania in Comite[acute] de Apoyo a los Trabajadores Agricolas
(CATA) v. Solis, Civil No. 2:09-cv-240-LP, 2010 WL 3431761 (E.D. Pa.
Aug. 30, 2010), ordered the Department to ``promulgate new rules
concerning the calculation of the prevailing wage rate in the H-2B
program that are in compliance with the Administrative Procedure Act no
later than 120 days from the date of this order.'' \2\ The Court ruled
that the Department had violated the Administrative Procedure Act when
it did not adequately explain its reasoning for using skill levels as
part of the H-2B prevailing wage determinations, and when it failed to
consider comments relating to the choice of appropriate data sets in
deciding to rely on data from the Bureau of Labor Statistics'
Occupational Employment Survey (OES) rather than wage rates established
by the Davis-Bacon Act (DBA) and McNamara O'Hara Service Contract Act
(SCA) in setting the prevailing wage rates.
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\2\ The Court later extended the deadline for the publication of
the Wage Methodology for the Temporary Non-agricultural Employment
H-2B Program Final Rule until January 18, 2011. CATA v. Solis, Civil
No. 2:09-cv-240-LP, 2010 WL 3431761, Oct. 27, 2010.
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In order to comply with the Court-mandated deadline, on October 5,
2010, the Department issued an NPRM, Wage Methodology for the Temporary
Non-agricultural Employment H-2B Program, 75 FR 61578, Oct. 5, 2010.
The NPRM proposed to revise the methodology by which prevailing wages
are determined in the H-2B program. The Department issued a Final Rule
on January 19, 2011. In the Wage Final Rule, the Department
acknowledged that employers already may have made contractual
arrangements based on the wage methodology in place before the issuance
of the Wage Final Rule and, in order to provide employers with
sufficient planning time and to minimize disruption, the Department
delayed implementation ``so that the prevailing wage methodology set
forth in this Rule applies only to wages paid for work performed on or
after January 1, 2012.'' 76 FR 3452, 3462, Jan. 19, 2011.
The Department will require all employers who apply for an H-2B
labor certification (or on whose behalf an H-2B labor certification is
filed) after the effective date of this Notice to agree, as a condition
of receiving the H-2B labor certification, to pay the prevailing wage
rate in effect for the period of work encompassed by their application.
Since the wages resulting from the Wage Final Rule's methodology will
be different from the wages under the current methodology, this may
result in two wage rates being applicable to a single application.
Because many employers will apply for H-2B workers for periods of up to
10 months, applications covering work to be performed both before and
after January 1, 2012, could now begin to be filed.
Therefore, to ensure that an employer agrees to pay the prevailing
wage rate in effect for the period of work encompassed by their
application, the Department has received approval of a revised Appendix
B.1 (Office of Management and Budget Control Number 1205-0466) of the
Application for Temporary Employment Certification, which the employer
must sign and submit with its filed Application signifying its
agreement to the condition above. The revised form follows this Notice.
As of the effective date of this Notice, the Department will require
this amended Appendix B.1 to be submitted with an Application for
Temporary Employment Certification in order to ensure the employer
attests to these wage obligations. Where the employer fails to submit
the signed correct Appendix B.1 and/or where necessary, the National
Processing Center will send the employer a Request for Information
requesting the submission of the revised Appendix.
Persons are not required to respond to this collection of
information unless it displays a currently valid OMB control number.
Respondent's reply to these reporting requirements is mandatory to
obtain the benefits of temporary employment certification (Immigration
and Nationality Act, Section 101(a)(15)(H)(ii)). Public reporting
burden for this collection of information is estimated to average 2
hours 10 minutes per response for H-2A and 2 hours 45 minutes for H-2B,
including the time for reviewing instructions, searching existing data
sources, gathering and maintaining the data needed, and completing and
reviewing the collection of information. Send comments regarding this
burden estimate to the Office of Foreign Labor Certification, U.S.
Department of Labor,
[[Page 21037]]
Room C4312, 200 Constitution Avenue, NW., Washington, DC 20210. Do NOT
send the completed application to this address. All of the forms that
comprise this collection of information can be found at http://www.foreignlaborcert.doleta.gov/form.cfm.
Signed in Washington, DC, this 8th day of April 2010.
Jane Oates,
Assistant Secretary, Employment and Training Administration.
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[FR Doc. 2011-8968 Filed 4-13-11; 8:45 am]
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