Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program

Federal RegisterApr 29, 2015

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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

[Docket No. ETA-2013-0003]

RIN 1205-AB69

Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program

AGENCY:

Employment and Training Administration, Labor; U.S. Citizenship and Immigration Services, Department of Homeland Security.

ACTION:

Final rule.

SUMMARY:

The Department of Homeland Security (DHS) and the Department of Labor (DOL) are issuing final regulations governing certification of the employment of nonimmigrant workers in temporary or seasonal non-agricultural employment. This final rule sets forth how DOL provides the consultation that DHS has determined is necessary to adjudicate H-2B visa petitions by setting the methodology by which DOL calculates the prevailing wages to be paid to H-2B workers and U.S. workers recruited in connection with applications for temporary labor certification. Specifically, for the purposes of an H-2B temporary labor certification, this final rule establishes that, in the absence of a wage set in a valid and controlling collective bargaining agreement, the prevailing wage will be the mean wage for the occupation in the pertinent geographic area derived from the Bureau of Labor Statistics Occupational Employment Statistics survey, unless the H-2B employer meets the conditions for requesting that the prevailing wage be based on an employer-provided survey. Any such survey submitted must meet the new methodological criteria established in this final rule in order to be used to establish the prevailing wage. The final rule does not permit use of the wage determinations issued under the Service Contract Act or the Davis Bacon Act as sources to set the prevailing wage in the H-2B temporary labor certification context.

DHS and DOL are issuing this final rule together because DHS, as the Executive Branch agency charged with administering the H-2B program, has determined that the most effective implementation of the statutory H-2B labor protections requires that DHS consult with DOL for its advice about matters with which DOL has expertise, including questions about the methodology for setting the prevailing wage in the H-2B program. 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) 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. This rule also adopts, without change, certain revisions made to DHS's H-2B regulations, to clarify that DHS is the Executive Branch agency charged with making determinations regarding eligibility for H-2B classifications, after consulting with DOL for its advice about matters with which DOL has expertise, including questions related to the methodology for setting the prevailing wage in the H-2B program. Finally, DHS and DOL are issuing, simultaneously with this rule, a companion H-2B rule governing the certification of the employment of nonimmigrant workers in temporary or seasonal non-agricultural employment and the enforcement of the obligations applicable to employers of such nonimmigrant workers.

DATES:

This final rule is effective April 29, 2015.

FOR FURTHER INFORMATION CONTACT:

For further information on 8 CFR part 214, contact Steven W. Viger, Adjudications Officer (Policy), Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts NW., Washington, DC 20529-2060; Telephone (202) 272-1470 (this is not a toll-free number).

For further information on 20 CFR part 655, subpart A, contact William W. Thompson, II, Acting Administrator, Office of Foreign Labor Certification, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue NW., Room C-4312, Washington, DC 20210; Telephone (202) 693-3010 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone number above via TTY by calling the toll-free Federal Information Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Background

A. The Statutory and Regulatory Framework

The Immigration and Nationality Act (INA) establishes the H-2B visa classification for a non-agricultural temporary worker “having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform . . . temporary [non-agricultural] service or labor if unemployed persons capable of performing such service or labor cannot be found in this country.” 8 U.S.C. 1101(a)(15)(H)(ii)(b), INA section 101(a)(15)(H)(ii)(b). Section 214(c)(1) of the INA, 8 U.S.C. 1184(c)(1), requires an importing employer (H-2B employer) to petition the Department of Homeland Security (DHS) for classification of the prospective temporary worker as an H-2B nonimmigrant.

DHS must approve this petition before the beneficiary can be considered eligible for an H-2B visa or H-2B status. Finally, the INA requires that “[t]he question of importing any alien as [an H-2B] nonimmigrant . . . in any specific case or specific cases shall be determined by [DHS], after consultation with appropriate agencies of the Government, upon petition of the importing employer.” 8 U.S.C. 1184(c)(1), INA section 214(c)(1).

Under section 1517 of title XV of the Homeland Security Act of 2002 (HSA), Pub. L. 107-296, 116 Stat. 2135, any reference to the Attorney General in a provision of the INA describing functions that were transferred from the Attorney General or other Department of Justice official to DHS by the HSA “shall be deemed to refer to the Secretary” of Homeland Security.

See

6 U.S.C. 557 (2003) (codifying HSA, title XV, sec. 1517); 6 U.S.C. 542 note; 8 U.S.C. 1551 note.

Pursuant to the above-referenced authorities, DHS has promulgated regulations implementing the H-2B program.

See, e.g.,

73 FR 78104 (Dec. 19, 2008). These regulations prescribe the conditions under which DHS may grant an employer's petition to classify an alien as an H-2B worker.

See

8 CFR 214.2(h)(6). U.S. Citizenship and Immigration Services (USCIS) is the component agency within DHS that adjudicates H-2B petitions.

Id.

USCIS examines H-2B petitions for compliance with a range of statutory and regulatory requirements. For instance, USCIS will examine each petition to ensure,

inter alia,

(1) that the job opportunity in the employer's petition is of a temporary nature, 8 CFR 214.2(h)(2)(D), (6)(ii) and (6)(vi)(D); (2)

that the beneficiary alien meets the educational, training, experience, or other requirements, if any, attendant to the job opportunity described in the petition, 8 CFR 214.2(h)(6)(vi)(C); (3) that there are sufficiently available H-2B visas in light of the applicable numerical limitation for H-2B visas, 8 CFR 214.2(h)(8)(ii)(A); and (4) that the application is submitted consistent with strict requirements ensuring the integrity of the H-2B system, 8 CFR 214.2(h)(6)(i)(B), (6)(i)(F).

DHS also publishes annually a list of countries whose nationals are eligible to participate in the H-2B visa program in the coming year.

See

8 CFR 214.2(h)(6)(i)(E);

see also, e.g.,

79 FR 3214 (Jan. 17, 2014) notice of eligible country list). As part of its adjudication of H-2B petitions, USCIS must determine whether the alien beneficiary is a national of a country on the list; if not, USCIS must determine whether it is in the U.S. interest for that alien to be a beneficiary of such petition.

See

8 CFR 214.2(h)(6)(i)(E).

DHS has implemented the statutory protections attendant to the H-2B program by regulation.

See

8 CFR 214.2(h)(6)(iii), (iv), and (v). In accordance with the statutory mandate at 8 U.S.C. 1184(c)(1), INA section 214(c)(1), that DHS consult with “appropriate agencies of the government” to determine eligibility for H-2B nonimmigrant status, DHS (and the former Immigration and Naturalization Service) has long recognized that the most effective administration of the H-2B program requires consultation with the Department of Labor (DOL) to advise whether U.S. workers capable of performing the temporary services or labor are available.

See, e.g.,

Temporary Alien Workers Seeking Classification Under the Immigration and Nationality Act, 55 FR 2606, 2617 (Jan. 26, 1990) (“The Service must seek advice from the Department of Labor under the H-2B classification because the statute requires a showing that unemployed U.S. workers are not available to perform the services before a petition can be approved. The Department of Labor is the appropriate agency of the Government to make such a labor market finding. The Service supports the process which the Department of Labor uses for testing the labor market and assuring that wages and working conditions of U.S. workers will not be adversely affected by employment of alien workers.”).

Accordingly, DHS regulations require that an H-2B petition for temporary employment in the United States must be accompanied by an approved temporary labor certification from DOL. 8 CFR 214.2(h)(6)(iii)(A) and (iv)(A).

The temporary labor certification demonstrates that DOL has evaluated, and is providing advice to DHS with respect to, whether a qualified U.S. worker is available to fill the petitioning H-2B employer's job opportunity and whether a foreign worker's employment in the job opportunity will adversely affect the wages or working conditions of similarly employed U.S. workers.

See

8 CFR 214.2(h)(6)(iii)(A) and (D). In addition, as part of DOL's certification, DHS regulations require DOL to “determine the prevailing wage applicable to an application for temporary labor certification in accordance with the Secretary of Labor's regulation at 20 CFR 655.10.” 8 CFR 214.2(h)(6)(iii)(D).

The regulation establishes a different procedure for the Territory of Guam, under which a petitioning employer must apply for a temporary labor certification with the Governor of Guam. 8 CFR 214.2(h)(6)(iii)(A).

DHS relies on DOL's advice in this area, as DOL is the appropriate government agency with expertise in labor questions and historic and specific expertise in addressing labor protection questions related to the H-2B program. This advice helps DHS fulfill its statutory duty to determine, prior to approving an H-2B petition, that unemployed U.S. workers capable of performing the relevant service or labor cannot be found in the United States. 8 U.S.C. 1101(a)(15)(H)(ii)(b), INA section 101(a)(15)(H)(ii)(b); 8 U.S.C. 1184(c)(1), INA section 214(c)(1). DHS has therefore made DOL's approval of a temporary labor certification a condition precedent to the completion of the H-2B petition. 8 CFR 214.2(h)(6)(iii) and (vi). Following receipt of an approved DOL temporary labor certification and other required evidence, USCIS may adjudicate an employer's complete H-2B petition.

Id.

Consistent with the above-referenced authorities, since at least 1968,

DOL has established regulatory procedures to certify whether a qualified U.S. worker is available to fill the job opportunity described in the employer's petition for a temporary nonagricultural worker, and whether a foreign worker's employment in the job opportunity will adversely affect the wages or working conditions of similarly employed U.S. workers.

See

20 CFR part 655, subpart A. As part of DOL's temporary labor certification process, and as required by DHS regulations, 8 CFR 214.2(h)(6)(iii)(D) and (iv), DOL sets the wage that employers must offer and pay foreign workers admitted to the United States in H-2B nonimmigrant status.

See

20 CFR 655.10. This final rule sets forth DOL's methodology for setting the wage, consistent with the INA and existing DHS regulations.

DHS has required a temporary labor certification as a condition precedent to adjudication of an H-2B petition for temporary employment in the United States since 2008. 73 FR 78103. DOL, however, has promulgated regulations governing its adjudication of employer applications for temporary labor certification since 1968, when DOL promulgated regulations under which it would review, among other things, “the employer's attempts to recruit workers and the appropriateness of the wages and working conditions offered.”

See

33 FR 7570 (May 22, 1968) (DOL final rule on certification of temporary foreign labor for industries other than agriculture and logging). Until 1986, there was a single H-2 temporary worker classification applicable to both temporary agricultural and non-agricultural workers. In 1986, Congress revised the INA to create two separate programs for agricultural (H-2A) and non-agricultural (H-2B) workers.

See

8 U.S.C. 1101(a)(15)(H)(ii), INA 101(a)(15)(H)(ii), 66 Stat. 163 (June 27, 1952); Immigration Reform and Control Act of 1986, Public Law 99-603, Sec. 301, 100 Stat. 3359. Under the 1968 final rule, DOL considered, “such matter[s] as the employer's attempts to recruit workers and the appropriateness of the wages and working conditions offered.” 33 FR at 7571.

As discussed above, DHS has determined that the most effective implementation of the statutory labor protections in the H-2B program requires that DHS consult with DOL for its advice about matters with which DOL has unique expertise, particularly questions about the methodology for setting the prevailing wage in the H-2B program. The most transparent and effective method for DOL to provide this consultation is by setting forth in regulations the standards it will use to provide that advice, as required by existing DHS regulations. DOL's rules set the standards by which employers demonstrate to DOL that they have tested the labor market and found insufficient numbers of qualified and available U.S. workers, and set the standards by which employers demonstrate to DOL that the offered employment does not adversely affect U.S. workers. By setting forth this structure in regulations, DHS and DOL ensure the provision of this advice by DOL is consistent, transparent, and provided in the form that is most useful to DHS.

As 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. 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 comprehensive H-2B rule (2012 H-2B rule) on the ground that the employers were likely to prevail on their allegation that DOL lacks H-2B rulemaking authority.

Bayou Lawn & Landscape Servs.

Sec'y of Labor,

713 F.3d 1080

(11th Cir. 2013). On remand, the district court issued an order vacating the 2012 H-2B rule, and permanently enjoined DOL from enforcing the rule on the ground that DOL lacks rulemaking authority in the H-2B program.

Bayou Lawn & Landscape Servs.,

No. 3:12-cv-183 (N.D. Fla. Dec. 18, 2014) (

Bayou II

). The

Bayou II

decision is currently on appeal to the 11th Circuit. However, on February 5, 2014, the U.S. Court of Appeals for the Third Circuit held that “DOL has authority to promulgate rules concerning the temporary labor certification process in the context of the H 2B program, and that the 2011 Wage Rule was validly promulgated pursuant to that authority.”

La. Forestry Ass'n

Perez,

745 F.3d 653, 669 (3d Cir. 2014).

In order to ensure that there can be no question about the authority for and validity of the regulations in this area, DHS and DOL (the Departments), together, are issuing this final rule. By proceeding together, the Departments affirm that this rule is fully consistent with the INA and existing DHS regulations implementing the H-2B program and is vital to DHS's ability to faithfully implement the statutory labor protections attendant to the program.

See

8 U.S.C. 1101(A)(15)(H)(ii)(b), INA section 101(a)(15)(H)(ii)(b); 8 U.S.C. 1103(a)(6), INA section 103(a)(6); 8 U.S.C. 1184(c)(1), INA section 214(c)(1); 8 CFR 214.2(h)(6)(iv). This final rule 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 final rule also affirms DHS's and DOL's determination that implementation of the consultative relationship may be established through regulations that determine the method by which DOL will provide the necessary advice to DHS.

B. The CATA I Litigation, 2011 Wage Rule, and Congressional Riders

In 2008, DOL issued regulations governing DOL's role in the H-2B temporary worker program. The regulation established, among other things, a methodology for determining the wage that a prospective H-2B employer must pay. Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B Workers), and Other Technical Changes, 73 FR 78020 (Dec. 19, 2008) (the 2008 rule).

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 a union and the employer; the Occupational Employment Statistics (OES) wage rate if there was no CBA; a survey if an employer elected to provide an acceptable survey; or a wage rate under the Davis-Bacon Act (DBA), 40 U.S.C. 276a

et seq.,

or the McNamara-O'Hara Service Contract Act (SCA), 41 U.S.C. 351

et seq.,

if one was available for the occupation in the area of intended employment.

See

20 CFR 655.10 (2009). In the absence of the CBA wage, the employer could elect to use the applicable SCA or the DBA wage in lieu of the OES wage.

See

20 CFR 655.10(b) (2009). The 2008 rule and the agency guidance implementing it required that when prevailing wage determinations were based on the OES wage survey, which is compiled by the Bureau of Labor Statistics (BLS), the wage had to be structured to contain four tiers to reflect skill and experience.

DOL subjected most provisions of the 2008 rule to the Administrative Procedure Act's (APA) procedural requirements, but because the agency had already been implementing the four-tiered wages in the H-2B program pursuant to sub-regulatory guidance,

DOL did not seek public comments on the use of the four-tiered wage methodology for determining prevailing wages when promulgating the 2008 rule.

See

73 FR at 78031. In 2009, shortly after the promulgation of the 2008 H-2B regulation, a suit was filed under the APA challenging several aspects of the 2008 rule.

See Comite de Apoyo a los Trabajadores Agricolas (CATA)

Solis,

No. 2:09-cv-240-LP, 2010 WL 3431761 (E.D. Pa. 2010) (

CATA I

). Among the issues raised in that litigation was the use of the four-tiered wage structure in the H-2B program. In an August 30, 2010 decision, the court ruled that DOL had violated the APA by failing to adequately explain its reasoning for adopting skill and experience levels as part of the H-2B prevailing wage determination process.

Id.

at * 19. The court ordered promulgation of “new rules concerning the calculation of the prevailing wage rate in the H-2B program that are in compliance with the [APA].”

Id.

at * 27.

Before 2008, DOL set the prevailing wage in the H-2B program through sub-regulatory guidance.

See, e.g.,

General Administration Letter (GAL) 10-84, “Procedures for Temporary Labor Certifications in Non Agricultural Occupations” (April 23, 1984); GAL 4-95, “Interim Prevailing Wage Policy for Nonagricultural Immigration Programs” (May 18, 1995), Attachment I, available at

http://wdr.doleta.gov/directives/attach/GAL4-95_attach.pdf;

GAL 2-98, “Prevailing Wage Policy for Nonagricultural Immigration Programs” (published Oct. 31, 1997; effective Jan. 1, 1998)

available at

http://wdr.doleta.gov/directives/attach/GAL2-98_attach.pdf.

The 2008 rule required that when the prevailing wage was based on the OES, it should reflect skill levels. The agency's implementing guidance required that the prevailing wage contain four wage tiers based on skill level. As a result, we refer throughout this rule to the 2008 rule's requirement of four wage tiers.

Because the OES survey captures no information about actual skills or responsibilities of the workers whose wages are being reported, the four-tiered wage structure, adapted from the statutorily required four tiers applicable to the H-1B visa program under section 212(p)(4) of the INA, 8 U.S.C. 1182(p), was derived by mathematical formula as follows to reflect “entry level,” “qualified,” “experienced,” and “fully competent” workers: Level 1 is the mean of the lowest-paid

1/3

, or approximately the 17th percentile; Level 2 is approximately the 34th percentile; Level 3 is approximately the 50th percentile; and Level 4 is the mean of the highest-paid

2/3

, or approximately the 67th percentile.

See supra

n.5.

In response to the

CATA I

order, DOL published a final rule, Wage Methodology for the Temporary Non-agricultural Employment H-2B Program, on January 19, 2011, 76 FR 3452 (the 2011 Wage Rule). In that rule, DOL determined that “there are no significant skill-based wage 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.” 76 FR at 3460. Therefore, the 2011 Wage Rule revised the wage methodology by eliminating the 2008 rule's four-tier wage structure on the ground that it violated the obligation to set H-2B wages at a rate that did not adversely affect U.S. workers' wages.

Id.

at 3458-3461.

The new methodology set the prevailing wage as the highest of the OES arithmetic mean wage for each occupational category in the area of intended employment; the applicable SCA/DBA wage rate; or the CBA wage. The rule also eliminated the use of employer-provided surveys as alternative wage sources, except in

limited circumstances.

The effective date of the 2011 Wage Rule was originally set for January 1, 2012. However, as a result of litigation challenging the effective date and following notice-and-comment rulemaking, DOL issued a final rule, 76 FR 45667 (Aug. 1, 2011), revising the effective date of the 2011 Wage Rule to September 30, 2011, and a second final rule, 76 FR 59896 (Sept. 28, 2011), further revising the effective date of the 2011 Wage Rule to November 30, 2011.

DOL found that in 2010, almost 75 percent of H-2B jobs were certified at a Level 1 wage (the mean of the lowest one-third 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. 76 FR at 3463. DOL determined that 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.

DOL concluded that “the net result is an adverse effect on the [U.S.] worker's income.” 76 FR at 3463.

These circumstances include very specific situations in which the job may be in a geographic location that is not included in BLS's data collection for the OES (

e.g.,

the Commonwealth of the Northern Mariana Islands) or where the job opportunity is not “accurately represented” within the job classification used in those surveys. 76 FR at 3466-3467.

Shortly before the 2011 Wage Rule was to become effective, Congress issued an appropriations rider effectively barring its implementation. The Consolidated and Further Continuing Appropriations Act, 2012, enacted on November 18, 2011, 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, 125 Stat. 552, Div. B, Title V, sec. 546 (Nov. 18, 2011) (the November 2011 Appropriations Act). In response to the Congressional prohibition on implementation, DOL delayed the effective date of the 2011 Wage Rule until January 1, 2012. 76 FR 73508 (Nov. 29, 2011). The delayed effective date was necessary because, although the November 2011 Appropriations Act prevented the expenditure of funds to implement, administer, or enforce the 2011 Wage Rule, it did not prevent the 2011 Wage Rule from going into effect. 76 FR at 73509. Had the 2011 Wage Rule gone into effect, it would have superseded and nullified the prevailing wage provisions from the 2008 rule, leaving DOL without a methodology to make prevailing wage determinations.

Id.

Because the issuance of a prevailing wage determination is a condition precedent to approving an employer's request for an H-2B temporary labor certification, 20 CFR 655.10, DOL's H-2B temporary labor certification program would be inoperable without the ability to issue a prevailing wage pursuant to regulatory standards. Accordingly, DOL determined that it was necessary, in light of the November 2011 Appropriations Act, to delay the effective date of the 2011 Wage Rule to allow DOL to continue to make prevailing wage determinations under the wage provisions of the 2008 rule.

Subsequent appropriations legislation

contained the same restriction prohibiting DOL's use of appropriated funds to implement, administer, or enforce the 2011 Wage Rule. This legislation necessitated subsequent extensions of the effective date of that rule.

See

76 FR 82115 (Dec. 30, 2011) (extending the effective date to Oct. 1, 2012); 77 FR 60040 (Oct. 2, 2012) (extending the effective date to Mar. 27, 2013); 78 FR 19098 (Mar. 29, 2013) (extending the effective date to Oct. 1, 2013). While the 2011 Wage Rule implementation was suspended, DOL remained unable to implement the wage methodology that, among other things, eliminated the four-tier wage structure, and instead relied on the prevailing wage provisions of the 2008 rule, including the use of the four-tiered wage structure, when issuing a prevailing wage based on the OES.

These include the Consolidated Appropriations Act of 2012, Public Law 112-74, 125 Stat. 786 (Dec. 23, 2011); Continuing Appropriations Resolution, 2013, Public Law 112-175, 126 Stat. 1313 (Sept. 28, 2012); Consolidated and Further Continuing Appropriations Act, 2013, Public Law 113-6, 127 Stat. 198 (Mar. 26, 2013); Continuing Appropriations Act, 2014, Public Law 113-46, 127 Stat. 558 (Oct. 17, 2013); and Joint Resolution Making further Continuing Appropriations for Fiscal Year 2014, Public Law 113-73, 128 Stat. 3 (Jan. 15, 2014).

C. CATA II and the 2013 Interim Final H-2B Wage Rule

Based on DOL's ongoing use of the 2008 rule's four wage tiers, the

CATA I

plaintiffs returned to court seeking immediate vacatur of the four-tiered wage structure from the 2008 rule. On March 21, 2013, the district court agreed with plaintiffs that its prior holding that the four-tiered wage structure was promulgated in violation of the APA remained unremedied.

Therefore, the court vacated 20 CFR 655.10(b)(2), which was the basis for the four-tiered wage structure, and remanded the matter to DOL, ordering it to comply within 30 days.

Comite de Apoyo a los Trabajadores Agricolas

Solis,

933 F. Supp. 2d 700 (E.D. Pa. 2013) (

CATA II

). Shortly thereafter, on April 1, 2013, the U.S. Court of Appeals for the Eleventh Circuit upheld a separate 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.,

713 F.3d 1080.

In response to the vacatur and 30-day compliance order in

CATA II,

and the Eleventh Circuit's decision in

Bayou Lawn & Landscape Servs.,

the Departments

promulgated an interim final rule, Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program, Part 2, 78 FR 24047 (Apr. 24, 2013) (2013 IFR), which established a new wage methodology. In the 2013 IFR, the Departments struck the phrase, “at the skill level,” from 20 CFR 655.10(b)(2). As a result of the deletion of this phrase, the Departments now require that prevailing wage determinations issued using the OES survey be based on the mean wage for the occupation in the area of intended employment. 78 FR at 24053. The 2013 IFR became effective on April 24, 2013, the date of publication, because of the need to comply within the 30-day period ordered by the

CATA II

Court. The rule was published pursuant to 5 U.S.C. 553(b)(B), which authorizes agencies to make a rule effective immediately upon a showing of “good cause.” Significantly, however, the 2013 IFR only implemented the court-ordered change to the wage methodology in 20 CFR 655.10(b)(2). It left intact all other provisions of the wage methodology and procedures contained in the 2008 rule at 20 CFR 655.10, including allowing the use of employer-submitted surveys, and permitting voluntary use of an SCA or DBA wage if one was available for the occupation in the area of intended employment.

The Departments issued the 2013 IFR jointly to dispel questions that arose contemporaneously with its promulgation about the respective roles of the two agencies and the validity of DOL's regulations as an appropriate way to implement the interagency consultation specified in section 214(c)(1) of the INA, 8 U.S.C. 1184(c)(1).

See supra

Sec. I.A.

Despite immediate implementation of the provisions of the 2013 IFR, the Departments requested comments on all aspects of the prevailing wage methodology of 20 CFR 655.10, including, among other things, whether the OES mean is the appropriate basis for determining the prevailing wage; whether wages based on the DBA or SCA should be used to determine the prevailing wage and if so, to what extent; and whether the continued use of employer-submitted surveys should be permitted and if so, how to better ensure their methodological soundness. The comment period closed on June 10, 2013, and the Departments received over 300 comments on all aspects of the H-2B wage methodology from interested parties.

A substantial number of comments on the IFR repeated, to a great extent, the same arguments that had been raised in connection with the 2011 rulemaking.

See

76 FR at 3458-3463.

On July 23, 2013, DOL proposed the indefinite delay of the effective date of the 2011 Wage Rule, and accepted comments from the public on the proposed indefinite delay through August 9, 2013. 78 FR 44054. The reasons for this delay were two-fold: First, at that time, Congress's continued denial of appropriated funds for this purpose, with no indication that the prohibition would be lifted in the future, made implementation of the 2011 Wage Rule effectively impossible. Second, at that time, the Departments were reviewing and analyzing the comments received on the 2013 IFR to determine whether changes to 20 CFR 655.10 and 8 CFR 214.2(h)(6) were warranted in light of the public comments. For these reasons, on August 30, 2013, DOL published a final rule indefinitely delaying the effective date of the 2011 Wage Rule. 78 FR 53643, 53645 (indefinite delay rule). In the final indefinite delay rule, DOL stated that when “Congress no longer prohibits implementation of the 2011 Wage Rule, the Department [of Labor] will publish a document in the

Federal Register

within 45 days of that event apprising the public of the status of 20 CFR 655.10 and the effective date of the 2011 Wage Rule.”

Id.

DOL also stated that, “if Congress lifts the prohibition against implementation of the 2011 Wage Rule, the Department [of Labor] would need time to assess the current regulatory framework, to consider any changed circumstances, novel concerns or new information received, and to minimize disruptions.” 78 FR at 53645.

On January 17, 2014, the Consolidated Appropriations Act, 2014, Public Law 113-76, 128 Stat. 5, was enacted. In that law, for the first time in over two years, DOL's appropriations did not prohibit the implementation or enforcement of the 2011 Wage Rule. Moreover, on February 5, 2014, the U.S. Court of Appeals for the Third Circuit held that “DOL has authority to promulgate rules concerning the temporary labor certification process in the context of the H-2B program, and that the 2011 Wage Rule was validly promulgated pursuant to that authority.”

La. Forestry Ass'n

Perez,

745 F.3d 653, 669 (3d Cir. 2014). The Third Circuit further found that DOL did not act in contravention of the procedural requirements of the APA in issuing the 2011 Wage Rule, and that the INA's requirement of the four wage tiers in the H-1B program, 8 U.S.C. 1182(p)(4), section 212(p)(4) of the INA, is not mandated in the H-2B program.

Id.

at 680. Under well-settled law, following the removal of the prohibitive rider, DOL was “free to take any steps deemed necessary to implement, administer and enforce the regulations.”

Am. Fed'n of Go

Employees

OPM,

821 F.2d 761, 764 (D.C. Cir. 1987).

D. The

CATA III

Decision and Its Impact on H-2B Wage Rulemaking

As discussed above, given the swift deadline for compliance in the

CATA II

decision, the 2013 IFR adopted a focused approach, limited to eliminating the use of skill levels in setting wages under 20 CFR 655.10(b)(2). 78 FR 24047, 24053. Although comments were solicited in the 2013 IFR on the use of employer-provided surveys and the use of the SCA and DBA wage determinations to set the prevailing wage, no changes were made in the 2013 IFR to 20 CFR 655.10(b)(4), (b)(5), or (f) from the 2008 rule, which governed those wage sources, or to the procedures for employers to request and receive a prevailing wage.

Id.

at 24053-55.

In 2014, CATA challenged the Departments' decision under the 2013 IFR to continue to permit use of employer-provided surveys to set the prevailing wage under 20 CFR 655.10(f).

Comite de Apoyo a los Trabajadores Agricolas

Perez,

No. 2:14-02657, 2014 WL 4100708 (E.D. Pa. July 23, 2014). In addition, CATA challenged DOL's continued use under the 2013 IFR of the 2009 Prevailing Wage Guidance,

which continued to permit surveys to incorporate skill levels even though DOL had eliminated skill levels from prevailing wage determinations based on the OES methodology.

Id.

The District Court dismissed the case on procedural grounds. On December 5, 2014, the appellate court reversed the dismissal in

Comite de Apoyo a los Trabajadores Agricolas

Perez,

774 F.3d 173, 191 (3d Cir. 2014) (

CATA III

), vacating both 20 CFR 655.10(f), which established the conditions under which DOL would accept employer-provided surveys to set the prevailing wage, as well as the 2009 Prevailing Wage Guidance.

The 2009 Prevailing Wage Guidance set the methodology for employer-provided surveys across the DOL-administered programs.

See

Prevailing Wage Determination Policy Guidance, Nonagricultural Immigration Programs, Revised (revised Nov. 2009) (“2009 Prevailing Wage Guidance” or “2009 guidance”),

available at http://www.flcdatacenter.com/download/NPWHC_Guidance_Revised_11_2009.pdf.

The

CATA III

court invalidated the use of employer-provided surveys in the H-2B program on both substantive and procedural grounds under the APA. First, the court held that DOL's failure to explain the broad acceptance of employer-provided surveys where an OES wage is available was procedurally invalid, particularly because this decision was a policy change from the 2011 Wage Rule's prohibition of most employer-provided surveys as an alternative to the OES. 774 F.3d at 187-188. Next, the court held that Section 655.10(f) was arbitrary, and therefore substantively invalid under the APA, given DOL's findings in the 2011 Wage Rule, 76 FR at 3465, that the OES is the “most consistent, efficient, and accurate means of determining the prevailing wage rate for the H-2B program.” The court further considered issues that DOL had not addressed as part of the development of the administrative record in the 2011 Wage Rule; it held that the survey provision of the 2013 IFR was substantively invalid under the APA because the survey provision permitted wealthy employers to commission surveys that resulted in a lower prevailing wage than that paid by less affluent employers without means to produce such surveys, and resulted in significant variations in the prevailing wage within a single occupation in the same geographic location. 774 F.3d at 189-190. Finally, the court held that the 2009 Wage Guidance violated the APA because it allowed employers to submit employer-provided surveys that contained tiered wages based on skill levels. The court held that this conflicted with the

CATA II

order, which required prevailing wages to be calculated based on the mean of wages in the occupation without regard to skill levels, and 20 CFR 655.10(b) of the 2013 IFR, which eliminated tiered wages in the calculation of the OES wage. 774 F.3d at 190-191.

The court justified its decision to vacate the wage survey provision of the IFR, 20 CFR 655.10(f), along with the Wage Guidance. “[I]f we did not do so, we would leave in place a rule that is causing the very adverse effect that DOL is charged with preventing, and we would be `legally sanction[ing] an agency's disregard of its statutory or regulatory mandate.'” 774 F.3d at 191 (quoting

CATA II,

933 F. Supp. 2d at 714). Thus, the court “direct[ed] that private surveys no longer be used in determining the mean rate of wage for occupations except where an otherwise applicable OES survey does not provide any data for an occupation in a specific geographical location, or where the OES survey does not accurately represent the relevant job classification.”

Id.

The court concluded by suggesting the immediate implementation of the 2011 Wage Rule on employer-provided surveys as an interim final rule,

explaining: “That rule offers rational, lawful limits on the use of employer surveys, already has gone through notice and comment, has been funded by Congress in its 2014 authorization, and has been upheld by this Court. . . .”

Id.

Because of

CATA III'

s vacatur of that part of the wage regulation permitting the use of employer-provided surveys to set the prevailing wage, DOL immediately ceased accepting all employer-provided surveys. In light of the vacatur of 20 CFR 655.10(f), DOL lacked legal authority to accept such surveys without engaging in additional rulemaking.

Given the substantive concerns expressed by the

CATA III

court about the validity of employer-provided surveys in the H-2B program, DOL's options for accepting such surveys under this final rule are now necessarily more limited than under the 2013 IFR. The 2011 Wage Rule generally prohibited surveys, but allowed exceptions in specific situations in which the job may be in a geographic location that is not included in BLS's data collection for the OES or where the job opportunity is not “accurately represented” within the job classification used in those surveys, and those determinations were supported by DOL's contemporaneous fact-finding. 76 FR at 3466-3467. We asked the public in the 2013 IFR for any “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” in light of the concerns expressed in the 2011 Wage Rule, 78 FR at 24055, and this preamble reviews below that input and makes additional administrative factual determinations.

On March 14, 2014, DOL announced its decision to engage in further notice and comment rulemaking “working off the 2011 Wage Rule as a starting point.” 79 FR 14450, 14453. DOL concluded at that point that “recent developments” in the H-2B program required additional consideration of the comments submitted in connection with the 2013 IFR, and that further notice and comment was appropriate.

Id.

However, the U.S District Court for the Northern District of Florida's decision in

Perez

Perez,

No. 3:14-cv-682 (N.D. Fla. Mar. 4, 2015) (

Perez

), discussed below now requires us to address the H-2B wage issues more expeditiously than planned in March 2014.

In finalizing the 2013 IFR, the Departments underscore that stakeholders have had several opportunities since 2008 to comment on the three primary issues covered by this final rule: (1) The appropriateness of using the mean wage or tiered wage when basing the prevailing wage on the OES; (2) the appropriate role of the SCA and DBA wage rates in setting the H-2B prevailing wage; and (3) whether and under what circumstances an employer-provided survey could be used to set the prevailing wage. Most recently, we provided the public with the opportunity to comment on all aspects of this final rule in response to the 2013 IFR, and we received over 300 comments from a range of interested parties, including employers, worker advocates, and members of Congress. Therefore, we have balanced the Departments' and the public's interest in additional notice and opportunity for public comment against our current need to timely act in response to the

Perez

decision, discussed below, as well as our need to achieve some stability in the administration of the H-2B program. For these reasons, we have assessed the input received in response to the request for comments in the 2013 IFR, and we issue a final rule today based on the review and analysis of those comments.

E. Perez and Good Cause To Issue This Final Wage Rule With an Immediate Effective Date

1. The

Perez

Vacatur and Its Impact on Program Operations

Three months after the

CATA III

decision, on March 4, 2015, the U.S. District Court for the Northern District of Florida, which previously had vacated DOL's 2012 H-2B rule and enjoined its enforcement in

Bayou II,

vacated the 2008 rule and permanently enjoined DOL from enforcing it.

Perez

Perez,

No. 14-cv-682 (N.D. Fla. Mar. 4, 2015). As in its decision in

Bayou II

vacating the 2012 H-2B rule, the court in

Perez

found that DOL had no authority under the INA to independently issue legislative rules governing the H-2B program.

Perez,

slip op. at 6. Based on the

Perez

vacatur order and the permanent injunction, DOL ceased operating the H-2B program to comply immediately with the court's order. Shortly after the court issued its decision, DOL posted a notice on its Web site informing the public that “effective immediately, DOL can no longer accept or process requests for prevailing wage determinations or applications for labor certification in the H-2B program.”

Employment and Training Administration,

Announcements, http://www.foreignlaborcert.doleta.gov

(Mar. 4, 2015).

At the time of the

Perez

vacatur order on March 4, 2015, DOL had pending over 400 requests to set the prevailing wage for an H-2B occupation, and almost 800 applications for H-2B temporary labor certification representing approximately 16,408 workers. In order to minimize disruption to the H-2B program and to prevent economic dislocation to employers and employees in the industries that rely on H-2B foreign workers and to the general economy of the areas in which those industries are located, on March 16, 2015, DOL filed an unopposed motion requesting a temporary stay of the

Perez

vacatur order. On March 18, 2015, the court entered an order temporarily staying the vacatur of the H-2B rule until and including April 15, 2015. On April 15, 2015, at the request of proposed intervenors, the court entered a second order extending the temporary stay up to and including May 15, 2015. The court in

Perez

requested briefing on several issues, including whether the plaintiff had standing to challenge the 2008 rule. The court's extension of the stay on April 15 occurred late in the day, after DOL had already initiated processes necessary to provide for an orderly cessation of the H-2B program and after DOL had already posted a notice to the regulated community on its Web site that the H-2B program would be closed again the next day. On April 16, 2015, following the court's stay extension, DOL immediately posted a new notice on its Web site that it would continue to operate the H-2B program as it existed at the time of the

Perez

vacatur order and resume normal operations.

The court order in

Perez

did not vacate the 2013 IFR, and the court's concerns about DOL's independent regulatory authority do not impact the authority for issuing the 2013 IFR, which was promulgated jointly by DOL and DHS. However, although the Departments requested comment on all of the prevailing wage methodology for the H-2B program when they issued the 2013 IFR as discussed above, the 2013 IFR only amended the H-2B prevailing wage methodology in one way: it made a single change to 20 CFR 655.10(b)(2) to eliminate the use of skill levels in setting wages based on the OES. The 2013 IFR left the rest of the wage methodology and procedures from the 2008 rule untouched, and those provisions remained in effect until

CATA III

vacated 20 CFR 655.10(f). The court order in

Perez

then vacated the remainder of 20 CFR 655.10, except for 20 CFR 655.10(b)(2), which was amended in the 2013 IFR and thus not subject to the

Perez

vacatur. Thus, the

Perez

vacatur eliminated virtually all of DOL's wage methodology and procedures for setting prevailing wages, including the crucial regulatory provision that “[t]he employer must request a prevailing wage determination from the NPC in accordance with the procedures established by this regulation” set out at 20 CFR 655.10(a); the requirement that the prevailing wage be set at a CBA wage rate that was negotiated at arms' length between the union and the employer if there was a CBA covering the job opportunity in 20 CFR 655.10(b)(1); and the provision permitting the employer to request a DBA or SCA wage rate in 20 CFR 655.10(b)(5). The combination of the vacatur of 20 CFR 655.10(f) in

CATA III

and the decision in

Perez

left DOL without a complete methodology or any procedures to set prevailing wages in the H-2B program.

While the provisions of 20 CFR 655.10 continued to be published in the

Federal Register

following the

Perez

decision, only 20 CFR 655.10(b)(2), which was altered in the 2013 IFR, remains operative following

Perez.

Accordingly, the Departments discuss all provisions of 20 CFR 655.10 contained in the

Federal Register

on the date of the

Perez

decision in the past tense in this final wage rule, except for those contained in subparagraph (b)(2).

DHS is charged with adjudicating petitions for a nonimmigrant worker (commonly referred to as Form I-129 petitions or, in this rule, “H-2B petitions”), filed by employers seeking to employ H-2B workers. But, as discussed earlier, Congress directed the agency to issue its decisions relating to H-2B petitions “after consultation with appropriate agencies of the Government.” 8 U.S.C. 1184(c)(1), INA section 214(c)(1). Legacy INS and now DHS have historically consulted with DOL on U.S. labor market conditions to determine whether to approve an employer's petition to import H-2B workers.

See

73 FR 78104, 78110 (DHS) (Dec. 19, 2008); 55 FR 2606, 2617 (INS) (Jan. 26, 1990). DOL plays a significant role in the H-2B program because DHS “does not have the expertise needed to make any labor market determinations, independent of those already made by DOL.” 73 FR at 78110;

see also Shell Oil Co.

EPA,

950 F.2d 741, 752 (D.C. Cir. 1991) (observing that where the agency had a regulatory void as the result of a vacatur of its rule, it should consider issuing an interim rule under the good cause exception because of the disruptions posed by discontinuity in the regulations);

Action on Smoking and Health

Civil Aeronautics Bd.,

713 F.2d 795, 800 (D.C. Cir. 1983) (same). Moreover, courts find “good cause” to make a rule effective immediately under the APA when an agency is moving expeditiously to eliminate uncertainty or confusion that, left to linger, could cause tangible harm or hardship to the agency, the program, program users, or other members of the public.

See, e.g.,

Mid-Tex,

822 F.2d at 1133-34 (agency had good cause to proceed without notice and comment or 30-day delayed effective date to promote continuity and prevent “irremedial financial consequences” and “regulatory confusion”);

Nat'l Fed'n of Fed. Employees

Devine,

671 F.2d 607, 609, 611 (D.C. Cir. 1982) (agency had good cause to proceed without notice and comment or 30-day delayed effective date based on emergency circumstances, including uncertainty created by pending litigation about significant aspects of the program, and potential harm to agency, to program, and to regulated community);

AFGE.

Block,

655 F.2d at 1157 (agency had good cause to proceed without notice and comment or 30-day delayed effective date where absence of immediate guidance from agency would have forced reliance upon antiquated guidelines, creating confusion among field administrators, and caused economic harm and disruption to industry and consumers);

Woods Psychiatric Inst.

United States,

20 Cl. Ct. 324, 333 (1990), aff'd, 925 F.2d 1454 (Fed. Cir. 1991) (agency had good cause when program would continue to suffer administrative difficulties that had previously resulted in litigation and might continue to result in litigation due to uncertainty and confusion over scope of benefits, program standards, and eligibility requirements).

As a result of the

Perez

vacatur, DOL has already had to cease operating the H-2B program for two weeks in March 2015. DOL faces this prospect again at the expiration of the stay on or before May 15, 2015. The on-again-off-again nature of H-2B program operations has created substantial confusion, uncertainty and disarray for the agencies and the regulated community. The original vacatur order in

Perez

left DOL with hundreds of pending and time-sensitive applications for prevailing wages and temporary labor certifications. Two weeks later, following the court's stay of the vacatur and upon resumption of the H-2B program, those cases pending on the date of the vacatur created a backlog of applications, while, at the same time, employers began filing new applications for prevailing wages and certifications. DOL worked diligently and quickly to address the backlog and simultaneously keep up with new applications. Then, facing the expiration of the stay on April 15, 2015, DOL once again prepared to cease H-2B operations, which included posting a notice to the regulated community on its Web site that day announcing another closure, which was then obviated at the last minute by the court's extension of the stay late in the day on April 15. The next day, DOL announced that despite its earlier announcement, it would continue to operate the H-2B program as a result of the stay extension. These circumstances, which are beyond the Departments' ability to control, have resulted in substantial disorder and upheaval for the Departments, as well as employers and employees involved in the H-2B program.

The Departments have concluded that because of the program hiatus caused by the

Perez

vacatur, the anticipated additional hiatus at the expiration of the stay of that order, and the uncertainty and confusion surrounding operation of the H-2B program, we have good and substantial cause to rely on the APA's exception, 5 U.S.C. 553(d)(3), to make this rule effective immediately.

DHS and DOL must act expeditiously to enable the agencies to meet their statutory obligations under the INA and to prevent any further program disruption and economic dislocation. This final wage rule—which addresses a necessary component of the broader mandate of ensuring an adequate test of the U.S. labor market—must come into effect on the same day as the companion H-2B comprehensive rule, in order to provide for a seamless continuity of the H-2B program administration and enforcement, and complete implementation of all regulatory provisions.

Any delay in the effective date of this wage rule will require implementation of 20 CFR 655.10 without all the provisions necessary to its complete implementation. Accordingly, the Departments are relying on the APA's good cause exception to the 30-day delayed effective date, 5 U.S.C. 553(d)(3), to issue this new final rule establishing the methodology for DOL to determine the prevailing wage in the H-2B program with an immediate effective date.

We note that the Departments are not invoking the good cause exception to forego the APA's requirement of notice and comment, because this wage rule is a final rule following the request for comment in the 2013 IFR, and this preamble sets forth our consideration of those comments on all aspects of the wage methodology.

The procedures for requesting a wage determination are set forth in the new comprehensive H-2B rule entitled, Temporary Non-agricultural Employment of H-2B Aliens in the United States, and published simultaneously as a companion rule to this final wage rule.

F. Comments Regarding DHS's Authority To Consult With DOL and To Set Wages

While the comments received from the public overwhelmingly focused on the changes to the DOL prevailing wage methodology, a few submissions focused on DHS's authority to consult with DOL and to set wages. Some of these comments welcomed DHS's and DOL's joint promulgation of the 2013 IFR. Commenters stated that the IFR is consistent with statutory authority and that consultation with DOL is appropriate in light of DOL's expertise. A few commenters, however, stated that DHS improperly delegated its authority regarding the H-2B program to DOL. Another commenter also questioned why DHS does not consult with other government entities apart from DOL. Commenters also asked whether DOL had authority to promulgate the 2013 IFR. Finally, some commenters questioned DHS's statutory authority to set H-2B wages, stating that the INA does not support DHS's requirement that H-2B employment not adversely affect the wages and working conditions of United States workers.

1. DHS's Authority To Consult With DOL

DHS disagrees with the comments that DHS improperly delegated its authority involving the H-2B visa classification to DOL. The general provision at 8 U.S.C. 1184(c)(1), INA section 214(c)(1) requires DHS to consult with other “appropriate agencies of the Government” in adjudicating a variety of nonimmigrant

visa petitions, including petitions for H (such as H-2B) nonimmigrants, based on the specific requirements of each visa category. The H-2B nonimmigrant classification allows employers to petition for H-2B beneficiaries only “if unemployed persons capable of performing such service or labor cannot be found in this country.” 8 U.S.C. 1101(a)(15)(H)(ii)(b), INA section 101(a)(15)(H)(ii)(b). In compliance with the statutory requirement under 8 U.S.C. 1184(c)(1), INA section 214(c)(1), DHS has identified DOL as the most appropriate agency to consult regarding the availability of U.S. workers and their wages and working conditions for purposes of classifying aliens as H-2B nonimmigrants under 8 U.S.C. 1101(a)(15)(H)(ii)(b), INA section 101(a)(15)(H)(ii)(B), given DOL's expertise regarding U.S. labor. To satisfy the statutory consultation requirement, DHS regulations require that an H-2B petition for temporary employment in the United States be accompanied by an approved temporary labor certification from DOL. 8 CFR 214.2(h)(6)(iii)(A) and (iv)(A). These regulations require DOL to make the threshold determination of whether a qualified U.S. worker is available to fill the petitioning H-2B employer's job opportunity.

See

8 CFR 214.2(h)(6)(iii)(A) and (D). Thus, DHS has permissibly conditioned part of its own decision to grant an H-2B visa petition on DOL's expert advisory opinion, that is, on DOL's determination whether a temporary labor certification should be granted.

See La. Forestry,

745 F.3d at 673-74 (

citing U.S. Telecom Ass'n

FCC,

359 F.3d 554, 567 (D.C. Cir. 2004)). In addition, as part of DOL's certification, DHS regulations require DOL to “determine the prevailing wage applicable to an application for temporary labor certification in accordance with the Secretary of Labor's regulation at 20 CFR 655.10.” 8 CFR 214.2(h)(6)(iii)(D). It is similarly permissible for DHS to “adopt a regulatory provision allowing the DOL to promulgate a narrow class of rules governing the temporary labor certification process. Without the ability to establish procedures to administer the temporary labor certification process, the DOL would not be able to fulfill the consulting role defined by DHS's charge to the DOL to issue temporary labor certifications.”

La. Forestry,

745 F.3d at 674.

DOL is presently litigating its independent authority to issue legislative rules in the H-2B program.

See Bayou Lawn and Landscape Servs.

Perez,

No. 3:12-cv-183, 2014 WL 7496045 (N.D. Fla. Dec. 18, 2014), appeal pending, No. 15-10623E (11th Cir.);

G.H. Daniels III & Assocs.

Solis,

No. 12-cv-01943, 2013 WL 5216453, at *5 (D. Colo. Sept. 17, 2013),

appeal pending,

No. 13-1479 (10th Cir.). The analysis provided in this rule concerning the Departments' consultative relationship under the INA makes clear that DOL has the statutory authority to issue legislative rules governing the temporary labor certification process. Thus, while there are other arguments that would equally justify DOL's issuance of legislative rules in this circumstance, the Departments do not think it necessary to provide a further discussion of this issue for the purposes of this rule.

Finally, DHS's authority to administer and enforce immigration laws is longstanding.

See

section 102 of the Homeland Security Act of 2002, Public Law 107-296, 116 Stat. 2135, 6 U.S.C. 112, and 8 U.S.C. 1103(a), INA section 103(a). To ensure that there can be no question about the authority and validity of DOL's prevailing wage determination regulations in fulfilling its consultative role with DHS, this final rule includes 8 CFR 214.2(h)(6)(iii)(D), which specifically sets forth DOL's role as the appropriate consultative agency for purposes of assisting DHS in addressing questions necessary to DHS's adjudication of H-2B petitions. Similarly, to ensure the validity of the regulations outlining procedures to determine prevailing wages, DHS and DOL are jointly issuing this final rule.

2. DHS's Authority To Set H-2B Wages

DHS disagrees with comments stating that DHS lacks legal authority to set H-2B wages, and in particular, its authority to rely on DOL's advice, as a threshold matter, as to what constitutes the prevailing wage for H-2B occupations. DHS's authority to administer and enforce immigration laws through regulations is well established.

See

section 102 of the Homeland Security Act of 2002, Public Law 107-296, 116 Stat. 2135, 6 U.S.C. 112, and 8 U.S.C. 1103(a), INA section 103(a). Further, 8 U.S.C. 1101(a)(15)(H)(ii)(b), INA section 101(a)(15)(H)(ii)(b) establishes the H-2B visa classification for a nonagricultural temporary worker “. . . who is coming temporarily to the United States to perform . . . temporary [nonagricultural] service or labor

if unemployed persons capable of performing such service or labor cannot be found in this country”

(emphasis added). In order to meet the statutory obligations required under 8 U.S.C. 1101(a)(15)(H)(ii)(b), INA section 101(a)(15)(H)(ii)(b), and to determine whether “unemployed persons capable of performing such service or labor cannot be found in this country,” an adequate testing of the U.S. labor market is necessary. Any meaningful test of the U.S. labor market requires that H-2B petitioning employers must attempt to recruit U.S. workers at the prevailing wage and pay H-2B beneficiaries such prevailing wages. As noted in detail above, DOL is the appropriate Government agency to set standards for testing the U.S. labor market, and to determine the manner in which prevailing wages affect such tests of the U.S. labor market. DHS has permissibly conditioned its approval of an H-2B petition on DOL's determination whether the U.S. labor market was adequately tested using the applicable prevailing wage. DHS retains the authority to deny a petition notwithstanding DOL's decision to grant a temporary labor certification. The regulatory provisions involving the determination of prevailing wages, which are jointly promulgated here, are necessary in order for DHS to meet the statutory obligations imposed under 8 U.S.C. 1101(a)(15)(H)(ii)(b), INA section 101(a)(15)(H)(ii)(b).

Accordingly, in this rule, DHS is adopting the revision to 8 CFR 214.2(h)(6)(iii)(D) in this rulemaking without change.

II. Methodology for Determining the Prevailing Wage

A. Use of the Occupational Employment Statistics Survey

1. Application of Two- and Four-tiered Wage Structures to OES in H-2B: 1998-2011

In 1998, DOL first implemented use of the OES survey as an efficient and cost-effective way to develop consistent and accurate prevailing wage determinations in the H-2B program.

See

GAL 2-98, “Prevailing Wage Policy for Nonagricultural Immigration Programs” (November 30, 1998). The OES wage survey, issued by the Bureau of Labor Statistics (BLS), is among the largest continuous statistical survey programs. BLS produces the survey materials and selects the nonfarm establishments to be surveyed using the list of establishments maintained by State Workforce Agencies (SWAs) for unemployment insurance purposes. The OES collects data from over 1 million establishments. Salary levels based on geographic areas are available at the national and State levels and for certain territories in which statistical validity can be obtained, including the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands. Salary information is also made available at the metropolitan and nonmetropolitan area levels within a State. Wages for the OES survey are straight-time, gross pay, exclusive of premium pay. Base rate, cost-of-living allowances, guaranteed pay, hazardous duty pay, incentive pay including commissions and production bonuses,

tips, and on-call pay are included. These features are unique to the OES survey, which is a comprehensive, statistically valid, and useable wage reference, and widely used in the DOL's other foreign labor certification programs (H-1B and PERM). The frequency and precision of the data collected, as well as the comprehensive nature of the occupations for which such data is collected, make it an appropriate data source for determining applicable wages across the range of occupations found in the H-2B program.

BLS surveys workers' wages based on the 2010 Standard Occupational Code (SOC) system, which is used by Federal statistical agencies to classify workers into occupational categories for the purpose of collecting, calculating, or disseminating data.

All workers are classified into one of 840 detailed occupations according to their occupational definition.

To facilitate classification, detailed occupations are combined to form 461 broad occupations, 97 minor groups, and 23 major groups. Detailed occupations in the SOC with similar job duties, and in some cases skills, education, and/or training, are grouped together. However, the OES survey captures no information about differences within the groupings based on skills, training, experience or responsibility levels of the workers whose wages are being reported.

The OES data are used for many purposes in government. For example, BLS uses the data to make quarterly benchmark adjustments for the Employment Cost Index.

See http://www.bls.gov/news.release/eci.toc.htm.

BLS also uses the OES employment data as the “denominator” to calculate rates for the Occupational injury and illness rates.

See http://www.bls.gov/news.release/osh.toc.htm.

OES employment and wage distributions are used by the Bureau of Economic Analysis to estimate social security receipts.

See http://www.bea.gov/newsreleases/national/pi/pinewsrelease.htm. See also

“What are the OES data used for?”

http://www.bls.gov/oes/oes_ques.htm.

On May 22, 2014, the Office of Management and Budget (OMB) published a

Federal Register

notice announcing its periodic review of the 2010 SOC manual for revision in 2018 and soliciting public comment. For a timetable of the SOC revision process, see

http://www.bls.gov/soc/.

Despite the change in 1998 from reliance on State workforce agency surveys to the OES survey in the H-2B program, DOL continued its prior practice of setting a prevailing wage based on two skill levels—“entry level” and “experienced level”—as previously set out in GAL 4-95 and subsequently reiterated in GAL 2-98. Because, as noted above, the OES does not provide data about skill differential within SOC codes, DOL established the entry and experienced skill levels mathematically. In 1998, the entry level, or Level I, wage was set at the mean of the lower one-third of the survey universe (approximately the 17th percentile), and the experienced level, or Level II, wage was the mean wage of workers in the upper two-thirds of the survey universe (approximately the 67th percentile). These two “skill level” tiers were expanded in 2005 guidance to include four “skill levels”—“entry level,” “qualified,” “experienced,” and “fully competent”—and, based on a linear interpolation, Levels 1 through IV were set, respectively, at approximately the 17th percentile, the 34th percentile, the 50th percentile, and the 67th percentile.

In 2008, DOL proposed and finalized regulations governing the H-2B temporary worker program, and that rule essentially codified various aspects of the 2005 guidance, including the requirement that the prevailing wage for labor certification must include skill levels (73 FR 29942, May 22, 2008 (2008 NPRM); 73 FR 78020, Dec. 19, 2008 (2008 rule), and DOL's sub-regulatory guidance continued to require four skill levels. Because the four-tiered wage structure had already been implemented through guidance documents, the 2008 rule did not seek comment on the codification of four “skill levels” in the H-2B regulations.

The expansion from two to four skill levels in 2005 stemmed from 2004 legislation enacting section 212(p)(4) of the INA, 8 U.S.C. 1182(p)(4), requiring the prevailing wage issued by DOL in the H-1B temporary specialty worker visa program to include four tiers commensurate with experience, education, and level of supervision. The DOL applied that statutory formula to H-2B temporary labor certification applications as well as the H-1B and permanent labor certification programs although there was no corresponding statutory provision for the H-2B program.

See

ETA Prevailing Wage Determination Policy Guidance, Nonagricultural Immigration Programs (revised May 9, 2005) (“2005 PWD guidance” or “2005 guidance”), available at

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

2. Elimination of Tiered Wage Structure in H-2B: 2011-present

As discussed above in Sec. I. B., supra, the lack of notice-and-comment rulemaking in the 2008 rule on the issue of the four-tiered wage structure in the H-2B program resulted in a court ruling in 2010 that the implementation of the tiered wages violated the APA.

CATA I,

2010 WL 3431761. The

CATA I

decision required DOL to, among other things, issue a new wage methodology rule that complied with the APA's notice and comment requirements. Accordingly, DOL engaged in notice-and-comment rulemaking that resulted in the elimination of the tiered wage structure in its 2011 Wage Rule. 75 FR 61578 (Oct. 5, 2010); 76 FR 3452 (Jan. 19, 2011). DOL based the elimination of the “skill levels” in the 2011 Wage Rule on the conclusion that:

almost all jobs for which employers seek H-2B workers require little, if any, skill—an assertion with which few commenters disagreed. H-2B disclosure data from Fiscal Year (FY) 2007 to 2009 demonstrates that most of the jobs included in the top five industries for which the greatest annual numbers of H-2B workers were certified—construction; amusement, gambling and recreation; landscaping services; janitorial services; and food services and drinking places—require minimal skill to perform, according to every standardized source available to the Department, such as the SOC, O*NET and the Occupational Outlook Handbook. These jobs include, but are not limited to, landscaper laborer, housekeeping cleaner, construction worker, forestry worker, and amusement park worker, which make up the majority of occupations certified in those years, all of which require less than 2 years of experience to perform, if that. This prevalence of job opportunities in low-skilled categories is generally reflected in the H-2B employer applications. These jobs have typically resulted in a Level I wage determination, which is lower than the average wage paid to similarly employed workers in job classifications in non-H-2B jobs.

76 FR at 3459 (footnote omitted). DOL further concluded that “there is no correlation in the four-tier wage structure between the skill level required to perform a job and the wage attached to it.” 76 FR at 3460. Noting that the comments on the 2010 proposal did not present data or analysis to the contrary, DOL concluded in the final rule that “there are no significant skill-based wage 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.

Ultimately, DOL concluded that the use of tiered wages in the H-2B program 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.” 76 FR at 3463. The application of the four tiers set a wage “below what the average similarly employed worker is paid[,]” and “the net result is an adverse effect on the [U.S.] worker's income.”

Id.

With the elimination of the wage tiers in the 2011 Wage Rule, when the prevailing wage determination was based on the OES survey, the prevailing wage was set at the mean of the wages of workers in the occupation in the area of intended employment.

As noted above, because of Congressional riders, the 2011 Wage Rule was never implemented, and DOL continued to implement the four-tiered

approach established in the 2008 rule. In 2013, the

CATA II

decision permanently enjoined DOL from using the four-tiered approach and vacated the corresponding provision in the 2008 rule. 933 F. Supp. 2d 700, 711-716.

CATA II

held that because DOL concluded in the 2011 Wage Rule that the four wage tiers “artificially lower[ ] wage[s] to a point that [they] no longer represent . . . market-based wage[s] for the occupation” and “have a depressive effect on the wages of [United States workers,]” 76 FR at 3477, they were in violation of the INA and DHS regulations, each of which explicitly preclude the grant of labor certifications to foreign workers whose employment may “adversely affect wages and working conditions of similarly employed United States workers.”

CATA II,

933 F. Supp. 2d at 712-713 (citing 8 U.S.C. 1101(a)(15)(H)(ii)(b), INA section 101(a)(15)(H)(ii)(b); 8 CFR 214.2(h)(6)(iv)(A)). In response to

CATA II,

DOL and DHS issued the 2013 IFR, which, for the OES component of the prevailing wage determination, again eliminated the four-tiered wages, and established the mean of workers' wages in the occupation in the area of intended employment as the set point for a prevailing wage determination based on the OES survey. 78 FR 24047.

3. Comments on the IFR's Elimination of Wage Tiers

In the 2013 IFR, the Departments specifically invited comments on “whether the OES mean is the appropriate basis for determining the prevailing wage.” 78 FR at 24053. All worker advocates who commented expressed general support for the continued use of the OES mean, stating it was far preferable to the 2008 rule's four-tiered approach. They agreed with the Departments' finding in the IFR that dividing wages into four skill levels artificially lowered wages. In their view, the use of the OES mean substantially improves the protection of the wages and working conditions of U.S. workers because most H-2B jobs require little or no prior training or experience. They also agreed with the Departments' conclusion that a four-tiered approach is inappropriate because there are no significant skill-based wage differences in the H-2B occupations. Numerous H-2B employers and associations of employers generally opposed the use of the OES mean wage, and most advocated for a return to the four-tiered structure.

In their view, the OES mean overstates the prevailing wage for most H-2B positions because H-2B workers typically possess only entry level skills, yet under the OES mean they are paid a rate higher than more skilled permanent workers. Thus, in their view, H-2B workers typically should be compensated at the lowest of the four tiers established for a position. These commenters emphasized the impact of the substantially increased labor costs associated with the use of the OES mean wage and the detrimental effect on the profitability of their businesses. Many commenters expressed particular concern about the impact of the OES mean on small businesses, many predicting that it would make it impossible for many employers to continue in business, resulting in a direct “adverse effect” on the employment of U.S. workers.

Although most employers advocated for a return to the practice under the 2008 rule, several also supported as an alternative the approach included in the Border Security, Economic Opportunity, and Immigration Modernization Act, S. 744, 113th Cong. (2013), which was adopted by the Senate in June 2013 as part of its consideration of comprehensive immigration reform (hereinafter S. 744). S. 744's relevant provision, section 4211(a), reads, in part, “if there is no [CBA or DBA/SCA wage], the wage level [shall be] commensurate with the experience, training, and supervision required for the job based on Bureau of Labor Statistics data.” Although it calls for wage levels or tiers, the bill does not specify the requisite number of levels. Moreover, as noted above, BLS does not issue data that takes these factors into account within an SOC.

Some commenters disagreed with DOL's premise in 2011,

i.e.,

that a single prevailing wage is appropriate for each occupation in the H-2B program because “the majority of H-2B jobs reflect no or few skill differentials[.]” 76 FR at 3459. They asserted that if the premise was true, there should be no significant differences between the average wage and the Level I wage under the four-tier wage system (the average wage paid to workers in the lower third of the wage distribution for the occupation). In their view, the significant difference between the OES mean wage and the mean wages computed for the lowest tier under the four-tier approach demonstrates that significant skill differentials exist within H-2B occupations.

a. Support for Using the OES Mean

Several worker advocates included the same basic position in their comments that a four-tier approach is inappropriate because there are no significant skill-based wage differences in the occupations that predominate in the H-2B program, and to the extent such differences exist, the differences are not captured by the existing four-tier system. In their view, eliminating tiers is appropriate because H-2B jobs require little or no experience and the use of the OES mean better protects U.S. wages and working conditions.

One commenter, an economic advocacy group, acknowledged that the use of the OES mean was a significant improvement over the approach taken in the 2008 rule. In its view, however, the IFR does not sufficiently protect the wages and working conditions of all workers in positions using H-2B workers. Setting the wage at the OES mean will pressure employers to establish the OES mean as the norm for a position, resulting in the eventual reduction in higher wages now received by U.S. workers in the position. According to this commenter, the only way to ensure that there is no reduction in wages paid to U.S workers would be to set the H-2B wage at the highest wage for a position. As an alternative to this method, it suggested that the Employment and Training Administration (ETA) use the OES 90th percentile wage rate for a position, which the commenter asserted would adequately protect the interests of U.S. workers.

The Departments received extensive comments from the forestry industry. One commenter suggested that the OES mean should be used for all H-2B jobs requiring little or no training (all O*NET Job Zone 1 positions) absent higher wages under a CBA, SCA, or DBA for a particular job. For H-2B jobs requiring some training (O*NET Job Zone 2 and 3 positions), it stated that the OES mean should also generally be used.

However, as discussed in the section that follows on the use of the SCA and DBA wage determinations to set the prevailing wage, a number of commenters stated that the SCA occupational codes and job descriptions generally better fit the forest industry's H-2B jobs than those used in the OES.

See

Procedures for O*NET Job Zone Assignment (March 2008), Appendix, available at:

http://www.onetcenter.org/dl_files/JobZoneProcedure.pdf.

In short, the 5 Job Zones are as follows: Job Zone 1 requires little or no preparation; Job Zone 2 requires some preparation; Job Zone 3 requires medium preparation; Job Zone 4 requires considerable preparation; and Job Zone 5 requires extensive preparation.

b. Opposition to Using the OES Mean

Several employers and associations of employers preferred the use of tiered wage rates because such rates, in their view, reflect the actual demands of the positions for which they seek H-2B or U.S. workers. Most of these commenters expressed an interest in preserving the approach set forth in the 2008 rule. Some commenters asserted that DOL was bound by the appropriations legislation to apply the four-tiered

approach.

Many commenters expressed an interest in preserving a tiered approach, without expressing a strong preference among the 2008 rule, ETA's 2005 PWD guidance,

or the approach outlined in bipartisan immigration reform legislation considered and passed out of the U.S. Senate in 2013 (S. 744). Others supported one or more of these approaches as alternatives to their preferred approach; others preferred the S. 744 approach alone.

Although this argument is not developed at length by the commenters, they appear to contend that because Congress previously had barred implementation of the 2011 Wage Rule, which eliminated the use of tiered wages, it intended to deny the use of appropriated funds to promulgate any rule, such as the IFR, which also eliminates their use.

2005 PWD guidance explained

supra.

Many commenters cited to a study conducted by an H-2B employer coalition, predicting a substantial across-the-board increase in labor costs from the use of the OES mean rather than tiered wages. Some commenters emphasized the impact that use of the OES mean would have on wages within particular industries. For example, one commenter asserted that in the forestry industry wage-rate increases would exceed 20 percent in most areas and exceed 60 percent in Arkansas, Idaho, and Virginia. Another commenter stated that landscape employers, based on new wage determinations, would face an average wage increase in H-2B wage rates of $3.27 an hour, or more than 36.9 percent. To emphasize its point about the large, unexpected increases experienced by employers within its industry, this commenter included a chart showing by state the amount and percentage of increases. To underscore a similar point across industries, the workforce coalition included a chart showing, by state and occupation, the amount and percentage increases that result from using the OES mean. While many commenters complained about the effect of using the H-2B rule on their particular industries (

e.g.,

landscaping, transient amusement, lodging), a few commenters sought specific exemptions for their industries.

One commenter (describing itself as a group of “H-2B employers, agents who help small businesses . . ., and legal and economic experts”) made the following claims to support its view that the OES skill-levels should be used to set prevailing wages:

• use of tiered wage levels could not allow employers to pay H-2B workers a lower wage than was appropriate because ETA certified the wage level;

• the OES mean wage inflates the wages for more than half the H-2B workers in a particular occupation;

• the 2011 Wage Rule's focus on wage depression for H-2B workers should have been outweighed by concerns about the impact of the ultimate wage depression on U.S. workers—the loss of their jobs;

• preventing wage deflation for H-2B workers does not protect domestic workers because the vast majority of H-2B applications involve 25 or fewer workers and the total number of H-2B workers is too small to impact domestic workers;

This group provided an extensive submission on the tiered wage issue, and the comment contained numerous exhibits, including articles, wage comparisons, and declarations submitted in lawsuits involving the H-2B program.

• the 2013 IFR's analysis of wage depression was flawed because “the mean exceeds the median of the [wage] distribution. This means that a majority of workers, permanent or temporary, skilled or entry level, earn less than the arithmetic mean”;

• the 2013 IFR inappropriately did not consider that the presence of temporary foreign workers is complementary and improves the job security of permanent U.S. workers, making “[t]he wage depression issue” irrelevant;

• the 2013 IFR's stated premise,

i.e.,

that tiered wage rates are inappropriate because “almost all H-2B jobs involve unskilled occupations requiring few or no skill differentials,” 78 FR 24047, 24053, is incorrect because, in the commenter's view, wage variation within H-2B occupations necessarily indicates differing skill levels for workers in the H-2B program; and

• the use of a single prevailing wage for a classification that includes different tasks, skills, and experience, “makes no economic sense” and will prevent the hiring of workers with the lowest skills in those categories.

It provided the following examples from DOL's Standard Occupational Classification system to assert that workers are not “similarly employed” or “substantially comparable.” “Landscaping and Grounds Keeping Workers” includes workers who install sprinkler equipment as well as workers who pull weeds; “Amusement and Recreation Attendants” includes workers in video arcades, marinas, golf courses, and ski resorts; and “Lifeguards” includes lifeguards at the local public swimming pool as well as members of a ski patrol at winter ski resorts.

A different commenter, an association of H-2B employers, stated that by requiring H-2B workers to be paid at the OES mean, the Departments denied some H-2B workers wages they were previously paid at a higher skill level. Several other commenters expressed similar concerns, and made the following points:

• DOL should provide data to support its position that “skill levels as determined currently do not reflect wage levels in lower skilled jobs.” It is arbitrary to require the same rate be paid for a hotel housekeeping position without regard to whether the employee is able to clean 5 or 15 rooms per day;

• wages must be market driven, reflecting both the demand for workers for various seasonal positions not filled locally and the levels of experience available within the labor pool of seasonal and visitor workers;

• conflating tiers 1 through 4 compels employers to pay a wage rate that is appropriate for a more skilled worker than the lower-skilled worker requested by its application, which upwardly skews its labor costs not only for the H-2B workers but also for other individuals it employs;

• use of the OES mean is based on the false premise that unskilled entry-level positions should be paid an amount that greatly exceeds the Federal minimum wage;

• use of the OES mean requires an employer to pay an H-2B wage that is not based on the appropriate entry-level wage for the position, but instead a rate that includes wages paid to more experienced workers in the position or those with supervisory duties. The “premium” paid to the more experienced workers and supervisors appropriately reflected the nature of their jobs as year-round, permanent employees, differentiating them from temporary, supplemental employees;

• the OES mean reflects, in part, the wages paid to workers that have greater training, experience, and education than entry-level H-2B employees. It is inappropriate to include in the prevailing wage computation the rates paid to senior, experienced workers whose contributions to the employer's operations are greater than the H-2B workers because the senior workers require less supervision and are involved in fewer accidents than the entry-level workers; and

• the OES mean arbitrarily inflates the wages of entry-level workers and deflates the wages of more experienced workers. A “one-size-fits all approach ignores real-world wage differentiation factors such as supervisory duties, responsibilities, seniority/tenure, talent, dependability and efficiency.” The regulatory history supports the use of setting wages based on the skill required for a position. Before 2005, where an applicant was the only employer in an area of intended employment, setting the H-2B wage required an analysis of

the skill and experience levels of the occupation. The term “similarly employed” was defined, in part, in DOL's permanent labor certification (PERM) regulations as “jobs requiring a substantially similar level of skills within an area of intended employment.” 20 CFR 656.40(b).

c. Comments Specific to the Forestry Industry

A number of commenters, including worker advocates and employers in the industry, expressed the view that the SCA rates better reflect wages paid in the forestry industry than the OES mean.

A group of worker advocates favored the general use of the SCA rates where they apply, instead of the OES mean for H-2B jobs in this industry. This comment asserted that where H-2B jobs are grouped together with other jobs that cannot be included accurately in the same O*NET Job Zone, ETA should establish O*NET sub-codes for such positions.

It explained that where a particular SOC code contains a mix of jobs—some requiring little preparation, but many others requiring substantially more preparation—the OES mean wage inflates the wages for jobs requiring little preparation. The group proposed that where ETA and its O*NET partners have identified sub-occupations with different O*NET levels within a single SOC code, ETA, in consultation with BLS, should establish a methodology to determine the prevailing wages for those positions. It proposed that in the interim ETA should adjudicate, on a case-by-case basis, the wage rates for affected occupations. Apparently, the group would have ETA determine whether a particular position requires more or less preparation than typical for other jobs within the OES classification, and then provide notice of such adjudication and an opportunity for labor organizations and worker advocacy groups to participate. Additionally, it stated that, absent strong evidence to the contrary, ETA should establish as a floor for “mixed occupational SOC codes” a wage rate not less than 95% of the OES rate for that code. The group asserted that relatively few H-2B jobs require substantial prior training (O*NET Job Zones 4 and 5) and questioned whether such jobs are appropriate for H-2B certification. For such positions, however, it stated that the presumption should be that the OES mean wage is appropriate.

These comments are also addressed in Sec. II.B.,

infra,

in the discussion of the use of the SCA wage determinations to set the prevailing wage in the H-2B program.

O*NET is sponsored by ETA through a grant to the North Carolina Department of Commerce, which operates the National Center for O*NET Development through a partnership of public and private-sector organizations. The O*NET program is the nation's primary source of occupational information. Central to the project is the O*NET database, containing information on hundreds of standardized and occupation-specific descriptors. The database, which is available to the public at no cost, is continually updated by surveying a broad range of workers from each occupation. The O*NET program groups occupations into five “Job Zones.” Each Job Zone acts as a grouping of occupations that are similar with regard to: How much education is needed to do the work, how much related experience people need to do the work, and how much on-the-job training people need to do the work.

See http://www.onetcenter.org/about.html

and

https://www.onetonline.org/help/online/zones.

An employer stated that gaps in the OES survey data result in extreme differences from county to county when compared year to year and that wide variations in required OES wages for adjoining counties demonstrate that the rates do not reflect actual wage rates paid to workers in the counties. In its view, the SCA rates better reflect the true prevailing wage for forestry occupations in an area, but it suggested that the H-2A program provided a better model for its industry. This commenter stated that ETA should establish state or regional rates for forestry work based on wages paid within the same multi-state regions used in the H-2A program. Alternatively, it suggested that ETA could establish larger geographical regions that follow the seasonal migratory patterns for forestry-related work: A Northeast Region, a Midwest and Great Lakes Region, a Pacific and Northwest Region, a Southwest Region, and a Southern Region. As a second possible alternative to the existing system, the commenter advocated the use of an average state-wide wage to avoid the wide divergence in rates from one particular local area of employment to another.

d. Other Comments

An individual commenter in the public sector stated that the use of skill levels, where level one becomes the default level for H-2B workers, could have an adverse effect on U.S. workers. At the same time, the commenter expressed concern that the use of the OES mean rate—without regard to skill—could lead to workers with different skills and education receiving the same level of pay. As an example he chose the OES “Construction Managers” category, which groups construction foreman and job superintendent, positions that in his view both required job experience but only one of which (job superintendent) required a college degree. The commenter suggested that each position likely would receive the same H-2B rate of pay, despite the different educational requirements for the two positions. He suggested that the use of some tiers, but not necessarily four, would be more appropriate than using the OES mean.

Another individual commenter suggested that ETA create a two-tiered system based on the percentage differences between the average wage issued for a position in fiscal years 2011 and 2012 and the mean wage for that position. He characterized his approach as follows: “Wage Tier 1 = the mean of the lowest

1/3

of the wages reported. Wage Tier 2 = the mean of the top

2/3

of wages reported.”

Some commenters, including a group of employers, employer agents, lawyers and economists, criticized DOL's reading of the court's order in

CATA II

to require the OES mean wage. This group claimed that the use of the OES mean is not required by

CATA II

; in its view, the decision only required DOL to stop using the skill levels that the Office of Foreign Labor Certification (OFLC) had long been using. Two associations of H-2B employers asserted that the Departments presented no evidence that H-2B workers occupy positions where similarly employed U.S. workers are actually paid the mean OES wage. They also asserted that DOL does not apply the arithmetic mean for wage determinations in its other labor certification programs.

4. Decision To Retain the Mean Wage When Issuing a Prevailing Wage Based on the OES

After reviewing the use of the OES survey in setting the prevailing wage in the H-2B program, including consideration of all the comments received on the 2013 IFR, the Departments have decided to continue to set the prevailing wage at the mean wage of all workers in the occupation in the area of intended employment when the prevailing wage is based on the OES survey. As discussed in the preambles to the 2010 NPRM, the 2011 Wage Rule, and the 2013 IFR, it remains our view that the OES mean better protects U.S. workers from adverse effect than the tiered-wage approach used previously in the H-2B program.

A basic principle of supply-and-demand theory in economics is that in market economies, shortages signal that adjustments should be made to maintain equilibrium. Therefore, if employers experience a shortage of available workers in a particular region or occupation, compensation should rise as needed to attract workers. Market signals such as labor shortages that would normally drive wages up may become distorted by the availability of

foreign workers for certain occupations, thus preventing the optimal allocation of labor in the market and dampening increased compensation that should result from the shortage. In enacting the foreign worker programs, generally, Congress has recognized the potential for market distortion by requiring in labor certification programs generally that the availability of foreign workers must not adversely affect the wages and working conditions of U.S. workers.

See, e.g.,

8 U.S.C. 1182(a)(5)(A)(i)(II), INA section 212(a)(5)(A)(i)(II); 8 U.S.C. 1188(a)(1)(B), INA section 218(a)(1)(B). In its long-standing regulations, DHS has required this showing for the H-2B program.

See, e.g.,

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

As in 2010 and 2013, we considered, but ultimately rejected, reinstituting a tiered wage system for H-2B employment.

We have revisited the question whether we should return to the practice used between 1995 and 2008, in which DOL employed a two-tiered system composed of an “entry level” and an “experienced level” wage as an alternative to the OES mean. However, we conclude that such an approach would not adequately protect the wages and working conditions of U.S. workers. This position is informed by DOL's prior conclusion that “there are no significant skill-based wage differences in the occupations that predominate in the H-2B program. . . .” 76 FR at 3460. In the 2011 Wage Rule, DOL analyzed 4694 wage determinations over a ten-month period in 2010, and found that 74 percent of the determinations were issued at Level I; 10.5 percent were issued at Level II; 8.2 percent were issued at Level III; and 6.9 percent were issued at Level IV. 76 FR at 3468. Overall, in approximately 93 percent of those cases analyzed (summing the percentage of determinations issued at Levels I, II and III), wage rates were issued for H-2B occupations that were below the OES mean for the same occupation. Based on those findings, 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[,]” and that “the net result is an adverse effect on the [U.S.] worker's income.” 76 FR at 3463;

see also

75 FR 61578, 61580-81. Similarly, the preamble to the 2013 IFR stated that the OES mean is the appropriate wage level because almost all H-2B jobs involve unskilled occupations requiring few or no skill differentials. 78 FR at 24053. The 2013 IFR reiterated the conclusion that “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.”

Id.

In light of the

CATA II

holding and the findings by the DOL on which it is based, we concluded that a return to the four-tiered approach was not feasible.

DOL continues to see the pattern identified in 2011, in which Level I wages (approximately the 17th percentile) predominate where a tiered wage structure is in place. DOL conducted a fresh analysis for this rule of the frequency with which the former Level I wages occur in prevailing wage determinations under a tiered wage structure. In a statistically significant random sample of 472 wage determinations issued in FY 2012, before implementation of the IFR, DOL found that 344 determinations, or 72.88 percent of the sample, were issued at Level I; 68 wage determinations, or 14.41 percent of the sample, were issued at Level II; 41 wage determinations, or 8.69 percent of the sample, were issued at Level III; and 19 wage determinations, or 4.03 percent of the sample, were issued at Level IV. As a result, approximately 96 percent of the wage determinations analyzed in the 2012 sample (summing the percentage of determinations issued at Levels I, II and III) were below the OES mean wage. Based on this analysis, DOL remains convinced that when tiered wages are available and the tiers are set below the mean, the average wage of workers in the occupation is driven down, resulting in an adverse effect on U.S. workers' wages caused by the influx of foreign workers.

Moreover, a tiered approach in the H-2B program has been an inadequate proxy for skill or other characteristics associated with wages, thereby discrediting comments on the 2013 IFR suggesting that any variation in wage payments when tiers are in place reflects remuneration for relative skill or proficiency. These commenters argued that if the premise that there are a few or no skill differences in H-2B work were accurate, we would not see the range of wages, and the dispersal away from the mean, that can be observed on an H-2B wage distribution. The wage differential, they say, must reflect a skill differential. However, many more factors can account for the H-2B wage differential than skill level. The literature reflects that there are factors in addition to skill level that can account for OES wage variation for the same occupation and location, which include, but are not limited to: Size of employer; seniority; rate of worker turnover; union status; gender, race, ethnicity, or nationality; work hour schedule; age; availability of benefits in the form of training opportunity, health insurance, paid time off, and other benefits; sub-location within the same area of intended employment; and pay structure (performance-based pay vs. fixed pay per hour).

See

BLS, “How much could I be earning? Using Occupational Employment Statistics data during salary negotiations” (2014),

http://www.bls.gov/oes/earnings.pdf

; BLS, “Measuring the distribution of wages in the United States from 1996 through 2010 using the Occupational Employment Survey” (2014).

http://www.bls.gov/opub/mlr/2014/article/measuring-the-distribution-of-wages-in-the-united-states-from-1996-through-2010-using-the-occupational-employment-survey-1.htm

; BLS, “How Jobseekers and Employers Can Use Occupational Employment Statistics (OES) Data during Wage and Salary Discussions” (2010),

http://www.bls.gov/oes/highlight_wage_discussions.pdf

; Krista Sunday and Jordan Pfuntner, “How widely do wages vary within jobs in the same establishment?” (2008),

http://www.bls.gov/opub/mlr/2008/02/art2full.pdf

; Charles Brown, et. al., “The Employer Size-Wage Effect” (1989),

http://unionstats.gsu.edu/8220/Brown-Medoff_Wage-Size_JPE_1989.pdf

; John Buckley, “Wage differences among workers in the same job and establishment” (1985),

http://stats.bls.gov/opub/mlr/1985/03/art2full.pdf.

In the absence of a tiered wage system, the Departments must assign prevailing wages in the H-2B program in a manner in which does not depress wages for U.S. workers because of the artificially elevated labor supply in the market. Thus, we must identify the point on the OES wage distribution that protects the wages of U.S. workers from the depressive effect of the influx of surplus labor. In 2011 and in 2013, DOL concluded that the mean was that point (76 FR at 3462; 78 FR at 24053), and we rely on that same finding following public comment for the purposes of this final rule. The mean is the average of all wages surveyed in an occupation in the geographic area, and in the low-skilled occupations in the H-2B program, the mean represents the average wage paid to unskilled workers to perform that job. If the prevailing wage is set below the mean, the average wage of workers in the occupation would be drawn down, resulting in a depressive effect on U.S. workers' wages overall. In addition, we have set the wage rate at the mean rather than at the median because the mean provides equal weight to the wage rate received by each worker in the occupation across the wage spectrum and maintaining the OES mean provides regulatory continuity. As a result, when the prevailing wage is based on the OES survey, we will set it at the mean because it is the most appropriate wage to use in order to avoid immigration-induced labor market distortions

inconsistent with the requirements of the INA.

For all these reasons, we have not returned to a tiered system as a basis for setting the prevailing wage for H-2B workers. We recognize that the use of the OES mean, rather than the use of tiered wages, has in some cases resulted in an increase in the wages paid to H-2B workers, which may result in overall increases in labor costs for some U.S. businesses that employ H-2B workers. The Departments also recognize that the use of the OES mean may impose particular burdens on small businesses. However, DOL is obligated to set a prevailing wage that protects all U.S. workers from adverse effect; this requirement could not be met by setting a lower wage for small businesses. In addition, most H-2B employers now have experience paying workers at the OES mean, which was established in the H-2B program two years ago. DOL concludes that the impact on small businesses of having to pay the OES mean wage will be less than that incurred under the 2013 rule, given that employers have been able since then to base projections of future labor costs on these wage rates. As discussed above, DOL concludes that use of the OES mean best meets the Departments' obligation to protect against adverse effect, while setting the prevailing wage at a threshold based on artificial skill levels likely distorts the labor market for U.S. workers, driving down wages.

B. Use of the SCA and DBA as Wage Sources in H-2B Prevailing Wage Determinations

1. History of the SCA and DBA Prevailing Wage Determinations in the H-2B Program

DOL historically relied on the prevailing wage regulations used for permanent labor certifications in the immigrant labor program, as codified at 20 CFR 656.40, to determine prevailing wages in the H-2B program. Versions of section 656.40(a)(1) that pre-date 2005 set wage rates 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. As a result, before 2005, if an H-2B job fell within an occupation for which an SCA or DBA wage determination had been issued in the area of intended employment, that wage rate became the H-2B prevailing wage, even in cases in which the OES survey may have identified a wage for a comparable occupation. DOL abandoned this approach in the same 2005 guidance that introduced skill-based tiered wages, which gave employers the option to request the SCA or DBA prevailing wage determination, but did not mandate its application.

See

2005 PWD Guidance. The H-2B rule issued in 2008 similarly permitted, but did not require, use of the SCA and DBA prevailing wage determinations. 73 FR 78020. As a result, under the 2008 rule DOL set the prevailing wage as: The collective bargaining agreement (CBA) wage rate; the OES four-tier wage rate if there was no CBA; an acceptable survey provided at the employer's election; or a wage rate under DBA or SCA at the employer's request, if one was available for the occupation in the area of intended employment.

See

20 CFR 655.10 (2009). In the absence of a CBA wage, the employer could elect to use the applicable SCA or DBA wage in lieu of the OES wage.

Id.

In DOL's 2010 H-2B Wage NPRM, DOL proposed revisions to the wage methodology that set the prevailing wage as the highest of: The OES arithmetic mean wage for each occupational category in the area of intended employment; the applicable SCA/DBA wage rate (if one was available); or the CBA wage. 75 FR 61578 (Oct. 5, 2010). This approach was finalized in 2011, 76 FR 3452, although never implemented as a result of Congressional riders, as discussed above. Because the riders prevented implementation of the 2011 “highest of” approach, DOL continued to use the approach in the 2008 rule, which permitted employers to request prevailing wages based on the SCA and DBA, if applicable and available.

The 2013 IFR retained the “employer's option” approach. 78 FR 24047. The preamble to the IFR explained that “although there are various ways to define or calculate the prevailing wage rate, [DOL concludes] 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 [the OES mean, the SCA or the DBA] 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.” 78 FR at 24054.

2. Comments on the 2013 IFR's Use of the SCA and DBA Wage Determinations to Set the Prevailing Wage

The 2013 IFR sought “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.

” 78 FR at 24054 (emphasis added). We identified three ways in which we could continue to incorporate DBA and SCA wage determinations in the H-2B program if we elected to use those wage sources: (1) Applying the DBA or SCA wage determinations if they represent the highest available prevailing wage determination for the job opportunity in question (the 2011 approach); (2) making the SCA and DBA wage determinations available to the employer if it chooses to rely on them for that job opportunity, regardless of whether the wage is the highest or lowest available (the 2008 Rule and 2013 IFR approach); and (3) in the absence of a CBA wage, mandating use of the SCA or DBA wage determination applicable to that job opportunity (the pre-2005 approach).

Id.

As a general matter, many worker advocates supported the mandatory application of SCA and DBA prevailing wage determinations where they are available for the occupation in the area of intended employment for which certification is being sought. These commenters often argued that the SCA and DBA wage determinations were the most complete and accurate measure of appropriate compensation levels for the occupations covered by those statutes in the geographic areas for which such wage rates have been determined. Many such commenters argued in favor of DOL's pre-2005 approach in which the SCA and DBA wage determinations must be used where applicable to the job in the area of intended employment. However some commenters did not clearly state whether they advocated for use of the SCA and DBA wage determinations in the H-2B program as part of the unimplemented 2011 “highest of” methodology, in which SCA and DBA wage determinations are used only if they are higher than the OES mean and/or a CBA wage.

Similarly, many employers and employer associations advocated in favor of the approach in the 2008 rule, but did not identify whether this preference was specifically tied to the 2008 rule's voluntary use of the SCA and DBA wage determinations, or whether it reflected a preference for the four-tiered OES structure over the OES mean. In addition, many of the same commenters suggested that, in the event we do not employ the 2008 rule's voluntary use of the SCA and DBA wage determinations, we should adopt the 2005 guidance, which mirrors the 2008 rule's employer election to use SCA or DBA wage determinations. Many commenters also suggested that the Departments adopt the wage standards set out in S. 744, as alternative

acceptable wage methodologies.

With respect to the SCA and the DBA, these commenters appear to suggest that S. 744's reliance on the use of the “best available information” to set the prevailing wage indicates that the SCA and DBA wage determinations should be used only when those wage determinations independently apply to the work the relevant H-2B employees will perform,

i.e.,

when H-2B personnel perform work under a Government contract subject to the statutes.

See

Sec. II.A.,

supra,

for the text of the wage provision in S. 744.

One employer who is an extensive user of the H-2B program suggested that the SCA is a more appropriate rate-setting device for forestry occupations than is the OES because of the OES's single category of forestry worker, rather than the SCA's three categories. This commenter submitted that for forestry workers, the OES artificially inflates the wages of lower paid, manual labor-type forestry work and suggested that the SCA's use of three categories better recognizes the distinction between forestry work that requires solely manual labor and skilled forestry work performed by college graduates. This commenter further suggested that, with respect to the “range of” forestry-related occupations, the Departments should issue “regional” SCA rates as well as a “regional” OES wage rate with four skill levels, from among which an employer could select its preferred option.

Employers in the seafood processing industry asserted that the SCA and DBA job classifications (as well as the OES/SOC classifications) did not reflect well the production-based jobs in the seafood industry.

This commenter relied on the comment it had submitted for consideration during the 2011 Wage Rule proceeding. In the preamble to the 2011 Wage Rule, DOL rejected the proposal to establish regional prevailing wage rates for reforestation, explaining that an employer can avoid the complexity of paying various wage rates where projects stretch across multiple counties or states with different wage rates by paying the highest of the prevailing wages of those areas, which is similar to paying a regional wage, particularly because “[p]revailing wage rates for forestry work are generally the same across contiguous counties—and frequently noncontiguous counties—in the same State.” 76 FR 3452, 3464. In addition, DOL concluded that it “is not feasible or desirable to establish regional wage rates for particular industries in the H-2B program” because the wage rates must be locality-based in order to prevent adverse effect on U.S. workers.

Id.

We reiterate that conclusion in this rulemaking as well.

An association of contractors criticized the DBA wage determinations. This commenter argued that DBA rates are “grossly inflated” due to the “unscientific methodology” used to create them, and underscored that the surveys used to collect the information for the DBA wage determination are voluntary. As a result, this commenter suggested that labor organizations and large government contractors disproportionately submit the required data, resulting in wage determinations that are inconsistent with the actual prevailing wage rates. This comment also suggested that the system of deferring to the local area practice in defining the job duties of a particular classification makes it “difficult to determine the appropriate wage rate for many construction-related jobs.”

We received virtually identical submissions from a dozen worker advocacy groups who advocated that DOL return to the pre-2005 approach, which required the use of the SCA or DBA wage determinations if the job opportunity was in an occupation subject to a wage determination in the area of intended employment under either statute. Most of the entities submitted the same statement advancing this position, expressing the view that the SCA and DBA wage rates “are the most complete and accurate measure of determining appropriate compensation levels for the occupations covered by those Acts in those geographic areas for which such wage rates have been determined” and asked that SCA and DBA wage rates be required in all circumstances in which they were available. The commenter further noted that requiring the use of SCA and DBA wage rates wherever available would be consistent with DOL's approach prior to 2005.

Moreover, as discussed above regarding the use of the OES mean to set the prevailing wage, a comment submitted by a worker advocacy project on behalf of a large consortium of worker groups underscored the view that the SCA wage determinations are particularly apt in the forestry and logging occupations because they are more “closely tailored” to the jobs and the SCA “classification includes many jobs that demand more knowledge, training and experience and pay higher wages.”

This comment, which was joined by a number of other advocacy organizations, discussed alternative approaches depending upon Job Zone. The comment suggested that the OES mean should “at all times” be the prevailing wage for Job Zone 1 jobs, unless there was a higher CBA, SCA or DBA rate, and that the OES mean “should generally be used to determine the prevailing wage rate” for Job Zone 2 and 3 occupations. However, the comment also recommended that the SCA should be used for forest and conservation workers (citing specifically SOC Code 45-4011, “Forest and Conservation Workers,” classified as Zone 3 in O*NET) because the commenter suggested that the SOC occupations for these jobs include both jobs that require little to no preparation and those that require more knowledge and training.

As noted above, an employer in the forestry industry articulated a similar point in advancing a preference for the SCA over the OES to set the prevailing wage for forestry occupations. However, no other comments singled out any other particular industry or occupation to which the SCA was better suited to set the prevailing wage.

As discussed in the OES section above, the same comment also suggested that if there were additional occupations beyond forestry for which many H-2B certifications were issued that were grouped in an SOC code with other occupations requiring different levels of preparation, DOL should develop new sub-codes using the O*NET system. Pending the development of these sub-codes, the comment asked that DOL use a case-by-case method to determine the appropriate wage rate. For Job Zones 4 and 5 (occupations requiring considerable preparation and occupations requiring extensive preparation), the group suggested the OES mean should be the presumed rate absent strong evidence to the contrary. The commenter discussed the use of O*NET Job Zones where the SOC code includes a mix of jobs and some require substantially more preparation than others, and concluded that O*NET sub-classifications should be created for any Job Zones 2 and 3 jobs that require mixed levels of skills and training “to permit a separate treatment of lower skilled jobs in a SOC class appropriately to reflect actual wage differences based upon the real differences in the training and skills needed to do the job.” The comment again emphasized that classifying H-2B forest and conservation workers in a Job Zone 3 classification “is misleading as to the actual job duties performed for the positions certified for H-2B workers,” so they again recommended using SCA wage rates for such workers. They also identified other H-2B jobs that fall within Job Zone 3, and stated that many of them may be appropriate, but that there may be circumstances where the H-2B jobs “do not require Zone 3 levels of experience and training, similar to forestry. In cases where this is identified, if there are SCA or Davis Bacon rates that apply, they should be used.” If not, they again recommended creating sub-classifications and using ad hoc adjudication to set rates in the meantime.

An individual commenter stated that the U.S. workers would be adversely

affected if the regulations “retain the component of the 2008 final rule that permits, but does not require, an H-2B employer to use . . . DBA or SCA wage determinations.” Finally, a federation of labor organizations suggested that “[w]here the DOL has already calculated a prevailing wage rate under the DBA or SCA in order to ensure that wages for currently-employed workers are not adversely affected, it would border on irrational for the agency to ignore such a wage determination when setting a prevailing wage rate for workers employed in the H-2B program.” We considered all the comments addressing the use of the SCA and DBA wage determinations to set the prevailing wage, as well as the DOL's historical practice, and its current procedures.

3. ETA's Process for Determining the Prevailing Wage Based on the SCA or DBA

ETA used the following process to issue prevailing wage determinations under the 2008 rule, as modified at 20 CFR 655.10(b)(2) by the 2013 IFR. ETA issued a prevailing wage determination for a specific job performed in a specific geographic area. In order to do so, H-2B jobs or tasks were structured into occupational titles. These occupations were catalogued in taxonomies, which established how the occupations were defined, organized and presented. Taxonomies would vary depending on the wage survey used. For example, as discussed above, when conducting the OES survey, BLS surveys of workers' wages are based on the 2010 SOC system, which contains 840 detailed occupations, each one of which has its own definition. Detailed occupations in the SOC with similar job duties, and in some cases skills, education, and/or training, are grouped together to form 461 broad occupations, 97 minor groups, and 23 major groups. The SOC classifies all occupations in the economy, including private, public, and military occupations, in order to provide a means to compare occupational data produced for statistical purposes across agencies. It is designed to reflect the current occupational work structure in the U.S. and to cover all occupations in which work is performed for pay or profit.

By contrast, the Wage and Hour Division (WHD) employs the

SCA Directory of Occupations

(SCA Directory), which classifies occupations for the purposes of issuing SCA prevailing wage determinations.

The SCA Directory provides a list of occupations with accompanying position descriptions. The current edition of the directory contains 408 occupations, of which 339 are “standard” occupations applicable to both metropolitan and non-metropolitan areas; the remaining 69 are “non-standard” occupations. The DBA prevailing wage determinations are based on a third and separate occupational taxonomy, which, rather than relying on general task descriptions for each occupation, is defined according to local practice.

As a result, under the DBA, occupations with similar tasks may have different occupational titles based on variations in local area practice.

The current 5th edition of the SCA Directory was published on April 17, 2006, and can be accessed at

http://www.dol.gov/whd/regs/compliance/wage/SCADirV5/SCADirectVers5.pdf.

See http://www.wdol.gov/dba.aspx.

Although WHD is the agency responsible for the administration and enforcement of the SCA and DBA, all prevailing wage determinations requested through the H-2B program, regardless of whether the wage source is the OES, the SCA or the DBA, were set by ETA's National Prevailing Wage Center (NPWC). In order to issue a prevailing wage determination for a position requested in the H-2B program, the NPWC needed to first match the job duties identified on the employer's request for a prevailing wage, Form 9141, to an occupational title for which a prevailing wage determination exists. On the Form 9141, the employer requested a wage for an H-2B job that the employer identified by both SOC code and by the job's duties and tasks.

For all prevailing wage requests, the NPWC assessed the employer's job description, checked the employer's submitted SOC code against the job description, and determined the most accurate SOC code for the position. If the prevailing wage was based on the OES survey, which is keyed to the SOC system, the NPWC found the SOC occupation on its online wage library

and assigned the OES wage. However, where the employer requested a prevailing wage based on the SCA or the DBA, the NPWC not only matched the employer's job description to an SOC occupation, but also conducted the same matching process to find the appropriate occupational title in the SCA directory or the DBA online tool.

See

Foreign Labor Certification Data Center Online Wage Library, available at

http://www.flcdatacenter.com/.

Although there is some overlap in the occupational titles and descriptions, the SOC, the SCA and DBA taxonomies can vary in ways that are challenging in setting the prevailing wage. The occupations contained in the SCA Directory and the DBA taxonomies are often defined more narrowly than are the corresponding occupations in the SOC system.

Furthermore, there may not be a corresponding SCA or DBA wage for every SOC code because the classifications included in SCA and DBA prevailing wage determinations are not always as comprehensive as the SOC code. As a result, this matching process required NPWC analysts to exercise professional judgment in determining whether an occupational taxonomy contains a particular title applicable to the employer's job description, and which occupation in the applicable taxonomy most closely resembled the position requested by the employer on the Form 9141.

For example, in the SCA Directory, a General Forestry Laborer, code 08520, may, among other things, sow seeds and lift seedlings, and hand scalp the seedlings. A Brush/Precommercial Thinner, SCA code 08010, may use a chainsaw, brush blade, or other hand-held equipment to remove excess trees and other vegetation. Finally, a Tree Planter, SCA code 08370, may plant trees using shovels or hoes, but may perform only part of the tree planting functions, while a Tree Planter, Mechanical, SCA code 08400, would complete the planting process using a mechanical planter. Although these tasks are all related, they are separated into different occupations in the SCA directory, with separate prevailing wages. Under the OES/SOC system, however, these tasks could all be captured under the same SOC code, 45-4011—Forest and Conservation Workers, which applies to workers who perform manual labor necessary to develop or protect forest areas, and includes forest aides, seedling pullers, and tree planters. These workers may cut trees, thin trees using saws, plant trees, or sow and harvest crops such as alfalfa.

Often, the job duties listed on a Form 9141 requesting an SCA or DBA wage either did not correspond to the job duties of the occupational classification in the SCA and DBA systems, or contained a combination of duties that cross one or more occupational titles, while the work performed under an H-2B job order ordinarily fits within a single SOC. In the former case, where the duties described by the employer were incompatible with the duties in an occupation within the relevant SCA or DBA wage determination, the NPWC would issue a default OES-based prevailing wage determination. In the latter case, where the duties described by the employer crossed occupational titles, the NPWC would issue a prevailing wage that is the highest wage of the SCA or DBA occupations encompassing the employer's job duties.

See

2009 Guidance at 4.

By contrast, SCA and DBA implementing regulations allow contractors to compensate employees at the rate specified for each classification in the applicable wage determination, provided they maintain payroll records accurately reflecting the hours spent working at each of the jobs.

See

29 CFR 4.169 (SCA); 29 CFR 5.5(a)(1)(i) (DBA).

By contrast, when an SCA- or DBA-covered contract requires the performance of work for which the applicable wage determination contains no corresponding classification, the WHD engages in a conformance process to determine what the appropriate prevailing wage should be for the unlisted, relevant occupation. This generally entails identifying a wage rate that is reasonable in relationship to the wage rates of listed occupations in the applicable wage determination. 29 CFR 4.6(b)(2).

It would not be feasible to adopt such procedures for the H-2B program because the conformance process generally takes longer than is compatible with NPWC's obligation to set an accurate prevailing wage rate in time for an employer to recruit U.S. workers at the appropriate prevailing wage.

See

SCA and DBA Conformance Processes, available at

http://www.dol.gov/whd/recovery/pwrb/Tab7SCACnfrmncPrcss.pdf

; 29 CFR 5.5(a)(ii) and

http://www.wdol.gov/aam/aam213.pdf

Finally, once the proper occupational title was identified, a similar matching process needed to occur to determine the proper area of intended employment. In the DBA context, however, the area of intended employment might determine not just the appropriate wage, but also the title and description of the job itself, because the DBA taxonomy varies from area to area and is determined by local area practice. Issuing a DBA prevailing wage determination thus required the NPWC to match the Form 9141 tasks to a specific job taxonomy for every area of intended employment.

4. Decision Not To Allow Use of SCA and DBA Wage Determinations in the H-2B Program

In the 2013 IFR, the Departments asked whether and to what extent SCA and DBA wage determinations should be used in the H-2B program. 78 FR at 24054. This request for input reflected, in part, DOL's past practice of using the SCA and DBA wage determinations in the H-2B program in a variety of ways, and whether those methods effectively served our obligation to prevent against adverse effect to the wages of U.S. workers. Our previously varied use of the SCA and DBA wage determinations to set the H-2B prevailing wage included relying on them as the sole, mandatory source for determining the prevailing wage before 2005, allowing their use at the employer's discretion in 2008, and requiring their use if they were the highest of an array of wage sources in the unimplemented 2011 wage rule. Under each of those scenarios, some groups strongly favored the approach, and others strongly objected. Comments on this subject in response to the 2013 IFR generally reflected the same divergence of opinion, with some groups favoring the mandatory use of the SCA and DBA wage determinations, others favoring only their discretionary use, and still others favoring their use only where the wage determinations were higher than the OES mean. In considering the competing interests of the regulated community with respect to using the SCA and DBA wage determinations to set the H-2B prevailing wage, the Departments' challenge is to protect against adverse wage effects resulting from the importation of foreign workers, establish a policy that promotes regulatory stability, and address the administrative challenges in conforming the SCA and DBA wage determinations in the H-2B program. Our decision, as outlined below, reflects these considerations.

This rule does not provide the option to request, for purposes of the H-2B program, a prevailing wage determination under the SCA or the DBA. The decision will result in the use of the SOC-based OES as the basis for all prevailing wage determinations in the H-2B program, unless an employer has a CBA or meets one of the conditions that would permit the submission of an employer-provided wage survey as discussed,

infra,

in Sec. II.C. In making this decision, we underscore that the SCA and DBA wage determinations remain the only appropriate wage sources for establishing the prevailing wages for use in the federal contracts to which they apply. However, for the reasons that follow, we are not allowing the use of the SCA and DBA prevailing wage determinations in the H-2B program, and the regulatory text that follows reflects that the option to use the SCA or DBA wage determinations as a source for an H-2B prevailing wage is not available. Thus, subsection (b)(5) in the 2008 rule does not appear in 20 CFR 655.10 of this final rule. This decision will have no impact on the independent statutory requirements imposed by the SCA and DBA on any employers employing H-2B or non-H-2B workers on a federal government contract covered by those statutes.

The SCA and DBA wage rates will remain in force and effect for all workers, including H-2B workers, who perform work on government contracts, but under this rule, the SCA and DBA wage determinations will not be used as wage sources to set the prevailing wage in the H-2B program. Therefore, when an H-2B employer with an SCA or DBA contract requests a prevailing wage from ETA's National Prevailing Wage Center, the NPWC will give the employer a prevailing wage based on the OES survey, with a reminder, as is currently issued, that the employer must comply with all applicable wage obligations. As is the case now, this obligation to comply with all applicable wage standards effectively results in the obligation to pay the highest legally applicable wage (

i.e.,

the SCA, DBA, the OES mean, or state or local minimum wages) regardless of the prevailing wage determination issued by OFLC.

a. Challenges Conforming the SCA and DBA Prevailing Wage Determinations to the H-2B Program

Our decision not to allow the use of the SCA and DBA wage determinations for establishing prevailing wage rates in the H-2B program is based largely on DOL's challenges conforming the SCA and DBA taxonomies and wage determinations to requests for prevailing wages in the H-2B program, including to avoid the potential for inconsistent prevailing wage determinations in the H-2B program. The substantial distinctions between the SOC system and the SCA and DBA occupation taxonomies, as discussed above, make the tasks of issuing and enforcing SCA and DBA prevailing wages in the H-2B program more complex than necessary to assure that U.S. workers experience no adverse wage effects when foreign workers are employed on a temporary basis.

As noted above, the SCA and DBA classifications are defined more narrowly than those in the SOC system, and job duties captured by an SOC occupation often span two or more applicable occupational titles in the SCA and DBA. Because the NPWC assigned the prevailing wage from the occupation with the higher wage in those cases where the employer's job duties cross more than a single SCA or DBA occupation, employers had an economic incentive to tailor their job descriptions on the Form 9141 to fit within the lower-paid occupational title.

The NPWC's experience has shown that in mixed-occupation cases in which it has issued an SCA prevailing wage determination and assigned the higher prevailing wage, it was not uncommon for the same employer to submit a new Form 9141 for the same job, and revise the job duties to conform to the lower-paying SCA occupation. In such circumstances, the NPWC then issued the lower wage because the new Form 9141 request then conformed to a single SCA or DBA

occupation. However, if WHD later enforced the prevailing wage in cases where employees were performing job duties beyond the occupation assigned, employers might be required to pay the higher wage to the misclassified workers. But even requiring back wages and assessing civil money penalties does not provide an adequate approach, because no enforcement scheme can reach every violator. In addition, such relief will not typically reach potential U.S. applicants who may have sought the position if the employer had advertised the job with the appropriate wage. As a result, the incentive to craft job descriptions to fit the relatively more narrow SCA and DBA occupational categories thus compromises protections otherwise afforded to U.S. workers seeking to perform similar work in the area of intended employment.

By contrast, the SCA and DBA systems, when administered by WHD for the purpose of application to government contracts, create considerably less economic incentive to tailor job descriptions because the contracting agency specifies job duties for the purposes of a government contract based upon the work to be performed, without regard to profit maximization.

The use of SCA and DBA wage determinations in the H-2B program has never carried with it the implementing tools established in the SCA and DBA regulations, such as the ability to prorate mixed-duty job descriptions or the conformance process that accompanies those wage determinations when administered by WHD. As discussed above, the conformance process used by WHD cannot be used by NPWC to issue H-2B prevailing wage determinations because the conformance process generally takes significantly longer than the timeframe under which the NPWC must issue prevailing wages. The absence of the SCA and DBA regulatory structures that facilitate WHD's effective implementation of the wage determinations, coupled with the frequent mismatch between the SOC occupations and the SCA and DBA classifications, could result in varying applications of the wage determinations between ETA and WHD. This is particularly true because ETA issues a single prevailing wage for the job opportunity in the H-2B program, while, in the SCA and DBA programs, multiple wage rates may apply to a single worker, depending on the tasks performed at various points during the job. In order to eliminate confusion concerning implementation of the SCA and DBA wage determinations, DOL will not rely on SCA and DBA wage determinations as a source for H-2B prevailing wage determinations. WHD is the agency statutorily tasked with the administration of the SCA and DBA, and has extensive experience issuing prevailing wage determinations in the specific classifications within the SCA and DBA, and that agency will have sole authority within DOL to issue a prevailing wage based on those wage determinations. Without the regulatory structure attendant to the SCA and DBA wage determinations and because of the misalignment in their taxonomies as compared to the default SOC system currently in use, we conclude that the use of those wage determinations in the H-2B program is not feasible, and we are not allowing their use as prevailing wage determination sources.

The challenges noted above—the distinctions between the occupational categories under the SOC codes and those in the SCA and DBA and the absence of the same regulatory structures that promote effective implementation of those wage determinations—have caused uncertainty and confusion in the H-2B program, which in turn has resulted in complex litigation over the proper wage.

Pacific Coast Contracting, Inc.,

Case No. 2014-TLN-00012 (Board of Alien Labor Certification Appeals (BALCA), March 5, 2014) illustrates the manner in which distinctions in occupational classification can create confusion and uncertainty for employers requesting SCA- and DBA-based prevailing wage determinations in the H-2B program. In that case, an employer requested and received two prevailing wage determinations under the SCA based on different job descriptions, one for a “”Brush/Precommercial Thinner” and one for a “Tree Planter.” The employer's advertisements offered the job at a wage range that included both the lower and the higher wages from the two wage determinations. ETA denied the temporary labor certification because the job opportunity involved duties from both tree planting and pre-commercial thinning, and the employer should have offered the wage for the higher-paid job that encompassed all the duties the employer expected to be performed. The employer argued that the SCA regulation, 29 CFR 4.169, governed. That regulation permits government contractors to pay different wage rates to a service employee who performs work within more than one classification in a workweek, provided the contractors maintain payroll records accurately reflecting such hours. The Board of Alien Labor Certification Appeals (BALCA) properly rejected this argument, concluding that the “H-2B temporary labor certification program is not governed by the SCA implementing regulations,” but is governed solely by the H-2B regulations.

Pacific Coast,

slip. op. at 4.

As with

Pacific Coast,

DOL has experienced an increase in litigation involving the misalignment of the employer's job description to that in the SCA wage determination, and DOL concludes that the risk of such litigation and the potential for inconsistent prevailing wage determinations will be mitigated by no longer relying on the SCA and DBA wage determinations for establishing H-2B prevailing wage rates.

The BALCA consists of Administrative Law Judges assigned to DOL and designated to be members of BALCA, and decides immigration-related administrative appeals. 20 CFR 655.4.

The challenges identified above in using the SCA and DBA wage determinations as prevailing wage sources would be alleviated by relying solely on the SOC-based OES as the primary wage source for prevailing wage determinations in the H-2B program. SOC occupational titles are broadly defined, and therefore capture a wider range of job duties than do the SCA and DBA occupational titles. As such, small differences in the requested job duties reported on a Form 9141 will not often result in differences in the prevailing wage issued under the OES. On the other hand, the very fact that SCA and DBA often provide more tailored occupational titles posed challenges in the H-2B program because in many cases duties for a single H-2B job opportunity cross multiple SCA or DBA occupations. The problems presented in

Pacific Coast, supra,

likely would not have arisen had the employer requested an OES prevailing wage determination because a single relevant SOC code would have captured all of the job requirements identified by the employer. Furthermore, centralizing the SCA and DBA prevailing wage determination process within WHD will reduce the potential for inconsistencies between the programs.

As we explain more fully in Sec. II.C.,

infra,

DOL will accept an employer-provided survey under very limited conditions. However, where those conditions may be met, an SCA or DBA wage determination may not be submitted as an “employer-provided survey” under this rule because of the challenges conforming the SCA and DBA wage determinations to the H-2B prevailing wage process as discussed above. If an employer submitted SCA and DBA wage determinations as an employer-provided survey, the NPWC would still conduct the extra analysis described above,

i.e.,

analysts must align the SOC code and the job duties submitted by the employer to that occupation in the SCA or DBA taxonomy. The NPWC's challenge in implementing the SCA and the DBA wage determinations rests not in defining the proper wage for an SCA or DBA occupational title—WHD has already accomplished this task and published this information—but rather in cross-walking the employer's identified position to an established SCA or DBA occupation. By contrast, in order for an employer to base a request for a prevailing wage on an employer-provided survey, the duties of the occupation surveyed have likely already been tailored to match those in the employer's job opening. Therefore, permitting the submission of SCA and DBA wage determinations as employer-

provided surveys would only create the same challenges for the NPWC as if they were allowed as an optional basis upon which to set the prevailing wage for H-2B purposes. Accordingly, this final rule does not permit the use of SCA and DBA wage determinations as sources to set the prevailing wage in the H-2B program, whether employers ask for them expressly in their prevailing wage requests, or rely on them indirectly through the submission of an employer-provided survey under the narrow conditions in which DOL will accept such surveys.

b. Improved Prevailing Wage Procedures Without Adverse Effect to U.S. Workers

Declining to allow employers the option to request an H-2B prevailing wage based on an SCA or DBA wage determination will streamline the H-2B prevailing wage determination process and expedite review of applications by the NPWC. As mentioned above, to issue a prevailing wage determination, the NPWC matched the tasks identified in the Form 9141 to an SOC code for every prevailing wage application received. Because the OES wage data is aligned with the SOC taxonomy, once the SOC code has been identified, it is relatively easy for NPWC to issue an OES-based prevailing wage for the occupation. An additional step is required, however, to match the position the employer has described on the Form 9141 to the corresponding occupation in the SCA Directory or the DBA local practice, which can be a cumbersome process because the duties identified on the Form 9141 do not always coincide with the duties reflected in the SCA and DBA occupational titles. As was recognized in the preamble to the 2013 IFR, determining whether multiple wage rates exist for every application is a time consuming process. 78 FR at 24054. If the H-2B regulation does not permit the optional use of the SCA and DBA wage determinations as sources to set the H-2B prevailing wage, the administration of the wage process will be streamlined and expedited, and disputes over their application and the attendant litigation will be reduced.

It is particularly time consuming for the NPWC to issue H-2B prevailing wage determinations based on DBA wage determinations because the same occupations can sometimes encompass different job duties based on the prevailing practice in the locality in question. The result is that the matching process described above must be completed for each area of intended employment identified in the Form 9141. Issuing an H-2B prevailing wage determination based on DBA wage rates differs from the process for determining the prevailing wage in an area of intended employment for the OES and the SCA. When issuing an H-2B prevailing wage determination based on a DBA wage rate, the NPWC does not identify the appropriate occupation only once and then locate that occupation's proper wage in each geographic area applicable to the employer's job opportunity. Rather, the job descriptions themselves change based on the local practice. This requires the NPWC to sort through each locality's taxonomy to find a position that matches the job duties identified on the Form 9141 for each area of intended employment. This particular complexity in relying on DBA wage determinations for determining H-2B wage rates further underscores how the decision not to permit their use in the H-2B program will streamline the wage determination process, and reduce disputes over their application and any attendant litigation.

The percentage of H-2B prevailing wage requests seeking an SCA- or DBA-based prevailing wage determination steadily increased over the last few years, thereby increasing the amount of time and resources that are devoted to issuing these determinations. Although there is some fluctuation, in the three fiscal years (FYs 2010, 2011, and 2012) before implementation of the wage provisions in the 2013 IFR, the NPWC issued H-2B prevailing wage determinations based on SCA and DBA wage rates, on average, in slightly more than one percent of all H-2B wage determinations.

In FY 2014, the first complete fiscal year after implementation of the 2013 IFR, the NPWC issued H-2B prevailing wage determinations based on SCA and DBA wage rates in approximately seven percent of all H-2B wage requests.

For the first quarter of FY 2015 (October 1, 2014-December 31, 2014), SCA and DBA wage rates were issued for approximately 14 percent of all H-2B prevailing wage determinations.

Thus, the NPWC experienced an approximately six-fold increase in the issuance of H-2B prevailing wage rates based on SCA and DBA wage determinations through FY 2014 and an even greater increase for the beginning of FY 2015, a figure that does not take into account requests submitted but rejected because the NPWC determined, following its analysis, that the employer's job opening did not fit the SCA or DBA occupation. The decision not to permit the issuance of H-2B prevailing wage determinations based on the SCA and DBA wage rates will allow the NPWC to redirect those resources for use in processing OES prevailing wage determinations and for reviewing employer-provided surveys, thereby increasing the efficiency, consistency and speed with which all prevailing wage determinations are processed.

There is no direct link between the number of prevailing wage determinations and the number of temporary employment certifications. For example, an employer may request one PWD and then a second PWD for the same job opportunity, but would use only one of those two PWDs for its temporary employment certification application. NPWC issued 45 SCA and DBA PWDs in fiscal year 2010 for the H-2B program (out of 4,096 total H-2B determinations), 77 in 2011 (out of 4,551 total), and 110 in 2012 (out of 8,370 total).

634 SCA or DBA H-2B wage determinations out of 9,250 total.

936 SCA or DBA H-2B wage determinations out of 6,427 total.

The 2013 IFR acknowledged that the SCA and DBA wage rates constituted sound and reliable evidence of a wage that would “not adversely affect U.S. workers similarly employed,” 78 FR at 24054, and this rule does not reach a different conclusion. Instead, the rule is based on the “extensive discretionary authority [granted to] the Secretary of Labor [under the INA to use] any of a number of reasonable formulas to prevent the employment of [temporary] foreign workers from having an adverse effect upon domestic workers. The immigration statute does not specify the particular way in which avoidance of this adverse effect must be determined.”

Florida Sugar Cane League, Inc.,

Usery,

531 F.2d 299, 303-304 (5th Cir. 1976). Thus, based on this wide latitude, we have determined that not issuing H-2B prevailing wage determinations based on SCA and DBA wage determinations will improve the administration and efficiency of the H-2B program, including promoting consistency in prevailing wage determinations, and that the remaining sources relied on to set the prevailing wage will adequately protect U.S. workers against adverse effect in their wages and working conditions arising from the employment of foreign workers. Workers who are currently working in H-2B occupations in which the SCA or DBA wages are higher than the OES mean are unlikely to be affected by the decision not to allow SCA and DBA wage determinations because most employers will have already chosen to pay the lower OES mean in that situation (unless those employers are required to pay the SCA or DBA wage rates under a government contract, as explained above).

C. Use of Employer-Provided Surveys To Set the Prevailing Wage

1. History of Employer-Provided Wage Surveys in the H-2B Program

Before 1998, in the absence of an applicable SCA or DBA wage

determination or a CBA, DOL determined the applicable prevailing wage rate based on a wage survey provided by the local State Employment Service Agency (SESA).

See

GAL 4-95 at p. 1-2.

Employer-provided surveys were permitted for setting prevailing wage rates only where the results of the employer-provided survey were “more comprehensive” than the SESA survey.

Id.

at 7.

State Employment Service Agencies were the predecessors to the State Workforce Agencies.

This final rule uses the term “employer-provided survey” to mean any survey that an employer submits to DOL for use in setting the prevailing wage. This term does not distinguish between different types of surveyors, and includes both surveys conducted by a government entity and those conducted by private entities. Where this final rule makes distinctions based on the type of entity conducting the survey, it uses specific terminology, such as “state-conducted survey.”

In 1998, DOL began using the OES to set prevailing wages in the H-2B program where there was no available CBA, SCA, or DBA wage rate, but continued to allow employers to submit employer-provided surveys in the absence of a CBA, SCA, or DBA wage rate for the employer's job, even where there was an available OES wage.

See

GAL 2-98 at pp. 1, 7. GAL 2-98 eliminated the requirement that the employer-provided survey must be “more comprehensive” than the SESA survey.

Id.

Instead, employers submitting a survey had to disclose the survey methodology in enough detail “to allow the SESA to make a determination with regard to the adequacy of the data provided and its adherence to [survey] criteria.”

Id.

The guidance required that the survey data be recently collected:

(1) The data upon which the survey was based must have been collected within 24 months of the publication date of the survey or, if the employer itself conducted the survey, within 24 months of the date the employer submits the survey to the SESA.

(2) If the employer submits a published survey, it must have been published within the last 24 months and it must be the most current edition of the survey with wage data that meet the criteria under this section.

Id.

In 2005, DOL issued revised prevailing wage guidance that allowed employers to continue to submit surveys.

See

2005 PWD Guidance. If the job opportunity was not covered by a CBA, the 2005 PWD guidance allowed an employer to submit a wage survey even if there was an OES, SCA, or DBA wage.

Id.

at 14. This guidance maintained the timeliness of data requirements from GAL 2-98 and included a requirement that the employer provide “the methodology used for the survey to show that it is reasonable and consistent with recognized statistical standards and principles in producing a prevailing wage (

e.g.,

contains a representative sample) . . .”

Id.

at 15-16.

In the 2008 rule, DOL continued to allow use of employer-provided wage surveys in the absence of a CBA, provided that the surveys met minimum standards for validity.

See

73 FR at 78,056 (20 CFR 655.10(f)). In the 2008 rule, DOL codified its historical standards for evaluating employer-provided wage surveys, stating that in each case where the employer submits a survey or other wage data for which it seeks acceptance, the employer 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 a determination of the adequacy of the data provided and validity of the sta

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