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[Federal Register: February 20, 2001 (Volume 66, Number 34)]
[Rules and Regulations]               
[Page 10813-10814]
From the Federal Register Online via GPO Access []


Employment and Training Administration

20 CFR Part 655

RIN 1215-AB09

Labor Condition Applications and Requirements for Employers Using 
Nonimmigrants on H-1B Visas in Specialty Occupations and as Fashion 
Models; Labor Certification Process for Permanent Employment of Aliens 
in the United States

AGENCY: Employment and Training Administration, Labor, in concurrence 
with the Wage and Hour Division, Employment Standards Administration, 

ACTION: Correction to interim final rule.


SUMMARY: This document contains a correction to the Interim Final Rule 
(IFR) published on December 20, 2000 (65 FR 80110), which implemented 
recent legislation and clarified existing Departmental rules relating 
to the temporary employment in the United States of nonimmigrants under 
H-1B visas. As discussed in the preamble to the Interim Final Rule, the 
Department concluded that Appendix A to subpart H (Guidance for the 
Determination of the ``Actual Wage'') would not be included in the 
rule. However, the Department inadvertently omitted the amendatory 
instruction to remove the appendix from the Code of Federal 
Regulations. This document corrects that error.

DATES: This rule is effective January 19, 2001.

FOR FURTHER INFORMATION CONTACT: Michael Ginley, Director, Office of 
Enforcement Policy, Wage and Hour Division, Employment Standards 
Administration, Department of Labor, Room S-3510, 200 Constitution 
Avenue, NW., Washington, DC 20210. Telephone: (202) 693-0745 (this is 
not a toll-free number).
    Dale M. Ziegler, Chief, Division of Foreign Labor Certifications, 
U.S. Employment Service, Employment and Training Administration, 
Department of Labor, Room C-4318, 200 Constitution Avenue, NW., 
Washington, DC 20210. Telephone: (202) 693-3010 (this is not a toll-
free number).

SUPPLEMENTARY INFORMATION: On January 5, 1999, the Department published 
a Notice of Proposed Rulemaking (NPRM) (64 FR 628), seeking public 
comment on proposed revisions to its regulations relating to the 
employment of H-1B nonimmigrants which were necessitated by the 
enactment of the American Competitiveness and Workforce Improvement Act 
of 1998 (ACWIA). The Department also sought further comment on certain 
proposals which were previously published for comment as a Proposed 
Rule on October 31, 1995.
    Among the matters addressed in the Interim Final Rule (65 FR 80191-
80194) was the requirement of section 212(n)(1)(A)(i)(I) of the 
Immigration and Nationality Act (INA) that an employer seeking to 
employ H-1B nonimmigrants agree that it will pay the nonimmigrants at 
least the higher of the prevailing wage or the ``actual wage level paid 
by the employer to all other individuals with similar experience and 
qualifications for the specific employment in question.'' Specifically, 
the Department had sought comment on Appendix A to Subpart H of the 
regulations, which contained

[[Page 10814]]

guidance and examples of the appropriate methods for determination of 
the actual wage for purposes of the H-1B wage requirement. The 
underlying regulatory provisions at Secs. 655.731(a)(1), 655.731(b)(2), 
and 655.760(a)(3) were not open for notice and comment.
    In the Interim Final Rule preamble, the Department fully described 
and responded to the comments and stated:

    After carefully considering all the comments, the Department has 
concluded that Appendix A--which was created in response to 
employers' requests for technical guidance--has not served its 
intended purpose and has, instead, caused some confusion. The 
Department has, therefore, decided that Appendix A will not be 
included in the Interim Final Rule. The controlling standards for 
determining and documenting an employee's ``actual wage'' are 
contained in the current regulation, 20 CFR 655.731(a)(1), 
655.731(b)(2), and 655.760(a)(3) (none of which were opened for 
comment in the NPRM). If the need arises in the future, the 
Department, as appropriate, will provide compliance advice or 
technical assistance further explaining the current regulation.

 [65 FR 80193]

    Although this preamble discussion made the Department's intention 
perfectly clear, and the Table of Contents did not contain Appendix A, 
the Department neglected to include an explicit instruction in the 
regulatory text to delete Appendix A. It is, therefore, necessary that 
a correction Rule be issued to achieve the Interim Final Rule's 
intention. This Final Rule provides the needed correction, and removes 
Appendix A from the H-1B regulations.

Procedural Requirements

    The Department is of the view that this correction to an 
inadvertent error in the Interim Final Rule is not a rule to which the 
procedural requirements of the Administrative Procedure Act or the 
various statutes and executive orders relating to rules apply. If this 
correction is a rule, however, notice and comment is not required. 
Interested parties have had two opportunities to comment on Appendix A. 
In addition, the Appendix was an interpretation of Sec. 655.731 and, as 
required by the rules of the Federal Register, did not contain new 
requirements or restrictions. Furthermore, if the correction is a rule, 
the Department finds good cause not to provide further notice and 
comment. Such additional notice and comment would be unnecessary and 
contrary to the public interest since the public was advised in the 
preamble to the Interim Final Rule that the Appendix was deleted and 
unnecessary confusion would result if this correction were not made 
immediately. For the same reasons, the correction is effective on 
January 19, 2001, the effective date of the Interim Final Rule.
    This correction contains no paperwork requirements to which the 
Paperwork Reduction Act applies. In addition, this action, if a rule, 
is not a ``significant regulatory action'' within the meaning of 
Executive Order 12866. Furthermore, this action is not a ``major rule'' 
within the meaning of the Small Business Regulatory Enforcement Act or 
an ``unfunded mandate'' within the meaning of Title II of the Unfunded 
Mandates Reform Act of 1995. Finally, the action will not have 
federalism implications within the meaning of Executive Order 13132, 
and a regulatory flexibility analysis is not required by the Regulatory 
Flexibility Act.

    Accordingly, the Department makes the following correction to the 
interim final rule published on December 20, 2000. On page 80233, in 
the first column immediately preceding the heading for subpart I, 
insert instruction 21a to read as follows:
    21a. Appendix A to subpart H of part 655 is removed.

    Signed at Washington, DC, this 12th day of February, 2001.
Raymond J. Uhalde,
Deputy Assistant Secretary, Employment and Training Administration.
Thomas M. Markey,
Acting Administrator, Wage and Hour Division, Employment Standards 
[FR Doc. 01-4126 Filed 2-16-01; 8:45 am]

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