CA3 Vacates H-2B Private Wage Survey Regulation: CATA III

"We therefore act now to grant plaintiffs’ vacatur request of 20 C.F.R. § 655.10(f) and the 2009 Wage Guidance. We hold both provisions to be arbitrary and capricious and in violation of the APA. We direct 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. We note that DOL’s existing regulations provide ample alternatives for setting prevailing wages including use of OES surveys. Moreover, DOL has the option of immediately issuing the employer survey portions of the 2011 rulemaking as an interim rule pursuant to 5 U.S.C. §§ 553(b)(B) and (d)(3). 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 in Louisiana Forestry, 745 F.3d 653. For the aforesaid reasons, we will reverse the District Court’s order dismissing this case on the ground that it is not ripe for review and hold that 20 C.F.R. § 655.10(f) and the 2009 Wage Guidance are arbitrary and capricious and adopted in violation of the APA. We grant plaintiffs’ vacatur request of 20 C.F.R. § 655.10(f) and the 2009 Wage Guidance as we hold both regulations to be arbitrary and capricious and in violation of the APA. We will remand this case to the District Court for any further proceedings that may be necessary." - CATA III, Dec. 5, 2014.