19098 Federal Register / Vol. 78, No. 61 / Friday, March 29, 2013 / Rules and Regulations 

that warrant preparation of an 

environmental assessment. 

List of Subjects in 14 CFR Part 71 

Airspace, Incorporation by reference, 

Navigation (Air). 

Adoption of the Amendment 

In consideration of the foregoing, the 

Federal Aviation Administration 

amends 14 CFR part 71 as follows: 

PART 71—DESIGNATION OF CLASS A, 

B, C, D, AND E AIRSPACE AREAS; AIR 

TRAFFIC SERVICE ROUTES; AND 

REPORTING POINTS 

■ 1. The authority citation for 14 CFR 

Part 71 continues to read as follows: 

Authority: 49 U.S.C. 106(g), 40103, 40113, 

40120; E. O. 10854, 24 FR 9565, 3 CFR, 1959– 

1963 Comp., p. 389. 

§ 71.1 [Amended] 

■ 2. The incorporation by reference in 

14 CFR 71.1 of the Federal Aviation 

Administration Order 7400.9W, 

Airspace Designations and Reporting 

Points, dated August 8, 2012, and 

effective September 15, 2012, is 

amended as follows: 

Paragraph 6005: Class E airspace areas 

extending upward from 700 feet or more 

above the surface. 

* * * * * 

ASW TX E5 Round Mountain, TX [New] 

Round Mountain, West Ranch Airport, TX 

(Lat. 30°27′23′′ N., long. 98°29′23′′ W.) 

That airspace extending upward from 700 

feet above the surface within a 7.4-mile 

radius of West Ranch Airport, and within 2 

miles each side of the 308° bearing from the 

airport extending from the 7.4-mile radius to 

11.1 miles northwest of the airport, and 

within 2 miles each side of the 128° bearing 

from the airport extending from the 7.4-mile 

radius to 10.9 miles southeast of the airport. 

Issued in Fort Worth, Texas, on March 15, 

2013. 

David P. Medina, 

Manager, Operations Support Group, ATO 

Central Service Center. 

[FR Doc. 2013–06956 Filed 3–28–13; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

20 CFR Part 655 

RIN 1205–AB61 

Wage Methodology for the Temporary 

Non-Agricultural Employment H–2B 

Program; Delay of Effective Date 

AGENCY: Employment and Training 

Administration, Labor. 

ACTION: Final rule; delay of effective 

date. 

SUMMARY: The Department of Labor is 

delaying the effective date of the Wage 

Methodology for the Temporary Nonagricultural Employment H–2B Program 

final rule (the Wage Rule), in order to 

address legislation that prohibits any 

funds from being used to implement the 

Wage Rule for the remainder of fiscal 

year (FY) 2013. The Wage Rule revised 

the methodology by which the 

Department calculates the prevailing 

wages to be paid to H–2B workers and 

United States (U.S.) workers recruited in 

connection with a temporary labor 

certification for use in petitioning the 

Department of Homeland Security to 

employ a nonimmigrant worker in H–2B 

status. 

DATES: The effective date of the rule 

amending 20 CFR part 655, published at 

76 FR 3452 (January 19, 2011), 

originally effective January 1, 2012, and 

which was previously made effective 

September 30, 2011, at 76 FR 45667 

(August 1, 2011); delayed to November 

30, 2011, at 76 FR 59896 (September 28, 

2011); to January 1, 2012, at 76 FR 

73508 (November 29, 2011); to October 

1, 2012, at 76 FR 82115 (December 30, 

2011); and to March 27, 2013, at 77 FR 

60040 (October 2, 2012), is now delayed 

until October 1, 2013. 

FOR FURTHER INFORMATION CONTACT: 

William L. Carlson, Ph.D., 

Administrator, Office of Foreign Labor 

Certification, ETA, U.S. Department of 

Labor, 200 Constitution Avenue NW., 

Room C–4312, Washington, DC 20210; 

Telephone (202) 693–3010 (this is not a 

toll-free number). Individuals with 

hearing or speech impairments may 

access the telephone number above via 

TTY by calling the toll-free Federal 

Information Relay Service at 1–877– 

889–5627 (TTY/TDD). 

SUPPLEMENTARY INFORMATION: The 

Department of Labor (the Department) 

published the Wage Methodology for 

the Temporary Non-agricultural 

Employment H–2B Program final rule 

(the Wage Rule) on January 19, 2011, 76 

FR 3452. The Wage Rule revised the 

methodology by which the Department 

calculates the prevailing wages to be 

paid to H–2B workers and United States 

(U.S.) workers recruited in connection 

with a temporary labor certification for 

use in petitioning the Department of 

Homeland Security to employ a 

nonimmigrant worker in H–2B status. 

The Department originally set the 

effective date of the Wage Rule for 

January 1, 2012. However, as a result of 

litigation and following notice-andcomment rulemaking, we issued a final 

rule, 76 FR 45667 (Aug. 1, 2011), 

revising the effective date of the Wage 

Rule to September 30, 2011, and a 

second final rule, 76 FR 59896 (Sept. 28, 

2011), further revising the effective date 

of the Wage Rule to November 30, 2011. 

Thereafter, the Department extended 

the effective date of the Wage Rule until 

January 1, 2012, in light of the 

enactment on November 18, 2011 of the 

Consolidated and Further Continuing 

Appropriations Act, 2012, which 

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 [Wage Rule].’’ 

Public Law 112–55, 125 Stat. 552, Div. 

B, Title V, § 546 (Nov. 18, 2011) (the 

November 2011 Appropriations Act). In 

delaying the Wage Rule’s effective date, 

the Department stated that although the 

November 2011 Appropriations Act 

‘‘prevent[ed] the expenditure of funds to 

implement, administer, or enforce the 

Wage Rule before January 1, 2012, it 

[did] not prohibit the Wage Rule from 

going into effect, which [was] scheduled 

to occur on November 30, 2011. When 

the Wage Rule goes into effect, it will 

supersede and make null the prevailing 

wage provisions at 20 CFR 655.10(b) of 

the Department’s existing H–2B 

regulations, which were promulgated 

under 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; Final 

Rule, 73 FR 78020, Dec. 19, 2008 (the 

H–2B 2008 Rule).’’ 76 FR 73508, 73509 

(Nov. 29, 2011). 

Accordingly, the Department 

determined that it was necessary in light 

of the November 2011 Appropriations 

Act to delay the effective date of the 

Wage Rule in order to avoid the 

replacement of the H–2B 2008 Rule with 

a new rule that the Department lacked 

appropriated funds to implement. As a 

result, the Department issued a final 

rule, 76 FR 73508, that delayed the 

effective date of the Wage Rule until 

January 1, 2012. Subsequent 


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Federal Register / Vol. 78, No. 61 / Friday, March 29, 2013 / Rules and Regulations 19099 

1These include the Consolidated Appropriations 

Act of 2012, Pub. L. No. 112–74, 125 Stat. 786, 

which was enacted on December 23, 2011; 

Continuing Appropriations Resolution, 2013, Public 

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

on September 28, 2012. 

appropriations legislation1 containing 

the same restriction prohibiting the 

Department’s use of appropriated funds 

to implement, administer, or enforce the 

Wage Rule 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). 

In light of the anticipated enactment 

of the Consolidated and Further 

Continuing Appropriations Act, 2013, 

which establishes the Department’s 

appropriations through September 30, 

2013, and also continues the prohibition 

of the expenditure of the Department’s 

appropriated funds to implement, 

administer, or enforce the Wage Rule 

through September 30, 2013, see Sec. 

1101, the Department again must delay 

the effective date of the Wage Rule. 

Delaying the effective date of the Wage 

Rule will ensure an orderly transition 

and prevent further disruption in light 

of the U.S. District Court for the Eastern 

District of Pennsylvania’s March 21, 

2013 ruling in Comite de Apoyo a los 

Trabajadores Agricolas et al. v. Solis, 

09-cv-00240, 2013 WL 1163426 (E.D. Pa. 

Mar. 21, 2013), in which the court 

vacated and granted a permanent 

injunction against the operation of one 

provision of the H–2B 2008 Rule, 20 

CFR 655.10(b)(2). Under the nowvacated provision, prevailing wage 

determinations issued by the 

Department for a job opportunity for 

which the employer seeks H–2B 

workers must be based on the arithmetic 

mean of the wages of workers similarly 

employed at the skill level in the area 

of intended employment. Pursuant to 

that now-vacated regulation, the 

Department established a four-tier wage 

structure by dividing the Bureau of 

Labor Statistics Occupational 

Employment Statistics Survey (OES 

survey) wage applicable to the 

occupation in question into four tiers. 

The court vacated 20 CFR 655.10(b)(2) 

and remanded to the Department, giving 

the Department thirty days to come into 

compliance with the court’s order. 

As a result of the court’s order, if a 

prevailing wage determination is sought 

based on the OES survey, the 

Department currently is unable to issue 

a prevailing wage determination under 

the now-vacated wage provision of the 

2008 rule because the court has held 

invalid the four-tiered OES wage. Most 

of the Department’s prevailing wage 

determinations in the H–2B program are 

based on the invalidated four-tiered 

OES wage. However, if an employer’s 

request for a prevailing wage 

determination is covered by a collective 

bargaining agreement, the Department 

still may issue that prevailing wage 

determination because the issuance of 

such determinations is unaffected by the 

court’s order. See 20 CFR 655.10(b)(1). 

Similarly, the Department still may 

issue prevailing wage determinations 

based on the employer’s submission of 

a private wage survey (if approved by 

the Department), or its voluntary use of 

wages set under the Davis-Bacon Act, 40 

U.S.C. 276a et seq., 29 CFR part 1, or the 

McNamara-O’Hara Service Contract Act, 

41 U.S.C. 351 et seq. See 20 CFR 

655(b)(4), (b)(5). These alternative 

methodologies would be barred, 

however, were the 2011 Wage Rule to 

take effect. 

Consistent with the court’s ruling and 

order, the Department intends to 

promulgate a revised wage rule within 

30 days of the date of that ruling that 

complies with the court’s interpretation 

of what the statutory and regulatory 

framework require. Doing so will allow 

the Department to resume the normal 

operation of the H–2B program. Were 

the 2011 Wage Rule to take effect in this 

short time period during which DOL is 

preparing a revised wage rule, not only 

would it prevent the Department from 

continuing to issue the small but 

meaningful percentage of H–2B labor 

certifications that are not based on the 

vacated portion of the 2008 rule, but it 

would lead to disruption and confusion 

about the governing regulatory 

framework, as the 2011 rule would be in 

place and govern submissions made to 

the Department, but the Department 

would lack funds to implement that 

governing structure. Therefore, we are 

again postponing the effective date of 

the 2011 Wage Rule, which the 

Department is unable to implement as a 

result of Congressional action and 

which, if permitted to become effective, 

would further limit the Department’s 

current ability to issue prevailing wage 

determinations. 

The Department considers this 

situation an emergency warranting the 

publication of a final rule under the 

good cause exception of the 

Administrative Procedure Act. See 5 

U.S.C. 553(b)(B), (d)(3). We are currently 

experiencing a significant suspension in 

program operations as a result of the 

court’s order and until we promulgate a 

new regulation, which we intend to do 

in short order. In order to avoid a 

complete operational suspension of the 

H–2B program while we promulgate a 

new regulation (due to the continued 

defunding of the 2011 Wage Rule), as 

well as the confusion and disruption 

that would result from the 2011 Wage 

Rule briefly taking legal effect pending 

that new regulation, the Department 

finds good cause to adopt this rule, 

effective immediately, and without prior 

notice and comment. See 5 U.S.C. 

553(b)(B), (d)(3). Any delay in 

promulgating this extension of the Wage 

Rule’s effective date as the result of 

notice-and-comment rulemaking would 

significantly disrupt the program. 

Signed: At Washington, DC this 26th day 

of March, 2013. 

Jane Oates, 

Assistant Secretary for Employment and 

Training. 

[FR Doc. 2013–07431 Filed 3–26–13; 5:00 pm] 

BILLING CODE 4510–FP–P 

DEPARTMENT OF THE INTERIOR 

Bureau of Indian Affairs 

25 CFR Part 162 

RIN 1076–AE73 

Residential, Business, and Wind and 

Solar Resource Leases on Indian Land 

AGENCY: Bureau of Indian Affairs, 

Interior. 

ACTION: Final rule; correction. 

SUMMARY: The Bureau of Indian Affairs 

(BIA) published a rule in the Federal 

Register of December 5, 2012, 

announcing the revisions to regulations 

addressing non-agricultural surface 

leasing of Indian land. This notice 

makes some minor corrections to 

include the proper indefinite article for 

the term ‘‘agricultural lease’’ and 

clarifies two provisions for wind energy 

evaluation leases (WEELs). 

DATES: This correction is effective on 

March 29, 2013. 

FOR FURTHER INFORMATION CONTACT: 

Elizabeth Appel, Acting Director, Office 

of Regulatory Affairs & Collaborative 

Action, (202) 273–4680; 

elizabeth.appel@bia.gov. 

SUPPLEMENTARY INFORMATION: 

Need for Corrections 

The final regulations addressing nonagricultural surface leasing of Indian 

land, and redesignating certain sections 

related to agricultural leases, failed to 

direct changes to the indefinite article 

preceding ‘‘agricultural lease,’’ resulting 

in the regulatory language now stating 

‘‘a agricultural lease’’ rather than ‘‘an 

agricultural lease’’ in several instances. 

The final regulations also inadvertently 


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