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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19100 Federal Register / Vol. 78, No. 61 / Friday, March 29, 2013 / Rules and Regulations 

omitted insurance as a mandatory 

provision for WEELs and the standard 

language that BIA may treat any 

provision of a lease document that 

violates Federal law as a violation of the 

lease. This document corrects those 

errors. 

List of Subjects in 25 CFR Part 162 

Indians—lands. 

Accordingly, 25 CFR part 162 is 

corrected by making the following 

correcting amendments: 

PART 162—LEASES and PERMITS 

■ 1. The authority citation continues to 

read as follows: 

Authority: 5 U.S.C. 301, R.S. 463 and 465; 

25 U.S.C. 2 and 9. Interpret or apply sec. 3, 

26 Stat. 795, sec. 1, 28 Stat. 305, secs. 1, 2, 

31 Stat. 229, 246, secs. 7, 12, 34 Stat. 545, 

34 Stat. 1015, 1034, 35 Stat. 70, 95, 97, sec. 

4, 36 Stat. 856, sec. 1, 39 Stat. 128, 41 Stat. 

415, as amended, 751, 1232, sec. 17, 43 Stat. 

636, 641, 44 Stat. 658, as amended, 894, 

1365, as amended, 47 Stat. 1417, sec. 17, 48 

Stat. 984, 988, 49 Stat. 115, 1135, sec. 55, 49 

Stat. 781, sec. 3, 49 Stat. 1967, 54 Stat. 745, 

1057, 60 Stat. 308, secs. 1, 2, 60 Stat. 962, 

sec. 5, 64 Stat. 46, secs. 1, 2, 4, 5, 6, 64 Stat. 

470, 69 Stat. 539, 540, 72 Stat. 968, 107 Stat. 

2011, 108 Stat. 4572, March 20, 1996, 110 

Stat. 4016; 25 U.S.C. 380, 393, 393a, 394, 395, 

397, 402, 402a, 403, 403a, 403b, 403c, 409a, 

413, 415, 415a, 415b, 415c, 415d, 416, 477, 

635, 2201 et seq., 3701, 3702, 3703, 3712, 

3713, 3714, 3715, 3731, 3733, 4211; 44 U.S.C. 

3101 et seq. 

§ 162.105 [Amended] 

■ 2. In § 162.105, paragraph (a), remove 

the words ‘‘a agricultural lease’’ and 

add, in their place, the words ‘‘an 

agricultural lease.’’ 

§ 162.106 [Amended] 

■ 3. In § 162.106, paragraph (a), remove 

the words ‘‘a lease’’ wherever they 

appear and add, in their place, the 

words ‘‘an agricultural lease.’’ 

■ 4. In § 162.513, revise paragraph (a) 

introductory text, paragraphs (a)(6) and 

(a)(7), and add paragraphs (a)(8) and (e) 

to read as follows: 

§ 162.513 Are there mandatory provisions 

a WEEL must contain? 

(a) All WEELs must identify: 

* * * * * 

(6) Payment requirements and late 

payment charges, including interest; 

(7) Due diligence requirements, under 

§ 162.517; and 

(8) Insurance requirements, under 

§ 162.527. 

* * * * * 

(e) We may treat any provision of a 

lease document that violates Federal 

law as a violation of the lease. 

Dated: March 7, 2013. 

Kevin K. Washburn, 

Assistant Secretary—Indian Affairs. 

[FR Doc. 2013–07225 Filed 3–28–13; 8:45 am] 

BILLING CODE 4310–6W–P 

DEPARTMENT OF THE TREASURY 

Internal Revenue Service 

26 CFR Part 1 

[TD 9612] 

RIN 1545–BA53 

Noncompensatory Partnership Options 

Correction 

In rule document 2013–2259 

appearing on pages 7997–8016 in the 

issue of Tuesday, February 5, 2013, 

make the following correction: 

§ 1.704–1 [Corrected] 

In § 1.704–1, on page 8012, the second 

table should appear as follows: 

Basis Value 

Assets: 

Property D ......... $24,000 $33,000 

Cash .................. $12,000 $12,000 

Total ........... $36,000 $45,000 

Liabilities and Capital: 

K ........................ $13,000 $15,000 

L ......................... $13,000 $15,000 

M ........................ $10,000 $15,000 

$36,000 $45,000 

[FR Doc. C1–2013–02259 Filed 3–29–13; 8:45 am] 

BILLING CODE 1505–01–D 

DEPARTMENT OF THE TREASURY 

Internal Revenue Service 

26 CFR Part 31 

Employment Taxes and Collection of 

Income Tax at Source 

CFR Correction 

In Title 26 of the Code of Federal 

Regulations, Parts 30 to 39, revised as of 

April 1, 2012, on page 301, in 

§ 31.3406(b)(3)–2, in paragraph (b)(5), 

the language ‘‘§ 5f.6045–1(c)(3)(x)’’ is 

removed and ‘‘§ 1.6045–1(c)(3)(x)’’ is 

added in its place. 

[FR Doc. 2013–07509 Filed 3–28–13; 8:45 am] 

BILLING CODE 1505–01–D 

DEPARTMENT OF THE INTERIOR 

Surface Mining Reclamation and 

Enforcement 

30 CFR Part 1206 

Product Valuation 

CFR Correction 

In Title 30 of the Code of Federal 

Regulations, Parts 700 to End, revised as 

of July 1, 2012, on page 742, in 

§ 1206.57(d)(3) the reference to 

‘‘§ 1218.54’’ is corrected to read 

‘‘§ 1218.56’’, and on page 761, in 

§ 1206.117(a), the reference to 

‘‘§ 218.54’’ is corrected to read 

‘‘§ 1218.54’’. 

[FR Doc. 2013–07512 Filed 3–28–13; 8:45 am] 

BILLING CODE 1505–01–D 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 100 

[Docket No. USCG–2013–0081] 

RIN 1625–AA08 

Special Local Regulations; Charleston 

Race Week, Charleston Harbor; 

Charleston, SC 

AGENCY: Coast Guard, DHS. 

ACTION: Temporary final rule. 

SUMMARY: The Coast Guard is 

establishing a special local regulation on 

the waters of Charleston Harbor in 

Charleston, South Carolina during 

Charleston Race Week, a series of 

sailboat races. From Thursday, April 18, 

2013, until Sunday, April 21, 2013, 

approximately 300 sailboats are 

anticipated to participate in these races, 

and approximately 15 spectator vessels 

are expected to watch the event. A 

special local regulation is necessary to 

provide for the safety of life on the 

navigable waters of the United States 

during the races. This special local 

regulation consists of three race areas. 

Except for those persons and vessels 

participating in the sailboat races, 

persons and vessels are prohibited from 

entering, transiting through, anchoring 

in, or remaining within any of the race 

areas unless authorized by the Captain 

of the Port Charleston or a designated 

representative. 

DATES: This rule is effective from 7:30 

a.m. on April 18, 2013, until 5 p.m. on 

April 21, 2013. This rule will be 

enforced daily from 7:30 a.m. until 5:30 


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