Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program; Delay of Effective Date, 19098-19099 [2013-07431]
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Federal Register / Vol. 78, No. 61 / Friday, March 29, 2013 / Rules and Regulations
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DEPARTMENT OF LABOR
List of Subjects in 14 CFR Part 71
Employment and Training
Administration
Airspace, Incorporation by reference,
Navigation (Air).
20 CFR Part 655
RIN 1205–AB61
Adoption of the Amendment
In consideration of the foregoing, the
Federal Aviation Administration
amends 14 CFR part 71 as follows:
Wage Methodology for the Temporary
Non-Agricultural Employment H–2B
Program; Delay of Effective Date
Employment and Training
Administration, Labor.
ACTION: Final rule; delay of effective
date.
AGENCY:
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]
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BILLING CODE 4910–13–P
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17:37 Mar 28, 2013
Jkt 229001
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
PO 00000
Frm 00022
Fmt 4700
Sfmt 4700
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
E:\FR\FM\29MRR1.SGM
29MRR1
erowe on DSK2VPTVN1PROD with RULES
Federal Register / Vol. 78, No. 61 / Friday, March 29, 2013 / Rules and Regulations
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
1 These 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.
VerDate Mar<15>2010
15:14 Mar 28, 2013
Jkt 229001
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
PO 00000
Frm 00023
Fmt 4700
Sfmt 4700
19099
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
Bureau of Indian Affairs,
Interior.
ACTION: Final rule; correction.
AGENCY:
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
E:\FR\FM\29MRR1.SGM
29MRR1
Agencies
[Federal Register Volume 78, Number 61 (Friday, March 29, 2013)]
[Rules and Regulations]
[Pages 19098-19099]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-07431]
=======================================================================
-----------------------------------------------------------------------
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 Non-agricultural 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-and-comment 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, Sec. 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
[[Page 19099]]
appropriations legislation\1\ 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).
---------------------------------------------------------------------------
\1\ These 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.
---------------------------------------------------------------------------
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 now-vacated 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