Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Immigrants and Non-Immigrants in the United States; Delay of Effective Date, 13995-13998 [2021-05269]

Download as PDF Federal Register / Vol. 86, No. 47 / Friday, March 12, 2021 / Rules and Regulations Troy A. Miller, the Senior Official Performing the Duties of the Commissioner, having reviewed and approved this document, is delegating the authority to electronically sign this document to Robert F. Altneu, who is the Director of the Regulations and Disclosure Law Division for CBP, for purposes of publication in the Federal Register. Robert F. Altneu, Director, Regulations & Disclosure Law Division, Regulations & Rulings, Office of Trade, U.S. Customs and Border Protection. Approved: March 9, 2021. Timothy E. Skud Deputy Assistant Secretary of the Treasury. [FR Doc. 2021–05173 Filed 3–10–21; 8:45 am] BILLING CODE 9111–14–P DEPARTMENT OF LABOR Employment and Training Administration 20 CFR Parts 655 and 656 [Docket No. ETA–2020–0006] RIN 1205–AC00 Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Immigrants and Non-Immigrants in the United States; Delay of Effective Date Employment and Training Administration, Department of Labor. ACTION: Final rule; delay of effective date. AGENCY: On February 1, 2021, the Department of Labor (DOL or Department) proposed to delay the effective date of the final rule entitled ‘‘Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States,’’ published in the Federal Register on January 14, 2021, for a period of 60 days. The Department proposed to delay the effective date of the final rule until May 14, 2021, in accordance with the Presidential directive as expressed in the memorandum of January 20, 2021, from the Assistant to the President and Chief of Staff, entitled ‘‘Regulatory Freeze Pending Review.’’ As stated in the proposal, the 60-day delay would allow agency officials the opportunity to review any questions of fact, law, or policy. The Department invited written comments from the public for 15 days on the proposed delay of effective date. All comments had to be received by February 16, 2021. The Department received 57 comments from the SUMMARY: VerDate Sep<11>2014 19:32 Mar 11, 2021 Jkt 253001 stakeholder community. The Department has reviewed the comments received in response to the proposal and will delay the effective date of the final rule for a period of 60 days. DATES: As of March 12, 2021, the effective date of the final rule published on January 14, 2021, at 86 FR 3608, is delayed until May 14, 2021. FOR FURTHER INFORMATION CONTACT: Brian Pasternak, Administrator, Office of Foreign Labor Certification, Employment and Training Administration, Department of Labor, 200 Constitution Avenue NW, Room N– 5311, Washington, DC 20210, telephone: (202) 693–8200 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone numbers above via TTY/TDD by calling the toll-free Federal Information Relay Service at 1 (877) 889–5627. SUPPLEMENTARY INFORMATION: I. Background and Basis for Proposed Delay On January 14, 2021, the Department published a final rule in the Federal Register, which adopted with changes an Interim Final Rule (IFR) that amended Employment and Training Administration (ETA) regulations governing the prevailing wages for employment opportunities that United States (U.S.) employers seek to fill with foreign workers on a permanent or temporary basis through certain employment-based immigrant visas or through H–1B, H–1B1, or E–3 nonimmigrant visas. Specifically, the IFR amended the Department’s regulations governing permanent (PERM) labor certifications and Labor Condition Applications (LCAs) to incorporate changes to the computation of wage levels under the Department’s fourtiered wage structure based on the Occupational Employment Statistics (OES) wage survey administered by the Bureau of Labor Statistics (BLS). 86 FR 3608. Although the final rule contained an effective date of March 15, 2021, the Department also included a delayed implementation period under which adjustments to the new wage levels will not begin until July 1, 2021. 86 FR 3608, 3642. A general overview of the labor certification and prevailing wage process as well as further background on the rulemaking is available in the Department’s final rule, as published in the Federal Register on January 14, 2021, and will not be restated herein. On February 1, 2021, the Department published a notice in the Federal Register proposing to delay the effective date of the final rule for 60 days from PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 13995 March 15, 2021, until May 14, 2021. The Department based this action on the Presidential directive as expressed in the memorandum of January 20, 2021, from the Assistant to the President and Chief of Staff, entitled ‘‘Regulatory Freeze Pending Review.’’ The memorandum directs agencies to consider delaying the effective date for regulations for the purpose of reviewing questions of fact, law, and policy raised therein. Accordingly, ETA proposed to delay the effective date for the final rule entitled ‘‘Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States’’ to May 14, 2021, given the complexity of the regulation. II. Public Comments Received The Department invited written comment in its February 1, 2021 notice on its proposal to delay the effective date of the final rule, including the proposed delay’s impact on any legal, factual, or policy issues raised by the underlying final rule and whether further review of those issues warrants such a delay. The Department further stated that all other comments on the underlying final rule would be considered to be outside the scope of this rulemaking. The February 1, 2021 notice provided a 15-day comment period on the proposed delay, with comments to be submitted electronically at https://www.regulations.gov/ using docket number ETA–2020–0006. ETA received 57 unique comments on its proposal to delay the effective date by 60 days to May 14, 2021. Of the 57 comments, 36 were reviewed and determined out of scope either because they were comments exclusively on the final rule and did not address the proposed delay, concerned another agency’s rule, or were general statements. The remaining 21 comments were reviewed and determined within the scope of the request for comments. Of these, 17 commenters supported the delay. Four commenters opposed the delay based on their overall support of the final rule. A. Comments Supporting a Delayed Effective Date Seventeen commenters supported the proposed delay of the effective date of the final rule, citing disapproval of the final rule overall, concerns that the process in adopting the final rule was rushed, fears that the wage data supporting the final rule was inaccurate, and the need to more thoroughly review the final rule. One commenter stated it is in favor of the proposed delay of effective date and provided a policy E:\FR\FM\12MRR1.SGM 12MRR1 13996 Federal Register / Vol. 86, No. 47 / Friday, March 12, 2021 / Rules and Regulations report to assist the agency in evaluating the ‘‘proposed delay’s impact on any legal, factual, or policy issues raised by the underlying rule.’’ Several commenters expressed strong support of the Department’s proposal, and a few commenters encouraged the agency to conduct a full legal review and ‘‘consider and meaningfully respond’’ to the issues raised in the IFR comments before implementing any changes to wage requirements. The Department received two comments stating the delay of effective date is needed because the final rule is not reflective of the policy objectives of the Biden Administration. The two commenters, a trade organization and a trade association, supported the proposed effective date delay, reasoning that, consistent with the Biden Administration’s ‘‘Regulatory Freeze Pending Review’’ memorandum, it would provide time to evaluate questions of fact, law, and policy raised in the final rule. One of the commenters argued that events and developments that have occurred since the Department published the final rule on January 14, 2021, should be reviewed as relevant questions of fact, law, and policy. Two universities supported the effective date delay stating the delay will give the Department more time to evaluate policy and substantive issues of the final rule, including determining the needs of the U.S. economy in light of the current context of the pandemic and the Biden Administration’s priorities. Two trade associations supported postponing implementation of the final rule, with one association stating this delay would allow for proper stakeholder input while maintaining the status quo for employers. In addition, the Department received five comments stating the proposed delay is needed for the Department to address legal concerns raised by stakeholders and litigants in litigation related to the IFR and final rule. For example, a professional association asserted the final rule violated the Administrative Procedure Act’s (APA) notice-and-comment requirements and argued that the final rule must be delayed in order to provide a proper notice-and-comment period. Another professional association and a trade association argued, for instance, that the final rule did not address concerns they raised in prior comments on the IFR and supported delaying the final rule’s effective date and compliance dates to allow time for review and reconsideration of the final rule’s ‘‘legal and policy shortcomings’’ and issues raised by the stakeholder community. The Department also received three VerDate Sep<11>2014 19:32 Mar 11, 2021 Jkt 253001 comments supporting a delay of the effective date to allow the agency an opportunity to review decisions issued by multiple courts in litigation related to the rulemaking. For example, a trade association explained the proposed 60day delay will enable the agency to review the final rule and determine it is ‘‘unjustified, ignores labor market realities, and would harm the country’s economic recovery.’’ The commenter stated in the event the Department does not make such a determination, the delay is needed for courts to render final decisions in related litigation. Several comments supported the proposed delay on the basis that the additional time will allow the Department to review more thoroughly the final rule and its financial implications for affected industries, including businesses and institutions of higher education, and its impact on the economy. One commenter in this category urged the agency to begin rulemaking to withdraw the final rule. Lastly, a few comments requested the Department consider further delay of the effective date and/or the compliance dates of the final rule. For example, a trade association stated that given the profound changes in the Department’s final rule, a May 14, 2021 effective date is unlikely to avoid significant operational disruptions for many businesses that rely upon various immigrant and non-immigrant workers. Other comments requested the Department delay the July 1, 2021 transition period to afford the regulated community adequate time to adopt necessary changes and to allow the agency enough time to properly implement forms and electronic filing system changes, as needed. The Department appreciates the comments received. After carefully reviewing the comments, the Department acknowledges the substantive concerns raised by these commenters, including concerns regarding the Department’s methodology in the final rule and notice and comment procedures related to the rulemaking, and the commenters’ suggestion that the Department should delay the effective date of this rule to review the rulemaking. Given these concerns, the complexity of the regulation, and the issues raised in the litigation challenging the rulemaking, the Department has determined that a 60-day delay of the effective date is needed to provide the Department time to continue its review of the final rule, including evaluating the concerns raised by the commenters and taking additional action as necessary. PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 B. Comments Opposing a Delayed Effective Date The Department received four comments that directly addressed and subsequently opposed the proposed delay of the effective date of the final rule. Four commenters stated they generally support the substance of the final rule, and reiterated reasons why the final rule should be implemented. One of the commenters stated it believes the reforms to the Department’s wage levels are long overdue and a delay would prevent protections for workers being implemented and reduce job opportunities and wages. It noted that the current wage methodology is in conflict with the INA and further explained that, while it generally supported the final rule as a step in the right direction, the final rule still conflicts with the INA. A commenter opposed the delay because it supports the methodology used in the final rule and believes a delay could cause uncertainty in hiring processes as well as reduce the amount of time employers have to prepare for compliance. This commenter further stated that the current methodology is on ‘‘shaky legal ground.’’ The Department appreciates the comments provided. In response to comments concerning the impact of the Department’s proposed delay of effective date of the final rule on U.S. workers, the delay of the effective date should not reduce any potential benefits to, or otherwise harm, qualified American or H–1B workers. Under the final rule, the new methodology and attendant changes to the wage level computations will not begin to be implemented until July 1, 2021; before July 1, the current wage methodology remains the same. Rather, as noted in the proposal and above, delaying the effective date for 60 days would provide the Department an opportunity to review questions of fact, law, and policy raised by the final rule. As noted above, one commenter stated the final rule was a step in the right direction but nonetheless ‘‘continues to conflict’’ with the INA, providing an example as to why review at this stage is crucial. The 60-day delay announced in this final rule provides the Department time to begin a meaningful review without affecting workers. Finally, the Department may need to propose a further delay of the effective date and accompanying implementation periods due to the complexity of the final rule, as discussed in the Conclusion below, and aims to provide clarity and sufficient time for employers to comply with the regulations. E:\FR\FM\12MRR1.SGM 12MRR1 Federal Register / Vol. 86, No. 47 / Friday, March 12, 2021 / Rules and Regulations C. Out of Scope Comments Thirty-six comments were beyond the scope of this action. Most of the comments related to the content of the final rule and the final rule’s methodology rather than the narrow issue of the proposed delay of the effective date. Of particular note, three commenters simply stated they disagreed but it is unclear with what they disagreed. To the extent that they refer only to the proposed extension of the effective date these comments do not alter DOL’s conclusion given their lack of rationale and the reasons noted above for extending the effective date. Two comments appeared to be directed at a proposed rule from U.S. Citizenship and Immigration Services, and are therefore out of scope. Finally one commenter submitted a resume, and nothing else. D. Immediate Effective Date Section 553(d) of the APA provides that substantive rules should take effect not less than 30 days after the date they are published in the Federal Register unless ‘‘otherwise provided by the agency for good cause found.’’ 5 U.S.C. 553(d)(3). The Department determines it has good cause to make this rule effective immediately upon publication because allowing for a 30-day period between publication and the effective date of this rulemaking would be both impracticable and unnecessary. A 30day period would result in the final rule entitled ‘‘Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States’’ taking effect on March 15, 2021, before the delay in this rulemaking would begin. Accordingly, a 30-day period would undermine the purpose for which this rule is being promulgated and result in additional confusion for regulated entities. As such, the Department finds that it has good cause to make this rule effective immediately upon publication. E. Conclusion Many of the comments specifically addressed substantive concerns related to the Department’s publication of the final rule and the methodology or computations contained therein. The Department acknowledges these public comments as well as concerns that have been raised by the commenters and in pending litigation challenging the Department’s IFR, see 86 FR 3608, 3612 (discussing lawsuits and court orders setting aside the IFR), and, subsequently, the final rule published on January 14, 2021. The Department has already begun its comprehensive VerDate Sep<11>2014 19:32 Mar 11, 2021 Jkt 253001 review of this rulemaking and may need to take additional action as necessary to complete such a review. In particular, the comments raised thus far suggest that it may be helpful for the Department to issue a request for information soliciting public input on other sources of information and/or methodologies that could be used to inform any new proposal(s) to further amend ETA’s regulations governing the prevailing wages for PERM, H–1B, H– 1B1, and E–3 job opportunities as the comments raised thus far suggest that additional information and data may be useful in the Department’s review. In addition, in light of the complexity of this issue, the Department is considering whether to propose a further delay of the final rule’s effective date and accompanying implementation periods that are currently scheduled to take effect on May 14, 2021, and July 1, 2021, respectively. Before further delaying the effective date and implementation periods, the Department will provide the public an opportunity to comment. III. Statutory and Regulatory Requirements A. Executive Order 12866 (Regulatory Planning and Review) Under Executive Order (E.O.) 12866, the Office of Management and Budget’s (OMB) Office of Information and Regulatory Affairs (OIRA) determines whether a regulatory action is significant and, therefore, subject to the requirements of the E.O. and review by OMB. 58 FR 51735. Section 3(f) of E.O. 12866 defines a ‘‘significant regulatory action’’ as an action that is likely to result in a rule that: (1) Has an annual effect on the economy of $100 million or more, or adversely affects in a material way a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities (also referred to as economically significant); (2) creates serious inconsistency or otherwise interferes with an action taken or planned by another agency; (3) materially alters the budgetary impacts of entitlement grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) raises novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in the E.O. Id. Pursuant to E.O. 12866, OIRA has determined that this is not a significant regulatory action. Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), OIRA has determined that this PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 13997 rule is not a ‘‘major rule,’’ as defined by 5 U.S.C. 804(2). B. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among other things, to curb the practice of imposing unfunded Federal mandates on State, local, and tribal governments. Title II of UMRA requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in a $100 million or more expenditure (adjusted annually for inflation) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector. The inflationadjusted value equivalent of $100 million in 1995 adjusted for inflation to 2019 levels by the Consumer Price Index for All Urban Consumers (CPI–U) is approximately $168 million based on the Consumer Price Index for All Urban Consumers.1 This rulemaking is not a ‘‘Federal mandate’’ as defined for UMRA purposes.2 The cost of obtaining prevailing wages, preparing labor condition and certification applications (including all required evidence) and the payment of wages by employers is, to the extent it could be termed an enforceable duty, one that arises from participation in a voluntary Federal program applying for immigration status in the United States.3 This final rule does not contain a mandate. The requirements of Title II of UMRA, therefore, do not apply, and DOL has not prepared a statement under UMRA. Therefore, no actions were deemed necessary under the provisions of the UMRA. C. Congressional Review Act OIRA has determined that this final rule is not a major rule as defined by 5 U.S.C. 804, also known as the ‘‘Congressional Review Act,’’ as enacted in section 251 of the Small Business 1 See U.S. Bureau of Labor Statistics, Historical Consumer Price Index for All Urban Consumers (CPI–U): U.S. City Average, All Items, available at https://www.bls.gov/cpi/tables/supplemental-files/ historical-cpi-u-202003.pdf (last visited June 2, 2020). Calculation of inflation: (1) Calculate the average monthly CPI–U for the reference year (1995) and the current year (2019); (2) Subtract reference year CPI– U from current year CPI–U; (3) Divide the difference of the reference year CPI–U and current year CPI– U by the reference year CPI–U; (4) Multiply by 100 = [(Average monthly CPI–U for 2019¥Average monthly CPI–U for 1995)/(Average monthly CPI–U for 1995)] * 100 = [(255.657¥152.383)/152.383] * 100 = (103.274/152.383) * 100 = 0.6777 * 100 = 67.77 percent = 68 percent (rounded). Calculation of inflation-adjusted value: $100 million in 1995 dollars * 1.68 = $168 million in 2019 dollars. 2 See 2 U.S.C. 658(6). 3 See 2 U.S.C. 658(7)(A)(ii). E:\FR\FM\12MRR1.SGM 12MRR1 13998 Federal Register / Vol. 86, No. 47 / Friday, March 12, 2021 / Rules and Regulations Regulatory Enforcement Fairness Act of 1996, Public Law 104–121, 110 Stat. 847, 868, et seq. D. Executive Order 13132 (Federalism) This final rule would not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of E.O. 13132, it is determined that this final rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. E. Executive Order 12988 (Civil Justice Reform) This final rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of E.O. 12988. F. Regulatory Flexibility Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments) This final rule does not have ‘‘tribal implications’’ because it does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Accordingly, E.O. 13175, Consultation and Coordination with Indian Tribal Governments, requires no further agency action or analysis. G. Paperwork Reduction Act The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501, et seq., and its attendant regulations, 5 CFR part 1320, require the Department to consider the agency’s need for its information collections and their practical utility, the impact of paperwork and other information collection burdens imposed on the public, and how to minimize those burdens. This final rule does not require a collection of information subject to approval by OMB under the PRA, or affect any existing collections of information. Suzan G. LeVine, Principal Deputy Assistant Secretary for Employment and Training, Labor. [FR Doc. 2021–05269 Filed 3–11–21; 8:45 am] 19:32 Mar 11, 2021 Coast Guard 33 CFR Part 100 [Docket No. USCG–2021–0118] RIN 1625–AA08 Special Local Regulation; Bay Guardian Exercise, Treasure Island, San Francisco, CA AGENCY: ACTION: Coast Guard, DHS. Temporary final rule. The Coast Guard is establishing a temporary special local regulation (SLR) in the navigable waters of the San Francisco Bay, near Treasure Island, San Francisco, CA in support of the Bay Guardian 2021 exercise. This special local regulation will temporarily restrict vessel traffic in the vicinity of Treasure Island and prohibit vessels and persons not participating in the exercise from entering the regulated area. The purpose of the exercise it to use radioactive detection equipment in a mock scenario. The exercise will be interrupted, as necessary, to permit the passage of commercial vessel traffic. Exercise participants and nonparticipants operating within the SLR area shall comply with all instructions given by the on-scene Patrol Commander monitoring the event. This regulation is necessary to provide safety of life on the navigable waters during the exercise, which will be held on March 17, 2021. SUMMARY: This rule is effective from 8 a.m. to 6 p.m. on March 17, 2021. DATES: To view documents mentioned in this preamble as being available in the docket, go to https:// www.regulations.gov, type USCG–2021– 0118 in the ‘‘SEARCH’’ box and click ‘‘SEARCH.’’ Click on Open Docket Folder on the line associated with this rule. ADDRESSES: If you have questions on this rule, call or email Lieutenant Anthony Solares, Waterways Management, U.S. Coast Guard; telephone (415) 399–7443, email SFWaterways@uscg.mil. FOR FURTHER INFORMATION CONTACT: SUPPLEMENTARY INFORMATION: I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port San Francisco DHS Department of Homeland Security § Section U.S.C. United States Code BILLING CODE 4510–FP–P VerDate Sep<11>2014 DEPARTMENT OF HOMELAND SECURITY Jkt 253001 PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 II. Background Information and Regulatory History The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are ‘‘impracticable, unnecessary, or contrary to the public interest.’’ Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. The Coast Guard did not receive final details for this event until February 22, 2021. The Coast Guard must establish this safety zone by March 17, 2021 and lacks sufficient time to provide a reasonable comment period and consider those comments before issuing the rule. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Delaying the effective date of this rule would be contrary to public interest because this regulation is needed on March 17, 2021, less than 30 days after the Coast Guard received the final details of the event, in order to keep vessels away from the immediate vicinity of the exercise to ensure the safety of exercise participants, mariners, and transiting vessels. III. Legal Authority and Need for Rule The legal basis for the proposed rule is 46 U.S.C. 70041 (previously 33 U.S.C. 1233). Under 33 CFR 100.35, the Coast Guard District Commander has authority to promulgate certain special local regulations deemed necessary to ensure the safety of life on the navigable waters immediately before, during, and immediately after an approved regatta or marine parade. The Commander of Coast Guard District 11 has delegated to the Captain of the Port (COTP) San Francisco the responsibility of issuing such regulations. The regulation establishes a regulated area on the waters on which the Bay Guardian exercise will be held. The regulated area is necessary to ensure the safety of exercise participants and mariners transiting near the exercise area. IV. Discussion of the Rule The Bay Guardian 2021 exercise will occur in the navigable waters of San Francisco Bay, near Treasure Island, CA, E:\FR\FM\12MRR1.SGM 12MRR1

Agencies

[Federal Register Volume 86, Number 47 (Friday, March 12, 2021)]
[Rules and Regulations]
[Pages 13995-13998]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-05269]

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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Parts 655 and 656

[Docket No. ETA-2020-0006]
RIN 1205-AC00

Strengthening Wage Protections for the Temporary and Permanent
Employment of Certain Immigrants and Non-Immigrants in the United
States; Delay of Effective Date

AGENCY: Employment and Training Administration, Department of Labor.

ACTION: Final rule; delay of effective date.

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SUMMARY: On February 1, 2021, the Department of Labor (DOL or
Department) proposed to delay the effective date of the final rule
entitled ``Strengthening Wage Protections for the Temporary and
Permanent Employment of Certain Aliens in the United States,''
published in the Federal Register on January 14, 2021, for a period of
60 days. The Department proposed to delay the effective date of the
final rule until May 14, 2021, in accordance with the Presidential
directive as expressed in the memorandum of January 20, 2021, from the
Assistant to the President and Chief of Staff, entitled ``Regulatory
Freeze Pending Review.'' As stated in the proposal, the 60-day delay
would allow agency officials the opportunity to review any questions of
fact, law, or policy. The Department invited written comments from the
public for 15 days on the proposed delay of effective date. All
comments had to be received by February 16, 2021. The Department
received 57 comments from the stakeholder community. The Department has
reviewed the comments received in response to the proposal and will
delay the effective date of the final rule for a period of 60 days.

DATES: As of March 12, 2021, the effective date of the final rule
published on January 14, 2021, at 86 FR 3608, is delayed until May 14,
2021.

FOR FURTHER INFORMATION CONTACT: Brian Pasternak, Administrator, Office
of Foreign Labor Certification, Employment and Training Administration,
Department of Labor, 200 Constitution Avenue NW, Room N-5311,
Washington, DC 20210, telephone: (202) 693-8200 (this is not a toll-
free number). Individuals with hearing or speech impairments may access
the telephone numbers above via TTY/TDD by calling the toll-free
Federal Information Relay Service at 1 (877) 889-5627.

SUPPLEMENTARY INFORMATION:

I. Background and Basis for Proposed Delay

On January 14, 2021, the Department published a final rule in the
Federal Register, which adopted with changes an Interim Final Rule
(IFR) that amended Employment and Training Administration (ETA)
regulations governing the prevailing wages for employment opportunities
that United States (U.S.) employers seek to fill with foreign workers
on a permanent or temporary basis through certain employment-based
immigrant visas or through H-1B, H-1B1, or E-3 non-immigrant visas.
Specifically, the IFR amended the Department's regulations governing
permanent (PERM) labor certifications and Labor Condition Applications
(LCAs) to incorporate changes to the computation of wage levels under
the Department's four-tiered wage structure based on the Occupational
Employment Statistics (OES) wage survey administered by the Bureau of
Labor Statistics (BLS). 86 FR 3608. Although the final rule contained
an effective date of March 15, 2021, the Department also included a
delayed implementation period under which adjustments to the new wage
levels will not begin until July 1, 2021. 86 FR 3608, 3642. A general
overview of the labor certification and prevailing wage process as well
as further background on the rulemaking is available in the
Department's final rule, as published in the Federal Register on
January 14, 2021, and will not be restated herein.
On February 1, 2021, the Department published a notice in the
Federal Register proposing to delay the effective date of the final
rule for 60 days from March 15, 2021, until May 14, 2021. The
Department based this action on the Presidential directive as expressed
in the memorandum of January 20, 2021, from the Assistant to the
President and Chief of Staff, entitled ``Regulatory Freeze Pending
Review.'' The memorandum directs agencies to consider delaying the
effective date for regulations for the purpose of reviewing questions
of fact, law, and policy raised therein. Accordingly, ETA proposed to
delay the effective date for the final rule entitled ``Strengthening
Wage Protections for the Temporary and Permanent Employment of Certain
Aliens in the United States'' to May 14, 2021, given the complexity of
the regulation.

II. Public Comments Received

The Department invited written comment in its February 1, 2021
notice on its proposal to delay the effective date of the final rule,
including the proposed delay's impact on any legal, factual, or policy
issues raised by the underlying final rule and whether further review
of those issues warrants such a delay. The Department further stated
that all other comments on the underlying final rule would be
considered to be outside the scope of this rulemaking. The February 1,
2021 notice provided a 15-day comment period on the proposed delay,
with comments to be submitted electronically at https://www.regulations.gov/ using docket number ETA-2020-0006.
ETA received 57 unique comments on its proposal to delay the
effective date by 60 days to May 14, 2021. Of the 57 comments, 36 were
reviewed and determined out of scope either because they were comments
exclusively on the final rule and did not address the proposed delay,
concerned another agency's rule, or were general statements. The
remaining 21 comments were reviewed and determined within the scope of
the request for comments. Of these, 17 commenters supported the delay.
Four commenters opposed the delay based on their overall support of the
final rule.

A. Comments Supporting a Delayed Effective Date

Seventeen commenters supported the proposed delay of the effective
date of the final rule, citing disapproval of the final rule overall,
concerns that the process in adopting the final rule was rushed, fears
that the wage data supporting the final rule was inaccurate, and the
need to more thoroughly review the final rule. One commenter stated it
is in favor of the proposed delay of effective date and provided a
policy

[[Page 13996]]

report to assist the agency in evaluating the ``proposed delay's impact
on any legal, factual, or policy issues raised by the underlying
rule.'' Several commenters expressed strong support of the Department's
proposal, and a few commenters encouraged the agency to conduct a full
legal review and ``consider and meaningfully respond'' to the issues
raised in the IFR comments before implementing any changes to wage
requirements.
The Department received two comments stating the delay of effective
date is needed because the final rule is not reflective of the policy
objectives of the Biden Administration. The two commenters, a trade
organization and a trade association, supported the proposed effective
date delay, reasoning that, consistent with the Biden Administration's
``Regulatory Freeze Pending Review'' memorandum, it would provide time
to evaluate questions of fact, law, and policy raised in the final
rule. One of the commenters argued that events and developments that
have occurred since the Department published the final rule on January
14, 2021, should be reviewed as relevant questions of fact, law, and
policy. Two universities supported the effective date delay stating the
delay will give the Department more time to evaluate policy and
substantive issues of the final rule, including determining the needs
of the U.S. economy in light of the current context of the pandemic and
the Biden Administration's priorities. Two trade associations supported
postponing implementation of the final rule, with one association
stating this delay would allow for proper stakeholder input while
maintaining the status quo for employers.
In addition, the Department received five comments stating the
proposed delay is needed for the Department to address legal concerns
raised by stakeholders and litigants in litigation related to the IFR
and final rule. For example, a professional association asserted the
final rule violated the Administrative Procedure Act's (APA) notice-
and-comment requirements and argued that the final rule must be delayed
in order to provide a proper notice-and-comment period. Another
professional association and a trade association argued, for instance,
that the final rule did not address concerns they raised in prior
comments on the IFR and supported delaying the final rule's effective
date and compliance dates to allow time for review and reconsideration
of the final rule's ``legal and policy shortcomings'' and issues raised
by the stakeholder community. The Department also received three
comments supporting a delay of the effective date to allow the agency
an opportunity to review decisions issued by multiple courts in
litigation related to the rulemaking. For example, a trade association
explained the proposed 60-day delay will enable the agency to review
the final rule and determine it is ``unjustified, ignores labor market
realities, and would harm the country's economic recovery.'' The
commenter stated in the event the Department does not make such a
determination, the delay is needed for courts to render final decisions
in related litigation.
Several comments supported the proposed delay on the basis that the
additional time will allow the Department to review more thoroughly the
final rule and its financial implications for affected industries,
including businesses and institutions of higher education, and its
impact on the economy. One commenter in this category urged the agency
to begin rulemaking to withdraw the final rule.
Lastly, a few comments requested the Department consider further
delay of the effective date and/or the compliance dates of the final
rule. For example, a trade association stated that given the profound
changes in the Department's final rule, a May 14, 2021 effective date
is unlikely to avoid significant operational disruptions for many
businesses that rely upon various immigrant and non-immigrant workers.
Other comments requested the Department delay the July 1, 2021
transition period to afford the regulated community adequate time to
adopt necessary changes and to allow the agency enough time to properly
implement forms and electronic filing system changes, as needed.
The Department appreciates the comments received. After carefully
reviewing the comments, the Department acknowledges the substantive
concerns raised by these commenters, including concerns regarding the
Department's methodology in the final rule and notice and comment
procedures related to the rulemaking, and the commenters' suggestion
that the Department should delay the effective date of this rule to
review the rulemaking. Given these concerns, the complexity of the
regulation, and the issues raised in the litigation challenging the
rulemaking, the Department has determined that a 60-day delay of the
effective date is needed to provide the Department time to continue its
review of the final rule, including evaluating the concerns raised by
the commenters and taking additional action as necessary.

B. Comments Opposing a Delayed Effective Date

The Department received four comments that directly addressed and
subsequently opposed the proposed delay of the effective date of the
final rule. Four commenters stated they generally support the substance
of the final rule, and reiterated reasons why the final rule should be
implemented. One of the commenters stated it believes the reforms to
the Department's wage levels are long overdue and a delay would prevent
protections for workers being implemented and reduce job opportunities
and wages. It noted that the current wage methodology is in conflict
with the INA and further explained that, while it generally supported
the final rule as a step in the right direction, the final rule still
conflicts with the INA. A commenter opposed the delay because it
supports the methodology used in the final rule and believes a delay
could cause uncertainty in hiring processes as well as reduce the
amount of time employers have to prepare for compliance. This commenter
further stated that the current methodology is on ``shaky legal
ground.''
The Department appreciates the comments provided. In response to
comments concerning the impact of the Department's proposed delay of
effective date of the final rule on U.S. workers, the delay of the
effective date should not reduce any potential benefits to, or
otherwise harm, qualified American or H-1B workers. Under the final
rule, the new methodology and attendant changes to the wage level
computations will not begin to be implemented until July 1, 2021;
before July 1, the current wage methodology remains the same. Rather,
as noted in the proposal and above, delaying the effective date for 60
days would provide the Department an opportunity to review questions of
fact, law, and policy raised by the final rule. As noted above, one
commenter stated the final rule was a step in the right direction but
nonetheless ``continues to conflict'' with the INA, providing an
example as to why review at this stage is crucial. The 60-day delay
announced in this final rule provides the Department time to begin a
meaningful review without affecting workers. Finally, the Department
may need to propose a further delay of the effective date and
accompanying implementation periods due to the complexity of the final
rule, as discussed in the Conclusion below, and aims to provide clarity
and sufficient time for employers to comply with the regulations.

[[Page 13997]]

C. Out of Scope Comments

Thirty-six comments were beyond the scope of this action. Most of
the comments related to the content of the final rule and the final
rule's methodology rather than the narrow issue of the proposed delay
of the effective date. Of particular note, three commenters simply
stated they disagreed but it is unclear with what they disagreed. To
the extent that they refer only to the proposed extension of the
effective date these comments do not alter DOL's conclusion given their
lack of rationale and the reasons noted above for extending the
effective date. Two comments appeared to be directed at a proposed rule
from U.S. Citizenship and Immigration Services, and are therefore out
of scope. Finally one commenter submitted a resume, and nothing else.

D. Immediate Effective Date

Section 553(d) of the APA provides that substantive rules should
take effect not less than 30 days after the date they are published in
the Federal Register unless ``otherwise provided by the agency for good
cause found.'' 5 U.S.C. 553(d)(3). The Department determines it has
good cause to make this rule effective immediately upon publication
because allowing for a 30-day period between publication and the
effective date of this rulemaking would be both impracticable and
unnecessary. A 30-day period would result in the final rule entitled
``Strengthening Wage Protections for the Temporary and Permanent
Employment of Certain Aliens in the United States'' taking effect on
March 15, 2021, before the delay in this rulemaking would begin.
Accordingly, a 30-day period would undermine the purpose for which this
rule is being promulgated and result in additional confusion for
regulated entities. As such, the Department finds that it has good
cause to make this rule effective immediately upon publication.

E. Conclusion

Many of the comments specifically addressed substantive concerns
related to the Department's publication of the final rule and the
methodology or computations contained therein. The Department
acknowledges these public comments as well as concerns that have been
raised by the commenters and in pending litigation challenging the
Department's IFR, see 86 FR 3608, 3612 (discussing lawsuits and court
orders setting aside the IFR), and, subsequently, the final rule
published on January 14, 2021. The Department has already begun its
comprehensive review of this rulemaking and may need to take additional
action as necessary to complete such a review. In particular, the
comments raised thus far suggest that it may be helpful for the
Department to issue a request for information soliciting public input
on other sources of information and/or methodologies that could be used
to inform any new proposal(s) to further amend ETA's regulations
governing the prevailing wages for PERM, H-1B, H-1B1, and E-3 job
opportunities as the comments raised thus far suggest that additional
information and data may be useful in the Department's review. In
addition, in light of the complexity of this issue, the Department is
considering whether to propose a further delay of the final rule's
effective date and accompanying implementation periods that are
currently scheduled to take effect on May 14, 2021, and July 1, 2021,
respectively. Before further delaying the effective date and
implementation periods, the Department will provide the public an
opportunity to comment.

III. Statutory and Regulatory Requirements

A. Executive Order 12866 (Regulatory Planning and Review)

Under Executive Order (E.O.) 12866, the Office of Management and
Budget's (OMB) Office of Information and Regulatory Affairs (OIRA)
determines whether a regulatory action is significant and, therefore,
subject to the requirements of the E.O. and review by OMB. 58 FR 51735.
Section 3(f) of E.O. 12866 defines a ``significant regulatory action''
as an action that is likely to result in a rule that: (1) Has an annual
effect on the economy of $100 million or more, or adversely affects in
a material way a sector of the economy, productivity, competition,
jobs, the environment, public health or safety, or State, local, or
tribal governments or communities (also referred to as economically
significant); (2) creates serious inconsistency or otherwise interferes
with an action taken or planned by another agency; (3) materially
alters the budgetary impacts of entitlement grants, user fees, or loan
programs, or the rights and obligations of recipients thereof; or (4)
raises novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in the E.O. Id.
Pursuant to E.O. 12866, OIRA has determined that this is not a
significant regulatory action. Pursuant to the Congressional Review Act
(5 U.S.C. 801 et seq.), OIRA has determined that this rule is not a
``major rule,'' as defined by 5 U.S.C. 804(2).

B. Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among
other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and tribal governments. Title II of UMRA
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed or final agency rule
that may result in a $100 million or more expenditure (adjusted
annually for inflation) in any one year by State, local, and tribal
governments, in the aggregate, or by the private sector. The inflation-
adjusted value equivalent of $100 million in 1995 adjusted for
inflation to 2019 levels by the Consumer Price Index for All Urban
Consumers (CPI-U) is approximately $168 million based on the Consumer
Price Index for All Urban Consumers.\1\
---------------------------------------------------------------------------

\1\ See U.S. Bureau of Labor Statistics, Historical Consumer
Price Index for All Urban Consumers (CPI-U): U.S. City Average, All
Items, available at https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202003.pdf (last visited June 2, 2020).
Calculation of inflation: (1) Calculate the average monthly CPI-
U for the reference year (1995) and the current year (2019); (2)
Subtract reference year CPI-U from current year CPI-U; (3) Divide
the difference of the reference year CPI-U and current year CPI-U by
the reference year CPI-U; (4) Multiply by 100 = [(Average monthly
CPI-U for 2019-Average monthly CPI-U for 1995)/(Average monthly CPI-
U for 1995)] * 100 = [(255.657-152.383)/152.383] * 100 = (103.274/
152.383) * 100 = 0.6777 * 100 = 67.77 percent = 68 percent
(rounded). Calculation of inflation-adjusted value: $100 million in
1995 dollars * 1.68 = $168 million in 2019 dollars.
---------------------------------------------------------------------------

This rulemaking is not a ``Federal mandate'' as defined for UMRA
purposes.\2\ The cost of obtaining prevailing wages, preparing labor
condition and certification applications (including all required
evidence) and the payment of wages by employers is, to the extent it
could be termed an enforceable duty, one that arises from participation
in a voluntary Federal program applying for immigration status in the
United States.\3\ This final rule does not contain a mandate. The
requirements of Title II of UMRA, therefore, do not apply, and DOL has
not prepared a statement under UMRA. Therefore, no actions were deemed
necessary under the provisions of the UMRA.
---------------------------------------------------------------------------

\2\ See 2 U.S.C. 658(6).
\3\ See 2 U.S.C. 658(7)(A)(ii).
---------------------------------------------------------------------------

C. Congressional Review Act

OIRA has determined that this final rule is not a major rule as
defined by 5 U.S.C. 804, also known as the ``Congressional Review
Act,'' as enacted in section 251 of the Small Business

[[Page 13998]]

Regulatory Enforcement Fairness Act of 1996, Public Law 104-121, 110
Stat. 847, 868, et seq.

D. Executive Order 13132 (Federalism)

This final rule would not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with section 6
of E.O. 13132, it is determined that this final rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.

E. Executive Order 12988 (Civil Justice Reform)

This final rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of E.O. 12988.

F. Regulatory Flexibility Executive Order 13175 (Consultation and
Coordination With Indian Tribal Governments)

This final rule does not have ``tribal implications'' because it
does not have substantial direct effects on one or more Indian tribes,
on the relationship between the Federal Government and Indian tribes,
or on the distribution of power and responsibilities between the
Federal Government and Indian tribes. Accordingly, E.O. 13175,
Consultation and Coordination with Indian Tribal Governments, requires
no further agency action or analysis.

G. Paperwork Reduction Act

The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501, et seq.,
and its attendant regulations, 5 CFR part 1320, require the Department
to consider the agency's need for its information collections and their
practical utility, the impact of paperwork and other information
collection burdens imposed on the public, and how to minimize those
burdens. This final rule does not require a collection of information
subject to approval by OMB under the PRA, or affect any existing
collections of information.

Suzan G. LeVine,
Principal Deputy Assistant Secretary for Employment and Training,
Labor.
[FR Doc. 2021-05269 Filed 3-11-21; 8:45 am]
BILLING CODE 4510-FP-P

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