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Federal Register / Vol. 86, No. 91 / Thursday, May 13, 2021 / Rules and Regulations transition periods under which adjustments to the new wage levels would not begin until July 1, 2021. 86
FR 3608, 3642. For most job opportunities, the transition would occur in two steps and conclude on July 1, 2022. For job opportunities that will be filled by workers who are the beneficiary of an approved Immigrant Petition for Alien Worker, or successor form, or are eligible for an extension of their H1B status under sections 106a and b of the American Competitiveness in the Twenty-first Century Act of 2000, Public Law 106
313, as amended by the 21st Century Department of Justice Appropriations Authorization Act, Public Law 107273
2002, the transition would occur in four steps and conclude on July 1, 2024.
86 FR 3608, 3660.
On February 1, 2021 86 FR 7656, the Department published a notice of proposed rulemaking in the Federal Register 60-day NPRM proposing to delay the effective date of the Final Rule for 60 days. The Department based the 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 directed agencies to consider delaying the effective date for regulations for the purpose of reviewing questions of fact, law, and policy raised therein. In accordance with the memorandum, the Department proposed to delay the effective date of the Final Rule from March 15, 2021 until May 14, 2021. Given the complexity of the regulation, the Department determined that a 60-day extension of the effective date was necessary to provide time to consider the relevant legal questions that were raised. In its proposal, the Department invited written comments on the proposed delay, specifically the proposed delays impact on any legal, factual, or policy issues raised by the underlying rule and whether further review of those issues warranted such a delay and noted that all other comments on the underlying rule unrelated to the proposed delay would be considered outside the scope of the action.
On March 12, 2021, the Department published a final rule 60-day rule adopting the proposal and delaying the effective date of the underlying rule to May 14, 2021. 86 FR 13995. The Department acknowledged the need to assess and evaluate the prevailing wage methodology and computations in the Final Rule due to the complexity of the rule, concerns voiced by commenters in response to the 60-day rulemaking, and issues raised in litigation challenging the underlying rulemaking. 86 FR

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1399613997. To permit time to continue its review, the Department published a second NPRM 18-month NPRM or NPRM on March 22, 2021, proposing to further delay the effective date of the Final Rule by eighteen months from May 14, 2021 until November 14, 2022, along with corresponding proposed delays to the rules transition dates. 86 FR 15154. As explained below, the Department proposed the additional delay to allow sufficient time for the Department to thoroughly consider legal and policy issues related to the Final Rule; to prevent confusion and uncertainty among the regulated community over the operative wage rates while the Department conducts its review; to allow agency officials adequate time to compute and validate prevailing wage data covering all occupations and geographic areas; to complete and thoroughly test modifications to the Office of Foreign Labor Certification OFLC Foreign Labor Application Gateway FLAG system; and to train staff and conduct sufficient public outreach to ensure an effective and orderly implementation should the initial transition wage rates become effective on July 1, 2021. 86 FR at 1515515156.
The 18-month NPRM also highlighted the Departments intent to publish a Request for Information RFI to allow the public the opportunity to provide the Department with information to further inform its assessment of prevailing wage levels. The Department issued this RFI on April 2, 2021, with a 60-day comment period that closes on June 1, 2021, to provide the public an opportunity to provide information on the sources of data and methodologies for determining prevailing wage levels.
86 FR 17343. The Department noted that information received in response to the RFI will inform and be considered by the Department as it reviews the Final Rule, which may result in the development of a future notice of proposed rulemaking to revise the computation of prevailing wage levels.
Id.
II. Basis for Proposed Delay of Effective and Transition Dates The Department proposed in the 18month NPRM to delay the effective date of May 14, 2021, and the transition date of July 1, 2021, under which adjustments to the new wage levels would begin, for a period of eighteen months, or until November 14, 2022 and January 1, 2023, respectively. In addition, the Department proposed corresponding one-year delays for each of the remaining transition dates, which
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would be revised to January 1, 2024, January 1, 2025, and January 1, 2026, respectively. As explained in the NPRM, the Department proposed this delay for three primary reasons.
First, the Department proposed this delay so that it has sufficient time to engage in its comprehensive review of the Final Rule, and to take further action as needed to complete this review.
Many comments on the 60-day NPRM
raised substantive and procedural concerns regarding the underlying rulemaking. The 18-month NPRM
explained that the concerns called into question the appropriateness of the wage rates established in the Final Rule, including the transition rates currently scheduled to take effect on July 1, 2021.
The 18-month NPRM also noted that many of these same concerns have been raised in the ongoing litigation concerning the IFR and the Final Rule.
Accordingly, the Department believed the proposed delay, in conjunction with additional actions such as the RFI that was issued on April 2, 2021, would best inform the Departments comprehensive review of the Final Rule and consideration of alternate paths. The NPRM noted that the Department considered allowing the rule to take effect pending its review and the assessment of potential new rulemaking.
However, because the concerns raised during the 60-day rulemaking and in litigation were substantial and called into question fundamental aspects of the rulemaking, the Department believed the fairest and most prudent approach was to propose a further delay of the rules effective and transition dates rather than allow the rule to take effect without seeking additional public input.
For example, the NPRM explained that, based on the Departments review to date, additional time was needed to comprehensively review the record relied upon to support the underlying rulemaking before it is allowed to take effect, including litigants claims that the Departments failure to publicly disclose certain data and analysis relied upon to establish the new wage levels will otherwise result in wages that, contrary to the Final Rules conclusions, do not accurately reflect the portion of the OES distribution where workers with levels of education, experience, and responsibility similar to the vast run of entry-level H1B and PERM
workers likely fall. 86 FR 15154, 15155
quoting 86 FR 3608, 3639.
Second, and relatedly, the Department preliminarily assessed that delaying the effective and transition dates as proposed in the NPRMinstead of allowing those dates to be implementedwould prevent confusion
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