Quiero saber acerca de...

26170

Federal Register / Vol. 86, No. 91 / Thursday, May 13, 2021 / Rules and Regulations
5. Further Delaying, Postponing, or Rescinding the Rule Numerous commenters stated they supported the delay of 18 months and suggested they would support an even longer delay, though they did not specify how much longer or why. One commenter expressed disagreement with the Final Rule, but requested, if the rule is retained, that it be postponed for a couple of years to permit more time for people to adjust. One commenter requested the rule be delayed for two additional fiscal years due to the ongoing COVID19 pandemic and associated negative economic effects. A
trade association suggested that the implementation of the rule be delayed until July 1, 2023, in the hopes that the Department would perform a comprehensive review of the Final Rule, decide to rescind the rule, and also, after evaluating prevailing wage evidence, issue a new rulemaking that meets APA requirements. However, it did not provide a clear explanation for why it recommended that specific date as opposed to another date. An academic institution asked the Department to postpone the effective date of the rule until July 1, 2023, after the academic recruitment season, to allow colleges and universities the opportunity to adjust business practices and budgets for what it called significant budgetary impacts.
The Department understands that the initial transition date of January 1, 2023
may be inconvenient for employers and institutions tied to an academic school year. However, academic institutions are not the only users of the labor certification programs and the Department cannot accommodate every industrys unique processes in its selection of an implementation date.
With regard to the trade associations comment, the Department notes it is unclear if the commenter is suggesting a delay of the effective date, or the first transition date, until July 1, 2023. While the Department appreciates the commenters suggestion to delay implementation of the rule until July 1, 2023 in order to align with annual prevailing wage update schedules, the Department has taken all factors into consideration, including the potential effect on businesses and workers wages and determined that a two-year delay is not needed at this time, even if it may align better with current annual wage level updates. The proposed 18-month delay is a significant length of time and the Department believes it is a sufficient period to engage in a comprehensive review of the underlying rule and allow the Department the needed time of
VerDate Sep<11>2014

16:06 May 12, 2021

Jkt 253001

approximately eight months to compute and validate prevailing wage data covering all occupations and geographic areas, complete and test modifications to the OFLC FLAG system, train staff, and conduct sufficient public outreach to ensure an orderly implementation should the Final Rule go into effect.
Many commenters including trade associations, academic institutions, and individual commenters also asked the Department to reconsider whether it moves forward with the Final Rule and requested the Department rescind, withdraw, terminate, or abandon the rule entirely. Other commenters suggested delaying or rescinding the rule because the rule is reflective of the immigration policies of the prior administration and not reflective of those of the current administration. Still other commenters gave varying reasons for rescinding the Final Rule, ranging from harm to potential foreign students and U.S. academic institutions, to U.S.
businesses who would not be able to pay the higher wages to entry-level foreign workers, to criticisms of how the underlying final rule was written, proposed, and finalized.
In addition to rescinding the underlying rule, some commenters encouraged the Department to take the necessary time to analyze the Final Rule and its data and engage in new rulemaking. For example, one individual commenter stated that the rule should be delayed and replaced with a proposal that does not harm workers, but filters out outsourcing companies. Several commenters also urged the Department to provide the public with notice and the opportunity to comment on any new rulemaking and data in accordance with APA
requirements.
The Department acknowledges the position espoused by many commenters that the underlying rule should be rescinded and/or replaced. The Department is currently conducting a comprehensive review of the Final Rule, which included the issuance of an RFI
soliciting public input to inform its review by June 1, 2021, 86 FR 17343, and the Department may take additional action as needed, such as potentially engaging in new rulemaking. Even if the Departments review were already complete, to effectuate these suggestions would have required allowing the Final Rule to take effect while the Department engaged in rulemaking to rescind or amend this rule, and would have resulted in confusion and uncertainty among the stakeholder community as well as potentially needless fluctuations in wages and unnecessary burdens imposed on workers and employers. To
PO 00000

Frm 00022

Fmt 4700

Sfmt 4700

avoid this, the Department proposed the 18-month delay so that it may fully reevaluate the Final Rule in terms of both the methodology used and the policy objectives and goals of this administration, receive information from the public through the recentlyissued RFI, and ultimately choose an appropriate path forward. Nonetheless, these comments and the vast majority of the commenters support for the NPRMs 18-month proposal reinforce the Departments position that the Final Rule should be delayed at this time and thoroughly reviewed based on the procedural and substantive concerns discussed above.
B. Comments Opposing a Delayed Effective Date and Transition Dates As explained above, an overwhelming majority of the commenters supported the Departments proposed delay and raised key issues including the Departments need to review the data and sources used in determining the prevailing wage levels in the Final Rule as well as the need to further assess the rules impact. However, a minority of commenters expressed opposition to the proposed delay, referencing concerns surrounding alleged abuse of the H1B
program and lottery, as well as support for raising wages for U.S. and foreign workers. Many individual commenters discussing the H1B program argued that abusive outsourcing companies hire foreign workers for less pay, thus taking job opportunities from qualified U.S.
workers. One individual commenter asserted that, under the current system, immigrants are indentured to employers that treat them unfairly and take advantage of them. An institutional commenter stated that H1B visa holders are at a disadvantage and limited in their ability to change jobs and negotiate better wages and benefits.
Commenters asserted that the underlying rule is key to fighting H1B
abuse and protecting U.S. workers. An anonymous commenter reasoned that immediate implementation of the Final Rule would protect workers from exploitation while still allowing the Department to improve the regulations in the future, such as by tailoring wages based on geography. Similarly, a policy organization said the Department should not forgo an immediate opportunity to improve wages, benefits, and job security. Many commenters also cited the pandemic as a reason to enact the rule now to protect the American workforce and assist with economic recovery.
Many individual commenters opposed the proposed delay and supported implementing policies that
E:FRFM13MYR1.SGM

13MYR1