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Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations
entities, the increase in cost to a small entity will range from 0.00000026
percent to 2.5 percent of that entitys FY
2020 revenue. Of the 312 small entities, 0 percent 0 small entities will experience a cost increase that is greater than 5 percent of revenues.
Extrapolating to the population of 19,319 small entities and assuming an economic impact significance threshold of 5 percent of annual revenues, DHS
estimates no small entities will be significantly affected by this final rule.
Based on this analysis, DHS does not believe that this final rule will have a significant economic impact on a substantial number of small entities that file H1B petitions.

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5. A Description of the Projected Reporting, Recordkeeping, and Other Compliance Requirements of the Final Rule, Including an Estimate of the Classes of Small Entities That Will Be Subject to the Requirement and the Types of Professional Skills Necessary for Preparation of the Report or Record As stated above in the preamble, this final rule will impose additional reporting, recordkeeping, or other compliance requirements on entities that could be small entities.
6. Description of the Steps the Agency Has Taken To Minimize the Significant Economic Impact on Small Entities Consistent With the Stated Objectives of the Applicable Statues, Including a Statement of Factual, Policy, and Legal Reasons for Selecting the Alternative Adopted in the Final Rule and Why Each One of the Other Significant Alternatives to the Rule Considered by the Agency Which Affect the Impact on Small Entities Was Rejected DHS requested comments on, including potential alternatives to, the proposed ranking and selection of registrations based on the OES
prevailing wage level that corresponds to the requirements of the proffered position in situations where there is no current OES prevailing wage information. In the RFA context, DHS
sought comments on alternatives that would accomplish the objectives of the proposed rule without unduly burdening small entities. DHS also welcomed any public comments or data on the number of small entities that would be petitioning for an H1B
employee and any direct impacts on those small entities.
Comment: Some commenters said that DHS should consider ranking by years of experience, rather than by wage. One commenter asked DHS to give an advantage to candidates who have work experience in the United States.

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Response: DHS declines to adopt these alternatives, as ranking and selection by years of experience would not best accomplish the goal of attracting the best and brightest workers.
DHS believes that the salary, relative to others in the same occupational classification and area of intended employment, rather than years of experience, is generally more indicative of skill level and relative value/
productivity of the worker to the United States. See section 3.3 Requests for comments on alternatives for additional suggested alternatives.
C. Congressional Review Act The Office of Information and Regulatory Affairs has determined that this final rule is a major rule, as defined in 5 U.S.C. 804, also known as the Congressional Review Act CRA, as enacted in section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104
121, sec. 251, 110 Stat. 868, 873, and codified at 5 U.S.C. 801 et seq.
Therefore, the rule requires at least a 60day delayed effective date. DHS has complied with the CRAs reporting requirements and has sent this final rule to Congress and to the Comptroller General as required by 5 U.S.C.
801a1.
D. Unfunded Mandates Reform Act of 1995
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 the 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.
Based on the Consumer Price Index for All Urban Consumers CPIU, the value equivalent of $100 million in 1995
adjusted for inflation to 2019 levels is approximately $168 million.208
208 See U.S. Department of Labor, Bureau of Labor Statistics, Historical Consumer Price Index for All Urban Consumers CPIU: U.S. city average, all items, by month, https www.bls.gov/cpi/tables/
supplemental-files/historical-cpi-u-202003.pdf last visited Sept. 2, 2020.
Calculation of inflation: 1 Calculate the average monthly CPIU for the reference year 1995 and the current year 2019; 2 Subtract reference year CPI
U from current year CPIU; 3 Divide the difference of the reference year CPIU and current year CPI
U by the reference year CPIU; 4 Multiply by 100
= Average monthly CPIU for 2019Average monthly CPIU for 1995/Average monthly CPIU

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This rule does not contain a Federal mandate as defined in UMRA that may result in $100 million or more expenditures adjusted annually for inflation$168 million in 2019 dollars in any one year by State, local and tribal governments or the private sector. This rule also does not uniquely affect small governments. Accordingly, Title II of UMRA requires no further agency action or analysis.
E. Executive Order 13132 Federalism This final rule will 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 Executive Order 13132, DHS has determined that this final rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.
F. Executive Order 12988 Civil Justice Reform This final rule meets the applicable standards set forth in sections 3a and 3b2 of Executive Order 12988.
G. 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.
H. National Environmental Policy Act NEPA
DHS analyzes actions to determine whether the National Environmental Policy Act, Public Law 91190, 42
U.S.C. 4321 through 4347 NEPA, applies to them and, if so, what degree of analysis is required. DHS Directive 02301 Rev. 01 Directive and Instruction Manual 0230100101 Rev.
01, Implementation of the National Environmental Policy Act Instruction Manual establish the policies and procedures that DHS and its for 1995 100 = 255.657152.383/152.383
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.

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