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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 rules 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 DOLs 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 553d 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.
553d3. 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 Departments 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 Departments 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
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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 proposals to further amend ETAs regulations governing the prevailing wages for PERM, H1B, H
1B1, and E3 job opportunities as the comments raised thus far suggest that additional information and data may be useful in the Departments review. In addition, in light of the complexity of this issue, the Department is considering whether to propose a further delay of the final rules 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 Budgets 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 3f 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 Presidents 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
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rule is not a major rule, as defined by 5 U.S.C. 8042.
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 CPIU
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 CPIU: 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 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
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.
2 See 2 U.S.C. 6586.
3 See 2 U.S.C. 6587Aii.

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