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Federal Register / Vol. 86, No. 91 / Thursday, May 13, 2021 / Rules and Regulations wage levels were too drastic, and others suggesting that the current prevailing wage level methodology is sufficient because it provides for yearly wage increases in most instances.
Commenters observed that the rule imposes significant impacts on workers, businesses, and the economy, such that the data cited in support of the rule needs careful evaluation and verification.
Based on concerns that the data used in the rule was flawed or inaccurate, commenters argued that the proposed delay would afford the Department time to scientific ally review the rules prevailing wage methodology and determine more appropriate prevailing wage levels. A commenter, for example, urged the Department to address substantive concerns with the methodology in the Final Rule before implementing any changes to the prevailing wage requirements.
According to the commenter, the methodology in the Final Rule is inconsistent with the INA, as the rule set the Level 1 entry level wage using the comparator of an individual with a masters degree with no work experience even though this standard exceeds the requirements for an H1B
specialty occupation visa. Other commenters noted substantive concerns with the Final Rule, including that key provisions in the rule are at odds with the INA, the prevailing wage levels were set in an irrational manner and based on cherry-picked studies, the agency did not fully consider factors such as noncompensatory income separate from a base salary, and that sources of authority cited in the rule, such as Executive Order E.O. 13788 Buy American and Hire American and a U.S. Citizenship and Immigration Services policy memorandum on H1B
computer related positions have since been revoked or rescinded. Numerous commenters pointed to the Departments recent RFI 86 FR 17343
and requested the Department reconsider the data and sources used in the Final Rule in light of sources obtained through the RFI or other available sources of data.
Several commenters also supported the proposed delay because it would provide the Department with an opportunity to review the procedural irregularities associated with the underlying rule, including those identified in ongoing litigation. These commenters raised two main procedural concerns with the rule, namely that the Department did not provide the public with proper notice and a meaningful opportunity to comment, and failed to disclose relevant data and analysis to
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permit informed comments from the public. One of these commenters asserted the Final Rule violated the Administrative Procedure Acts APA
notice and comment requirements while another commenter cited a Federal appellate case for the proposition that where the agency has used data as part of its rationale for major policy issues, the data must be disclosed. Several commenters urged the Department to consider making more of the underlying data used to compute the wage levels in the Final Rule available for public review. A commenter supported the delay to allow the agency time to review the rule and determine it is unjustified, ignores labor market realities, and would harm the countrys economic recovery. The commenter explained that should the agency not make this determination, the proposed delay is needed for courts to render final decisions in related litigation.
The Department acknowledges the suggestion of commenters that the Department adopt its proposed delay of the Final Rules effective and transition dates to review all aspects of the underlying rulemaking, including those related to the methodology in the Final Rule, the procedures used to promulgate the rule, and the agencys need and alleged failure to disclose the data or studies it relied upon during the rulemaking. These serious concerns with the substance of the Final Rule and the process through which it was promulgated support the proposal to delay the Final Rule in order to allow the agency to continue its comprehensive review of the rule, evaluate the information it receives from the RFI, and take additional action as necessary, which may include the development of a future notice of proposed rulemaking and/or the receipt of final decisions in the related litigation.
The Departments ongoing review underscores the need to further review and assess the Final Rule in light of the assertions and concerns raised by these commenters, including the concern raised by litigants, and echoed by the commenters to this rulemaking, that the agency failed to make available portions of the technical basis for the IFR and Final Rule in time to allow them to provide meaningful comments. For example, the litigants specifically allege that the Final Rules adjustments to the IFR stem from undisclosed data and analyses that DOL failed to place on the public rulemaking docket. First Amended Complaint at 94, ITServe Alliance, Inc., et al. v. Walsh, et al., No.
20cv14604 D.D.C. Apr. 7, 2021; see also First Amended Complaint at 147,
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Purdue University, et al. v. Walsh, et al., No. 20cv3006 D.D.C. Feb. 19, 2021
The agency also failed to provide the public with advance notice of the technical studies and data underlying its decision, including the data from the National Science Foundation, and, the methodology and technical studies it did reveal, prevented the public with a meaningful opportunity to comment and adequately engage in the rulemaking process.. While continuing its review of the Final Rule and responding to the related litigation, the Department recently certified the contents of the rulemaking record to the plaintiffs in pending litigation challenging the Final Rule. Notice of Filing of Certified List of Contents of the Administrative Record, Stellar IT, et al.
v. Walsh, et al., No. 20cv3175 D.D.C.
Apr. 12, 2021; Notice of Filing of Certified List of Contents of the Administrative Record, Purdue University, et al. v. Walsh, et al., No.
20cv3006 D.D.C. Apr. 12, 2021. In doing so, the Department has identified potential issues surrounding the rulemaking record, which has necessitated the parties entering into a protective order in order to make portions of the record relied upon by agency decision makers available to these litigants. See, e.g., Defendants Unopposed Motion for Protective Order, Stellar IT, et al. v. Walsh, et al., No. 20
cv3175 D.D.C. Apr. 19, 2021.
Although the Department considered allowing the Final Rule to take effect pending its review and consideration of additional action, the issues raised above strongly caution in favor of finalizing the proposed delay as they call into question fundamental aspects of the Final Ruleincluding the process by which the rule was promulgated and whether the prevailing wage levels in the rule appropriately reflect the wages of workers in the United States similarly employed. The Department believes the fairest and most prudent approach is to delay the effective date of the rule, otherwise the Department runs the risk of allowing a potentially procedurally and substantively flawed rule to take effect, which would unfairly affect the regulated community given the potential harm that immediate implementation of the rule would impart. The Department believes this delay, along with the recently-issued RFI, will best inform the Departments comprehensive review of the Final Rule and allow it to meaningfully consider all available options.

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