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Federal Register / Vol. 86, No. 91 / Thursday, May 13, 2021 / Rules and Regulations the fairest and most prudent approach is to delay this rule.
C. Out of Scope Comments The Departments 18-month NPRM
invited comments related to the Departments proposal to delay the effective and transition dates of the Final Rule. Comments received that are unrelated to the Departments proposal are beyond the scope of this action and have not been considered in the Departments assessment of its proposed 18-month delay.
Numerous comments were beyond the scope of this action. Many of the comments were too general to determine the nature of the comment. Other commenters expressed satisfaction or dissatisfaction with aspects of the Departments Final Rule or the rules methodology without addressing the proposed delay. Several commenters expressed concerns with the H1B
lottery, concerns with the immigration system as a whole, and expressed personal sentiments on immigration or particular visa circumstances and potential prospective employment that were beyond the scope of this rulemaking. Many comments appeared to be addressing a rule which had been proposed by U.S. Citizenship and Immigration Services USCIS, but the comments were unclear.
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 impracticable and cause unnecessary confusion over the applicable prevailing wage methodology. In particular, 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 May 14, 2021, before the delay finalized in this rulemaking would begin. As such, a 30-day period would undermine the purpose for which this rule is being promulgated and result in confusion and uncertainty for the regulated community should the Final Rule go into effect only for the rules effective and transition dates to change a few weeks later.
This confusion could lead to harm and hardship to the regulated
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community, including to employers, U.S. workers, and foreign beneficiaries, who, if unclear on the operative prevailing wage methodology due to the inclusion of a 30-day period, may expend costs or resources they otherwise would not spend. A
professional association, for example, encouraged the Department to finalize the delay as soon as possible given the current initial transition date of July 1, 2021, in order to provide certainty to companies, who need sufficient time to plan and ensure compliance with applicable requirements of the PERM, H1B, H1B1, and E3 programs. An academic institution indicated the adoption of the proposed delay, rather than allowing the rule to go into effect, will prevent confusion and uncertainty among the regulated community over the operative wage rates, suggesting that allowing the Final Rule to take effect for only a month would cause unnecessary confusion and uncertainty.
Other commenters highlighted the adverse effects that employers and workers could experience from immediate implementation of the Final Rule, including the termination of workers, significant business disruptions, and the potential bankruptcy of small businesses, which further support a finding of good cause.
Moreover, this rulemaking institutes a delay of the Final Rule, rather than itself imposing any new compliance obligations on employers. Therefore, the Department finds that a lapse between publication and the effective date of this rule delaying the Final Rules effective and transition dates is unnecessary. To eliminate any possible uncertainty about the applicable prevailing wage methodology, especially given the substantive concerns that have been raised by litigants and commenters regarding the appropriateness of the prevailing wage levels in the Final Rule as well as the Departments identification of potential issues surrounding the rulemaking record and conclusions therein, and due to unavoidable limitations of time related to the Final Rules current effective date of May 14, 2021, the Department finds it has good cause to make this rule effective immediately upon publication.
E. Conclusion Numerous comments raised substantive and procedural concerns related to the Departments publication of the Final Rule, the methodology or computations contained within the rule, and the harm that immediate implementation of the rule could cause the regulated community and the U.S.
economy. The Department
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acknowledges these public comments as well as concerns that have been raised by commenters to the 60-day rulemaking and in pending litigation challenging the Departments Final Rule. While the Department recognizes that the additional delay is significant, based on its ongoing review and the concerns described above, it is clear that a substantial amount of time is necessary to consider all aspects of this rulemaking, including the underlying methodology employed and relevant studies and data. Given the complexity of the regulation, the serious concerns that have been raised, and the potential harm that would result from immediate implementation of the Final Rule, the Department believes a delay to allow the agency sufficient time to evaluate the rule, instead of permitting the rule to take effect while the Department conducts its review, is the more prudent path. This delay will in turn provide the Department time to review sources and data received on its recently-issued RFI
that could inform further action on the rule and/or the development of a future rulemaking to revise the computation of prevailing wage levels in a manner that more effectively ensures the employment of certain immigrant and nonimmigrant workers does not adversely affect the wages of U.S.
workers similarly employed. Finally, the delay will afford BLS and OFLC
adequate time to appropriately implement changes to the prevailing wage structure should the Department ultimately implement the Final Rule as published in the Federal Register on January 14, 2021.
IV. Statutory and Regulatory Requirements A. Executive Orders 12866 Regulatory Planning and Review and Executive Order 13563 Improving Regulation and Regulatory Review Under 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
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