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Federal Register / Vol. 86, No. 91 / Thursday, May 13, 2021 / Rules and Regulations EXHIBIT 3TOTAL TRANSFER PAYMENTS OF THE FINAL RULEContinued 2019 millions 2021
Final Rule transfer payments
Year
Shifted 2021
Final Rule transfer payments
Final Rule reduction of transfer payments
10-Year Total with a Discount Rate of 3%
10-Year Total with a Discount Rate of 7%

130,830
105,157

98,781
76,969

32,049
28,188

Annualized Undiscounted
Annualized at a Discount Rate of 3%
Annualized at a Discount Rate of 7%

15,573
15,337
14,972

12,025
11,580
10,959

3,548
3,757
4,013

B. Regulatory Flexibility Act The Regulatory Flexibility Act of 1980
RFA, 5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104121 March 29, 1996, requires Federal agencies engaged in rulemaking to consider the impact of their proposals on small entities, consider alternatives to minimize that impact, and solicit public comment on their analyses. The RFA requires the assessment of the impact of a regulation on a wide range of small entities, including small businesses, not-forprofit organizations, and small governmental jurisdictions. Agencies must perform a review to determine whether a proposed or final rule would have a significant economic impact on a substantial number of small entities. 5
U.S.C. 603, 604. If the determination is that it would, the agency must prepare a regulatory flexibility analysis as described in the RFA. Id.
However, if an agency determines that a proposed or final rule is not expected to have a significant economic impact on a substantial number of small entities, the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. See 5 U.S.C. 605. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.
The Department believes that this Final Rule will have a significant economic impact on a substantial number of small entities and is therefore publishing this Final Regulatory Flexibility Analysis as required.
1. Why the Department Is Considering Action The Department is delaying the effective date of the 2021 Final Rule for three primary reasons: 1 To allow the Department to have sufficient time to engage in its comprehensive review of the 2021 Final Rule; 2 to prevent confusion and uncertainty among the
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regulated community over the operative wage rates while the Department conducts its review; and 3 because BLS and OFLC will not have adequate time to compute and validate prevailing wage data covering all occupations and geographic areas, complete and thoroughly test modifications to the OFLC FLAG system, train staff, and conduct sufficient public outreach to ensure an effective and orderly implementation should the Final Rule go into effect.
2. Objectives of and Legal Basis for the Proposed Rule The Department is now delaying the effective date of May 14, 2021, and the transition date of July 1, 2021, under which adjustments to the new wage levels would begin, for a period of eighteen months, or until November 14, 2022 and January 1, 2023, respectively.
In addition, the Department is instituting corresponding one-year delays for each of the remaining transitions dates, which are revised to January 1, 2024, January 1, 2025, and January 1, 2026, respectively.
The Immigration and Nationality Act, as amended, assigns certain responsibilities to the Secretary of Labor Secretary relating to wages and working conditions of certain categories of employment-based immigrants and nonimmigrants. This Final Rule relates to the labor certifications that the Secretary issues for certain employment-based immigrants and to the LCAs that the Secretary certifies in connection with the temporary employment of foreign workers under the H1B, H1B1, and E3 visa classifications. See 8 U.S.C.
1101a15Eiii, 1101a15Hib, 1101a15Hib1, 1182a5, 1182n, 1182t1, 1184c.
3. The Agencys Response to Public Comments The Department did not receive public comments on the IRFA.

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4. Response to Comments From the Chief Council for Advocacy of the Small Business Administration The Department did not receive comments from the Chief Council for Advocacy of the Small Business Administration.
5. Number of Small Entities Affected by the Final Rule The Final Rule does not change the number of impacted small entities. A
summary of impacted small entities can be found in Exhibit 13 of the 2021 Final Rules RFA section.
6. Compliance Requirements of the Final Rule, Including Reporting and Recordkeeping The Final Rule does not have any reporting, recordkeeping, or other compliance requirements impacting small entities. The Department expects that the change will result in savings to employees represented by transfer payments from employees to employers due to the Final Rules delay in effective date.
7. Calculating the Impact of the Final Rule on Small Entities The small entity impacts are unchanged in magnitude from Exhibit 14 in the 2021 Final Rules RFA section.
However, under this Final Rule the small entity impacts represent wage savings to small businesses relative to the 2021 Final Rule because of the delayed transition period. The Department estimates that wage savings from the delayed transition will occur between 2021 and 2027 as presented in the E.O. 12866 section of the Final Rule.
The Department estimates that small entity savings as a proportion of total revenue will be equivalent in magnitude to the cost impacts as a proportion of total revenue estimated in Exhibit 15 in the 2021 Final Rules RFA section.
Therefore, the Department estimates that this Final Rule will have a significant economic impact on a substantial number of small entities.

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