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Federal Register / Vol. 86, No. 236 / Monday, December 13, 2021 / Rules and Regulations
immediate effective date, bypassing prepromulgation notice and comment, but requesting public input during a postpromulgation 30-day public comment period. Four groups of plaintiffs separately challenged the Departments IFR and, on December 1, 3, and 14, 2020, respectively, the IFR was set aside or enjoined by three district courts on procedural grounds.2 Subsequently, on January 14, 2021, the Department published a Final Rule 3 in the Federal Register Final Rule or January 2021
Final Rule, which adopted changes to the IFR. Although the Final Rule contained an effective date of March 15, 2021, the Department also included two sets of transition periods under which adjustments to the new wage levels would not begin until July 1, 2021. The Department twice delayed the effective date of the Final Rule,4 and, on June 23, 2021, before the Final Rule took effect, the U.S. District Court for the Northern District of California entered an order vacating and remanding the Final Rule.5
In light of the courts order, the Department has already announced that the operative version of the Code of Federal Regulations CFR at 20 CFR
656.40 and 20 CFR 655.731 continues to be the text in place on October 7, 2020, prior to the publication of the IFR.6
However, changes to the regulatory text resulting from the now-vacated rulemaking are still reflected in the CFR
at 20 CFR parts 655 and 656.
This rule removes from the CFR the regulatory text that the Department promulgated through the rulemaking in October 2020, and restores the regulatory text to appear as it did before the IFRs effective date.
The Department is not required to provide notice and comment or delay the effective date of this rule, because the changes made simply implement the courts orders, including the vacatur of the January 2021 Final Rule, and restore the regulatory text so that it correctly reflects the operative regulatory text in place prior to publication of the nowvacated rulemaking. Moreover, good

2 Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, 86 FR 3608, 3612 Jan.
14, 2021 discussing cases.
3 86 FR 3608.
4 86 FR 13995 Mar. 12, 2021; 86 FR 26164 May 13, 2021.
5 See Order Granting Defendants Motion for Voluntary Remand with Vacatur, Chamber of Commerce, et al. v. Dept of Homeland Sec., et al., No. 20cv07331 N.D. Cal. June 23, 2021, ECF No.
139.
6 Announcements, OFLC Announces Updates to Implementation of the Final Rule Affecting Wages for H1B and PERM Workers; District Courts Order Vacating Final Rule June 29, 2021, available at https www.dol.gov/agencies/eta/foreign-labor/
news.

Authority: Section 655.0 issued under 8
U.S.C. 1101a15Eiii, 1101a15Hi and ii, 8 U.S.C. 1103a6, 1182m, n, and t, 1184c, g, and j, 1188, and 1288c and d; sec. 3c1, Pub. L. 101238, 103 Stat.
2099, 2102 8 U.S.C. 1182 note; sec. 221a, Pub. L. 101649, 104 Stat. 4978, 5027 8
U.S.C. 1184 note; sec. 303a8, Pub. L. 102
232, 105 Stat. 1733, 1748 8 U.S.C. 1101
note; sec. 323c, Pub. L. 103206, 107 Stat.
2428; sec. 412e, Pub. L. 105277, 112 Stat.
2681 8 U.S.C. 1182 note; sec. 2d, Pub. L.
10695, 113 Stat. 1312, 1316 8 U.S.C. 1182
note; 29 U.S.C. 49k; Pub. L. 107296, 116
Stat. 2135, as amended; Pub. L. 109423, 120
Stat. 2900; 8 CFR 214.2h4i; 8 CFR

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cause exists here for bypassing any otherwise applicable requirements of notice and comment and a delayed effective date. Notice and comment and a delayed effective date are unnecessary for the implementation of the courts order vacating the rule and would be contrary to public interest in light of the agencys need to implement the final judgment. See 5 U.S.C. 533bB, d.
The Department believes that delaying the ministerial act of restoring the regulatory text in the Federal Register is contrary to the public interest because it could lead to confusion, particularly among the regulated public, as to the applicable prevailing wage methodology. The Department has concluded that each of those three reasonsthat notice and comment and a delayed effective date are unnecessary, impracticable, and contrary to the public interestindependently provides good cause to bypass any otherwise applicable requirements of notice and comment and a delayed effective date.
List of Subjects Administrative practice and procedure, Australia, Chile, Employment, Employment and training, Immigration, Labor, Migrant labor, Wages.
20 CFR Part 656
Administrative practice and procedure, Employment, Foreign workers, Labor, Wages.
Department of Labor Accordingly, for the reasons stated in the preamble, the Department of Labor amends parts 655 and 656 of chapter V, title 20, Code of Federal Regulations, as follows:
PART 655TEMPORARY
EMPLOYMENT OF FOREIGN
WORKERS IN THE UNITED STATES
1. The authority citation for part 655
is revised to read as follows:

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Fmt 4700

2. Amend 655.731 by revising paragraphs a2ii introductory text, a2iiA introductory text, and a2iiA2 to read as follows:

655.731 What is the first LCA
requirement, regarding wages?

20 CFR Part 655

PO 00000

214.2h6iii; and sec. 6, Pub. L. 115218, 132 Stat. 1547 48 U.S.C. 1806.
Subpart A issued under 8 CFR 214.2h.
Subpart B issued under 8 U.S.C.
1101a15Hiia, 1184c, and 1188; and 8
CFR 214.2h.
Subpart E issued under 48 U.S.C. 1806.
Subparts F and G issued under 8 U.S.C.
1288c and d; sec. 323c, Pub. L. 103206, 107 Stat. 2428; and 28 U.S.C. 2461 note, Pub.
L. 11474 at section 701.
Subparts H and I issued under 8 U.S.C.
1101a15Hib and b1, 1182n, and t, and 1184g and j; sec. 303a8, Pub. L.
102232, 105 Stat. 1733, 1748 8 U.S.C. 1101
note; sec. 412e, Pub. L. 105277, 112 Stat.
2681; 8 CFR 214.2h; and 28 U.S.C. 2461
note, Pub. L. 11474 at section 701.
Subparts L and M issued under 8 U.S.C.
1101a15Hic and 1182m; sec. 2d, Pub. L. 10695, 113 Stat. 1312, 1316 8 U.S.C.
1182 note; Pub. L. 109423, 120 Stat. 2900;
and 8 CFR 214.2h.

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a
2
ii If the job opportunity is in an occupation which is not covered by paragraph a2i of this section, the prevailing wage shall be the arithmetic mean of the wages of workers similarly employed, except that the prevailing wage shall be the median when provided by paragraphs a2iiA, b3iiiB2, and b3iiiC2 of this section. The prevailing wage rate shall be based on the best information available. The following prevailing wage sources may be used:
A OFLC National Processing Center NPC determination. Prior to January 1, 2010, the SWA having jurisdiction over the area of intended employment shall continue to receive and process prevailing wage determination requests, but shall do so in accordance with these regulatory provisions and Department guidance. On or after January 1, 2010, the NPC shall receive and process prevailing wage determination requests in accordance with these regulations and with Department guidance. Upon receipt of a written request for a PWD
on or after January 1, 2010, the NPC will determine whether the occupation is covered by a collective bargaining agreement which was negotiated at arms length, and, if not, determine the arithmetic mean of wages of workers similarly employed in the area of intended employment. The wage component of the Bureau of Labor Statistics Occupational Employment Statistics survey shall be used to
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