Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Immigrants and Non-Immigrants in the United States; Delay of Effective Date
| Citation | 86 FR 13995 |
| Published date | 12 March 2021 |
| Record Number | 2021-05269 |
| Section | Rules and Regulations |
| Court | Employment And Training Administration |
13995
Federal Register / Vol. 86, No. 47 / Friday, March 12, 2021 / Rules and Regulations
Troy A. Miller, the Senior Official
Performing the Duties of the
Commissioner, having reviewed and
approved this document, is delegating
the authority to electronically sign this
document to Robert F. Altneu, who is
the Director of the Regulations and
Disclosure Law Division for CBP, for
purposes of publication in the Federal
Register.
Robert F. Altneu,
Director, Regulations & Disclosure Law
Division, Regulations & Rulings, Office of
Trade, U.S. Customs and Border Protection.
Approved: March 9, 2021.
Timothy E. Skud
Deputy Assistant Secretary of the Treasury.
[FR Doc. 2021–05173 Filed 3–10–21; 8:45 am]
BILLING CODE 9111–14–P
DEPARTMENT OF LABOR
Employment and Training
Administration
20 CFR Parts 655 and 656
[Docket No. ETA–2020–0006]
RIN 1205–AC00
Strengthening Wage Protections for
the Temporary and Permanent
Employment of Certain Immigrants and
Non-Immigrants in the United States;
Delay of Effective Date
AGENCY
: Employment and Training
Administration, Department of Labor.
ACTION
: Final rule; delay of effective
date.
SUMMARY
: On February 1, 2021, the
Department of Labor (DOL or
Department) proposed to delay the
effective date of the final rule entitled
‘‘Strengthening Wage Protections for the
Temporary and Permanent Employment
of Certain Aliens in the United States,’’
published in the Federal Register on
January 14, 2021, for a period of 60
days. The Department proposed to delay
the effective date of the final rule until
May 14, 2021, in accordance with the
Presidential directive as expressed in
the memorandum of January 20, 2021,
from the Assistant to the President and
Chief of Staff, entitled ‘‘Regulatory
Freeze Pending Review.’’ As stated in
the proposal, the 60-day delay would
allow agency officials the opportunity to
review any questions of fact, law, or
policy. The Department invited written
comments from the public for 15 days
on the proposed delay of effective date.
All comments had to be received by
February 16, 2021. The Department
received 57 comments from the
stakeholder community. The
Department has reviewed the comments
received in response to the proposal and
will delay the effective date of the final
rule for a period of 60 days.
DATES
: As of March 12, 2021, the
effective date of the final rule published
on January 14, 2021, at 86 FR 3608, is
delayed until May 14, 2021.
FOR FURTHER INFORMATION CONTACT
:
Brian Pasternak, Administrator, Office
of Foreign Labor Certification,
Employment and Training
Administration, Department of Labor,
200 Constitution Avenue NW, Room N–
5311, Washington, DC 20210, telephone:
(202) 693–8200 (this is not a toll-free
number). Individuals with hearing or
speech impairments may access the
telephone numbers above via TTY/TDD
by calling the toll-free Federal
Information Relay Service at 1 (877)
889–5627.
SUPPLEMENTARY INFORMATION
:
I. Background and Basis for Proposed
Delay
On January 14, 2021, the Department
published a final rule in the Federal
Register, which adopted with changes
an Interim Final Rule (IFR) that
amended Employment and Training
Administration (ETA) regulations
governing the prevailing wages for
employment opportunities that United
States (U.S.) employers seek to fill with
foreign workers on a permanent or
temporary basis through certain
employment-based immigrant visas or
through H–1B, H–1B1, or E–3 non-
immigrant visas. Specifically, the IFR
amended the Department’s regulations
governing permanent (PERM) labor
certifications and Labor Condition
Applications (LCAs) to incorporate
changes to the computation of wage
levels under the Department’s four-
tiered wage structure based on the
Occupational Employment Statistics
(OES) wage survey administered by the
Bureau of Labor Statistics (BLS). 86 FR
3608. Although the final rule contained
an effective date of March 15, 2021, the
Department also included a delayed
implementation period under which
adjustments to the new wage levels will
not begin until July 1, 2021. 86 FR 3608,
3642. A general overview of the labor
certification and prevailing wage
process as well as further background
on the rulemaking is available in the
Department’s final rule, as published in
the Federal Register on January 14,
2021, and will not be restated herein.
On February 1, 2021, the Department
published a notice in the Federal
Register proposing to delay the effective
date of the final rule for 60 days from
March 15, 2021, until May 14, 2021. The
Department based this action on the
Presidential directive as expressed in
the memorandum of January 20, 2021,
from the Assistant to the President and
Chief of Staff, entitled ‘‘Regulatory
Freeze Pending Review.’’ The
memorandum directs agencies to
consider delaying the effective date for
regulations for the purpose of reviewing
questions of fact, law, and policy raised
therein. Accordingly, ETA proposed to
delay the effective date for the final rule
entitled ‘‘Strengthening Wage
Protections for the Temporary and
Permanent Employment of Certain
Aliens in the United States’’ to May 14,
2021, given the complexity of the
regulation.
II. Public Comments Received
The Department invited written
comment in its February 1, 2021 notice
on its proposal to delay the effective
date of the final rule, including the
proposed delay’s impact on any legal,
factual, or policy issues raised by the
underlying final rule and whether
further review of those issues warrants
such a delay. The Department further
stated that all other comments on the
underlying final rule would be
considered to be outside the scope of
this rulemaking. The February 1, 2021
notice provided a 15-day comment
period on the proposed delay, with
comments to be submitted electronically
at http://www.regulations.gov/ using
docket number ETA–2020–0006.
ETA received 57 unique comments on
its proposal to delay the effective date
by 60 days to May 14, 2021. Of the 57
comments, 36 were reviewed and
determined out of scope either because
they were comments exclusively on the
final rule and did not address the
proposed delay, concerned another
agency’s rule, or were general
statements. The remaining 21 comments
were reviewed and determined within
the scope of the request for comments.
Of these, 17 commenters supported the
delay. Four commenters opposed the
delay based on their overall support of
the final rule.
A. Comments Supporting a Delayed
Effective Date
Seventeen commenters supported the
proposed delay of the effective date of
the final rule, citing disapproval of the
final rule overall, concerns that the
process in adopting the final rule was
rushed, fears that the wage data
supporting the final rule was inaccurate,
and the need to more thoroughly review
the final rule. One commenter stated it
is in favor of the proposed delay of
effective date and provided a policy
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13996
Federal Register / Vol. 86, No. 47 / Friday, March 12, 2021 / Rules and Regulations
report to assist the agency in evaluating
the ‘‘proposed delay’s impact on any
legal, factual, or policy issues raised by
the underlying rule.’’ Several
commenters expressed strong support of
the Department’s proposal, and a few
commenters encouraged the agency to
conduct a full legal review and
‘‘consider and meaningfully respond’’ to
the issues raised in the IFR comments
before implementing any changes to
wage requirements.
The Department received two
comments stating the delay of effective
date is needed because the final rule is
not reflective of the policy objectives of
the Biden Administration. The two
commenters, a trade organization and a
trade association, supported the
proposed effective date delay, reasoning
that, consistent with the Biden
Administration’s ‘‘Regulatory Freeze
Pending Review’’ memorandum, it
would provide time to evaluate
questions of fact, law, and policy raised
in the final rule. One of the commenters
argued that events and developments
that have occurred since the Department
published the final rule on January 14,
2021, should be reviewed as relevant
questions of fact, law, and policy. Two
universities supported the effective date
delay stating the delay will give the
Department more time to evaluate
policy and substantive issues of the
final rule, including determining the
needs of the U.S. economy in light of
the current context of the pandemic and
the Biden Administration’s priorities.
Two trade associations supported
postponing implementation of the final
rule, with one association stating this
delay would allow for proper
stakeholder input while maintaining the
status quo for employers.
In addition, the Department received
five comments stating the proposed
delay is needed for the Department to
address legal concerns raised by
stakeholders and litigants in litigation
related to the IFR and final rule. For
example, a professional association
asserted the final rule violated the
Administrative Procedure Act’s (APA)
notice-and-comment requirements and
argued that the final rule must be
delayed in order to provide a proper
notice-and-comment period. Another
professional association and a trade
association argued, for instance, that the
final rule did not address concerns they
raised in prior comments on the IFR and
supported delaying the final rule’s
effective date and compliance dates to
allow time for review and
reconsideration of the final rule’s ‘‘legal
and policy shortcomings’’ and issues
raised by the stakeholder community.
The Department also received three
comments supporting a delay of the
effective date to allow the agency an
opportunity to review decisions issued
by multiple courts in litigation related
to the rulemaking. For example, a trade
association explained the proposed 60-
day delay will enable the agency to
review the final rule and determine it is
‘‘unjustified, ignores labor market
realities, and would harm the country’s
economic recovery.’’ The commenter
stated in the event the Department does
not make such a determination, the
delay is needed for courts to render final
decisions in related litigation.
Several comments supported the
proposed delay on the basis that the
additional time will allow the
Department to review more thoroughly
the final rule and its financial
implications for affected industries,
including businesses and institutions of
higher education, and its impact on the
economy. One commenter in this
category urged the agency to begin
rulemaking to withdraw the final rule.
Lastly, a few comments requested the
Department consider further delay of
the effective date and/or the compliance
dates of the final rule. For example, a
trade association stated that given the
profound changes in the Department’s
final rule, a May 14, 2021 effective date
is unlikely to avoid significant
operational disruptions for many
businesses that rely upon various
immigrant and non-immigrant workers.
Other comments requested the
Department delay the July 1, 2021
transition period to afford the regulated
community adequate time to adopt
necessary changes and to allow the
agency enough time to properly
implement forms and electronic filing
system changes, as needed.
The Department appreciates the
comments received. After carefully
reviewing the comments, the
Department acknowledges the
substantive concerns raised by these
commenters, including concerns
regarding the Department’s
methodology in the final rule and notice
and comment procedures related to the
rulemaking, and the commenters’
suggestion that the Department should
delay the effective date of this rule to
review the rulemaking. Given these
concerns, the complexity of the
regulation, and the issues raised in the
litigation challenging the rulemaking,
the Department has determined that a
60-day delay of the effective date is
needed to provide the Department time
to continue its review of the final rule,
including evaluating the concerns raised
by the commenters and taking
additional action as necessary.
B. Comments Opposing a Delayed
Effective Date
The Department received four
comments that directly addressed and
subsequently opposed the proposed
delay of the effective date of the final
rule. Four commenters stated they
generally support the substance of the
final rule, and reiterated reasons why
the final rule should be implemented.
One of the commenters stated it believes
the reforms to the Department’s wage
levels are long overdue and a delay
would prevent protections for workers
being implemented and reduce job
opportunities and wages. It noted that
the current wage methodology is in
conflict with the INA and further
explained that, while it generally
supported the final rule as a step in the
right direction, the final rule still
conflicts with the INA. A commenter
opposed the delay because it supports
the methodology used in the final rule
and believes a delay could cause
uncertainty in hiring processes as well
as reduce the amount of time employers
have to prepare for compliance. This
commenter further stated that the
current methodology is on ‘‘shaky legal
ground.’’
The Department appreciates the
comments provided. In response to
comments concerning the impact of the
Department’s proposed delay of
effective date of the final rule on U.S.
workers, the delay of the effective date
should not reduce any potential benefits
to, or otherwise harm, qualified
American or H–1B workers. Under the
final rule, the new methodology and
attendant changes to the wage level
computations will not begin to be
implemented until July 1, 2021; before
July 1, the current wage methodology
remains the same. Rather, as noted in
the proposal and above, delaying the
effective date for 60 days would provide
the Department an opportunity to
review questions of fact, law, and policy
raised by the final rule. As noted above,
one commenter stated the final rule was
a step in the right direction but
nonetheless ‘‘continues to conflict’’ with
the INA, providing an example as to
why review at this stage is crucial. The
60-day delay announced in this final
rule provides the Department time to
begin a meaningful review without
affecting workers. Finally, the
Department may need to propose a
further delay of the effective date and
accompanying implementation periods
due to the complexity of the final rule,
as discussed in the Conclusion below,
and aims to provide clarity and
sufficient time for employers to comply
with the regulations.
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Federal Register / Vol. 86, No. 47 / Friday, March 12, 2021 / Rules and Regulations
1
See U.S. Bureau of Labor Statistics, Historical
Consumer Price Index for All Urban Consumers
(CPI–U): 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 CPI–U for the reference year (1995) and the
current year (2019); (2) Subtract reference year CPI–
U from current year CPI–U; (3) Divide the difference
of the reference year CPI–U and current year CPI–
U by the reference year CPI–U; (4) Multiply by 100
= [(Average monthly CPI–U for 2019¥Average
monthly CPI–U for 1995)/(Average monthly CPI–U
for 1995)] * 100 = [(255.657¥152.383)/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. 658(6).
3
See 2 U.S.C. 658(7)(A)(ii).
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 rule’s
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 DOL’s 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 553(d) 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.
553(d)(3). 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 30-
day 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 Department’s 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
Department’s 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
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 proposal(s) to further
amend ETA’s regulations governing the
prevailing wages for PERM, H–1B, H–
1B1, and E–3 job opportunities as the
comments raised thus far suggest that
additional information and data may be
useful in the Department’s review. In
addition, in light of the complexity of
this issue, the Department is
considering whether to propose a
further delay of the final rule’s 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 Budget’s
(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 3(f) 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 President’s 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
rule is not a ‘‘major rule,’’ as defined by
5 U.S.C. 804(2).
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 inflation-
adjusted value equivalent of $100
million in 1995 adjusted for inflation to
2019 levels by the Consumer Price
Index for All Urban Consumers (CPI–U)
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
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Regulatory Enforcement Fairness Act of
1996, Public Law 104–121, 110 Stat.
847, 868, et seq.
D. Executive Order 13132 (Federalism)
This final rule would not have
substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. Therefore, in
accordance with section 6 of E.O. 13132,
it is determined that this final rule does
not have sufficient federalism
implications to warrant the preparation
of a federalism summary impact
statement.
E. Executive Order 12988 (Civil Justice
Reform)
This final rule meets the applicable
standards set forth in sections 3(a) and
3(b)(2) of E.O. 12988.
F. Regulatory Flexibility Executive Order
13175 (Consultation and Coordination
With Indian Tribal Governments)
This final rule does not have ‘‘tribal
implications’’ because it does not have
substantial direct effects on one or more
Indian tribes, on the relationship
between the Federal Government and
Indian tribes, or on the distribution of
power and responsibilities between the
Federal Government and Indian tribes.
Accordingly, E.O. 13175, Consultation
and Coordination with Indian Tribal
Governments, requires no further
agency action or analysis.
G. Paperwork Reduction Act
The Paperwork Reduction Act of 1995
(PRA), 44 U.S.C. 3501, et seq., and its
attendant regulations, 5 CFR part 1320,
require the Department to consider the
agency’s need for its information
collections and their practical utility,
the impact of paperwork and other
information collection burdens imposed
on the public, and how to minimize
those burdens. This final rule does not
require a collection of information
subject to approval by OMB under the
PRA, or affect any existing collections of
information.
Suzan G. LeVine,
Principal Deputy Assistant Secretary for
Employment and Training, Labor.
[FR Doc. 2021–05269 Filed 3–11–21; 8:45 am]
BILLING CODE 4510–FP–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 100
[Docket No. USCG–2021–0118]
RIN 1625–AA08
Special Local Regulation; Bay
Guardian Exercise, Treasure Island,
San Francisco, CA
AGENCY
: Coast Guard, DHS.
ACTION
: Temporary final rule.
SUMMARY
: The Coast Guard is
establishing a temporary special local
regulation (SLR) in the navigable waters
of the San Francisco Bay, near Treasure
Island, San Francisco, CA in support of
the Bay Guardian 2021 exercise. This
special local regulation will temporarily
restrict vessel traffic in the vicinity of
Treasure Island and prohibit vessels and
persons not participating in the exercise
from entering the regulated area. The
purpose of the exercise it to use
radioactive detection equipment in a
mock scenario. The exercise will be
interrupted, as necessary, to permit the
passage of commercial vessel traffic.
Exercise participants and non-
participants operating within the SLR
area shall comply with all instructions
given by the on-scene Patrol
Commander monitoring the event. This
regulation is necessary to provide safety
of life on the navigable waters during
the exercise, which will be held on
March 17, 2021.
DATES
: This rule is effective from 8 a.m.
to 6 p.m. on March 17, 2021.
ADDRESSES
: To view documents
mentioned in this preamble as being
available in the docket, go to https://
www.regulations.gov, type USCG–2021–
0118 in the ‘‘SEARCH’’ box and click
‘‘SEARCH.’’ Click on Open Docket
Folder on the line associated with this
rule.
FOR FURTHER INFORMATION CONTACT
: If
you have questions on this rule, call or
email Lieutenant Anthony Solares,
Waterways Management, U.S. Coast
Guard; telephone (415) 399–7443, email
SFWaterways@uscg.mil.
SUPPLEMENTARY INFORMATION
:
I. Table of Abbreviations
CFR Code of Federal Regulations
COTP Captain of the Port San Francisco
DHS Department of Homeland Security
§ Section
U.S.C. United States Code
II. Background Information and
Regulatory History
The Coast Guard is issuing this
temporary rule without prior notice and
opportunity to comment pursuant to
authority under section 4(a) of the
Administrative Procedure Act (APA) (5
U.S.C. 553(b)). This provision
authorizes an agency to issue a rule
without prior notice and opportunity to
comment when the agency for good
cause finds that those procedures are
‘‘impracticable, unnecessary, or contrary
to the public interest.’’ Under 5 U.S.C.
553(b)(B), the Coast Guard finds that
good cause exists for not publishing a
notice of proposed rulemaking (NPRM)
with respect to this rule because it is
impracticable. The Coast Guard did not
receive final details for this event until
February 22, 2021. The Coast Guard
must establish this safety zone by March
17, 2021 and lacks sufficient time to
provide a reasonable comment period
and consider those comments before
issuing the rule.
Under 5 U.S.C. 553(d)(3), the Coast
Guard finds that good cause exists for
making this rule effective less than 30
days after publication in the Federal
Register. Delaying the effective date of
this rule would be contrary to public
interest because this regulation is
needed on March 17, 2021, less than 30
days after the Coast Guard received the
final details of the event, in order to
keep vessels away from the immediate
vicinity of the exercise to ensure the
safety of exercise participants, mariners,
and transiting vessels.
III. Legal Authority and Need for Rule
The legal basis for the proposed rule
is 46 U.S.C. 70041 (previously 33 U.S.C.
1233). Under 33 CFR 100.35, the Coast
Guard District Commander has
authority to promulgate certain special
local regulations deemed necessary to
ensure the safety of life on the navigable
waters immediately before, during, and
immediately after an approved regatta or
marine parade. The Commander of
Coast Guard District 11 has delegated to
the Captain of the Port (COTP) San
Francisco the responsibility of issuing
such regulations.
The regulation establishes a regulated
area on the waters on which the Bay
Guardian exercise will be held. The
regulated area is necessary to ensure the
safety of exercise participants and
mariners transiting near the exercise
area.
IV. Discussion of the Rule
The Bay Guardian 2021 exercise will
occur in the navigable waters of San
Francisco Bay, near Treasure Island, CA,
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