Federal Register / Vol. 86, No. 47 / Friday, March 12, 2021 / Rules and Regulations 13995

Troy A. Miller, the Senior Official stakeholder community. The March 15, 2021, until May 14, 2021. The Performing the Duties of the Department has reviewed the comments Department based this action on the Commissioner, having reviewed and received in response to the proposal and Presidential directive as expressed in approved this document, is delegating will delay the effective date of the final the memorandum of January 20, 2021, the authority to electronically sign this rule for a period of 60 days. from the Assistant to the President and document to Robert F. Altneu, who is DATES: As of March 12, 2021, the Chief of Staff, entitled ‘‘Regulatory the Director of the Regulations and effective date of the final rule published Freeze Pending Review.’’ The Disclosure Law Division for CBP, for on January 14, 2021, at 86 FR 3608, is memorandum directs agencies to purposes of publication in the Federal delayed until May 14, 2021. consider delaying the effective date for Register. FOR FURTHER INFORMATION CONTACT: regulations for the purpose of reviewing Brian Pasternak, Administrator, Office questions of fact, law, and policy raised Robert F. Altneu, therein. Accordingly, ETA proposed to Director, Regulations & Disclosure Law of Foreign Labor Certification, Employment and Training delay the effective date for the final rule Division, Regulations & Rulings, Office of entitled ‘‘Strengthening Wage Trade, U.S. Customs and Border Protection. Administration, Department of Labor, 200 Constitution Avenue NW, Room N– Protections for the Temporary and Approved: March 9, 2021. Permanent Employment of Certain Timothy E. Skud 5311, Washington, DC 20210, telephone: (202) 693–8200 (this is not a toll-free Aliens in the United States’’ to May 14, Deputy Assistant Secretary of the Treasury. 2021, given the complexity of the number). Individuals with hearing or [FR Doc. 2021–05173 Filed 3–10–21; 8:45 am] regulation. speech impairments may access the BILLING CODE 9111–14–P telephone numbers above via TTY/TDD II. Public Comments Received by calling the toll-free Federal The Department invited written Information Relay Service at 1 (877) DEPARTMENT OF LABOR comment in its February 1, 2021 notice 889–5627. on its proposal to delay the effective Employment and Training SUPPLEMENTARY INFORMATION: date of the final rule, including the Administration I. Background and Basis for Proposed proposed delay’s impact on any legal, Delay factual, or policy issues raised by the 20 CFR Parts 655 and 656 underlying final rule and whether On January 14, 2021, the Department further review of those issues warrants [Docket No. ETA–2020–0006] published a final rule in the Federal such a delay. The Department further Register, which adopted with changes RIN 1205–AC00 stated that all other comments on the an Interim Final Rule (IFR) that underlying final rule would be Strengthening Wage Protections for amended Employment and Training considered to be outside the scope of the Temporary and Permanent Administration (ETA) regulations this rulemaking. The February 1, 2021 Employment of Certain Immigrants and governing the prevailing wages for notice provided a 15-day comment Non-Immigrants in the United States; employment opportunities that United period on the proposed delay, with Delay of Effective Date States (U.S.) employers seek to fill with comments to be submitted electronically foreign workers on a permanent or at http://www.regulations.gov/ using AGENCY: Employment and Training temporary basis through certain docket number ETA–2020–0006. Administration, Department of Labor. employment-based immigrant visas or ETA received 57 unique comments on ACTION: Final rule; delay of effective through H–1B, H–1B1, or E–3 non- its proposal to delay the effective date date. immigrant visas. Specifically, the IFR by 60 days to May 14, 2021. Of the 57 amended the Department’s regulations comments, 36 were reviewed and SUMMARY: On February 1, 2021, the governing permanent (PERM) labor determined out of scope either because Department of Labor (DOL or certifications and Labor Condition they were comments exclusively on the Department) proposed to delay the Applications (LCAs) to incorporate final rule and did not address the effective date of the final rule entitled changes to the computation of wage proposed delay, concerned another ‘‘Strengthening Wage Protections for the levels under the Department’s four- agency’s rule, or were general Temporary and Permanent Employment tiered wage structure based on the statements. The remaining 21 comments of Certain Aliens in the United States,’’ Occupational Employment Statistics were reviewed and determined within published in the Federal Register on (OES) wage survey administered by the the scope of the request for comments. January 14, 2021, for a period of 60 Bureau of Labor Statistics (BLS). 86 FR Of these, 17 commenters supported the days. The Department proposed to delay 3608. Although the final rule contained delay. Four commenters opposed the the effective date of the final rule until an effective date of March 15, 2021, the delay based on their overall support of May 14, 2021, in accordance with the Department also included a delayed the final rule. Presidential directive as expressed in implementation period under which the memorandum of January 20, 2021, adjustments to the new wage levels will A. Comments Supporting a Delayed from the Assistant to the President and not begin until July 1, 2021. 86 FR 3608, Effective Date Chief of Staff, entitled ‘‘Regulatory 3642. A general overview of the labor Seventeen commenters supported the Freeze Pending Review.’’ As stated in certification and prevailing wage proposed delay of the effective date of the proposal, the 60-day delay would process as well as further background the final rule, citing disapproval of the allow agency officials the opportunity to on the rulemaking is available in the final rule overall, concerns that the review any questions of fact, law, or Department’s final rule, as published in process in adopting the final rule was policy. The Department invited written the Federal Register on January 14, rushed, fears that the wage data comments from the public for 15 days 2021, and will not be restated herein. supporting the final rule was inaccurate, on the proposed delay of effective date. On February 1, 2021, the Department and the need to more thoroughly review All comments had to be received by published a notice in the Federal the final rule. One commenter stated it February 16, 2021. The Department Register proposing to delay the effective is in favor of the proposed delay of received 57 comments from the date of the final rule for 60 days from effective date and provided a policy

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report to assist the agency in evaluating comments supporting a delay of the B. Comments Opposing a Delayed the ‘‘proposed delay’s impact on any effective date to allow the agency an Effective Date legal, factual, or policy issues raised by opportunity to review decisions issued The Department received four the underlying rule.’’ Several by multiple courts in litigation related comments that directly addressed and commenters expressed strong support of to the rulemaking. For example, a trade subsequently opposed the proposed the Department’s proposal, and a few association explained the proposed 60- delay of the effective date of the final commenters encouraged the agency to day delay will enable the agency to rule. Four commenters stated they conduct a full legal review and review the final rule and determine it is generally support the substance of the ‘‘consider and meaningfully respond’’ to ‘‘unjustified, ignores labor market final rule, and reiterated reasons why the issues raised in the IFR comments realities, and would harm the country’s the final rule should be implemented. before implementing any changes to economic recovery.’’ The commenter One of the commenters stated it believes wage requirements. stated in the event the Department does the reforms to the Department’s wage The Department received two not make such a determination, the levels are long overdue and a delay comments stating the delay of effective delay is needed for courts to render final would prevent protections for workers date is needed because the final rule is decisions in related litigation. being implemented and reduce job not reflective of the policy objectives of Several comments supported the opportunities and wages. It noted that the Biden Administration. The two proposed delay on the basis that the the current wage methodology is in commenters, a trade organization and a additional time will allow the conflict with the INA and further trade association, supported the Department to review more thoroughly explained that, while it generally proposed effective date delay, reasoning the final rule and its financial supported the final rule as a step in the that, consistent with the Biden implications for affected industries, right direction, the final rule still Administration’s ‘‘Regulatory Freeze including businesses and institutions of Pending Review’’ memorandum, it conflicts with the INA. A commenter higher education, and its impact on the opposed the delay because it supports would provide time to evaluate economy. One commenter in this questions of fact, law, and policy raised the methodology used in the final rule category urged the agency to begin and believes a delay could cause in the final rule. One of the commenters rulemaking to withdraw the final rule. argued that events and developments uncertainty in hiring processes as well Lastly, a few comments requested the that have occurred since the Department as reduce the amount of time employers Department consider further delay of published the final rule on January 14, have to prepare for compliance. This the effective date and/or the compliance 2021, should be reviewed as relevant commenter further stated that the dates of the final rule. For example, a questions of fact, law, and policy. Two current methodology is on ‘‘shaky legal trade association stated that given the universities supported the effective date ground.’’ profound changes in the Department’s delay stating the delay will give the The Department appreciates the final rule, a May 14, 2021 effective date Department more time to evaluate comments provided. In response to is unlikely to avoid significant policy and substantive issues of the comments concerning the impact of the final rule, including determining the operational disruptions for many Department’s proposed delay of needs of the U.S. economy in light of businesses that rely upon various effective date of the final rule on U.S. the current context of the pandemic and immigrant and non-immigrant workers. workers, the delay of the effective date the Biden Administration’s priorities. Other comments requested the should not reduce any potential benefits Two trade associations supported Department delay the July 1, 2021 to, or otherwise harm, qualified postponing implementation of the final transition period to afford the regulated American or H–1B workers. Under the rule, with one association stating this community adequate time to adopt final rule, the new methodology and delay would allow for proper necessary changes and to allow the attendant changes to the wage level stakeholder input while maintaining the agency enough time to properly computations will not begin to be status quo for employers. implement forms and electronic filing implemented until July 1, 2021; before In addition, the Department received system changes, as needed. July 1, the current wage methodology five comments stating the proposed The Department appreciates the remains the same. Rather, as noted in delay is needed for the Department to comments received. After carefully the proposal and above, delaying the address legal concerns raised by reviewing the comments, the effective date for 60 days would provide stakeholders and litigants in litigation Department acknowledges the the Department an opportunity to related to the IFR and final rule. For substantive concerns raised by these review questions of fact, law, and policy example, a professional association commenters, including concerns raised by the final rule. As noted above, asserted the final rule violated the regarding the Department’s one commenter stated the final rule was Administrative Procedure Act’s (APA) methodology in the final rule and notice a step in the right direction but notice-and-comment requirements and and comment procedures related to the nonetheless ‘‘continues to conflict’’ with argued that the final rule must be rulemaking, and the commenters’ the INA, providing an example as to delayed in order to provide a proper suggestion that the Department should why review at this stage is crucial. The notice-and-comment period. Another delay the effective date of this rule to 60-day delay announced in this final professional association and a trade review the rulemaking. Given these rule provides the Department time to association argued, for instance, that the concerns, the complexity of the begin a meaningful review without final rule did not address concerns they regulation, and the issues raised in the affecting workers. Finally, the raised in prior comments on the IFR and litigation challenging the rulemaking, Department may need to propose a supported delaying the final rule’s the Department has determined that a further delay of the effective date and effective date and compliance dates to 60-day delay of the effective date is accompanying implementation periods allow time for review and needed to provide the Department time due to the complexity of the final rule, reconsideration of the final rule’s ‘‘legal to continue its review of the final rule, as discussed in the Conclusion below, and policy shortcomings’’ and issues including evaluating the concerns raised and aims to provide clarity and raised by the stakeholder community. by the commenters and taking sufficient time for employers to comply The Department also received three additional action as necessary. with the regulations.

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C. Out of Scope Comments review of this rulemaking and may need rule is not a ‘‘major rule,’’ as defined by Thirty-six comments were beyond the to take additional action as necessary to 5 U.S.C. 804(2). scope of this action. Most of the complete such a review. In particular, B. Unfunded Mandates Reform Act the comments raised thus far suggest comments related to the content of the The Unfunded Mandates Reform Act final rule and the final rule’s that it may be helpful for the Department to issue a request for of 1995 (UMRA) is intended, among methodology rather than the narrow other things, to curb the practice of issue of the proposed delay of the information soliciting public input on other sources of information and/or imposing unfunded Federal mandates effective date. Of particular note, three on State, local, and tribal governments. commenters simply stated they methodologies that could be used to inform any new proposal(s) to further Title II of UMRA requires each Federal disagreed but it is unclear with what agency to prepare a written statement they disagreed. To the extent that they amend ETA’s regulations governing the prevailing wages for PERM, H–1B, H– assessing the effects of any Federal refer only to the proposed extension of mandate in a proposed or final agency the effective date these comments do 1B1, and E–3 job opportunities as the comments raised thus far suggest that rule that may result in a $100 million or not alter DOL’s conclusion given their more expenditure (adjusted annually for additional information and data may be lack of rationale and the reasons noted inflation) in any one year by State, local, useful in the Department’s review. In above for extending the effective date. and tribal governments, in the aggregate, addition, in light of the complexity of Two comments appeared to be directed or by the private sector. The inflation- this issue, the Department is at a proposed rule from U.S. Citizenship adjusted value equivalent of $100 considering whether to propose a and Immigration Services, and are million in 1995 adjusted for inflation to therefore out of scope. Finally one further delay of the final rule’s effective 2019 levels by the Consumer Price commenter submitted a resume, and date and accompanying implementation Index for All Urban Consumers (CPI–U) nothing else. periods that are currently scheduled to is approximately $168 million based on take effect on May 14, 2021, and July 1, D. Immediate Effective Date the Consumer Price Index for All Urban 2021, respectively. Before further Consumers.1 Section 553(d) of the APA provides delaying the effective date and This rulemaking is not a ‘‘Federal that substantive rules should take effect implementation periods, the mandate’’ as defined for UMRA not less than 30 days after the date they Department will provide the public an purposes.2 The cost of obtaining are published in the Federal Register opportunity to comment. prevailing wages, preparing labor unless ‘‘otherwise provided by the III. Statutory and Regulatory condition and certification applications agency for good cause found.’’ 5 U.S.C. Requirements (including all required evidence) and 553(d)(3). The Department determines it the payment of wages by employers is, has good cause to make this rule A. Executive Order 12866 (Regulatory to the extent it could be termed an effective immediately upon publication Planning and Review) enforceable duty, one that arises from because allowing for a 30-day period participation in a voluntary Federal between publication and the effective Under Executive Order (E.O.) 12866, program applying for immigration status date of this rulemaking would be both the Office of Management and Budget’s in the United States.3 This final rule impracticable and unnecessary. A 30- (OMB) Office of Information and does not contain a mandate. The day period would result in the final rule Regulatory Affairs (OIRA) determines requirements of Title II of UMRA, entitled ‘‘Strengthening Wage whether a regulatory action is therefore, do not apply, and DOL has Protections for the Temporary and significant and, therefore, subject to the not prepared a statement under UMRA. Permanent Employment of Certain requirements of the E.O. and review by Therefore, no actions were deemed Aliens in the United States’’ taking OMB. 58 FR 51735. Section 3(f) of E.O. necessary under the provisions of the effect on March 15, 2021, before the 12866 defines a ‘‘significant regulatory UMRA. delay in this rulemaking would begin. action’’ as an action that is likely to C. Congressional Review Act Accordingly, a 30-day period would result in a rule that: (1) Has an annual undermine the purpose for which this effect on the economy of $100 million OIRA has determined that this final rule is being promulgated and result in or more, or adversely affects in a rule is not a major rule as defined by 5 additional confusion for regulated material way a sector of the economy, U.S.C. 804, also known as the entities. As such, the Department finds productivity, competition, jobs, the ‘‘Congressional Review Act,’’ as enacted that it has good cause to make this rule environment, public health or safety, or in section 251 of the Small Business effective immediately upon publication. State, local, or tribal governments or communities (also referred to as 1 See U.S. Bureau of Labor Statistics, Historical E. Conclusion economically significant); (2) creates Consumer Price Index for All Urban Consumers (CPI–U): U.S. City Average, All Items, available at Many of the comments specifically serious inconsistency or otherwise https://www.bls.gov/cpi/tables/supplemental-files/ addressed substantive concerns related interferes with an action taken or historical-cpi-u-202003.pdf (last visited June 2, to the Department’s publication of the planned by another agency; (3) 2020). final rule and the methodology or materially alters the budgetary impacts Calculation of inflation: (1) Calculate the average monthly CPI–U for the reference year (1995) and the computations contained therein. The of entitlement grants, user fees, or loan current year (2019); (2) Subtract reference year CPI– Department acknowledges these public programs, or the rights and obligations U from current year CPI–U; (3) Divide the difference comments as well as concerns that have of recipients thereof; or (4) raises novel of the reference year CPI–U and current year CPI– been raised by the commenters and in legal or policy issues arising out of legal U by the reference year CPI–U; (4) Multiply by 100 = [(Average monthly CPI–U for 2019¥Average pending litigation challenging the mandates, the President’s priorities, or monthly CPI–U for 1995)/(Average monthly CPI–U Department’s IFR, see 86 FR 3608, 3612 the principles set forth in the E.O. Id. for 1995)] * 100 = [(255.657¥152.383)/152.383] * (discussing lawsuits and court orders Pursuant to E.O. 12866, OIRA has 100 = (103.274/152.383) * 100 = 0.6777 * 100 = determined that this is not a significant 67.77 percent = 68 percent (rounded). Calculation setting aside the IFR), and, of inflation-adjusted value: $100 million in 1995 subsequently, the final rule published regulatory action. Pursuant to the dollars * 1.68 = $168 million in 2019 dollars. on January 14, 2021. The Department Congressional Review Act (5 U.S.C. 801 2 See 2 U.S.C. 658(6). has already begun its comprehensive et seq.), OIRA has determined that this 3 See 2 U.S.C. 658(7)(A)(ii).

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Regulatory Enforcement Fairness Act of DEPARTMENT OF HOMELAND II. Background Information and 1996, Public Law 104–121, 110 Stat. SECURITY Regulatory History 847, 868, et seq. The Coast Guard is issuing this Coast Guard D. Executive Order 13132 (Federalism) temporary rule without prior notice and opportunity to comment pursuant to 33 CFR Part 100 This final rule would not have authority under section 4(a) of the substantial direct effects on the States, Administrative Procedure Act (APA) (5 on the relationship between the national [Docket No. USCG–2021–0118] U.S.C. 553(b)). This provision government and the States, or on the authorizes an agency to issue a rule distribution of power and RIN 1625–AA08 without prior notice and opportunity to responsibilities among the various comment when the agency for good Special Local Regulation; Bay levels of government. Therefore, in cause finds that those procedures are Guardian Exercise, Treasure Island, accordance with section 6 of E.O. 13132, ‘‘impracticable, unnecessary, or contrary San Francisco, CA it is determined that this final rule does to the public interest.’’ Under 5 U.S.C. 553(b)(B), the Coast Guard finds that not have sufficient federalism AGENCY: Coast Guard, DHS. implications to warrant the preparation good cause exists for not publishing a ACTION: Temporary final rule. of a federalism summary impact notice of proposed rulemaking (NPRM) with respect to this rule because it is statement. SUMMARY: The Coast Guard is impracticable. The Coast Guard did not E. Executive Order 12988 (Civil Justice establishing a temporary special local receive final details for this event until Reform) regulation (SLR) in the navigable waters February 22, 2021. The Coast Guard of the San Francisco Bay, near Treasure must establish this safety zone by March This final rule meets the applicable Island, San Francisco, CA in support of 17, 2021 and lacks sufficient time to standards set forth in sections 3(a) and the Bay Guardian 2021 exercise. This provide a reasonable comment period 3(b)(2) of E.O. 12988. special local regulation will temporarily and consider those comments before restrict vessel traffic in the vicinity of issuing the rule. F. Regulatory Flexibility Executive Order Treasure Island and prohibit vessels and Under 5 U.S.C. 553(d)(3), the Coast 13175 (Consultation and Coordination persons not participating in the exercise Guard finds that good cause exists for With Indian Tribal Governments) from entering the regulated area. The making this rule effective less than 30 This final rule does not have ‘‘tribal purpose of the exercise it to use days after publication in the Federal radioactive detection equipment in a implications’’ because it does not have Register. Delaying the effective date of mock scenario. The exercise will be substantial direct effects on one or more this rule would be contrary to public interrupted, as necessary, to permit the interest because this regulation is Indian tribes, on the relationship passage of commercial vessel traffic. between the Federal Government and needed on March 17, 2021, less than 30 Exercise participants and non- days after the Coast Guard received the Indian tribes, or on the distribution of participants operating within the SLR final details of the event, in order to power and responsibilities between the area shall comply with all instructions keep vessels away from the immediate Federal Government and Indian tribes. given by the on-scene Patrol vicinity of the exercise to ensure the Accordingly, E.O. 13175, Consultation Commander monitoring the event. This safety of exercise participants, mariners, and Coordination with Indian Tribal regulation is necessary to provide safety and transiting vessels. Governments, requires no further of life on the navigable waters during agency action or analysis. the exercise, which will be held on III. Legal Authority and Need for Rule March 17, 2021. G. Paperwork Reduction Act The legal basis for the proposed rule DATES: This rule is effective from 8 a.m. is 46 U.S.C. 70041 (previously 33 U.S.C. The Paperwork Reduction Act of 1995 to 6 p.m. on March 17, 2021. 1233). Under 33 CFR 100.35, the Coast (PRA), 44 U.S.C. 3501, et seq., and its Guard District Commander has ADDRESSES: To view documents attendant regulations, 5 CFR part 1320, authority to promulgate certain special mentioned in this preamble as being local regulations deemed necessary to require the Department to consider the available in the docket, go to https:// agency’s need for its information ensure the safety of life on the navigable www.regulations.gov, type USCG–2021– waters immediately before, during, and collections and their practical utility, 0118 in the ‘‘SEARCH’’ box and click the impact of paperwork and other immediately after an approved regatta or ‘‘SEARCH.’’ Click on Open Docket marine parade. The Commander of information collection burdens imposed Folder on the line associated with this on the public, and how to minimize Coast Guard District 11 has delegated to rule. the Captain of the Port (COTP) San those burdens. This final rule does not FOR FURTHER INFORMATION CONTACT: If Francisco the responsibility of issuing require a collection of information you have questions on this rule, call or such regulations. subject to approval by OMB under the email Lieutenant Anthony Solares, The regulation establishes a regulated PRA, or affect any existing collections of Waterways Management, U.S. Coast area on the waters on which the Bay information. Guard; telephone (415) 399–7443, email Guardian exercise will be held. The Suzan G. LeVine, [email protected]. regulated area is necessary to ensure the Principal Deputy Assistant Secretary for SUPPLEMENTARY INFORMATION: safety of exercise participants and Employment and Training, Labor. mariners transiting near the exercise I. Table of Abbreviations area. [FR Doc. 2021–05269 Filed 3–11–21; 8:45 am] BILLING CODE 4510–FP–P CFR Code of Federal Regulations IV. Discussion of the Rule COTP Captain of the Port San Francisco DHS Department of Homeland Security The Bay Guardian 2021 exercise will § Section occur in the navigable waters of San U.S.C. United States Code Francisco Bay, near Treasure Island, CA,

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