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Rules and Regulations Federal Register
Vol. 86, No. 1
Monday, January 4, 2021
Departments receive significant adverse Information Relay Service at (800) 877–
This section of the FEDERAL REGISTER
contains regulatory documents having general comment, the Departments will publish 8339.
applicability and legal effect, most of which a timely withdrawal in the Federal SUPPLEMENTARYINFORMATION: This
are keyed to and codified in the Code of Register informing the public that this preamble is divided into five sections:
Federal Regulations, which is published under DFR will not take effect (see Section I, Section I describes the process of
50 titles pursuant to 44 U.S.C. 1510. Direct Final Rule Published rulemaking using a direct final rule with
The Code of Federal Regulations is sold by Concurrently With Companion a companion proposed rule; Section II
the Superintendent of Documents. Proposed Rule, for more details on this provides general background
process). To ensure consideration, information on the rulemaking; Section
comments must be in writing and must III summarizes the regulatory text;
DEPARTMENT OF HOMELAND be received by January 19, 2021. Section IV covers the administrative
SECURITY ADDRESSES: You may send comments, requirements for this rulemaking; and
RIN 1615–AC63 identified by Regulatory Identification Section V provides additional
Number (RIN) 1290–AA43, information and instructions to those
DEPARTMENT OF LABOR electronically only, consistent with the wishing to comment on the rule.
following instructions. Submit This final rule is not an Executive
Employment and Training comments, read background documents, Order 13771 regulatory action because it
Administration and read comments received through is not significant under Executive Order
the Federal eRulemaking Portal at 12866. Pursuant to the Congressional
20 CFR Part 655 http://www.regulations.gov. To locate Review Act (5 U.S.C. 801 et seq.), the
this rulemaking, use docket number Office of Information and Regulatory
Office of the Secretary DOL–2020–0019 key words such as Affairs designated this as not a major
‘‘Office of Administrative Law Judges’’ rule as defined by 5 U.S.C. 804(2).
29 CFR Part 18 or ‘‘Rules of Practice and Procedure for I. Direct Final Rule Published
Administrative Hearings Before the Concurrently With Companion
Wage and Hour Division Office of Administrative Law Judges.’’ Proposed Rule
Instructions for submitting comments
29 CFR Part 503 are found on the www.regulations.gov The Department of Homeland
[DOL Docket No. DOL–2020–0019] website. All comments must be received Security (DHS) and Department of Labor
by 11:59 p.m. on the date indicated for (DOL) (collectively, the Departments)
RIN 1290–AA43 consideration in this rulemaking. Please are simultaneously publishing with this
Discretionary Review by the Secretary be advised that comments received will ‘‘direct final’’ rule an identical proposed
of Labor be posted without change to http:// rule elsewhere in this issue of the
www.regulations.gov, including any Federal Register, with an identical
AGENCY: U.S. Citizenship and personal information provided. change to the regulatory text. In direct
Immigration Services, Department of Therefore, the Departments final rulemaking, an agency publishes a
Homeland Security; and Office of the recommend that commenters safeguard final rule with a statement that the rule
Secretary, Employment and Training their personal information by not will go into effect unless the agency
Administration, and Wage and Hour including Social Security numbers, receives significant adverse comments
Division, Department of Labor. personal addresses, telephone numbers, within a specified period. If the agency
ACTION: Direct final rule. and email addresses in comments. It is receives no significant adverse
the responsibility of the commenters to comments in response to the direct final
SUMMARY: The Department of Homeland safeguard their information. rule, the DFR goes into effect. If the
Security and the Department of Labor If you need assistance to review the agency receives significant adverse
(DOL) are jointly issuing this direct final comments of the rulemaking, the comments, the agency withdraws the
rule to extend DOL’s recently Department will consider providing the direct final rule and treats such
established system of discretionary comments and the proposed rule in comments as submissions in response to
Secretary of Labor review to H–2B other formats upon request. For the proposed rule. The proposed rule
temporary labor certification cases (H– assistance to review the comments or provides the procedural framework to
2B cases) pending before or decided by obtain the direct final rule in an finalize the proposed regulatory changes
the Department of Labor’s Board of alternate format, contact Mr. Todd through a final rule. Agencies typically
Alien Labor Certification Appeals and to Smyth, General Counsel, U.S. use direct final rulemaking when they
make technical, conforming changes to Department of Labor, at (513) 684–3252. anticipate a rule will be non-
regulations governing the timing and FORFURTHERINFORMATIONCONTACT: controversial.
finality of those decisions and of Todd Smyth, General Counsel, U.S. The Departments have determined
decisions from the Department of Department of Labor, Office of that this rule is suitable for direct final
Labor’s Administrative Review Board in Administrative Law Judges, 800 K Street rulemaking. The revision to DOL’s
H–2B cases. NW, Washington, DC 20001–8002; internal adjudicatory processes would
DATES: This direct final rule (DFR) is telephone (513) 684–3252. Individuals implement the mechanism by which the
effective February 3, 2021 unless with hearing or speech impairments Secretary of Labor (Secretary) can
significant adverse comment is may access the telephone number above review H–2B cases pending before or
submitted by January 19, 2021. If the by TTY by calling the toll-free Federal decided by the Board of Alien Labor
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2 Federal Register/Vol. 86, No. 1/Monday, January 4, 2021/Rules and Regulations
Certification Appeals (BALCA) and and Training Administration’s Secretary of Labor will rely on BALCA
decisions of the Administrative Review adjudication of foreign labor to assist him in identifying cases where
Board (ARB)—a power the Secretary certification applications. It was created secretarial review may be warranted.
already possesses with respect to other by regulation to exercise delegated Also consistent with current practices at
cases pending before or decided by authority on behalf of the Secretary of DOL and other agencies, the
BALCA under DOL’s recent final rule, Labor. Its existence is neither compelled Departments do not anticipate that the
Rules Concerning Discretionary Review nor governed by statute, and it is power of secretarial review over H–2B
by the Secretary, 85 FR 30608 (May 20, entrusted with the power to issue final cases will be used often. The
2020), and, with respect to ARB agency decisions in the name of the Departments similarly anticipate that
decisions in H–2B cases, reflects a Secretary of Labor. Earlier this year, secretarial review—while completely
power he already possesses pursuant to DOL issued regulations establishing a within the Secretary’s discretion as the
the Secretary’s Order 01–2020, mechanism by which the Secretary can principal officer accountable for DOL’s
Delegation of Authority and Assignment exercise review of decisions issued by activities—will typically be reserved for
of Responsibility to the Administrative BALCA on his behalf in the H–2A, CW– matters of significant importance.
Review Board, 85 FR 13186 (Mar. 6, 1, and PERM programs. This rule will Finally, DOL will ensure that the
2020). This is a rule of agency apply the same mechanism for review secretarial review process will continue
management and personnel and is over decisions issued by BALCA in the to be accomplished in a manner that
entirely a procedural change to how H–2B program. complies with any applicable legal
officers within DOL exercise delegated To ensure that the Secretary has the requirements.
authority on behalf of the Secretary; ability to properly supervise and direct The Departments appreciate the
therefore, the Departments are not the actions of the Department he expeditious nature of BALCA
required to engage in a notice-and- supervises, earlier this year the proceedings involving temporary labor
comment process to issue this rule. See Secretary of Labor also established a certifications and, as with the existing
5 U.S.C. 553(a)(2), (b)(A). Further, system of discretionary secretarial system of review, do not anticipate that
discretionary review by an agency head review over the decisions of the ARB. secretarial review over H–2B cases will
over adjudicatory decisions exists in See Secretary of Labor’s Order No. 01– significantly disrupt or otherwise
many other executive branch agencies, 2020. DOL’s authority to effect this impede the way such cases are currently
including the Department of Justice, the reform, as well as the related processed. As noted above, the
Department of the Interior, and the rulemaking undertaken earlier this year Departments expect that secretarial
Department of Education. The rule is to establish discretionary review over review over BALCA’s H–2B decisions
thus consistent with well-known and decisions of and appeals before BALCA, will likely not be exercised often.
well-established models of internal derives from 5 U.S.C. 301, which Further, BALCA decisions will remain
agency review both at DOL and at other authorizes the heads of agencies to the Secretary of Labor’s final
agencies. regulate the internal operations of their administrative decision unless the
The comment period for the proposed departments; 5 U.S.C. 305, which Secretary himself assumes jurisdiction
rule runs concurrently with the provides for continuing review of over the case. For example, once
comment period for this DFR. Any agency operations; and the Secretary’s BALCA issues a decision that grants a
comments received in response to the authority to administer the statutes and labor certification or remands for further
proposed rule will also be considered programs at issue in ARB and BALCA processing, the private party in the case
comments regarding the direct final rule proceedings, including the H–2B will be able to proceed immediately to
and vice versa. For purposes of this temporary-labor-certification and the next step of the application process.
rulemaking, a significant adverse enforcement programs provided for in The private party will be delayed in
comment is one that addresses (1) why DHS and DOL’s 2015 joint rules. In doing so only if the Secretary later
the rule is inappropriate, including combination, these authorities establish decides to undertake review. Moreover,
challenges to the rule’s underlying many of the powers of DOL within the as it does now, 29 CFR 18.95 will
premise or approach; or (2) why the rule Office of the Secretary, and give the continue to limit any potential
will be ineffective or unacceptable Secretary of Labor wide latitude to uncertainty that may exist because of
without a change. In determining delegate those powers to his the possibility of secretarial review by
whether a significant adverse comment subordinates on the terms he deems placing strict time limits on when the
counsels in favor of withdrawal of the appropriate. Thus, the Secretary of Secretary of Labor will have the option
direct final rule, the Departments will Labor has the power to delegate his of assuming jurisdiction over a case.
consider whether the comment raises an authority to appropriately supervise the As noted in the DOL’s prior
issue serious enough to warrant a adjudicatory process within DOL, and rulemaking establishing secretarial
substantive response. A comment has similarly exercised that same review over other BALCA cases, 85 FR
recommending an addition to the rule authority to assert his decision-making 30608, the Departments have
will not be considered significant and prerogatives by modifying the terms on determined that it is appropriate to
adverse unless the comment explains which the members of the ARB and issue jointly this rule regarding the
how the direct final rule would be BALCA exercise his delegated authority. Secretary of Labor’s review authority
ineffective or unacceptable without the The Departments do so through this over H–2B cases under 29 CFR 18.95.
addition. rulemaking with respect to H–2B cases This determination follows conflicting
The Departments request comments pending before or decided by BALCA. court decisions concerning DOL’s
on all issues related to this rule, This rule, like those actions authority to issue legislative rules on its
including economic or other regulatory undertaken earlier this year, preserves own to carry out its duties in the H–2B
impacts of this rule on the public. the existing structures by which DOL program. Although the Departments
II. Background and Joint Issuance for processes adjudications while giving the each have authority to issue rules
This Rulemaking Secretary the option, in his sole implementing their respective duties in
discretion, to initiate review directly. As the H–2B program, including rules
BALCA has authority over appeals with DOL’s existing mechanisms of providing for secretarial review, the
from the decisions of the Employment secretarial review, under this reform the Departments determined to make the
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Federal Register/Vol. 86, No. 1/Monday, January 4, 2021/Rules and Regulations 3
amendments to the applicable another agency; and will not materially and approved this document, has
regulations jointly to ensure that there alter the budgetary impact of delegated the authority to electronically
can be no question about the authority entitlements, grants, user fees, or loan sign this document to Chad R. Mizelle,
underlying such amendments. This programs or the rights and obligations of who is the Senior Official Performing
approach is consistent with the joint recipients thereof. Furthermore, the rule the Duties of the General Counsel for
rulemaking governing the Temporary does not raise a novel legal or policy DHS, for purposes of publication in the
Non-Agricultural Employment of H–2B issue arising out of legal mandates, the Federal Register.
Aliens in the United States, 80 FR 24042 President’s priorities, or the principles V. Notice and Comment
(Apr. 29, 2015) (codified at 8 CFR part set forth in the Executive order.
214, 20 CFR part 655, and 29 CFR part Accordingly, OMB has waived A. APA Requirements for Notice and
503). review. Comment
III. Discussion of Changes Regulatory Flexibility Act of 1980 This rule addresses matters of internal
Through this rule, the Departments Because no notice of proposed agency management and personnel, as
revise 29 CFR part 18 by modifying the rulemaking is required for this rule well as matters of agency organization,
conditions under which an H–2B under section 553 of the Administrative practice and procedure, and
decision of BALCA becomes the final Procedure Act, the regulatory flexibility consequently are exempt from the
decision of DOL and by extending to H– analysis requirements of the Regulatory notice and public comments
2B cases the process by which the Flexibility Act, 5 U.S.C. 603, 604, do not requirements of the Administrative
Secretary of Labor may exercise apply to this rule. See 5 U.S.C. 603(a), Procedure Act. See 5 U.S.C. 553(a)(2),
discretionary review over cases pending 604(a). (b)(A). Nevertheless, the Departments
before or decided by the BALCA. Paperwork Reduction Act wish to provide the public an
Technical amendments are also made to opportunity to submit comments.
20 CFR part 655, subpart A, to The Departments have determined B. Publication of Comments
harmonize the manner in which BALCA that this rule is not subject to the
issues decisions on behalf of the requirements of the Paperwork Please be advised that the
Secretary with the system of Reduction Act, 44 U.S.C. 3501 et seq., Departments will generally post all
discretionary review established in 29 as this rulemaking does not involve any comments without making any change
CFR part 18. Additionally, this rule collections of information. See 5 CFR to the comments, including any
modifies or removes the reference to 1320.3(c). personal information provided. The
‘‘final’’ decisions of the ARB in 20 CFR Unfunded Mandates Reform Act of 1995 www.regulations.gov website is the
655.73(g)(6) and 29 CFR 503.55 to and Executive Order 13132, Federalism Federal e-rulemaking portal, and all
reflect that the finality of ARB decisions The Departments have reviewed this comments received will be available
is governed by Secretary’s Order 01– rule in accordance with the and accessible to the public on this
2020. requirements of Executive Order 13132 website. Therefore, the Departments
IV. Administrative Requirements and the Unfunded Mandates Reform Act recommend that commenters safeguard
of 1995, 2 U.S.C. 1501 et seq., and have their personal information by not
Executive Orders 12866, Regulatory found no potential or substantial direct including social security numbers,
Planning and Review, and 13563, effects on the states, on the relationship personal addresses, telephone numbers,
Improving Regulation and Regulatory between the National Government and or email addresses in comments. It is
Review the states, or on the distribution of the responsibility of the commenter to
Executive Orders 12866 and 13563 power and responsibilities among the safeguard his or her information.
direct agencies to assess the costs and various levels of government. As there C. Access to Docket
benefits of available regulatory is no Federal mandate contained herein
alternatives and, if regulation is that could result in increased In addition to all comments received
necessary, to select regulatory expenditures by state, local, and tribal by the Departments being accessible on
approaches that maximize net benefits governments, or by the private sector, www.regulations.gov, the Departments
(including potential economic, the Departments have not prepared a will make all the comments available for
environmental, public health and safety budgetary impact statement. public inspection during normal
effects, distributive impacts, and business hours at the office listed in the
equity). Executive Order 13563 Executive Order 13175, Consultation ADDRESSESsection above. If you need
emphasizes the importance of and Coordination With Indian Tribal assistance to review the comments, the
quantifying both costs and benefits, of Governments Departments will provide you with
reducing costs, of harmonizing rules, The Departments have reviewed this appropriate aids such as readers or print
and of promoting flexibility. rule in accordance with Executive Order magnifiers. The Departments will make
This rule has been drafted and 13175 and has determined that it does copies of the rule available, upon
reviewed in accordance with Executive not have ‘‘tribal implications.’’ The rule request, in large print or electronic file
Order 12866. The Departments, in does not ‘‘have substantial direct effects on portable digital media. The
coordination with the Office of on one or more Indian tribes, on the Departments will consider providing the
Management and Budget (OMB), relationship between the Federal rule in other formats upon request. To
determined that this rule is not a government and Indian tribes, or on the schedule an appointment to review the
significant regulatory action under distribution of power and comments or obtain the rule in an
section 3(f) of Executive Order 12866 responsibilities between the Federal alternate format, contact Todd Smyth,
because the rule will not have an annual government and Indian tribes.’’ General Counsel, U.S. Department of
effect on the economy of $100 million Signature Labor, Office of Administrative Law
or more; will not create a serious Judges, 800 K Street NW, Washington,
inconsistency or otherwise interfere The Acting Secretary of Homeland DC 20001–8002; telephone (513) 684–
with an action taken or planned by Security, Chad F. Wolf, having reviewed 3252.
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4 Federal Register/Vol. 86, No. 1/Monday, January 4, 2021/Rules and Regulations
Individuals with hearing or speech U.S.C. 1101 note); sec. 412(e), Pub. L. 105– (b) * * *
impairments may access the telephone 277, 112 Stat. 2681; 8 CFR 214.2(h); and 28 (1) In any case for which
number above by TTY by calling the U.S.C. 2461 note, Pub. L. 114–74 at section administrative review is sought or
toll-free Federal Information Relay 701. handled in accordance with 20 CFR
Service at (800) 877–8339. Subparts L and M issued under 8 U.S.C. 655.61, 655.171(a), or 655.461, at any
1101(a)(15)(H)(i)(c) and 1182(m); sec. 2(d), point from when the BALCA receives a
List of Subjects Pub. L. 106–95, 113 Stat. 1312, 1316 (8 U.S.C. request for review until the passage of
1182 note); Pub. L. 109–423, 120 Stat. 2900;
20 CFR Part 655 and 8 CFR 214.2(h). 10 business days after the date on which
Administrative practice and ■ 2. In §655.61, revise paragraph (e) to BALCA has issued its decision.
procedure, Labor certification processes read as follows: * * * * *
for temporary employment. §655.61 Administrative review. Title 29: Labor
29 CFR Part 18 * * * * * Wage and Hour Division
Administrative practice and (e) Review. The BALCA must review
procedure, Labor. the CO’s determination only on the PART 503—ENFORCEMENT OF
basis of the Appeal File, the request for OBLIGATIONS FOR TEMPORARY
29 CFR Part 503 review, and any legal briefs submitted NONIMMIGRANT NON-
Administrative practice and and must, except in cases over which AGRICULTURAL WORKERS
procedure, Obligations, Enforcement, the Secretary has assumed jurisdiction DESCRIBED IN THE IMMIGRATION
Immigration and Nationality Act, pursuant to 29 CFR 18.95: AND NATIONALITY ACT
Temporary alien non-agricultural (1) Affirm the CO’s determination; or ■ 7. The authority citation for part 503
workers. (2) Reverse or modify the CO’s continues to read as follows:
For the reasons discussed in the joint determination; or
preamble, part 655 of title 20 of the (3) Remand to the CO for further Authority: 8 U.S.C. 1101(a)(15)(H)(ii)(b); 8
Code of Federal Regulations and parts action. U.S.C. 1184; 8 CFR 214.2(h); 28 U.S.C. 2461
18 and 503 of title 29 of the Code of * * * * * note (Federal Civil Penalties Inflation
Federal Regulations are amended as ■ 3. In §655.72, revise paragraph (b)(3) Adjustment Act of 1990); Pub. L. 114–74 at
follows: to read as follows: §701.
■ 8. Revise §503.55 to read as follows:
DEPARTMENT OF LABOR §655.72 Revocation.
Title 20: Employees’ Benefits * * * * * §503.55 Decision of the Administrative
(b) * * * Review Board.
Employment and Training (3) Appeal. An employer may appeal The ARB’s decision will be issued
Administration a Notice of Revocation, or a final within 90 days from the notice granting
PART 655—TEMPORARY determination of the Administrator, the petition and served upon all parties
EMPLOYMENT OF FOREIGN OFLC after the review of rebuttal and the ALJ.
WORKERS IN THE UNITED STATES evidence, according to the appeal Eugene Scalia,
procedures of §655.61. Secretary of Labor.
■ 1. The authority citation for part 655 * * * * * Chad R. Mizelle,
continues to read as follows: ■ 4. In §655.73, revise paragraph (g)(6) Senior Official Performing the Duties of the
Authority: Section 655.0 issued under 8 to read as follows: General Counsel, U.S. Department of
U.S.C. 1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) §655.73 Debarment. Homeland Security.
and (ii), 8 U.S.C. 1103(a)(6), 1182(m), (n), (p), * * * * * [FR Doc. 2020–28951 Filed 12–30–20; 4:15 pm]
and (t), 1184(c), (g), and (j), 1188, and 1288(c) (g) * * * BILLING CODE 4510–HL–P
and (d); sec. 3(c)(1), Pub. L. 101–238, 103 (6) ARB decision. The ARB’s decision
Stat. 2099, 2102 (8 U.S.C. 1182 note); sec. must be issued within 90 calendar days
221(a), Pub. L. 101–649, 104 Stat. 4978, 5027 DEPARTMENT OF ENERGY
(8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L. from the notice granting the petition and
102–232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 served upon all parties and the ALJ. 10 CFR Part 431
note); sec. 323(c), Pub. L. 103–206, 107 Stat. * * * * *
2428; sec. 412(e), Pub. L. 105–277, 112 Stat. [EERE–2017–BT–TP–0047]
2681 (8 U.S.C. 1182 note); sec. 2(d), Pub. L. Title 29: Labor
106–95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 Office of the Secretary of Labor RIN 1904–AE18
note); 29 U.S.C. 49k; Pub. L. 107–296, 116
Stat. 2135, as amended; Pub. L. 109–423, 120 PART 18—RULES OF PRACTICE AND Energy Conservation Program: Test
Stat. 2900; 8 CFR 214.2(h)(4)(i); 8 CFR PROCEDURE FOR ADMINISTRATIVE Procedures for Small Electric Motors
214.2(h)(6)(iii); and sec. 6, Pub. L. 115–218, HEARINGS BEFORE THE OFFICE OF and Electric Motors
132 Stat. 1547 (48 U.S.C. 1806). ADMINISTRATIVE LAW JUDGES
Subpart A issued under 8 CFR 214.2(h). AGENCY: Office of Energy Efficiency and
Subpart B issued under 8 U.S.C. ■ 5. The authority citation for part 18 Renewable Energy, Department of
1101(a)(15)(H)(ii)(a), 1184(c), and 1188; and 8 Energy.
CFR 214.2(h). continues to read as follows: ACTION: Final rule.
Subpart E issued under 48 U.S.C. 1806. Authority: 5 U.S.C. 301; 5 U.S.C. 551–553;
Subparts F and G issued under 8 U.S.C. 5 U.S.C. 571 note; E.O. 12778; 57 FR 7292. SUMMARY: In this final rule, the
1288(c) and (d); sec. 323(c), Pub. L. 103–206, ■ 6. In §18.95, revise paragraph (b)(1) to Department of Energy (‘‘DOE’’) is further
107 Stat. 2428; and 28 U.S.C. 2461 note, Pub. harmonizing its test procedures with
L. 114–74 at section 701. read as follows: industry practice by updating a
Subparts H and I issued under 8 U.S.C. §18.95 Review of decision and review by currently incorporated testing standard
1101(a)(15)(H)(i)(b) and (b)(1), 1182(n), (p), the Secretary. to reference that standard’s latest
and (t), and 1184(g) and (j); sec. 303(a)(8),
Pub. L. 102–232, 105 Stat. 1733, 1748 (8 * * * * * version, incorporating a new industry
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