Monday, January 4, 2021

29

Proposed Rules

Federal Register

Vol. 86, No. 1

Monday, January 4, 2021

This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

DEPARTMENT OF HOMELAND

SECURITY

RIN 1615–AC63

DEPARTMENT OF LABOR

Employment and Training

Administration

20 CFR Part 655

Office of the Secretary

29 CFR Part 18

Wage and Hour Division

29 CFR Part 503

[DOL Docket No. DOL–2020–0019]

RIN 1290–AA43

Discretionary Review by the Secretary

of Labor

AGENCY: U.S. Citizenship and

Immigration Services, Department of

Homeland Security; and Office of the

Secretary, Employment and Training

Administration, and Wage and Hour

Division, Department of Labor.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Department of Homeland

Security and the Department of Labor

(DOL) are jointly issuing this notice of

proposed rulemaking to seek public

comments on a proposal to extend

DOL’s recently established system of

discretionary Secretary of Labor review

to H–2B temporary labor certification

cases (H–2B cases) pending before or

decided by the Department of Labor’s

Board of Alien Labor Certification

Appeals and to make technical,

conforming changes to regulations

governing the timing and finality of

those decisions and of decisions from

the Department of Labor’s

Administrative Review Board in H–2B

cases.

DATES: The Departments invite

interested persons to submit comments

on the proposed rule. To ensure

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consideration, comments must be in

writing and must be received by January

19, 2021.

ADDRESSES: You may send comments,

identified by Regulatory Identification

Number (RIN) 1290–AA43,

electronically only, consistent with the

following instructions. Submit

comments, read background documents,

and read comments received through

the Federal eRulemaking Portal at

http://www.regulations.gov. To locate

this rulemaking, use docket number

DOL–2020–0019 or key words such as

‘‘Office of Administrative Law Judges’’

or ‘‘Rules of Practice and Procedure for

Administrative Hearings Before the

Office of Administrative Law Judges.’’

Instructions for submitting comments

are found on the www.regulations.gov

website. All comments must be received

by 11:59 p.m. on the date indicated for

consideration in this rulemaking. Please

be advised that comments received will

be posted without change to http://

www.regulations.gov, including any

personal information provided.

Therefore, the Departments

recommend that commenters safeguard

their personal information by not

including social security numbers,

personal addresses, telephone numbers,

and email addresses in comments. It is

the responsibility of the commenters to

safeguard their information.

If you need assistance to review the

comments of the rulemaking, the

Department will consider providing the

comments and the proposed rule in

other formats upon request. For

assistance to review the comments or

obtain the direct final rule in an

alternate format, contact Mr. Todd

Smyth, General Counsel, U.S.

Department of Labor, at (513) 684–3252.

FOR FURTHER INFORMATION CONTACT:

Todd Smyth, General Counsel, U.S.

Department of Labor, Office of

Administrative Law Judges, 800 K Street

NW, Washington, DC 20001–8002;

telephone (513) 684–3252. Individuals

with hearing or speech impairments

may access the telephone number above

by TTY by calling the toll-free Federal

Information Relay Service at (800) 877–

8339.

SUPPLEMENTARY INFORMATION: This

preamble is divided into five sections:

Section I describes the process of

rulemaking using a direct final rule with

a companion proposed rule; Section II

provides general background

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information on the proposed

rulemaking; Section III summarizes the

proposed regulatory text; Section IV

covers the administrative requirements

for this proposed rulemaking; and

Section V provides additional

information and instructions to those

wishing to comment on the rule.

This proposed rule is not expected to

be an Executive Order 13771 regulatory

action because it is not significant under

Executive Order 12866. Pursuant to the

Congressional Review Act (5 U.S.C. 801

et seq.), the Office of Information and

Regulatory Affairs designated this as not

a major rule as defined by 5 U.S.C.

804(2).

I. Proposed Rule Published

Concurrently With Companion Direct

Final Rule

The Department of Homeland

Security (DHS) and Department of Labor

(DOL) (collectively, the Departments)

are simultaneously publishing with this

proposed rule an identical ‘‘direct final’’

rule elsewhere in this issue of the

Federal Register, with an identical

change to the regulatory text. In direct

final rulemaking, an agency publishes a

final rule with a statement that the rule

will go into effect unless the agency

receives significant adverse comments

within a specified period. If the agency

receives no significant adverse

comments in response to the direct final

rule (DFR), the DFR goes into effect. If

the agency receives significant adverse

comments, the agency withdraws the

direct final rule and treats such

comments as submissions in response to

the proposed rule. The proposed rule

provides the procedural framework to

finalize the proposed regulatory changes

through a final rule. Agencies typically

use direct final rulemaking when they

anticipate a rule will be noncontroversial.

The Departments have determined

that this rule is suitable for direct final

rulemaking. The proposed revision to

DOL’s internal adjudicatory processes

would implement the mechanism by

which the Secretary of Labor can review

H–2B cases pending before or decided

by the Board of Alien Labor

Certification Appeals (BALCA) and

decisions of the Administrative Review

Board (ARB)—a power the Secretary

already possesses with respect to other

cases pending before or decided by

BALCA under DOL’s recent final rule,

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30

Federal Register / Vol. 86, No. 1 / Monday, January 4, 2021 / Proposed Rules

Rules Concerning Discretionary Review

by the Secretary, 85 FR 30608 (May 20,

2020), and, with respect to ARB

decisions in H–2B cases, reflects a

power he already possesses pursuant to

the Secretary of Labor’s Order 01–2020,

Delegation of Authority and Assignment

of Responsibility to the Administrative

Review Board, 85 FR 13186 (Mar. 6,

2020). This proposed rule is a rule of

agency management and personnel and

is entirely a procedural change to how

officers within DOL exercise delegated

authority on behalf of the Secretary of

Labor; therefore, the Departments are

not required to engage in a notice and

comment process to issue this rule. See

5 U.S.C. 553(a)(2), (b)(A). Further,

discretionary review by an agency head

over adjudicatory decisions exists in

many other executive branch agencies,

including the Department of Justice, the

Department of the Interior, and the

Department of Education. The proposed

rule is thus consistent with well-known

and well-established models of internal

agency review both at DOL and at other

agencies.

The comment period for this

proposed rule runs concurrently with

the comment period for the direct final

rule. Any comments received in

response to this proposed rule will also

be considered comments regarding the

direct final rule and vice versa. For

purposes of this rulemaking, a

significant adverse comment is one that

addresses (1) why the rule is

inappropriate, including challenges to

the rule’s underlying premise or

approach; or (2) why the rule will be

ineffective or unacceptable without a

change. In determining whether a

significant adverse comment counsels in

favor of withdrawal of the direct final

rule, the Departments will consider

whether the comment raises an issue

serious enough to warrant a substantive

response. A comment recommending an

addition to the rule will not be

considered significant and adverse

unless the comment explains how the

direct final rule would be ineffective or

unacceptable without the addition.

The Departments request comments

on all issues related to this rule,

including economic or other regulatory

impacts of this rule on the public.

II. Background and Joint Issuance for

This Rulemaking

BALCA has authority over appeals

from the decisions of the Employment

and Training Administration’s

adjudication of foreign labor

certification applications. It was created

by regulation to exercise delegated

authority on behalf of the Secretary of

Labor. Its existence is neither compelled

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nor governed by statute, and it is

entrusted with the power to issue final

agency decisions in the name of the

Secretary of Labor. Earlier this year,

DOL issued regulations establishing a

mechanism by which the Secretary of

Labor can exercise review of decisions

issued by BALCA on his behalf in the

H–2A, CW–1, and PERM programs. This

rule will apply the same mechanism for

review over decisions issued by BALCA

in the H–2B program.

To ensure that the Secretary of Labor

has the ability to properly supervise and

direct the actions of the Department he

supervises, earlier this year the

Secretary also established a system of

discretionary secretarial review over the

decisions of the ARB. See Secretary of

Labor’s Order No. 01–2020. DOL’s

authority to effect this reform, as well as

the related rulemaking undertaken

earlier this year to establish

discretionary review over decisions of

and appeals before BALCA, derives

from 5 U.S.C. 301, which authorizes the

heads of agencies to regulate the

internal operations of their departments;

5 U.S.C. 305, which provides for

continuing review of agency operations;

and the Secretary of Labor’s authority to

administer the statutes and programs at

issue in ARB and BALCA proceedings,

including the H–2B temporary-laborcertification and enforcement programs

provided for in DHS and DOL’s 2015

joint rules. In combination, these

authorities establish many of the powers

of DOL within the Office of the

Secretary, and give the Secretary of

Labor wide latitude to delegate those

powers to his subordinates on the terms

he deems appropriate. Thus, the

Secretary of Labor has the power to

delegate his authority to appropriately

supervise the adjudicatory process

within DOL, and has similarly exercised

that same authority to assert his

decision-making prerogatives by

modifying the terms on which the

members of the ARB and BALCA

exercise his delegated authority. The

Departments propose to do so through

this rulemaking with respect to H–2B

cases pending before or decided by

BALCA.

This proposal, like those actions

undertaken earlier this year, preserves

the existing structures by which DOL

processes adjudications while giving the

Secretary of Labor the option, in his sole

discretion, to initiate review directly. As

with DOL’s existing mechanisms of

secretarial review, under this reform the

Secretary will rely on BALCA to assist

him in identifying cases where

secretarial review may be warranted.

Also consistent with current practices at

DOL and other agencies, the

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Departments do not anticipate that the

power of secretarial review over H–2B

cases will be used often. The

Departments similarly anticipate that

secretarial review—while completely

within the Secretary of Labor’s

discretion as the principal officer

accountable for DOL’s activities—will

typically be reserved for matters of

significant importance. Finally, DOL

will ensure that the secretarial review

process will continue to be

accomplished in a manner that complies

with any applicable legal requirements.

The Departments appreciate the

expeditious nature of BALCA

proceedings involving temporary labor

certifications and, as with the existing

system of review, do not anticipate that

secretarial review over H–2B cases will

significantly disrupt or otherwise

impede the way such cases are currently

processed. As noted above, the

Departments expect that secretarial

review over BALCA’s H–2B decisions

will likely not be exercised often.

Further, BALCA decisions will remain

the Secretary of Labor’s final

administrative decision unless the

Secretary himself assumes jurisdiction

over the case. For example, once

BALCA issues a decision that grants a

labor certification or remands for further

processing, the private party in the case

will be able to proceed immediately to

the next step of the application process.

The private party will be delayed in

doing so only if the Secretary of Labor

later decides to undertake review.

Moreover, as it does now, 29 CFR 18.95

will continue to limit any potential

uncertainty that may exist because of

the possibility of secretarial review by

placing strict time limits on when the

Secretary of Labor will have the option

of assuming jurisdiction over a case.

As noted in the DOL’s prior

rulemaking establishing secretarial

review over other BALCA cases, 85 FR

30608, the Departments have

determined that it is appropriate to

issue jointly this rule regarding the

Secretary of Labor’s review authority

over H–2B cases under 29 CFR 18.95.

This determination follows conflicting

court decisions concerning DOL’s

authority to issue legislative rules on its

own to carry out its duties in the H–2B

program. Although the Departments

each have authority to issue rules

implementing their respective duties in

the H–2B program, including rules

providing for secretarial review, the

Departments are proposing to make the

amendments to the applicable

regulations jointly to ensure that there

can be no question about the authority

underlying such amendments. This

approach is consistent with the joint

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Federal Register / Vol. 86, No. 1 / Monday, January 4, 2021 / Proposed Rules

rulemaking governing the Temporary

Non-Agricultural Employment of H–2B

Aliens in the United States, 80 FR 24042

(Apr. 29, 2015) (codified at 8 CFR part

214, 20 CFR part 655, and 29 CFR part

503).

III. Discussion of Changes

This rule proposes revisions to 29

CFR part 18 by modifying the

conditions under which an H–2B

decision of BALCA becomes the final

decision of DOL and by extending to H–

2B cases the process by which the

Secretary of Labor may exercise

discretionary review over cases pending

before or decided by the BALCA.

Technical amendments are also made to

20 CFR part 655, subpart A to

harmonize the manner in which BALCA

issues decisions on behalf of the

Secretary with the system of

discretionary review established in 29

CFR part 18. Additionally, this rule

proposes to modify or remove the

reference to ‘‘final’’ decisions of the

ARB in 20 CFR 655.73(g)(6) and 29 CFR

503.55 to reflect that the finality of ARB

decisions is governed by Secretary of

Labor’s Order 01–2020.

IV. Administrative Requirements of the

Proposed Rulemaking

Executive Orders 12866, Regulatory

Planning and Review, and 13563,

Improving Regulation and Regulatory

Review

Executive Orders 12866 and 13563

direct agencies to assess the costs and

benefits of available regulatory

alternatives and, if regulation is

necessary, to select regulatory

approaches that maximize net benefits

(including potential economic,

environmental, public health and safety

effects, distributive impacts, and

equity). Executive Order 13563

emphasizes the importance of

quantifying both costs and benefits, of

reducing costs, of harmonizing rules,

and of promoting flexibility.

This proposed rule has been drafted

and reviewed in accordance with

Executive Order 12866. The

Departments, in coordination with the

Office of Management and Budget

(OMB), determined that this proposed

rule is not a significant regulatory action

under section 3(f) of Executive Order

12866 because the rule will not have an

annual effect on the economy of $100

million or more; will not create a

serious inconsistency or otherwise

interfere with an action taken or

planned by another agency; and will not

materially alter the budgetary impact of

entitlements, grants, user fees, or loan

programs or the rights and obligations of

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recipients thereof. Furthermore, the rule

does not raise a novel legal or policy

issue arising out of legal mandates, the

President’s priorities, or the principles

set forth in the Executive order.

Accordingly, OMB has waived

review.

Regulatory Flexibility Act of 1980

Because no notice of proposed

rulemaking is required for this rule

under section 553 of the Administrative

Procedure Act, the regulatory flexibility

analysis requirements of the Regulatory

Flexibility Act, 5 U.S.C. 603, 604, do not

apply to this rule. See 5 U.S.C. 603(a),

604(a).

Paperwork Reduction Act

The Departments have determined

that this proposed rule is not subject to

the requirements of the Paperwork

Reduction Act, 44 U.S.C. 3501 et seq.,

as this rulemaking does not involve any

collections of information. See 5 CFR

1320.3(c).

Unfunded Mandates Reform Act of 1995

and Executive Order 13132, Federalism

The Departments have reviewed this

proposed rule in accordance with the

requirements of Executive Order 13132

and the Unfunded Mandates Reform Act

of 1995, 2 U.S.C. 1501 et seq., and have

found no potential or 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. As there

is no Federal mandate contained herein

that could result in increased

expenditures by state, local, and tribal

governments, or by the private sector,

the Departments have not prepared a

budgetary impact statement.

Executive Order 13175, Consultation

and Coordination With Indian Tribal

Governments

The Departments have reviewed this

proposed rule in accordance with

Executive Order 13175 and has

determined that it does not have ‘‘tribal

implications.’’ The proposed rule 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.’’

Signature

The Acting Secretary of Homeland

Security, Chad F. Wolf, having reviewed

and approved this document, has

delegated the authority to electronically

sign this document to Chad R. Mizelle,

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31

who is the Senior Official Performing

the Duties of the General Counsel for

DHS, for purposes of publication in the

Federal Register.

V. Notice and Comment

A. APA Requirements for Notice and

Comment

This proposed rule addresses matters

of internal agency management and

personnel, as well as matters of agency

organization, practice and procedure,

and consequently are exempt from the

notice and public comments

requirements of the Administrative

Procedure Act. See 5 U.S.C. 553(a)(2),

(b)(A). Nevertheless, the Departments

wish to provide the public an

opportunity to submit comments.

B. Publication of Comments

Please be advised that the

Departments will generally post all

comments without making any change

to the comments, including any

personal information provided. The

www.regulations.gov website is the

Federal e-rulemaking portal, and all

comments received will be available

and accessible to the public on this

website. Therefore, the Departments

recommend that commenters safeguard

their personal information by not

including social security numbers,

personal addresses, telephone numbers,

or email addresses in comments. It is

the responsibility of the commenter to

safeguard his or her information.

C. Access to Docket

In addition to all comments received

by the Departments being accessible on

www.regulations.gov, the Departments

will make all the comments available for

public inspection during normal

business hours at the office listed in the

ADDRESSES section above. If you need

assistance to review the comments, the

Departments will provide you with

appropriate aids such as readers or print

magnifiers. The Departments will make

copies of the proposed rule available,

upon request, in large print or electronic

file on portable digital media. The

Departments will consider providing the

proposed rule in other formats upon

request. To schedule an appointment to

review the comments or obtain the

proposed rule in an alternate format,

contact Todd Smyth, General Counsel,

U.S. Department of Labor, Office of

Administrative Law Judges, 800 K Street

NW, Washington, DC 20001–8002;

telephone (513) 684–3252.

Individuals with hearing or speech

impairments may access the telephone

number above by TTY by calling the

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Federal Register / Vol. 86, No. 1 / Monday, January 4, 2021 / Proposed Rules

toll-free Federal Information Relay

Service at (800) 877–8339.

List of Subjects

20 CFR Part 655

Administrative practice and

procedure, Labor certification processes

for temporary employment.

Subparts L and M issued under 8 U.S.C.

1101(a)(15)(H)(i)(c) and 1182(m); sec. 2(d),

Pub. L. 106–95, 113 Stat. 1312, 1316 (8 U.S.C.

1182 note); Pub. L. 109–423, 120 Stat. 2900;

and 8 CFR 214.2(h).

read as follows:

handled in accordance with 20 CFR

655.61, 655.171(a), or 655.461, at any

point from when the BALCA receives a

request for review until the passage of

10 business days after the date on which

BALCA has issued its decision.

*

*

*

*

*

§ 655.61

Title 29: Labor

■ 2. In § 655.61, revise paragraph (e) to

Administrative review.

*

29 CFR Part 503

Administrative practice and

procedure, Obligations, Enforcement,

Immigration and Nationality Act,

Temporary alien non-agricultural

workers.

For the reasons discussed in the joint

preamble, part 655 of title 20 of the

Code of Federal Regulations and parts

18 and 503 of title 29 of the Code of

Federal Regulations are proposed to be

amended as follows:

*

*

*

*

(e) Review. The BALCA must review

the CO’s determination only on the

basis of the Appeal File, the request for

review, and any legal briefs submitted

and must, except in cases over which

the Secretary has assumed jurisdiction

pursuant to 29 CFR 18.95:

(1) Affirm the CO’s determination; or

(2) Reverse or modify the CO’s

determination; or

(3) Remand to the CO for further

action.

*

*

*

*

*

■ 3. In § 655.72, revise paragraph (b)(3)

to read as follows:

DEPARTMENT OF LABOR

§ 655.72

Title 20: Employees’ Benefits

*

29 CFR Part 18

Administrative practice and

procedure, Labor.

Employment and Training

Administration

PART 655—TEMPORARY

EMPLOYMENT OF FOREIGN

WORKERS IN THE UNITED STATES

■ 1. The authority citation for part 655

continues to read as follows:

Authority: Section 655.0 issued under 8

U.S.C. 1101(a)(15)(E)(iii), 1101(a)(15)(H)(i)

and (ii), 8 U.S.C. 1103(a)(6), 1182(m), (n), (p),

and (t), 1184(c), (g), and (j), 1188, and 1288(c)

and (d); sec. 3(c)(1), Pub. L. 101–238, 103

Stat. 2099, 2102 (8 U.S.C. 1182 note); sec.

221(a), Pub. L. 101–649, 104 Stat. 4978, 5027

(8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L.

102–232, 105 Stat. 1733, 1748 (8 U.S.C. 1101

note); sec. 323(c), Pub. L. 103–206, 107 Stat.

2428; sec. 412(e), Pub. L. 105–277, 112 Stat.

2681 (8 U.S.C. 1182 note); sec. 2(d), Pub. L.

106–95, 113 Stat. 1312, 1316 (8 U.S.C. 1182

note); 29 U.S.C. 49k; Pub. L. 107–296, 116

Stat. 2135, as amended; Pub. L. 109–423, 120

Stat. 2900; 8 CFR 214.2(h)(4)(i); 8 CFR

214.2(h)(6)(iii); and sec. 6, Pub. L. 115–218,

132 Stat. 1547 (48 U.S.C. 1806).

Subpart A issued under 8 CFR 214.2(h).

Subpart B issued under 8 U.S.C.

1101(a)(15)(H)(ii)(a), 1184(c), and 1188; and 8

CFR 214.2(h).

Subpart E issued under 48 U.S.C. 1806.

Subparts F and G issued under 8 U.S.C.

1288(c) and (d); sec. 323(c), Pub. L. 103–206,

107 Stat. 2428; and 28 U.S.C. 2461 note, Pub.

L. 114–74 at section 701.

Subparts H and I issued under 8 U.S.C.

1101(a)(15)(H)(i)(b) and (b)(1), 1182(n), (p),

and (t), and 1184(g) and (j); sec. 303(a)(8),

Pub. L. 102–232, 105 Stat. 1733, 1748 (8

U.S.C. 1101 note); sec. 412(e), Pub. L. 105–

277, 112 Stat. 2681; 8 CFR 214.2(h); and 28

U.S.C. 2461 note, Pub. L. 114–74 at section

701.

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PART 503—ENFORCEMENT OF

OBLIGATIONS FOR TEMPORARY

NONIMMIGRANT NONAGRICULTURAL WORKERS

DESCRIBED IN THE IMMIGRATION

AND NATIONALITY ACT

■ 7. The authority citation for part 503

continues to read as follows:

Authority: 8 U.S.C. 1101(a)(15)(H)(ii)(b); 8

U.S.C. 1184; 8 CFR 214.2(h); 28 U.S.C. 2461

note (Federal Civil Penalties Inflation

Adjustment Act of 1990); Pub. L. 114–74 at

§ 701.

■ 8. Revise § 503.55 to read as follows:

Revocation.

*

*

*

*

(b) * * *

(3) Appeal. An employer may appeal

a Notice of Revocation, or a final

determination of the Administrator,

OFLC after the review of rebuttal

evidence, according to the appeal

procedures of § 655.61.

*

*

*

*

*

■ 4. In § 655.73, revise paragraph (g)(6)

to read as follows:

§ 655.73

Wage and Hour Division

Debarment.

*

*

*

*

*

(g) * * *

(6) ARB decision. The ARB’s decision

must be issued within 90 calendar days

from the notice granting the petition and

served upon all parties and the ALJ.

*

*

*

*

*

Title 29: Labor

Office of the Secretary of Labor

§ 503.55 Decision of the Administrative

Review Board.

The ARB’s decision will be issued

within 90 days from the notice granting

the petition and served upon all parties

and the ALJ.

Eugene Scalia,

Secretary of Labor.

Chad R. Mizelle,

Senior Official Performing the Duties of the

General Counsel, U.S. Department of

Homeland Security.

[FR Doc. 2020–28952 Filed 12–30–20; 4:15 pm]

BILLING CODE 4510–HL–P

DEPARTMENT OF HOMELAND

SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG–2020–0691]

PART 18—RULES OF PRACTICE AND

PROCEDURE FOR ADMINISTRATIVE

HEARINGS BEFORE THE OFFICE OF

ADMINISTRATIVE LAW JUDGES

■ 5. The authority citation for part 18

continues to read as follows:

Authority: 5 U.S.C. 301; 5 U.S.C. 551–553;

5 U.S.C. 571 note; E.O. 12778; 57 FR 7292.

■ 6. In § 18.95, revise paragraph (b)(1) to

read as follows:

§ 18.95 Review of decision and review by

the Secretary.

*

*

*

*

*

(b) * * *

(1) In any case for which

administrative review is sought or

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RIN 1625–AA00

Safety Zone; Super Bowl LV;

Hillsborough Bay and River, Tampa, FL

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Coast Guard is proposing

to establish a temporary safety zone on

certain waters of Garrison Channel,

Seddon Channel Turning Basin, and the

Hillsborough River, in the vicinity of

downtown Tampa, Florida during the

Super Bowl LV celebrations from

January 29, 2021, through February 7,

2021. The safety zone is necessary to

protect the public and Super Bowl event

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