Rules and Regulations

1

Rules and Regulations

Federal Register

Vol. 86, No. 1

Monday, January 4, 2021

This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents.

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: Direct final rule.

SUMMARY: The Department of Homeland

Security and the Department of Labor

(DOL) are jointly issuing this direct final

rule 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: This direct final rule (DFR) is

effective February 3, 2021 unless

significant adverse comment is

submitted by January 19, 2021. If the

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Departments receive significant adverse

comment, the Departments will publish

a timely withdrawal in the Federal

Register informing the public that this

DFR will not take effect (see Section I,

Direct Final Rule Published

Concurrently With Companion

Proposed Rule, for more details on this

process). To ensure 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 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

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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

information on the rulemaking; Section

III summarizes the regulatory text;

Section IV covers the administrative

requirements for this rulemaking; and

Section V provides additional

information and instructions to those

wishing to comment on the rule.

This final rule is not 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. Direct Final Rule Published

Concurrently With Companion

Proposed Rule

The Department of Homeland

Security (DHS) and Department of Labor

(DOL) (collectively, the Departments)

are simultaneously publishing with this

‘‘direct final’’ rule an identical proposed

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, 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 revision to DOL’s

internal adjudicatory processes would

implement the mechanism by which the

Secretary of Labor (Secretary) can

review H–2B cases pending before or

decided by the Board of Alien Labor

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

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,

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’s Order 01–2020,

Delegation of Authority and Assignment

of Responsibility to the Administrative

Review Board, 85 FR 13186 (Mar. 6,

2020). This 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;

therefore, the Departments are not

required to engage in a notice-andcomment 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 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 the proposed

rule runs concurrently with the

comment period for this DFR. Any

comments received in response to the

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

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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

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 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 has the

ability to properly supervise and direct

the actions of the Department he

supervises, earlier this year the

Secretary of Labor 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’s

authority to administer the statutes and

programs at issue in ARB and BALCA

proceedings, including the H–2B

temporary-labor-certification 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 do so through this

rulemaking with respect to H–2B cases

pending before or decided by BALCA.

This rule, like those actions

undertaken earlier this year, preserves

the existing structures by which DOL

processes adjudications while giving the

Secretary the option, in his sole

discretion, to initiate review directly. As

with DOL’s existing mechanisms of

secretarial review, under this reform the

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Secretary of Labor 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

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’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 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 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

regulations jointly to ensure that there

can be no question about the authority

underlying such amendments. This

approach is consistent with the joint

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).

another agency; and will not materially

alter the budgetary impact of

entitlements, grants, user fees, or loan

programs or the rights and obligations of

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.

and approved this document, has

delegated the authority to electronically

sign this document to Chad R. Mizelle,

who is the Senior Official Performing

the Duties of the General Counsel for

DHS, for purposes of publication in the

Federal Register.

III. Discussion of Changes

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).

This 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.

Through this rule, the Departments

revise 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

modifies or removes 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’s Order 01–

2020.

IV. Administrative Requirements

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 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 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

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Paperwork Reduction Act

The Departments have determined

that this 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

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

rule in accordance with Executive Order

13175 and has determined that it does

not have ‘‘tribal implications.’’ The 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

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V. Notice and Comment

A. APA Requirements for Notice and

Comment

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 rule available, upon

request, in large print or electronic file

on portable digital media. The

Departments will consider providing the

rule in other formats upon request. To

schedule an appointment to review the

comments or obtain the 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.

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

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.

List of Subjects

20 CFR Part 655

Administrative practice and

procedure, Labor certification processes

for temporary employment.

29 CFR Part 18

Administrative practice and

procedure, Labor.

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.

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:

(b) * * *

(1) In any case for which

administrative review is sought or

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 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

*

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

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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

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.

*

*

*

*

*

Office of the Secretary of Labor

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.

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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:

§ 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. 2020–28951 Filed 12–30–20; 4:15 pm]

BILLING CODE 4510–HL–P

DEPARTMENT OF ENERGY

10 CFR Part 431

[EERE–2017–BT–TP–0047]

Title 29: Labor

*

Wage and Hour Division

*

Fmt 4700

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RIN 1904–AE18

Energy Conservation Program: Test

Procedures for Small Electric Motors

and Electric Motors

AGENCY: Office of Energy Efficiency and

Renewable Energy, Department of

Energy.

ACTION: Final rule.

SUMMARY: In this final rule, the

Department of Energy (‘‘DOE’’) is further

harmonizing its test procedures with

industry practice by updating a

currently incorporated testing standard

to reference that standard’s latest

version, incorporating a new industry

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