Discretionary Review by the Secretary of Labor
| Citation | 86 FR 29 |
| Record Number | 2020-28952 |
| Published date | 04 January 2021 |
| Court | Wage And Hour Division |
Federal Register, Volume 86 Issue 1 (Monday, January 4, 2021)
[Federal Register Volume 86, Number 1 (Monday, January 4, 2021)]
[Proposed Rules]
[Pages 29-32]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28952]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
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.
========================================================================
Federal Register / Vol. 86, No. 1 / Monday, January 4, 2021 /
Proposed Rules
[[Page 29]]
-----------------------------------------------------------------------
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 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
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 non-controversial.
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,
[[Page 30]]
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 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-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 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 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
[[Page 31]]
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 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, 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
[[Page 32]]
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.
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:
DEPARTMENT OF LABOR
Title 20: Employees' Benefits
Employment and Training Administration
PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED
STATES
0
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.
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).
0
2. In Sec. 655.61, revise paragraph (e) to read as follows:
Sec. 655.61 Administrative review.
* * * * *
(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.
* * * * *
0
3. In Sec. 655.72, revise paragraph (b)(3) to read as follows:
Sec. 655.72 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 Sec. 655.61.
* * * * *
0
4. In Sec. 655.73, revise paragraph (g)(6) to read as follows:
Sec. 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.
* * * * *
Title 29: Labor
Office of the Secretary of Labor
PART 18--RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE
HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES
0
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.
0
6. In Sec. 18.95, revise paragraph (b)(1) to read as follows:
Sec. 18.95 Review of decision and review by the Secretary.
* * * * *
(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.
* * * * *
Title 29: Labor
Wage and Hour Division
PART 503--ENFORCEMENT OF OBLIGATIONS FOR TEMPORARY NONIMMIGRANT
NON-AGRICULTURAL WORKERS DESCRIBED IN THE IMMIGRATION AND
NATIONALITY ACT
0
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 Sec. 701.
0
8. Revise Sec. 503.55 to read as follows:
Sec. 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
