Discretionary Review by the Secretary of Labor, 1-4 [2020-28951]
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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
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.
AGENCY:
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
SUMMARY:
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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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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).
2. In § 655.61, revise paragraph (e) to
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
■
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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Wage and Hour Division
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.
■
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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*
*
Frm 00004
§ 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
*
8. Revise § 503.55 to read as follows:
*
Fmt 4700
*
Sfmt 4700
RIN 1904–AE18
Energy Conservation Program: Test
Procedures for Small Electric Motors
and Electric Motors
Office of Energy Efficiency and
Renewable Energy, Department of
Energy.
ACTION: Final rule.
AGENCY:
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
SUMMARY:
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Agencies
[Federal Register Volume 86, Number 1 (Monday, January 4, 2021)]
[Rules and Regulations]
[Pages 1-4]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28951]
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Rules and Regulations
Federal Register
________________________________________________________________________
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.
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Federal Register / Vol. 86, No. 1 / Monday, January 4, 2021 / Rules
and Regulations
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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.
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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 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 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 non-controversial.
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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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-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 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 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 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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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).
III. Discussion of Changes
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 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 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 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 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 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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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.
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:
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. 2020-28951 Filed 12-30-20; 4:15 pm]
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