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Federal Register / Vol. 86, No. 1 / Monday, January 4, 2021 / Proposed Rules
Rules Concerning Discretionary Review by the Secretary, 85 FR 30608 May 20, 2020, and, with respect to ARB
decisions in H2B cases, reflects a power he already possesses pursuant to the Secretary of Labors Order 012020, 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. 553a2, bA. 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 rules 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 Administrations adjudication of foreign labor certification applications. It was created by regulation to exercise delegated authority on behalf of the Secretary of Labor. Its existence is neither compelled
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nor governed by statute, and it is entrusted with the power to issue final agency decisions in the name of the Secretary of Labor. Earlier this year, DOL issued regulations establishing a mechanism by which the Secretary of Labor can exercise review of decisions issued by BALCA on his behalf in the H2A, CW1, and PERM programs. This rule will apply the same mechanism for review over decisions issued by BALCA
in the H2B 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 Labors Order No. 012020. DOLs 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 Labors authority to administer the statutes and programs at issue in ARB and BALCA proceedings, including the H2B temporary-laborcertification and enforcement programs provided for in DHS and DOLs 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 H2B
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 DOLs existing mechanisms of secretarial review, under this reform the Secretary will rely on BALCA to assist him in identifying cases where secretarial review may be warranted.
Also consistent with current practices at DOL and other agencies, the
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Departments do not anticipate that the power of secretarial review over H2B
cases will be used often. The Departments similarly anticipate that secretarial reviewwhile completely within the Secretary of Labors discretion as the principal officer accountable for DOLs activitieswill 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 H2B cases will significantly disrupt or otherwise impede the way such cases are currently processed. As noted above, the Departments expect that secretarial review over BALCAs H2B decisions will likely not be exercised often.
Further, BALCA decisions will remain the Secretary of Labors 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 DOLs 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 Labors review authority over H2B cases under 29 CFR 18.95.
This determination follows conflicting court decisions concerning DOLs authority to issue legislative rules on its own to carry out its duties in the H2B
program. Although the Departments each have authority to issue rules implementing their respective duties in the H2B program, including rules providing for secretarial review, the Departments are proposing to make the amendments to the applicable regulations jointly to ensure that there can be no question about the authority underlying such amendments. This approach is consistent with the joint
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