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Federal Register / Vol. 86, No. 56 / Thursday, March 25, 2021 / Proposed Rules
opportunity to review issues of law, policy, and fact raised by the 2020 Tip final rule before it takes effect. This notice of proposed rulemaking NPRM
proposes to further extend the effective date of three portions of the 2020 Tip final rule in order to complete a separate rulemaking, published elsewhere in this issue of the Federal Register, and to provide the Department additional time to consider whether to withdraw and repropose that portion of the 2020 Tip final rule addressing the application of the FLSAs tip credit provision to tipped employees who perform both tipped and non-tipped duties. The proposed 8month delay, until December 31, 2021, would allow the Department to finalize the separate rulemaking, which would include, inter alia, a 60-day comment period and at least a 30-day delay between publication and the rules effective date.
DATES: The amendments to 29 CFR
10.28b2, 531.56e, 578.1, 578.3, 578.4, 579.1, 579.2, 580.2, 580.3, 580.12, and 580.18, published at 85 FR 86756
December 30, 2020, and delayed at 86
FR 11632 February 26, 2021 until April 30, 2021, are proposed to be further delayed until December 31, 2021. Submit written comments on or before April 14, 2021.
ADDRESSES: You may submit comments, identified by Regulatory Information Number RIN 1235AA21, by either of the following methods: Electronic Comments: Submit comments through the Federal eRulemaking Portal at https www.regulations.gov. Follow the instructions for submitting comments.
Mail: Address written submissions to Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S
3502, 200 Constitution Avenue NW, Washington, DC 20210. Instructions:
Please submit only one copy of your comments by only one method.
Commenters submitting file attachments on https www.regulations.gov are advised that uploading text-recognized documentsi.e., documents in a native file format or documents which have undergone optical character recognition OCRenable staff at the Department to more easily search and retrieve specific content included in your comment for consideration. Anyone who submits a comment including duplicate comments should understand and expect that the comment will become a matter of public record and will be posted without change to https
www.regulations.gov, including any personal information provided. The Department will post comments gathered and submitted by a third-party
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organization as a group under a single document ID number on https
www.regulations.gov. All comments must be received by 11:59 p.m. on April 14, 2021 for consideration in this proposed delay of effective date. The Department strongly recommends that commenters submit their comments electronically via https
www.regulations.gov to ensure timely receipt prior to the close of the comment period, as the Department continues to experience delays in the receipt of mail.
Submit only one copy of your comments by only one method. Docket: For access to the docket to read background documents or comments, go to the Federal eRulemaking Portal at https
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:

Amy DeBisschop, Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S
3502, 200 Constitution Avenue NW, Washington, DC 20210; telephone: 202
6930406 this is not a toll-free number. Copies of this proposal may be obtained in alternative formats Large Print, Braille, Audio Tape or Disc, upon request, by calling 202 6930675 this is not a toll-free number. TTY/TDD
callers may dial toll-free 1877889
5627 to obtain information or request materials in alternative formats.
SUPPLEMENTARY INFORMATION:
I. Background In the Consolidated Appropriations Act of 2018 CAA, Congress amended section 3m of the FLSA to prohibit employers from keeping tips received by employees, regardless of whether the employers take a tip credit under section 3m. On December 30, 2020, the Department published the 2020 Tip final rule in the Federal Register to address these amendments. See 85 FR
86756. The 2020 Tip final rule would also codify the Wage and Hour Divisions WHD guidance, unrelated to the CAA amendments, regarding the application of the FLSAs tip credit provision to tipped employees who perform tipped and non-tipped duties.
See id. The original effective date of the 2020 Tip final rule was March 1, 2021.
See id. A legal challenge to the 2020 Tip final rule was filed on January 19, 2021
and is pending in the United States District Court for the Eastern District of Pennsylvania.1
On February 26, 2021, after engaging in notice-and-comment rulemaking and considering the comments submitted 1 Commonwealth of Pennsylvania et al. v. Scalia et al., No. 2:21cv00258 E.D. Pa., Jan. 19, 2021.

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about a proposed effective date delay 86 FR 8325 February 5, 2021, the Department delayed the effective date for the 2020 Tip final rule by 60 days to April 30, 2021, in order to provide the Department additional opportunity to review and consider questions of law, policy, and fact raised by the rule. See 86 FR 11632 February 26, 2021. The 60-day delay of the 2020 Tip final rules effective date was sought pursuant to the Presidential directive as expressed in the memorandum of January 20, 2021, from the Assistant to the President and Chief of Staff, titled Regulatory Freeze Pending Review. See 86 FR
7424. The Department explained in the Delay Rule that it would use the delay to consider, among other things, whether the 2020 Tip final rule properly implements the CAA amendments to section 3m of the FLSA, in particular, the incorporation of the CAAs language regarding civil money penalties CMPs for violations of section 3m2B of the FLSA; whether the 2020 Tip final rule revisions to portions of the CMP
regulations on willful violations were appropriate; whether the 2020 Tip final rule adequately considered the possible costs, benefits, and transfers between employers and employees related to the codification of guidance on applying the tip credit to tipped employees who perform tipped and non-tipped duties;
and whether the 2020 Tip final rule otherwise effectuates the CAA
amendments to the FLSA. See id. The Department explained that allowing the 2020 Tip final rule to go into effect while the Department reviewed these issues could lead to confusion among workers and employers in the event that the Department proposed to revise the 2020 Tip final rule after its review;
delaying the 2020 Tip final rule would avoid such confusion. Id.
II. Proposed Second Delay of Effective Date for Three Portions of the 2020 Tip Final Rule In this NPRM, the Department is proposing to delay the effective date of three portions of the 2020 Tip final rule for an additional 8 months, through December 31, 2021. Specifically, the Department is proposing to delay the two portions of the 2020 Tip final rule which address the assessment of CMPs, and to delay the portion of the 2020 Tip final rule that addresses the application of the FLSA tip credit to tipped employees who perform tipped and non-tipped duties. These three portions of the 2020 Tip final rule encompass those parts of the rule that are being challenged under the Administrative Procedure Act APA in the January 19, 2021 complaint pending in the United
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