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Federal Register / Vol. 86, No. 56 / Thursday, March 25, 2021 / Proposed Rules keeping tips and that all tips are distributed to employees?
2. How could the Department best structure a recordkeeping requirement to ensure that employers are not keeping tips and that all tips are distributed to employees, while placing the lowest burden possible on employers?
3. If the Department were to require employers to keep track of tips contributed to and/or received from an employer-mandated tip pool, how frequently should employers be required to record this information:
Each day, each workweek, each pay period or based on some other timeframe?
4. Whether the Department should require employers to provide employees with notice of the structure of any mandatory tip pooling or tip sharing arrangement such as the frequency of distribution and the method for distribution/sharing of tips among employees?
5. Whether record-keeping requirements, if any, should be different for employers who collect and distribute tips for an employer-mandated tip pool than for employers who mandate tip sharing arrangements but do not collect tips to distribute e.g., an employer who requires a tipped employee to tip out another tipped or non-tipped employee.
6. Are there other ways that the Department can ensure that employees, and not employers, keep tips?
In addition to these specific questions, the Department also has more general questions about tip pooling that may be helpful to its future considerations of enforcement of the obligations of section 3m2B:
1. What kind of employees typically participate in mandatory tip pooling arrangements and in what industries are these arrangements most common?
2. Are mandatory tip pooling or voluntary tip out arrangements more commonly used?
VI. Paperwork Reduction Act The Paperwork Reduction Act of 1995
PRA and its attendant regulations require an agency to consider its need for any information collections, their practical utility, as well as the impact of paperwork and other information collection burdens imposed on the public, and how to minimize those burdens. The PRA typically requires an agency to provide notice and seek public comments on any proposed collection of information contained in a proposed rule. The Department notes that the new recordkeeping burdens introduced by the 2020 Tip final rule were submitted to the Office of
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Management and Budget OMB as part of the NPRM published in the Federal Register October 8, 2019 84 FR 53956
and again with the 2020 Tip final rule on December 30, 2020 85 FR 86756.
The OMB issued a notice of action approving the recordkeeping requirements and burdens associated with the 2020 Tip final rule on February 24, 2021. The recordkeeping provisions from that final rule are going into effect.
This NPRM does not contain an additional collection of information subject to OMB approval under the PRA. The Department invites public comment on this determination.
VII. Executive Order 12866, Regulatory Planning and Review; and Executive Order 13563, Improved Regulation and Regulatory Review A. Introduction Under Executive Order 12866, OMBs Office of Information and Regulatory Affairs OIRA determines whether a regulatory action is significant and, therefore, subject to the requirements of the Executive Order and OMB review.19
Section 3f of Executive Order 12866
defines a significant regulatory action as a regulatory action that is likely to result in a rule that may: 1 Have an annual effect on the economy of $100
million or more, or adversely affect in a material way a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local or tribal governments or communities also referred to as economically significant; 2 create serious inconsistency or otherwise interfere with an action taken or planned by another agency; 3
materially alter the budgetary impact of entitlements, grants, user fees or loan programs or the rights and obligations of recipients thereof; or 4 raise novel legal or policy issues arising out of legal mandates, the Presidents priorities, or the principles set forth in the Executive order. OIRA has determined that this proposed rule is not economically significant under section 3f of Executive Order 12866.
Executive Order 13563 directs agencies to, among other things, propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs; that it is tailored to impose the least burden on society, consistent with obtaining the regulatory objectives; and that, in choosing among alternative regulatory approaches, the agency has selected those approaches that maximize net benefits. Executive Order 13563 recognizes that some costs 19 See
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and benefits are difficult to quantify and provides that, when appropriate and permitted by law, agencies may consider and discuss qualitatively values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts. The analysis below outlines the impacts that the Department anticipates may result from this proposed rule and was prepared pursuant to the above-mentioned Executive orders.
B. Background In this NPRM, the Department proposes to withdraw and repropose the portion of the 2020 Tip final rule incorporating the CAAs new provisions authorizing the assessment of CMPs for violations of section 3m2B of the Act. The Department also proposes to withdraw and repropose additional portions of its CMP regulations addressing willful violations. Because these proposed changes would only apply when an employer violates the FLSA, the Department does not believe that they will have an impact on costs or transfers. The other provisions codifying the CAA amendments were already discussed and quantified in the 2020 Tip final rule, and so have not been quantified again here. The only costs quantified here are the rule familiarization costs associated with reviewing the proposed rule. The Department qualitatively discusses possible benefits associated with this proposed rule. The Department welcomes any comments and data on additional costs or possible benefits associated with this proposed rule.
C. Costs 1. Rule Familiarization Costs Regulatory familiarization costs represent direct costs to businesses associated with reviewing the new regulation. It is not clear whether regulatory familiarization costs are a function of the number of establishments or the number of firms.20
Presumably, the headquarters of a firm will conduct the regulatory review for businesses with multiple locations, and may also require these locations to familiarize themselves with the regulation at the establishment level. To avoid underestimating the costs of this proposed rule, the Department uses both the number of establishments and the 20 An establishment is a single economic unit that produces goods or services. Establishments are typically at one physical location and engaged in one, or predominantly one, type of economic activity. An establishment is in contrast to a firm, or a company, which is a business and may consist of one or more establishments.

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