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Federal Register / Vol. 86, No. 183 / Friday, September 24, 2021 / Rules and Regulations share their tips with other eligible employees will benefit non-managerial employees. When managers or supervisors contribute tips to mandatory tip pools, non-managerial employees e.g., bussers, other servers, and bartenders may earn more from the pool and tipped non-managerial employees e.g., servers and bartenders may be required to contribute less to the pool. The Department believes that allowing employers to require managers and supervisors, like other employees who receive tips, to contribute to tip sharing is particularly important given that managers or supervisors may have the opportunity to serve the largest tables or groups of customers, or work the more desirable shifts. In addition, the Department takes note of commenters statement that section 3m2B does not expressly prohibit employers from requiring managers or supervisors to share tips.
The Department expressed concerns in the 2020 Tip final rule that allowing managers and supervisors to participate in tip pools for one purpose contributing tips and not for another receiving tips could create confusion among employers and employees, and lead to situations in which compliance is difficult. 85 FR 86764. On further consideration, however, the Department has determined that any compliance difficulties created by this policy are minimal and are outweighed by the benefits noted above. The far more intractable challenge for compliance and enforcement, as commenters noted, would be to allow managers and supervisors to contribute to employermandated tip pooling or tip sharing arrangements and also receive tips from the pool. Under such a policy, it would be very difficult to ensure that managers and supervisors are not taking more than the equivalent of their own tips in violation of the statute. The Department believes, however, that employers can more easily implement a bright line rule in which managers or supervisors contribute tips to mandatory tip sharing arrangements, but do not receive any tips from those arrangements.
As finalized, 531.54c3 and d provide that, consistent with section 3m2B of the FLSA, an employer may not receive and may not allow a manager or supervisor to receive any tips from a tip pool or tip sharing arrangement. As amended, the regulations do not prohibit an employer from contributing tips to, or from requiring a manager and supervisor who receives tips to contribute tips to, eligible employees in an employermandated tip pooling or tip sharing arrangement. When a manager or
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V. Analysis Conducted in Accordance With Executive Order 12866, Regulatory Planning and Review and Executive Order 13563, Improved Regulation and Regulatory Review
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 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 rule and was prepared pursuant to the abovementioned executive orders.
Pursuant to Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 also known as the Congressional Review Act 5 U.S.C. 801
et seq., OIRA has not designated this rule as a major rule, as defined by 5
U.S.C. 8042.

A. Introduction
B. Background
supervisor directly receives tips for a service the manager or supervisor directly and solely provides, an employer may allow the manager or supervisor to keep the tips, and may also require the manager or supervisor to share some portion of the tips with other eligible employees. Neither of these options runs afoul of section 3m2Bs prohibition on managers and supervisors keeping other employees tips.
IV. Paperwork Reduction Act The Paperwork Reduction Act of 1995
PRA, 44 U.S.C. 3501 et seq., and its attendant regulations, 5 CFR part 1320, require the Department to consider the agencys need for its information collections, their practical utility, the impact of paperwork and other information collection burdens imposed on the public, and how to minimize those burdens. This final rule does not contain a collection of information subject to OMB approval under the PRA.

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.17
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 rule is not economically significant under section 3f of Executive Order 12866.
17 See
PO 00000

In this final rule, the Department modifies 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 modifies an additional portion of its CMP regulations addressing willful violations. Because these changes will only apply when an employer violates the FLSA, the Department does not believe that they will have an impact on costs or transfers. The Department has also decided to clarify in this final rule that while managers and supervisors may not receive tips from tip pools or tip sharing arrangements, managers or supervisors are not prohibited from contributing to mandatory tip pools or sharing arrangements. The Department has discussed this change qualitatively due to data limitations. 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 rule. The Department qualitatively discusses possible benefits associated with this rule.

58 FR 51735, 51741 Oct. 4, 1993.

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