Federal Register / Vol. 86, No. 23 / Friday, February 5, 2021 / Proposed Rules 8325 

maintenance, surveillance, and other 

labor costs. 

(1) A public utility that receives 

incentive-based rate treatment under the 

Critical Infrastructure Protection 

Incentive Approach must also describe 

in its informational filings 

implementation of the enhanced 

security controls, as applicable, in all 

the topics covered by the Critical 

Infrastructure Protection Reliability 

Standards. For the first informational 

filing, the public utility must provide 

documentation to demonstrate 

voluntary application of identified 

Critical Infrastructure Protection 

Reliability Standards to facilities that 

are not currently subject to those 

requirements. For subsequent annual 

informational filings, the public utility 

must provide an updated version of the 

supporting documentation showing any 

changes from the prior informational 

filing as well as information on any 

period of time during the reported year 

where the public utility ceased to 

voluntarily apply identified Critical 

Infrastructure Protection Reliability 

Standards to facilities that are not 

currently subject to those requirements. 

(2) A public utility that receives 

incentive-based rate treatments under 

the National Institute of Standards and 

Technology Framework Approach must 

also include information that 

demonstrates: 

(i) The acquisition and installation of 

required network components, 

including confirmation that funds have 

been expended on the necessary 

equipment through documentation such 

as purchase orders, receipts, licensing 

agreements, and installation 

documentation with specified time 

periods; 

(ii) Attainment of necessary training 

and personnel, including 

documentation such as third-party 

contractor agreements, training program 

curricula, and official job descriptions; 

(iii) Network and sensor node 

recognition optimization through such 

items as configuration files, system logs, 

configuration settings, and a description 

of its location on the affected network; 

(iv) Incorporation of sensor nodes in 

the enterprise level incident monitoring 

and response plan including attesting 

that the information would be included 

in operational activities such as incident 

response plans, playbooks, and 

Standard Operating Procedures. 

DEPARTMENT OF ENERGY 

Federal Energy Regulatory Commission 

Cybersecurity Incentives 

DANLY, Chairman, and GLICK, 

Commissioner, concurring: 

1. Threats to the cybersecurity of the 

bulk power system are numerous and 

growing. Ensuring that the system is 

adequately protected against those 

threats is an issue of national 

importance and one that must remain a 

priority of this Commission. 

Accordingly, we support this notice of 

proposed rulemaking (NOPR) as a 

means for soliciting further comments 

on whether this particular incentivesbased approach is a just and reasonable 

and not unduly discriminatory or 

preferential approach to improving 

public utilities’ cybersecurity posture. 

2. We write separately to highlight 

two general issues that we believe 

require additional attention. The first 

issue is whether the Commission can 

better address cybersecurity threats by 

directing NERC to expand its critical 

infrastructure protection (CIP) standards 

to require some or all of the investments 

contemplated in this NOPR. Although 

we appreciate the appeal of an 

incentives-based approach, the 

importance of cybersecurity demands us 

to at least consider whether we should 

mandate the best practices 

contemplated in this NOPR rather than 

simply trying to induce public utilities 

to adopt them. 

3. The second issue goes to the heart 

of what the NOPR intends to achieve— 

whether public utilities are not adopting 

the contemplated measures because the 

existing financial incentives are 

insufficient. We encourage commenters 

to address whether—and, if so, why— 

additional measures, such as an 

elevated ROE or deferred cost recovery, 

are necessary to incentivize public 

utilities to adopt additional 

cybersecurity measures. 

For these reasons, we respectfully 

concur. 

James P. Danly, 

Chairman. 

Richard Glick, 

Commissioner. 

[FR Doc. 2021–01986 Filed 2–4–21; 8:45 am] 

BILLING CODE 6717–01–P 

DEPARTMENT OF LABOR 

Office of the Secretary 

29 CFR Part 10 

Wage and Hour Division 

29 CFR Parts 516, 531, 578, 579, and 

580 

RIN 1235–AA21 

Tip Regulations Under the Fair Labor 

Standards Act (FLSA): Delay of 

Effective Date 

AGENCY: Wage and Hour Division, 

Department of Labor. 

ACTION: Proposed delay of effective date. 

SUMMARY: In accordance with the 

Presidential directive as expressed in 

the memorandum of January 20, 2021 

from the Assistant to the President and 

Chief of Staff, entitled ‘‘Regulatory 

Freeze Pending Review,’’ this action 

proposes to delay until April 30, 2021 

the effective date of the rule entitled Tip 

Regulations Under the Fair Labor 

Standards Act (‘‘Tip Rule’’), published 

in the Federal Register on December 30, 

2020. The rule’s current effective date is 

March 1, 2021. WHD seeks comments 

on this proposed delay, which would 

allow the Wage and Hour Division 

additional opportunity for review and 

consideration of the new rule. 

DATES: Submit written comments on or 

before February 17, 2021. 

ADDRESSES: You may submit comments, 

identified by Regulatory Information 

Number (RIN) 1235–AA21, by either of 

the following methods: Electronic 

Comments: Submit comments through 

the Federal eRulemaking Portal at 

http://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 www.regulations.gov are advised that 

uploading text-recognized documents— 

i.e., documents in a native file format or 

documents which have undergone 

optical character recognition (OCR)— 

enable 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 


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8326 Federal Register / Vol. 86, No. 23 / Friday, February 5, 2021 / Proposed Rules 

matter of public record and will be 

posted without change to https://

www.regulations.gov, including any 

personal information provided. All 

comments must be received by 11:59 

p.m. on February 17, 2021, for 

consideration in this proposed delay of 

effective date. The Department strongly 

recommends that commenters submit 

their comments electronically via http:// 

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 http://

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) 

693–0406 (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) 693–0675 (this 

is not a toll-free number). TTY/TDD 

callers may dial toll-free 1–877–889– 

5627 to obtain information or request 

materials in alternative formats. 

SUPPLEMENTARY INFORMATION: In the 

Consolidated Appropriations Act of 

2018 (‘‘CAA’’), Congress amended 

section 3(m) of the Fair Labor Standards 

Act (‘‘FLSA’’ or ‘‘Act’’) to prohibit 

employers from keeping tips received by 

their employees, regardless of whether 

the employers take a tip credit under 

section 3(m). On December 30, 2020, the 

Wage and Hour Division (‘‘WHD’’) 

published Tip Regulations Under the 

Fair Labor Standards Act (the ‘‘Tip 

Rule’’) in the Federal Register to 

address these amendments. See 85 FR 

86756. The Tip Rule would also codify 

WHD’s guidance regarding the tip 

credit’s application to tipped employees 

who perform tipped and non-tipped 

duties. See id. The effective date of the 

Tip Rule is March 1, 2021. See id. 

In a memorandum dated January 20, 

2021 and entitled ‘‘Regulatory Freeze 

Pending Review,’’ (‘‘Regulatory Freeze 

Memorandum’’) published in the 

Federal Register on January 28, 2021 

(86 FR 7424), the Assistant to the 

President and Chief of Staff, on behalf 

of the President, directed the heads of 

Executive Departments and Agencies to 

consider delaying the effective dates of 

all regulations that had been published 

in the Federal Register but had not yet 

taken effect until 60 days following the 

date of the memorandum or beyond; the 

Tip Rule falls into this category. The 

Regulatory Freeze Memorandum states 

that the purpose of such delays is for 

agencies to review any questions of fact, 

law, and policy that the rules may raise. 

The memorandum notes certain 

exceptions that do not apply here. On 

January 20, 2021, the Office of 

Management and Budget (OMB) also 

published OMB Memorandum M–21– 

14, Implementation of Memorandum 

Concerning Regulatory Freeze Pending 

Review, which provides guidance 

regarding the Regulatory Freeze 

Memorandum. See M–21–14, 

Implementation of Memorandum 

Concerning Regulatory Freeze Pending 

Review, https://www.whitehouse.gov/ 

wp-content/uploads/2021/01/M-21-14- 

Regulatory-Review.pdf (last visited Jan. 

26, 2021). OMB Memorandum M–21–14 

explains that pursuant to the Regulatory 

Freeze Memorandum, agencies ‘‘should 

consider postponing the effective dates 

for 60 days and reopening [the] 

rulemaking processes’’ for ‘‘rules that 

have not yet taken effect and about 

which questions involving law, fact, or 

policy have been raised.’’ Id. In 

accordance with the Regulatory Freeze 

Memorandum and OMB Memorandum 

M–21–14, WHD proposes to delay the 

effective date of the Tip Rule by 60 days 

to April 30, 2021. 

Delaying the effective date of the Tip 

Rule for 60 days would provide WHD 

additional opportunity to review and 

consider the questions of law, policy, 

and fact raised by the rule, as 

contemplated by the Regulatory Freeze 

Memorandum and OMB Memorandum 

M–21–14, before the rule goes into 

effect. In particular, WHD could 

consider whether the Tip Rule properly 

implements the CAA Amendments to 

section 3(m) of the FLSA, which 

prohibit employers from keeping tips for 

any purpose, whether the Tip Rule 

adequately considered the possible 

costs, benefits, and transfers between 

employers and employees related to the 

codification of WHD’s guidance 

regarding the tip credit’s application to 

tipped employees who perform tipped 

and non-tipped duties, and whether the 

Tip Rule otherwise effectuates the CAA 

amendments to the FLSA, including the 

statutory provision for civil money 

penalties for violations of section 

3(m)(2)(B) of the Act. Additionally, on 

January 19, 2021, eight states and the 

District of Columbia filed a complaint 

for declaratory and injunctive relief in 

the United States District Court for the 

Eastern District of Pennsylvania, in 

which they argued that the Department 

violated the Administrative Procedure 

Act in promulgating the Tip Rule. The 

delay of the Tip Rule’s effective date 

would also give WHD the opportunity to 

review and consider the rule in light of 

the issues raised by that complaint. 

WHD believes that the proposed 

delay, in accordance with the 

Regulatory Freeze Memorandum and 

OMB Memorandum M–21–14, is 

reasonable given the issues of fact, law, 

and policy raised by the rule, and will 

not be disruptive, given that the Tip 

Rule is not yet effective and WHD has 

not implemented the rule. 

WHD seeks comment on its proposal 

to delay the Tip Rule’s effective date to 

April 30, 2021 in order to further review 

and consider the rule. WHD will 

consider only comments about its 

proposal to delay the Tip Rule’s 

effective date. 

Milton A. Stewart, 

Acting Secretary of Labor. 

[FR Doc. 2021–02485 Filed 2–3–21; 11:15 am] 

BILLING CODE 4510–27–P 

DEPARTMENT OF LABOR 

Wage and Hour Division 

29 CFR Parts 780, 788, and 795 

RIN 1235–AA34 

Independent Contractor Status Under 

the Fair Labor Standards Act: Delay of 

Effective Date 

AGENCY: Wage and Hour Division, 

Department of Labor. 

ACTION: Proposed delay of effective date. 

SUMMARY: In accordance with the 

Presidential directive as expressed in 

the memorandum of January 20, 2021 

from the Assistant to the President and 

Chief of Staff, entitled ‘‘Regulatory 

Freeze Pending Review,’’ this action 

proposes to delay until May 7, 2021, the 

effective date of the rule entitled 

Independent Contractor Status Under 

the Fair Labor Standards Act 

(‘‘Independent Contractor Rule’’), 

published in the Federal Register on 

January 7, 2021. The rule’s current 

effective date is March 8, 2021. The 

Wage and Hour Division seeks 

comments on this proposed delay, 

which would allow it additional 

opportunity for review and 

consideration of the new rule. 

DATES: Submit written comments on or 

before February 24, 2021. 

ADDRESSES: You may submit comments, 

identified by Regulatory Information 

Number (RIN) 1235–AA34, by either of 

the following methods: Electronic 


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