Discretionary Review by the Secretary
| Published date | 06 March 2020 |
| Citation | 85 FR 13086 |
| Record Number | 2020-04018 |
| Section | Proposed rules |
| Court | Employment And Training Administration,Federal Contract Compliance Programs Office,Labor-management Standards Office,Occupational Health And Safety Administration,The Secretary Of Labor Office,Wage And Hour Division |
Federal Register, Volume 85 Issue 45 (Friday, March 6, 2020)
[Federal Register Volume 85, Number 45 (Friday, March 6, 2020)]
[Proposed Rules]
[Pages 13086-13104]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-04018]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Parts 641, 655, 656, 658, 667, 683, and 702
Office of the Secretary of Labor
29 CFR Parts 2, 7, 8, 10, 13, 18, 24, 29, 38, and 96
Office of Labor-Management Standards
29 CFR Parts 417 and 471
Wage and Hour Division
29 CFR Parts 501 and 580
Occupational Health and Safety Administration
29 CFR Parts 1978 Through 1988
Office of Federal Contract Compliance Programs
41 CFR Parts 50-203 and 60-30
RIN 1290-AA39
Discretionary Review by the Secretary
AGENCY: Office of the Secretary, DOL.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Labor is issuing this Notice of Proposed
Rulemaking to seek public comments on a proposal to establish a system
of discretionary secretarial review over cases pending before or
decided by the Board of Alien Labor Certification Appeals and to make
technical changes to Departmental regulations governing the timing and
finality of decisions of the Administrative Review Board and the Board
of Alien Labor Certification Appeals to ensure consistency with the new
discretionary review processes proposed in this rule and established in
Secretary's Order 01-2020.
DATES: The Department invites interested persons to submit comments on
the proposed rules. To ensure consideration, comments must be in
writing and must be submitted (transmitted, postmarked, or delivered)
by April 6, 2020.
ADDRESSES: You may send comments, identified by Regulatory
Identification Number (RIN) 1290-AA39, by either one of the following
methods:
Federal e-Rulemaking Portal: http://www.regulations.gov.
Follow the website instructions for submitting
[[Page 13087]]
comments. To facilitate receipt and processing of comments, the
Department encourages interested parties to submit their comments
electronically.
Mail, hand delivery, express mail, courier service, or
email. You may submit your comments and attachments to Mr. Thomas
Shepherd, Clerk of the Appellate Boards, Room S-5220, 200 Constitution
Avenue NW, Washington, DC 20210, or you may submit them by email to
[email protected]. The Office of the Clerk is open during
business hours on all days except Saturdays, Sundays, and federal
holidays, from 8:30 a.m. to 5:00 p.m., Eastern Time.
Instructions: All submissions received must include the agency name
and Regulatory Information Number (RIN) for this rulemaking. All
comments received will generally be posted without change to http://www.regulations.gov, including any personal information provided.
FOR FURTHER INFORMATION CONTACT: Mr. Thomas Shepherd, Clerk of the
Appellate Boards, at 202-693-6319 or [email protected].
SUPPLEMENTARY INFORMATION: This preamble is divided into five sections:
Section I describes the process of rulemaking using a direct final rule
with a companion proposed rule; Section II provides general background
information on the development of the proposed rulemaking; Section III
summarizes the proposed regulatory text; Section IV covers the
administrative requirements for this proposed rulemaking; and Section V
provides additional information and instructions to those wishing to
comment on the rule.
This proposed rule is not expected to be an Executive Order 13771
regulatory action because it is not significant under Executive Order
12866. Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
the Office of Information and Regulatory Affairs designated this as not
a major rule as defined by 5 U.S.C. 804(2).
I. Proposed Rule Published Concurrently With Companion Direct Final
Rule
The Department is simultaneously publishing with this proposed rule
a ``direct final'' rule elsewhere in this issue of the Federal
Register, which makes identical changes to the regulatory text. In
direct final rulemaking, an agency publishes a final rule with a
statement that the rule will go into effect unless the agency receives
significant adverse comments within a specified period. If the agency
receives no significant adverse comments in response to the direct
final rule, the rule goes into effect. If the agency receives
significant adverse comments, the agency withdraws the direct final
rule and treats such comments as submissions on the proposed rule. The
proposed rule then provides the procedural framework to finalize the
rule. An agency typically uses direct final rulemaking when it
anticipates the rule will be non-controversial.
The Department has determined that this rule is suitable for direct
final rulemaking. The proposed revisions to the Department's internal
adjudicatory processes would establish a mechanism by which the
Secretary can review cases pending before or decided by BALCA, and make
other conforming amendments to Departmental regulations to align with
this new system of discretionary review as well as the similar system
of discretionary review established in Secretary's Order 01-2020 over
decisions of the ARB. These are rules of agency management and
personnel and are entirely procedural changes to how officers within
the Department of Labor exercise delegated authority on behalf of the
Secretary; therefore, the Department is not required to engage in a
notice and comment process to issue them. See 5 U.S.C. 553(a)(2),
(b)(A). Indeed, the vast majority of the proposed changes are merely
technical amendments to rules governing the manner in which the ARB
issues decisions that are designed to eliminate any potential for
confusion or ambiguity in light of the issuance of Secretary's Order
01-2020. Further, discretionary review by an agency head over
adjudicatory decisions exists in many other executive branch agencies,
including at the Department of Justice, the Department of the Interior,
and the Department of Education. The proposed rules are thus consistent
with well-known and well-established models of internal agency review.
In consequence, the proposed changes to the Department's internal
adjudicatory processes should not be controversial.
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 as comments
regarding the direct final rule and vice versa. For purposes of this
rulemaking, a significant adverse comment is one that explains: (1) Why
the rule is inappropriate, including challenges to the rule's
underlying premise or approach; or (2) Why the direct final rule will
be ineffective or unacceptable without a change. In determining whether
a significant adverse comment necessitates withdrawal of the direct
final rule, the Department 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 without the addition.
The Department requests comments on all issues related to this
rule, including economic or other regulatory impacts of this rule on
the public. All interested parties should comment at this time because
the Department will not initiate an additional comment period on the
proposed rule even if it withdraws the direct final rule.
II. Background of This Rulemaking
Two of the four review boards within the Department of Labor were
created by voluntary delegations of authority by previous Secretaries
of Labor. Specifically, the Administrative Review Board (ARB)--which
has authority to hear appeals from the decisions of the Department's
Office of Administrative Law Judges (OALJ) about certain immigration,
child labor, employment discrimination, federal construction/service
contracts, and other issues--and the Board of Alien Labor Certification
Appeals (BALCA)--which has authority over appeals from the decisions of
the Employment and Training Administration's adjudication of foreign
labor certification applications--were created, respectively, by a
Secretary's Order and by regulation. Their existence is neither
compelled nor governed by statute. Notably, before the ARB was created
in 1996, many of the types of cases now subject to its jurisdiction
were decided directly by the Secretary. Each board was also entrusted
with the power to issue final agency decisions in the name of the
Secretary. Currently, the Secretary's Order and regulations
establishing the ARB and BALCA provide no mechanism by which the
Secretary can review, where necessary, the decisions of the officers
who exercise power on his behalf.
To ensure that the Secretary has the ability to properly supervise
and direct the actions of the Department, the Department proposes to
establish systems of discretionary secretarial review over the
decisions of the ARB and decisions of and appeals before BALCA, which
will be accomplished through the proposed rule contained herein and the
simultaneous issuance of a Secretary's Order governing the ARB. The
Department's authority to effect
[[Page 13088]]
these reforms 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's authority to administer the statutes and programs
at issue in ARB and BALCA proceedings. In combination, these statutes
establish many of the powers of the Department within the Office of the
Secretary, and give the Secretary wide latitude to delegate those
powers to his subordinates on the terms he deems appropriate. Thus, the
Secretary has the power to delegate his authority to appropriately
supervise the adjudicatory process within the Department, and is now
exercising that same authority to assert his decision-making
prerogatives duly assigned to him by Congress by modifying the terms on
which the members of the ARB and BALCA exercise his delegated
authority.
The proposed reforms to BALCA (and conforming edits to various
Departmental regulations governing the ARB, BALCA, and the OALJ)
preserve the existing structures by which the Department processes
adjudications while giving the Secretary the option, in his sole
discretion, to initiate review directly in a case where the Secretary's
involvement is necessary and appropriate. Again, Congress has assigned
the administration of various statutes to the Secretary of Labor,
meaning that the Secretary is obligated to ensure that those laws are
administered, executed, interpreted, and enforced according to law and
Executive Branch priorities and policies. Under these reforms, the
Secretary will rely on the ARB and BALCA to assist him in identifying
cases where secretarial review may be warranted. Consistent with the
practice of other agencies, the Department does not anticipate that the
power of secretarial review will be used often. The Department
similarly anticipates that secretarial review--while completely within
the Secretary's discretion as the officer assigned to administer the
laws in the first place--will typically be reserved for matters of
significant importance. Finally, the Department will ensure that the
secretarial review process will be accomplished in a manner that
complies with any applicable legal requirements.
Because of significant differences between how the ARB and BALCA
operate, the proposed systems of review for each board are designed
somewhat differently. Most importantly, whereas with respect to the ARB
the Secretary will not exercise review over cases until after a
decision has been rendered, the proposed regulations modifying BALCA's
authority would allow the Secretary to assume jurisdiction over most
cases even before a decision has been issued. This is because BALCA
processes significantly more cases each year than does the ARB, and,
due to the nature of the temporary visa programs and DOL's role in
administering these programs, does so much more quickly than does the
ARB. As a result, under the BALCA regulations, the Secretary will be
able to initiate review of a case even before BALCA has issued a
decision.
The Department appreciates the expeditious nature of many types of
BALCA proceedings, such as those involving temporary labor
certification, and does not anticipate that the new system of
secretarial review established over such cases will significantly
disrupt or otherwise impede the way such cases are currently processed.
As noted above, the department expects that secretarial review over
BALCA decisions will, as with agency head review at other departments,
likely not be exercised often. Further, the proposed changes to 29 CFR
18.95 provide that a BALCA decision is the Secretary's final
administrative decision unless the Secretary assumes jurisdiction over
the case. For example, once the 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, and will only be delayed in doing so if the
Secretary later decides to undertake review. Moreover, the revised 29
CFR 18.95 limits any potential uncertainty that may exist because of
the possibility of secretarial review by placing strict time limits on
when the Secretary will have the option of assuming jurisdiction over a
case.
III. Analysis of Proposed Rules
The Department proposes to revise several sections of the Code of
Federal Regulations including 20 CFR parts 641, 655, 656, 658, 667,
683, and 702; 29 CFR parts 2, 7, 8, 10, 13, 18, 24, 29, 38, and 96; 29
CFR part 471; 29 CFR parts 501 and 580; 29 CFR parts 1978-1988; and 41
CFR parts 50-203 and 60-30 to harmonize the manner in which the ARB
issues decisions on behalf of the Secretary under the Department's
regulations with the scope of the final decision-making authority
delegated to the ARB by the Secretary in Secretary's Order 01-2020.
Specifically, references to final decisions of the ARB have been
modified or removed to ensure that no regulation contradicts the terms
on which an ARB decision becomes final under the Secretary's Order.
Certain provisions governing the timing of petitions for review to the
ARB and when the ARB is required to issue decisions have also been
amended to eliminate potential ambiguity or confusion over the
distinction between when the ARB is required to issue a decision and
when such decision becomes the final action of the Department pursuant
to the Secretary's Order.
The Department also proposes to revise 29 CFR part 18 by modifying
the conditions under which a decision of BALCA becomes the final
decision of the Department and by creating a process by which the
Secretary of Labor can exercise discretionary review over cases pending
before or decided by the BALCA. Technical amendments are also proposed
to 20 CFR parts 655 and 656 to harmonize the manner in which BALCA
issues decisions on behalf of the Secretary with the new system of
discretionary review established in 29 CFR part 18.
The Department of Labor and the Department of Homeland Security
(DHS) have determined that it is appropriate to issue a separate rule
regarding the Secretary of Labor's review authority over H-2B cases
under 29 CFR 18.95 to address the same issues addressed by this rule in
the H-2B context. It is the Departments' intent to promulgate this
separate rule after the publication of this rule. This determination
follows conflicting court decisions concerning DOL's authority to issue
legislative rules on its own to carry out its duties in the H-2B
program. Although DOL and DHS each have authority to issue rules
implementing their respective duties in the H-2B program, the
Departments plan to make the amendments to the applicable regulations
jointly to ensure that there can be no question about the authority
underlying such technical amendments. This approach is consistent with
the joint rulemaking governing the Temporary Non-Agricultural
Employment of H-2B Aliens in the United States, 80 FR 24042 (Apr. 29,
2015) (codified at 8 CFR part 214, 20 CFR part 655, and 29 CFR part
503).
In order to ensure that all parties appearing before the ARB and
BALCA have fair notice of the new systems of discretionary review
established in this rulemaking and in Secretary's Order 01-2020, the
Secretary will not exercise his review authority over any decision of
either Board issued before the passage of 30 calendar days from the
date on which the rule becomes effective.
[[Page 13089]]
IV. Administrative Requirements of the Proposed Rulemaking
Executive Orders 12866, Regulatory Planning and Review, and 13563,
Improving Regulation and Regulatory Review
Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility.
This proposed rule has been drafted and reviewed in accordance with
Executive Order 12866. The Department of Labor, in coordination with
the Office of Management and Budget (OMB), determined that this
proposed rule is not a significant regulatory action under section 3(f)
of Executive Order 12866 because the rule will not have an annual
effect on the economy of $100 million or more; will not create a
serious inconsistency or otherwise interfere with an action taken or
planned by another agency; and will not materially alter the budgetary
impact of entitlements, grants, user fees, or loan programs or the
rights and obligations of recipients thereof. Furthermore, the rule
does not raise a novel legal or policy issue arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Accordingly, OMB has waived review.
Regulatory Flexibility Act of 1980
Because no notice of proposed rulemaking is required for this rule
under section 553 of the Administrative Procedure Act, the regulatory
flexibility analysis requirements of the Regulatory Flexibility Act, 5
U.S.C. 603, 604, do not apply to this rule. See 5 U.S.C. 601(2).
Paperwork Reduction Act
The Department has determined that this proposed rule is not
subject to the requirements of the Paperwork Reduction Act, 44 U.S.C.
3501 et seq., as this rulemaking does not involve any collections of
information. See 5 CFR 1320.3(c).
Unfunded Mandates Reform Act of 1995 and Executive Order 13132,
Federalism
The Department has reviewed this proposed rule in accordance with
the requirements of Executive Order 13132 and the Unfunded Mandates
Reform Act of 1995, 2 U.S.C. 1501 et seq., and has found no potential
or substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government.
As there is no Federal mandate contained herein that could result in
increased expenditures by State, local, and tribal governments, or by
the private sector, the Department has not prepared a budgetary impact
statement.
Executive Order 13175, Consultation and Coordination With Indian Tribal
Governments
The Department has reviewed this proposed rule in accordance with
Executive Order 13175 and has determined that it does not have ``tribal
implications.'' The proposed rule does not ``have substantial direct
effects on one or more Indian tribes, on the relationship between the
Federal government and Indian tribes, or on the distribution of power
and responsibilities between the Federal government and Indian
tribes.''
V. Instructions for Providing Comments
A. APA Requirements for Notice and Comment
This proposed rule addresses matters of internal agency management
and personnel, as well as matters of agency organization, practice and
procedure, and consequently are exempt from the notice and public
comments requirements of the Administrative Procedure Act. See 5 U.S.C.
553(a)(2), (b)(A). Nevertheless, the Department wishes to provide the
public an opportunity to submit comments.
B. Publication of Comments
Please be advised that the Department will generally post all
comments without making any change to the comments, including any
personal information provided. The www.regulations.gov website is the
Federal e-rulemaking portal, and all comments received electronically
or by mail, hand delivery, express mail, or courier service will be
available and accessible to the public on this website. Therefore, the
Department recommends that commenters safeguard their personal
information by not including social security numbers, personal
addresses, telephone numbers, or email addresses in comments. It is the
responsibility of the commenter to safeguard his or her information.
C. Access to Docket
In addition to all comments received by the Department being
accessible on www.regulations.gov, the Department will make all the
comments available for public inspection during normal business hours
at the office listed in the ADDRESSES section above. If you need
assistance to review the comments, the Department will provide you with
appropriate aids such as readers or print magnifiers. The Department
will make copies of the proposed rule available, upon request, in large
print or electronic file on portable digital media. The Department will
consider providing the proposed rule in other formats upon request. To
schedule an appointment to review the comments or obtain the proposed
rule in an alternate format, contact Thomas Shepherd at the office of
the Clerk of the Appellate Boards, at (202)-693-6319 or
[email protected].
Individuals with hearing or speech impairments may access the
telephone number above by TTY by calling the toll-free Federal
Information Relay Service at (800) 877-8339.
Dated: February 21, 2020.
Eugene Scalia,
Secretary of Labor.
List of Subjects
20 CFR Part 641
Administrative practice and procedure, Grievance procedure and
appeals process, Senior Community Service Employment Program, Services
to participants.
20 CFR Part 655
Administrative practice and procedure, Labor certification
processes for temporary employment.
20 CFR Part 656
Administrative practice and procedure, Fraud, Reporting and
recordkeeping requirements, Wages.
20 CFR Part 658
Administrative practice and procedure, Complaint system;
Discontinuation of services, State workforce agency compliance, Federal
application of remedial action to state workforce agencies, Wagner-
Peyser Act Employment Service.
20 CFR Part 667
Adjudication and Judicial Review, Administrative practice and
procedure; Oversight and monitoring, Grievance procedures, complaints,
and state appeal processes, Sanctions, corrective actions, and waiver
of liability, Reporting and recordkeeping
[[Page 13090]]
requirements, Resolution of findings, Workforce Investment Act.
20 CFR Part 683
Adjudication and judicial review, Administrative practice and
procedure, Funding and closeout, Grievance procedures, complaints, and
State appeal processes; Oversight and resolution of findings, Pay-for-
performance contract strategies, Reporting and recordkeeping
requirements, Rules, costs, and limitations, Sanctions, corrective
actions, and waiver of liability, Workforce Innovation And Opportunity
Act.
20 CFR Part 702
Administrative practice and procedure, Claims, Penalties, Reporting
and recordkeeping requirements, Whistleblowing, Workers' compensation.
29 CFR Part 2
Administrative practice and procedure, Claims, Courts, Government
employees.
29 CFR Part 7
Administrative practice and procedure, Government contracts,
Minimum wages.
29 CFR Part 8
Administrative practice and procedure, Government contracts,
Minimum wages.
29 CFR Part 10
Administrative practice and procedure, Construction industry,
Government procurement, Law enforcement, Reporting and recordkeeping
requirements, Wages.
29 CFR Part 13
Administrative practice and procedure, Government contracts, Law
enforcement, Reporting and recordkeeping requirements, Wages.
29 CFR Part 18
Administrative practice and procedure, Grievance procedure and
appeals process, Senior Community Service Employment Program, Services
to participants.
29 CFR Part 24
Administrative practice and procedure, Review of other proceedings
and related matters, Review of wage determinations.
29 CFR Part 29
Administrative practice and procedure, Apprenticeship programs,
Labor standards, State apprenticeship agencies.
29 CFR Part 38
Administrative practice and procedure, Compliance procedures,
Obligations of recipients and governors, Workforce Innovation and
Opportunity Act.
29 CFR Part 96
Administrative practice and procedure, Audit requirements, Grants,
contracts, and other agreements.
29 CFR Part 417
Labor management standards, Procedures for removal of local labor
organization officers.
29 CFR Part 471
Administrative practice and procedure, Complaint procedures,
Compliance review, Contractor obligations, Federal labor law.
29 CFR Part 501
Administrative practice and procedure, Contract obligations;
Enforcement, Immigration and Nationality Act, Temporary alien
agricultural workers.
29 CFR Part 580
Administrative practice and procedure, Assessing and contesting,
Civil money penalties.
29 CFR Part 1978
Administrative practice and procedure; Employee protection;
Findings, Investigations, Litigation, Retaliation complaints, Surface
Transportation Assistance Act of 1982.
29 CFR Part 1979
Administrative practice and procedure, Employee protection,
Findings, Litigation, Investigations, Retaliation complaints, Wendell
H. Ford Aviation Investment and Reform Act for the 21st Century.
29 CFR Part 1980
Administrative practice and procedure, Employee protection,
Findings, Investigations, Litigation, Retaliation complaints, Sarbanes-
Oxley Act of 2002.
29 CFR Part 1981
Administrative practice and procedure, Employee protection,
Findings, Litigation, Investigations, Pipeline Safety Improvement Act
of 2002, Retaliation complaints.
29 CFR Part 1982
Administrative practice and procedure, Employee protection, Federal
Railroad Safety Act, Findings, Investigations, Litigation, National
Transit Systems Security Act, Retaliation complaints.
29 CFR Part 1983
Administrative practice and procedure, Consumer Product Safety
Improvement Act of 2008, Employee protection, Findings, Investigations,
Litigation, Retaliation complaints.
29 CFR Part 1984
Administrative practice and procedure, Affordable Care Act,
Employee protection, Findings, Investigations, Litigation, Retaliation
complaints.
29 CFR Part 1985
Administrative practice and procedure, Consumer Financial
Protection Act of 2010, Employee protection, Findings, Investigations,
Litigation, Retaliation complaints.
29 CFR Part 1986
Administrative practice and procedure, Employee protection,
Findings, Investigations, Litigation, Retaliation complaints, Seaman's
Protection Act.
29 CFR Part 1987
Administrative practice and procedure, Employee protection, FDA
Food Safety Modernization Act, Findings, Investigations, Litigation,
Retaliation complaints.
29 CFR Part 1988
Administrative practice and procedure, Employee protection,
Findings, Investigations, Litigation, Moving Ahead for Progress in the
21st Century Act, Retaliation complaints.
41 CFR Part 50-203
Administrative practice and procedure, Government procurement,
Minimum wages, Occupational safety and health.
41 CFR Part 60-30
Administrative practice and procedure, Equal opportunity, Executive
Order 11246, Property management, Public contracts.
For the reasons set forth in the preamble, the Department of Labor
proposes to amend 20 CFR chapters V and VI, 29 CFR subtitle A and
chapters IV, V, and XVII, and 41 CFR parts 50-203 and 60-30 as follows:
[[Page 13091]]
Title 20: Employees' Benefits
Employment and Training Administration
PART 641--PROVISIONS GOVERNING THE SENIOR COMMUNITY SERVICE
EMPLOYMENT PROGRAM
0
1. The authority citation for part 641 continues to read as follows:
Authority: 42 U.S.C. 3056 et seq.; Pub. L. 114-144, 130 Stat.
334 (Apr. 19, 2016).
0
2. In Sec. 641.900, revise paragraph (e) to read as follows:
Sec. 641.900 What appeal process is available to an applicant that
does not receive a grant?
* * * * *
(e) The decision of the ALJ constitutes final agency action unless,
within 21 days of the decision, a party dissatisfied with the ALJ's
decision, in whole or in part, has filed a petition for review with the
Administrative Review Board (ARB) (established under Secretary's Order
No. 01-2020), specifically identifying the procedure, fact, law, or
policy to which exception is taken. The mailing address for the ARB is
200 Constitution Ave. NW, Room N5404, Washington, DC 20210. The
Department will deem any exception not specifically urged to have been
waived. A copy of the petition for review must be sent to the grant
officer at that time. If, within 30 days of the filing of the petition
for review, the ARB does not notify the parties that the case has been
accepted for review, then the decision of the ALJ constitutes final
agency action. In any case accepted by the ARB, a decision must be
issued by the ARB within 180 days of acceptance. If a decision is not
so issued, the decision of the ALJ constitutes final agency action.
* * * * *
0
3. In Sec. 641.920, revise paragraph (d)(5) to read as follows:
Sec. 641.920 What actions of the Department may a grantee appeal and
what procedures apply to those appeals?
* * * * *
(d) * * *
(5) The decision of the ALJ constitutes final agency action unless,
within 21 days of the decision, a party dissatisfied with the ALJ's
decision, in whole or in part, has filed a petition for review with the
ARB (established under Secretary's Order No. 01-2020), specifically
identifying the procedure, fact, law, or policy to which exception is
taken. The mailing address for the ARB is 200 Constitution Ave. NW,
Room N5404, Washington, DC 20210. The Department will deem any
exception not specifically argued to have been waived. A copy of the
petition for review must be sent to the grant officer at that time. If,
within 30 days of the filing of the petition for review, the ARB does
not notify the parties that the case has been accepted for review, then
the decision of the ALJ constitutes final agency action. In any case
accepted by the ARB, a decision must be issued by the ARB within 180
days of acceptance. If a decision is not so issued, the decision of the
ALJ constitutes final agency action.
PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED
STATES
0
4. The authority citation for part 655 continues to read as follows:
Authority: Section 655.0 issued under 8 U.S.C.
1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 8 U.S.C.
1103(a)(6), 1182(m), (n), and (t), 1184(c), (g), and (j), 1188, and
1288(c) and (d); sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2102
(8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 4978,
5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102-232, 105
Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103-206,
107 Stat. 2428; sec. 412(e), Pub. L. 105-277, 112 Stat. 2681 (8
U.S.C. 1182 note); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316
(8 U.S.C. 1182 note); 29 U.S.C. 49k; Pub. L. 107-296, 116 Stat.
2135, as amended; Pub. L. 109-423, 120 Stat. 2900; 8 CFR
214.2(h)(4)(i); 8 CFR 214.2(h)(6)(iii); and sec. 6, Pub. L. 115-218,
132 Stat. 1547 (48 U.S.C. 1806).
Subpart A issued under 8 CFR 214.2(h).
Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c),
and 1188; and 8 CFR 214.2(h).
Subpart E issued under 48 U.S.C. 1806.
Subparts F and G issued under 8 U.S.C. 1288(c) and (d); sec.
323(c), Pub. L. 103-206, 107 Stat. 2428; and 28 U.S.C. 2461 note,
Pub. L. 114-74 at section 701.
Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and
(b)(1), 1182(n) and (t), and 1184(g) and (j); sec. 303(a)(8), Pub.
L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e),
Pub. L. 105-277, 112 Stat. 2681; 8 CFR 214.2(h); and 28 U.S.C. 2461
note, Pub. L. 114-74 at section 701.
Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and
1182(m); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C.
1182 note); Pub. L. 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).
0
5. In Sec. 655.171, revise paragraphs (a) and (b)(2) to read as
follows:
Sec. 655.171 Appeals.
* * * * *
(a) Administrative review. Where the employer has requested
administrative review, within 5 business days after receipt of the ETA
administrative file the ALJ will, on the basis of the written record
and after due consideration of any written submissions (which may not
include new evidence) from the parties involved or amici curiae, either
affirm, reverse, or modify the CO's decision, or remand to the CO for
further action. The decision of the ALJ must specify the reasons for
the action taken and must be immediately provided to the employer, the
CO, the OFLC Administrator and DHS by means normally assuring next-day
delivery.
(b) * * *
(2) Decision. After a de novo hearing, the ALJ must affirm,
reverse, or modify the CO's determination, or remand to the CO for
further action, except in cases over which the Secretary has assumed
jurisdiction pursuant to 29 CFR 18.95. The decision of the ALJ must
specify the reasons for the action taken and must be immediately
provided to the employer, CO, OFLC Administrator, and DHS by means
normally assuring next-day delivery.
0
6. In Sec. 655.181, revise paragraph (b)(3) to read as follows:
Sec. 655.181 Revocation.
* * * * *
(b) * * *
(3) Appeal. An employer may appeal a Notice of Revocation, or a
final determination of the OFLC Administrator after the review of
rebuttal evidence, according to the appeal procedures of Sec. 655.171.
* * * * *
0
7. In Sec. 655.182, revise paragraph (f)(6) to read as follows:
Sec. 655.182 Debarment.
* * * * *
(f) * * *
(6) ARB decision. The ARB's decision must be issued within 90 days
from the notice granting the petition and served upon all parties and
the ALJ. If the ARB fails to issue a decision within 90 days from the
notice granting the petition, the ALJ's decision will be the final
agency decision.
* * * * *
0
8. In Sec. 655.183, revise paragraph (c) to read as follows:
Sec. 655.183 Less than substantial violations.
* * * * *
(c) Failure to comply with special procedures. If the OFLC
Administrator determines that the employer has failed to comply with
special procedures required pursuant to paragraph (a) of this section,
the OFLC Administrator will send a written notice to the employer,
stating that the employer's otherwise affirmative H-2A certification
determination will be reduced by 25 percent of the total number of H-2A
workers requested (which cannot be more than those requested in the
previous year) for a period of 1 year. Notice of such a reduction in
the number of workers requested will be
[[Page 13092]]
conveyed to the employer by the OFLC Administrator in the OFLC
Administrator's written certification determination. The notice will
offer the employer an opportunity to request administrative review or a
de novo hearing before an ALJ. If administrative review or a de novo
hearing is requested, the procedures prescribed in Sec. 655.171 will
apply, provided that if the ALJ or the Secretary affirms the OFLC
Administrator's determination that the employer has failed to comply
with special procedures required by paragraph (a) of this section, the
reduction in the number of workers requested will be 25 percent of the
total number of H-2A workers requested (which cannot be more than those
requested in the previous year) for a period of 1 year.
0
9. In Sec. 655.461, revise paragraph (e) to read as follows:
Sec. 655.461 Administrative review.
* * * * *
(e) Scope of review. BALCA will, except in cases over which the
Secretary has assumed jurisdiction pursuant to 29 CFR 18.95, affirm,
reverse, or modify the CO's determination, or remand to the CO for
further action. BALCA will reach this decision after due consideration
of the documents in the Appeal File that were before the CO at the time
of the CO's determination, the request for review, and any legal briefs
submitted. BALCA may not consider evidence not before the CO at the
time of the CO's determination, even if such evidence is in the Appeal
File, request for review, or legal briefs.
* * * * *
0
10. In Sec. 655.472, revise paragraph (b)(3) to read as follows:
Sec. 655.472 Revocation.
* * * * *
(b) * * *
(3) Request for review. An employer may appeal a Notice of
Revocation or a final determination of the OFLC Administrator after the
review of rebuttal evidence to BALCA, according to the appeal
procedures of Sec. 655.461.
* * * * *
0
11. In Sec. 655.473, revise paragraph (f)(6) to read as follows:
Sec. 655.473 Debarment.
* * * * *
(f) * * *
(6) ARB Decision. The ARB's decision must be issued within 90
calendar days from the notice granting the petition and served upon all
parties and the ALJ.
0
12. In Sec. 655.845, revise paragraphs (h) and (i) to read as
follows:
Sec. 655.845 What rules apply to appeal of the decision of the
administrative law judge?
* * * * *
(h) The Board's decision shall be issued within 180 calendar days
from the date of the notice of intent to review. The Board's decision
shall be served upon all parties and the administrative law judge.
(i) After the Board's decision becomes final, the Board shall
transmit the entire record to the Chief Administrative Law Judge for
custody pursuant to Sec. 655.850.
PART 656--LABOR CERTIFICATION PROCESS FOR PERMANENT EMPLOYMENT OF
ALIENS IN THE UNITED STATES
0
13. The authority citation for part 656 continues to read as follows:
Authority: 8 U.S.C. 1182(a)(5)(A), 1182(p)(1); sec.122, Public
Law 101-649, 109 Stat. 4978; and Title IV, Public Law 105-277, 112
Stat. 2681.
0
14. In Sec. 656.27, revise paragraph (c) to read as follows:
Sec. 656.27 Consideration by and decisions of the Board of Alien
Labor Certification Appeals.
* * * * *
(c) Review on the record. The Board of Alien Labor Certification
Appeals must review a denial of labor certification under Sec. 656.24,
a revocation of a certification under Sec. 656.32, or an affirmation
of a prevailing wage determination under Sec. 656.41 on the basis of
the record upon which the decision was made, the request for review,
and any Statements of Position or legal briefs submitted and, except in
cases over which the Secretary has assumed jurisdiction pursuant to 29
CFR 18.95, must:
(1) Affirm the denial of the labor certification, the revocation of
certification, or the affirmation of the PWD; or
(2) Direct the Certifying Officer to grant the certification,
overrule the revocation of certification, or overrule the affirmation
of the PWD; or
(3) Direct that a hearing on the case be held under paragraph (e)
of this section.
* * * * *
PART 658--ADMINISTRATIVE PROVISIONS GOVERNING THE WAGNER-PEYSER ACT
EMPLOYMENT SERVICE
0
15. The authority citation for part 658 continues to read as follows:
Authority: Secs. 189, 503, Pub. L. 113-128, 128 Stat. 1425 (Jul.
22, 2014); 29 U.S.C. chapter 4B.
0
16. In Sec. 658.711, revise paragraph (b) to read as follows:
Sec. 658.711 Decision of the Administrative Review Board.
* * * * *
(b) The decision of the Administrative Review Board must be in
writing, and must set forth the factual and legal basis for the
decision. After the Board's decision becomes final, notice of the
decision must be published in the Federal Register, and copies must be
made available for public inspection and copying.
PART 667--ADMINISTRATIVE PROVISIONS UNDER TITLE I OF THE WORKFORCE
INVESTMENT ACT
0
17. The authority citation for part 667 continues to read as follows:
Authority: Subtitle C of Title I, Sec. 506(c), Pub. L. 105-220,
112 Stat. 936 (20 U.S.C. 9276(c)); Executive Order 13198, 66 FR
8497, 3 CFR 2001 Comp., p. 750; Executive Order 13279, 67 FR 77141,
3 CFR 2002 Comp., p. 258.
0
18. In Sec. 667.830, revise paragraph (b) to read as follows:
Sec. 667.830 When will the Administrative Law Judge issue a decision?
* * * * *
(b) The decision of the ALJ constitutes final agency action unless,
within 20 days of the decision, a party dissatisfied with the ALJ's
decision has filed a petition for review with the Administrative Review
Board (ARB) (established under Secretary's Order No. 01-2020),
specifically identifying the procedure, fact, law, or policy to which
exception is taken. Any exception not specifically urged is deemed to
have been waived. A copy of the petition for review must be sent to the
opposing party at that time. Thereafter, the decision of the ALJ
constitutes final agency action unless the ARB, within 30 days of the
filing of the petition for review, notifies the parties that the case
has been accepted for review. In any case accepted by the ARB, a
decision must be issued by the ARB within 180 days of acceptance. If a
decision is not so issued, the decision of the ALJ constitutes final
agency action.
PART 683--ADMINISTRATIVE PROVISIONS UNDER TITLE I OF THE WORKFORCE
INNOVATION AND OPPORTUNITY ACT
0
19. The authority citation for part 683 continues to read as follows:
Authority: Secs. 102, 116, 121, 127, 128, 132, 133, 147, 167,
169, 171, 181, 185, 189, 195, 503, Public Law 113-128, 128 Stat.
1425 (Jul. 22, 2014).
[[Page 13093]]
0
20. In Sec. 683.830, revise paragraph (b) to read as follows:
Sec. 683.830 When will the Administrative Law Judge issue a decision?
* * * * *
(b) The decision of the ALJ constitutes final agency action unless,
within 20 days of the decision, a party dissatisfied with the ALJ's
decision has filed a petition for review with the Administrative Review
Board (ARB) (established under Secretary's Order No. 01-2020),
specifically identifying the procedure, fact, law, or policy to which
exception is taken. Any exception not specifically raised in the
petition is deemed to have been waived. A copy of the petition for
review also must be sent to the opposing party and if an applicant or
recipient, to the Grant Officer and the Grant Officer's Counsel at the
time of filing. Unless the ARB, within 30 days of the filing of the
petition for review, notifies the parties that the case has been
accepted for review, the decision of the ALJ constitutes final agency
action. In any case accepted by the ARB, a decision must be issued by
the ARB within 180 days of acceptance. If a decision is not so issued,
the decision of the ALJ constitutes final agency action.
Office of Workers' Compensation Programs Longshoremen's and Harbor
Workers' Compensation Act and Related Statutes
PART 702--ADMINISTRATION AND PROCEDURE
0
21. The authority citation for part 702 continues to read as follows:
Authority: 5 U.S.C. 301, and 8171 et seq.; 33 U.S.C. 901 et
seq.; 42 U.S.C. 1651 et seq.; 43 U.S.C. 1333; 28 U.S.C. 2461 note
(Federal Civil Penalties Inflation Adjustment Act of 1990); Pub. L.
114-74 at sec. 701; Reorganization Plan No. 6 of 1950, 15 FR 3174,
64 Stat. 1263; Secretary's Order 10-2009, 74 FR 58834.
0
22. In Sec. 702.433, revise paragraphs (e) and (f) to read as
follows:
Sec. 702.433 Requests for hearing.
* * * * *
(e) The administrative law judge will issue a recommended decision
after the termination of the hearing. The recommended decision must
contain appropriate findings, conclusions, and a recommended order and
be forwarded, together with the record of the hearing, to the
Administrative Review Board for a decision. The recommended decision
must be served upon all parties to the proceeding.
(f) Based upon a review of the record and the recommended decision
of the administrative law judge, the Administrative Review Board will
issue a decision.
0
23. Revise Sec. 702.434 to read as follows:
Sec. 702.434 Judicial review.
(a) Any physician, health care provider, or claims representative
who participated as a party in the hearing may obtain review of the
Department's final decision made by the Administrative Review Board or
the Secretary, as appropriate, regardless of the amount of controversy,
by commencing a civil action within sixty (60) days after the decision
is transmitted to him or her. The pendency of such review will not stay
the effect of the decision. Such action must be brought in the Court of
Appeals of the United States for the judicial circuit in which the
plaintiff resides or has his or her principal place of business, or the
Court of Appeals for the District of Columbia pursuant to section
7(j)(4) of the Act, 33 U.S.C. 907(j)(4).
(b) As part of the Department's answer, the Administrative Review
Board must file a certified copy of the transcript of the record of the
hearing, including all evidence submitted in connection therewith.
(c) The findings of fact contained in the Department's final
decision, if based on substantial evidence in the record as a whole,
shall be conclusive.
Title 29: Labor
Office of the Secretary of Labor
PART 2--GENERAL REGULATIONS
0
24. The authority citation for part 2 continues to read as:
Authority: 5 U.S.C. 301; Executive Order 13198, 66 FR 8497, 3
CFR 2001 Comp., p. 750; Executive Order 13279, 67 FR 77141, 3 CFR
2002 Comp., p. 258; Executive Order 13559, 75 FR 71319, 3 CFR 2011
Comp., p. 273.
0
25. Revise Sec. 2.8 to read as follows:
Sec. 2.8 Final agency decisions.
Final agency decisions issued under the statutory authority of the
U.S. Department of Labor may be issued by the Secretary of Labor, or by
his or her designee under a written delegation of authority. The
Administrative Review Board, an organizational entity within the Office
of the Secretary, has been delegated authority to issue final agency
decisions under the statutes, executive orders, and regulations
according to, and except as provided in Secretary's Order 01-2020.
PART 7--PRACTICE BEFORE THE ADMINISTRATIVE REVIEW BOARD WITH REGARD
TO FEDERAL AND FEDERALLY ASSISTED CONSTRUCTION CONTRACTS
0
26. The authority citation for part 7 continues to read as:
Authority: Reorg. Plan No. 14 of 1950, 64 Stat. 1267; 5 U.S.C.
301; 3 CFR, 1949-1953 Comp., p. 1007; sec. 2, 48 Stat. 948 as
amended; 40 U.S.C. 276c; secs. 104, 105, 76 Stat. 358, 359; 40
U.S.C. 330, 331; 65 Stat. 290; 36 FR 306, 8755.
0
27. In Sec. 7.1, revise paragraph (d) to read as follows:
Sec. 7.1 Purpose and scope.
* * * * *
(d) In considering the matters within the scope of its jurisdiction
the Board shall act as the authorized representative of the Secretary
of Labor. The Board shall act as fully and finally as might the
Secretary of Labor concerning such matters, except as provided in
Secretary's Order 01-2020.
* * * * *
PART 8--PRACTICE BEFORE THE ADMINISTRATIVE REVIEW BOARD WITH REGARD
TO FEDERAL SERVICE CONTRACTS
0
28. The authority citation for part 8 continues to read as:
Authority: Secs. 4 and 5, 79 Stat. 1034, 1035, as amended by 86
Stat. 789, 790, 41 U.S.C. 353, 354; 5 U.S.C. 301; Reorg. Plan No. 14
of 1950, 64 Stat. 1267, 5 U.S.C. Appendix; 76 Stat. 357-359, 40
U.S.C. 327-332.
0
29. In Sec. 8.1, revise paragraph (c) to read as follows:
Sec. 8.1 Purpose and scope.
* * * * *
(c) In considering the matters within the scope of its jurisdiction
the Board shall act as the authorized representative of the Secretary
of Labor and shall act as fully and finally as might the Secretary of
Labor concerning such matters, except as provided in Secretary's Order
01-2020.
* * * * *
PART 10--ESTABLISHING A MINIMUM WAGE FOR CONTRACTORS
0
30. The authority citation for part 10 continues to read as follows:
Authority: 5 U.S.C. 301; section 2, E.O. 13838, 83 FR 25341;
section 4, E.O. 13658, 79 FR 9851; Secretary's Order 01-2014, 79 FR
77527.
0
31. Revise Sec. 10.57 to read as follows:
[[Page 13094]]
Sec. 10.57 Administrative Review Board proceedings.
(a) Authority--(1) General. The Administrative Review Board has
jurisdiction to hear and decide in its discretion appeals concerning
questions of law and fact from investigative findings letters of the
Administrator issued under Sec. 10.51(c)(1) or (2), Administrator's
rulings issued under Sec. 10.58, and decisions of Administrative Law
Judges issued under Sec. 10.55.
(2) Limit on scope of review. (i) The Board shall not have
jurisdiction to pass on the validity of any provision of this part. The
Board is an appellate body and shall decide cases properly before it on
the basis of substantial evidence contained in the entire record before
it. The Board shall not receive new evidence into the record.
(ii) The Equal Access to Justice Act, as amended, does not apply to
proceedings under this part. Accordingly, the Administrative Review
Board shall have no authority to award attorney's fees and/or other
litigation expenses pursuant to the provisions of the Equal Access to
Justice Act for any proceeding under this part.
(b) Decisions. The Board's decision shall be issued within a
reasonable period of time following receipt of the petition for review
and shall be served upon all parties by mail to the last known address
and on the Chief Administrative Law Judge (in cases involving an appeal
from an Administrative Law Judge's decision).
(c) Orders. If the Board concludes a violation occurred, an order
shall be issued mandating action to remedy the violation, including,
but not limited to, monetary relief for unpaid wages. Where the
Administrator has sought imposition of debarment, the Board shall
determine whether an order imposing debarment is appropriate. The ARB's
order is subject to discretionary review by the Secretary as provided
in Secretary's Order 01-2020.
PART 13--ESTABLISHING PAID SICK LEAVE FOR FEDERAL CONTRACTORS
0
32. The authority citation for part 13 continues to read as follow:
Authority: 5 U.S.C. 301; E.O. 13706, 80 FR 54697, 3 CFR, 2016
Comp., p. 367; Secretary's Order 01-2014, 79 FR 77527.
0
33. Revise Sec. 13.57 to read as follows:
Sec. 13.57 Administrative Review Board proceedings.
(a) Authority--(1) General. The Administrative Review Board has
jurisdiction to hear and decide in its discretion appeals concerning
questions of law and fact from investigative findings letters of the
Administrator issued under Sec. 13.51(c)(1) or the final sentence of
Sec. 13.51(c)(2)(ii), Administrator's rulings issued under Sec.
13.58, and decisions of Administrative Law Judges issued under Sec.
13.55.
(2) Limit on scope of review. (i) The Administrative Review Board
shall not have jurisdiction to pass on the validity of any provision of
this part. The Administrative Review Board is an appellate body and
shall decide cases properly before it on the basis of substantial
evidence contained in the entire record before it. The Administrative
Review Board shall not receive new evidence into the record.
(ii) The Equal Access to Justice Act, as amended, does not apply to
proceedings under this part. Accordingly, the Administrative Review
Board shall have no authority to award attorney's fees and/or other
litigation expenses pursuant to the provisions of the Equal Access to
Justice Act for any proceeding under this part.
(b) Decisions. The Administrative Review Board's decision shall be
issued within a reasonable period of time following receipt of the
petition for review and shall be served upon all parties by mail to the
last known address and on the Chief Administrative Law Judge (in cases
involving an appeal from an Administrative Law Judge's decision).
(c) Orders. If the Board concludes a violation occurred, an order
shall be issued mandating action to remedy the violation, including,
but not limited to, any monetary or equitable relief described in Sec.
13.44. Where the Administrator has sought imposition of debarment, the
Administrative Review Board shall determine whether an order imposing
debarment is appropriate. The ARB's order is subject to discretionary
review by the Secretary as provided in Secretary's Order 01-2020.
PART 18--RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE
HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES
0
34. The authority citation for part 18 continues to read as follows:
Authority: 5 U.S.C. 301; 5 U.S.C. 551-553; 5 U.S.C. 571 note;
E.O. 12778; 57 FR 7292.
0
35. Revise Sec. 18.95 to read as follows:
Sec. 18.95 Review of decision and review by the Secretary.
(a) Review. The statute or regulation that conferred hearing
jurisdiction provides the procedure for review of a judge's decision.
If the statute or regulation does not provide a procedure, the judge's
decision becomes the Secretary's final administrative decision, except
as provided in paragraph (b) of this section.
(b) Finality. A decision of the Board of Alien Labor Certification
Appeals (BALCA) shall constitute the Secretary's final administrative
decision except in those cases over which the Secretary has, in
accordance with this paragraph (b) and paragraph (c) of this section,
assumed jurisdiction:
(1) In any case for which administrative review is sought or
handled in accordance with 20 CFR 655.171(a) or 20 CFR 655.461, at any
point from when the BALCA receives a request for review until the
passage of 10 business days after the date on which BALCA has issued
its decision.
(2) In any case for which a de novo hearing is sought or handled
under 20 CFR 655.171(b), at any point within 15 business days after the
date on which the BALCA has issued its decision.
(3) In any case for which review is sought or handled in accordance
with 20 CFR 656.26 and 20 CFR 656.27, at any point from when the BALCA
receives a request for review until the passage of 30 business days
after the BALCA has issued its decision.
(c) Review by the Secretary--(1) Transmission of information. (i)
Whenever the BALCA receives a request for review, it shall immediately
transmit a copy of such request to the Deputy Secretary.
(ii) Within 3 business days of when the BALCA issues a decision,
the Chair of the BALCA, or his or her designee, shall transmit to the
Deputy Secretary a copy of the decision and a concise recommendation as
to whether the decision involves an issue or issues of such exceptional
importance that review by the Secretary is warranted.
(2) Review. (i) The Secretary may, at any point within the time
periods provided for in paragraph (b) of this section, and in his or
her sole discretion, assume jurisdiction to review the decision or
determination of the Certifying Officer, the Office of Foreign Labor
Certification Administrator, the National Prevailing Wage Center
Director, or the BALCA, as the case may be.
(ii) When the Secretary assumes jurisdiction over a case, the
Secretary shall promptly notify the BALCA. The BALCA shall promptly
notify the parties to the case of such action and shall submit the
Appeal File and any briefs filed to the Secretary.
(iii) In any case the Secretary decides, the Secretary's decision
shall be stated in writing and transmitted to the BALCA, which shall
promptly transmit
[[Page 13095]]
it to the parties to the case. Such decision shall constitute final
action by the Department and shall serve as binding precedent on all
Department employees and in all Department proceedings involving the
same issue or issues.
(iv) The Solicitor of Labor, or his or her designee, shall have the
responsibility for providing legal advice to the Secretary with respect
to the Secretary's exercise of review under this section, except that
no individual involved in the investigation or prosecution of a case
shall advise the Secretary on the exercise of review with respect to
such case or a case involving a common nucleus of operative fact.
PART 24--PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS
UNDER THE EMPLOYEE PROTECTION PROVISIONS OF SIX ENVIRONMENTAL
STATUTES AND SECTION 211 OF THE ENERGY REORGANIZATION ACT OF 1974,
AS AMENDED
0
36. The authority citation for part 24 is revised to read as follows:
Authority: 15 U.S.C. 2622; 33 U.S.C. 1367; 42 U.S.C. 300j-
9(i)BVG, 5851, 6971, 7622, 9610; Secretary's Order No. 5-2007, 72 FR
31160 (June 5, 2007); Secretary's Order No. 01-2020.
0
37. In Sec. 24.110, revise paragraphs (a), (c), and (d) to read as
follows:
Sec. 24.110 Decisions and orders of the Administrative Review Board.
(a) Any party desiring to seek review, including judicial review,
of a decision of the ALJ must file a written petition for review with
the ARB, U.S. Department of Labor, 200 Constitution Ave. NW,
Washington, DC 20210. The decision of the ALJ will become the final
order of the Secretary unless, pursuant to this section, a timely
petition for review is filed with the ARB and the ARB accepts the case
for review. The parties should identify in their petitions for review
the legal conclusions or orders to which they object, or the objections
will ordinarily be deemed waived. A petition must be filed within 10
business days of the date of the decision of the ALJ. The date of the
postmark, facsimile transmittal, or email communication will be
considered to be the date of filing; if the petition is filed in
person, by hand delivery or other means, the petition is considered
filed upon receipt. The petition must be served on all parties and on
the Chief Administrative Law Judge at the time it is filed with the
ARB. Copies of the petition for review and all briefs must be served on
the Assistant Secretary, Occupational Safety and Health Administration,
and on the Associate Solicitor, Division of Fair Labor Standards, U.S.
Department of Labor.
* * * * *
(c) The decision of the ARB will be issued within 90 days of the
filing of the complaint. The decision will be served upon all parties
and the Chief Administrative Law Judge by mail. The decision will also
be served on the Assistant Secretary, Occupational Safety and Health
Administration, and on the Associate Solicitor, Division of Fair Labor
Standards, U.S. Department of Labor, even if the Assistant Secretary is
not a party.
(d) If the ARB concludes that the respondent has violated the law,
the order will order the respondent to take appropriate affirmative
action to abate the violation, including reinstatement of the
complainant to that person's former position, together with the
compensation (including back pay), terms, conditions, and privileges of
employment, and compensatory damages. In cases arising under the Safe
Drinking Water Act or the Toxic Substances Control Act, exemplary
damages may also be awarded when appropriate. At the request of the
complainant, the ARB will assess against the respondent all costs and
expenses (including attorney's fees) reasonably incurred.
* * * * *
0
38. Revise Sec. 24.112 to read as follows:
Sec. 24.112 Judicial Review.
(a) Except as provided under paragraphs (b) through (d) of this
section, within 60 days after the issuance of a final order (including
a decision issued by the Secretary upon his or her discretionary
review) for which judicial review is available, any person adversely
affected or aggrieved by the order may file a petition for review of
the order in the United States Court of Appeals for the circuit in
which the violation allegedly occurred or the circuit in which the
complainant resided on the date of the violation. A final order of the
ARB (or a decision issued by the Secretary upon his or her
discretionary review) is not subject to judicial review in any criminal
or other civil proceeding.
(b) Under the Federal Water Pollution Control Act, within 120 days
after the issuance of a final order (including a decision issued by the
Secretary upon his or her discretionary review) for which judicial
review is available, any person adversely affected or aggrieved by the
order may file a petition for review of the order in the United States
Court of Appeals for the circuit in which the violation allegedly
occurred or the circuit in which the complainant resided on the date of
the violation.
(c) Under the Solid Waste Disposal Act, within 90 days after the
issuance of a final order (including a decision issued by the Secretary
upon his or her discretionary review) for which judicial review is
available, any person adversely affected or aggrieved by the order may
file a petition for review of the order in the United States Court of
Appeals for the circuit in which the violation allegedly occurred or
the circuit in which the complainant resided on the date of the
violation.
(d) Under the Comprehensive Environmental Response, Compensation
and Liability Act, after the issuance of a final order (including a
decision issued by the Secretary upon his or her discretionary review)
for which judicial review is available, any person adversely affected
or aggrieved by the order may file a petition for review of the order
in the United States district court in which the violation allegedly
occurred. For purposes of judicial economy and consistency, when a
final order under the Comprehensive Environmental Response,
Compensation and Liability Act also is issued under any other statute
listed in Sec. 24.100(a), the adversely affected or aggrieved person
may file a petition for review of the entire order in the United States
Court of Appeals for the circuit in which the violation allegedly
occurred or the circuit in which the complainant resided on the date of
the violation. The time for filing a petition for review of an order
issued under the Comprehensive Environmental Response, Compensation and
Liability Act and any other statute listed in Sec. 24.100(a) is
determined by the time period applicable under the other statute(s).
(e) If a timely petition for review is filed, the record of a case,
including the record of proceedings before the administrative law
judge, will be transmitted by the ARB or the ALJ, as appropriate, to
the appropriate court pursuant to the Federal Rules of Appellate
Procedure and the local rules of the court.
PART 29--LABOR STANDARDS FOR THE REGISTRATION OF APPRENTICESHIP
PROGRAMS
0
39. The authority citation for part 29 continues to read as follows:
Authority: Section 1, 50 Stat. 664, as amended (29 U.S.C. 50; 40
U.S.C. 276c; 5 U.S.C. 301); Reorganization Plan No. 14 of 1950, 64
Stat. 1267 (5 U.S.C. App. P. 534).
[[Page 13096]]
0
40. In Sec. 29.10, revise paragraph (c) to read as follows:
Sec. 29.10 Hearings for deregistration.
* * * * *
(c) The Administrative Law Judge should issue a written decision
within 90 days of the close of the hearing record. The Administrative
Law Judge's decision constitutes final agency action unless, within 15
days from receipt of the decision, a party dissatisfied with the
decision files a petition for review with the Administrative Review
Board, specifically identifying the procedure, fact, law, or policy to
which exception is taken. Any exception not specifically urged is
deemed to have been waived. A copy of the petition for review must be
sent to the opposing party at the same time. Thereafter, the decision
of the Administrative Law Judge remains final agency action unless the
Administrative Review Board, within 30 days of the filing of the
petition for review, notifies the parties that it has accepted the case
for review. The Administrative Review Board may set a briefing schedule
or decide the matter on the record. The Administrative Review Board
must issue a decision in any case it accepts for review within 180 days
of the close of the record. If a decision is not so issued, the
Administrative Law Judge's decision constitutes final agency action.
0
41. In Sec. 29.13, revise paragraph (g)(4) to read as follows:
Sec. 29.13 Recognition of State Apprenticeship Agencies.
* * * * *
(g) * * *
(4) After the close of the period for filing exceptions and
responses, the Administrative Review Board may issue a briefing
schedule or may decide the matter on the record before it. The
Administrative Review Board must decide any case it accepts for review
within 180 days of the close of the record. If a decision is not so
issued, the Administrative Law Judge's decision constitutes final
agency action.
* * * * *
0
42. In Sec. 29.14, revise paragraph (c)(3) to read as follows:
Sec. 29.14 Derecognition of State Apprenticeship Agencies.
* * * * *
(c) * * *
(3) Requests a hearing. The Administrator shall refer the matter to
the Office of Administrative Law Judges. An Administrative Law Judge
will convene a hearing in accordance with Sec. 29.13(g) and submit
proposed findings and a recommended decision to the Administrative
Review Board. The Administrative Review Board must issue a decision in
any case it accepts for review within 180 days of the close of the
record. If a decision is not so issued, the Administrative Law Judge's
decision constitutes final agency action.
* * * * *
PART 38--IMPLEMENTATION OF THE NONDISCRIMINATION AND EQUAL
OPPORTUNITY PROVISIONS OF THE WORKFORCE INNOVATION AND OPPORTUNITY
ACT
0
43. The authority citation for part 38 continues to read as follows:
Authority: 29 U.S.C. 3101 et seq.; 42 U.S.C. 2000d et seq.; 29
U.S.C. 794; 42 U.S.C. 6101 et seq.; and 20 U.S.C. 1681 et seq.
0
44. In Sec. 38.112, revise paragraph (b)(1)(viii) and remove paragraph
(b)(3). The revision reads as follows:
Sec. 38.112 Initial and final decision procedures.
* * * * *
(b) * * *
(1) * * *
(viii) Decision and Order after review by Administrative Review
Board. In any case reviewed by the Administrative Review Board under
this paragraph, a decision must be issued within 180 days of the
notification of such review. If the Administrative Review Board fails
to issue a decision and order within the 180-day period, the initial
decision and order of the Administrative Law Judge becomes the Final
Decision and Order.
* * * * *
0
45. In Sec. 38.113, revise paragraph (c) to read as follows:
Sec. 38.113 Post-termination proceedings.
* * * * *
(c) A decision issued by the Administrative Review Board has become
final, the Administrative Law Judge's decision and order has become the
Final Agency Decision, or the Final Determination or Notification of
Conciliation Agreement has been deemed the Final Agency Decision, under
Sec. 38.112(b); and
* * * * *
0
46. In Sec. 38.115, revise paragraph (c)(5) to read as follows:
Sec. 38.115 Post-termination proceedings.
* * * * *
(c) * * *
(5) The Administrative Review Board must issue a decision denying
or granting the recipient's or grant applicant's request for
restoration to eligibility.
PART 96--AUDIT REQUIREMENTS FOR GRANTS, CONTRACTS, AND OTHER
AGREEMENTS
0
47. The authority citation for part 96 continues to read as follows:
Authority: 31 U.S.C. 7501 et seq. and OMB Circular No. A-133,
as amended.
0
48. In Sec. 96.63, revise paragraph (b)(5) to read as follows:
Sec. 96.63 Federal financial assistance.
* * * * *
(b) * * *
(5) Review by the Administrative Review Board. In any case accepted
for review by the Administrative Review Board, a decision shall be
issued within 180 days of such acceptance. If a decision is not so
issued, the decision of the Administrative Law Judge shall become the
final decision of the Secretary.
Office of Labor-Management Standards
PART 417--OBLIGATIONS OF FEDERAL CONTRACTORS AND SUBCONTRACTORS;
NOTIFICATION OF EMPLOYEE RIGHTS UNDER FEDERAL LABOR LAWS
0
49. The authority citation for part 417 is revised to read as follows:
Authority: Secs. 401, 402, 73 Stat. 533, 534 (29 U.S.C. 481,
482); Secretary's Order No. 03-2012, 77 FR 69376, November 16, 2012;
Secretary's Order No. 01-2020.
PART 471--OBLIGATIONS OF FEDERAL CONTRACTORS AND SUBCONTRACTORS;
NOTIFICATION OF EMPLOYEE RIGHTS UNDER FEDERAL LABOR LAWS
0
50. The authority citation for part 471 is revised to read as follows:
Authority: 40 U.S.C. 101 et seq.; Executive Order 13496, 74 FR
6107, February 4, 2009; Secretary's Order No. 7-2009, 74 FR 58834,
November 13, 2009; Secretary's Order No. 01-2020.
0
51. In Sec. 471.13, revise paragraph (b)(4) to read as follows:
Sec. 471.13 Under what circumstances, and how, will enforcement
proceedings under Executive Order 13496 be conducted?
* * * * *
(b) * * *
(4) After the expiration of time for filing exceptions, the
Administrative Review Board may issue an administrative order, or may
otherwise appropriately dispose of the matter. In an expedited
proceeding, unless the Administrative Review Board issues an
administrative order within 30 days after the expiration of time for
filing exceptions, the Administrative Law
[[Page 13097]]
Judge's recommended decision will become the final administrative
order. If the Administrative Review Board determines that the
contractor has violated the Executive Order or the regulations in this
part, the administrative order will order the contractor to cease and
desist from the violations, require the contractor to provide
appropriate remedies, or, subject to the procedures in Sec. 471.14,
impose appropriate sanctions and penalties, or any combination thereof.
Wage and Hour Division
PART 501--ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY
ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE
IMMIGRATION AND NATIONALITY ACT
0
52. The authority citation for part 501 continues to read as follows:
Authority: 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1188;
28 U.S.C. 2461 Note (Federal Civil Penalties Inflation Adjustment
Act of 1990); and Pub. L. 114-74 at Sec. 701.
0
53. Revise Sec. 501.45 to read as follows:
Sec. 501.45 Decision of the Administrative Review Board.
The ARB's decision shall be issued within 90 days from the notice
granting the petition and served upon all parties and the ALJ.
PART 580 CIVIL MONEY PENALTIES--PROCEDURES FOR ASSESSING AND
CONTESTING PENALTIES
0
54. The authority citation for part 580 continues to read as follows:
Authority: 29 U.S.C. 9a, 203, 209, 211, 212, 213(c), 216;
Reorg. Plan No. 6 of 1950, 64 Stat. 1263, 5 U.S.C. App; secs. 25,
29, 88 Stat. 72, 76; Secretary's Order 01-2014 (Dec. 19, 2014), 79
FR 77527 (Dec. 24, 2014); 5 U.S.C. 500, 503, 551, 559; 103 Stat.
938.
0
55. Revise Sec. 580.16 to read as follows:
Sec. 580.16 Decision of the Administrative Review Board.
The Board's decision shall be served upon all parties and the Chief
Administrative Law Judge, in person or by mail to the last known
address.
Occupational Safety and Health Administration
PART 1978--PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS
UNDER THE EMPLOYEE PROTECTION PROVISION OF THE SURFACE
TRANSPORTATION ASSISTANCE ACT OF 1982 (STAA), AS AMENDED
0
56. The authority citation for part 1978 is revised to read as
follows:
Authority: 49 U.S.C. 31101 and 31105; Secretary's Order 1-2012
(Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012); Secretary's Order 01-
2020.
0
57. In Sec. 1978.110, revise paragraphs (a), (c), (d), and (e) to
read as follows:
Sec. 1978.110 Decisions and orders of the Administrative Review
Board.
(a) The Assistant Secretary or any other party desiring to seek
review, including judicial review, of a decision of the ALJ must file a
written petition for review with the ARB. The parties should identify
in their petitions for review the legal conclusions or orders to which
they object, or the objections may be deemed waived. A petition must be
filed within 14 days of the date of the decision of the ALJ. The date
of the postmark, facsimile transmittal, or electronic communication
transmittal will be considered to be the date of filing; if the
petition is filed in person, by hand delivery or other means, the
petition is considered filed upon receipt. The petition must be served
on all parties and on the Chief Administrative Law Judge at the time it
is filed with the ARB. Copies of the petition for review and all briefs
must be served on the Assistant Secretary and, in cases in which the
Assistant Secretary is a party, on the Associate Solicitor, Division of
Occupational Safety and Health, U.S. Department of Labor.
* * * * *
(c) The decision of the ARB will be issued within 120 days of the
conclusion of the hearing, which will be deemed to be 14 days after the
date of the decision of the ALJ, unless a motion for reconsideration
has been filed with the ALJ in the interim. In such case, the
conclusion of the hearing is the date the motion for reconsideration is
ruled upon or 14 days after a new decision is issued. The ARB's
decision will be served upon all parties and the Chief Administrative
Law Judge by mail. The decision also will be served on the Assistant
Secretary, and on the Associate Solicitor, Division of Occupational
Safety and Health, U.S. Department of Labor, even if the Assistant
Secretary is not a party.
(d) If the ARB concludes that the respondent has violated the law,
the ARB will issue an order providing relief to the complainant. The
order, which will be subject to discretionary review by the Secretary
as provided in Secretary's Order 01-2020, will require, where
appropriate: Affirmative action to abate the violation; reinstatement
of the complainant to his or her former position with the same
compensation, terms, conditions, and privileges of the complainant's
employment; payment of compensatory damages (back pay with interest and
compensation for any special damages sustained as a result of the
retaliation, including any litigation costs, expert witness fees, and
reasonable attorney fees the complainant may have incurred); and
payment of punitive damages up to $250,000. Interest on back pay will
be calculated using the interest rate applicable to underpayment of
taxes under 26 U.S.C. 6621 and will be compounded daily.
(e) If the ARB concludes that the respondent has not violated the
law, the ARB will issue an order denying the complaint. Such order will
be subject to discretionary review by the Secretary as provided in
Secretary's Order 01-2020.
* * * * *
0
58. In Sec. 1978.112, revise paragraph (a) to read as follows:
Sec. 1978.112 Judicial review.
(a) Within 60 days after the issuance of a final order (including a
decision issued by the Secretary upon his or her discretionary review)
for which judicial review is available, any person adversely affected
or aggrieved by the order may file a petition for review of the order
in the United States Court of Appeals for the circuit in which the
violation allegedly occurred or the circuit in which the person resided
on the date of the violation.
* * * * *
PART 1979--PROCEDURES FOR THE HANDLING OF DISCRIMINATION COMPLAINTS
UNDER SECTION 519 OF THE WENDELL H. FORD AVIATION INVESTMENT AND
REFORM ACT FOR THE 21ST CENTURY
0
59. The authority citation for part 1979 continues to read as follows:
Authority: 49 U.S.C. 42121; Secretary's Order No. 01-2020.
0
60. In Sec. 1979.110, revise paragraphs (a), (c), (d), and (e) to
read as follows:
Sec. 1979.110 Decision and orders of the Administrative Review Board.
(a) Any party desiring to seek review, including judicial review,
of a decision of the administrative law judge, or a named person
alleging that the complaint was frivolous or brought in bad faith who
seeks an award of attorney's fees, must file a written petition for
review with the Administrative Review Board (``the Board''). The
decision of the Administrative Law Judge shall become the final order
of the Secretary unless, pursuant to this section, a petition for
review is timely filed with the Board.
[[Page 13098]]
The petition for review must specifically identify the findings,
conclusions, or orders to which exception is taken. Any exception not
specifically urged ordinarily shall be deemed to have been waived by
the parties. To be effective, a petition must be filed within ten
business days of the date of the decision of the Administrative Law
Judge. The date of the postmark, facsimile transmittal, or email
communication will be considered to be the date of filing; if the
petition is filed in person, by hand delivery or other means, the
petition is considered filed upon receipt. The petition must be served
on all parties and on the Chief Administrative Law Judge at the time it
is filed with the Board. Copies of the petition for review and all
briefs must be served on the Assistant Secretary, Occupational Safety
and Health Administration, and on the Associate Solicitor, Division of
Fair Labor Standards, U.S. Department of Labor, Washington, DC 20210.
* * * * *
(c) The decision of the Board shall be issued within 120 days of
the conclusion of the hearing, which shall be deemed to be the
conclusion of all proceedings before the Administrative Law Judge--
i.e., 10 business days after the date of the decision of the
Administrative Law Judge unless a motion for reconsideration has been
filed with the Administrative Law Judge in the interim. The decision
will be served upon all parties and the Chief Administrative Law Judge
by mail to the last known address. The decision will also be served on
the Assistant Secretary, Occupational Safety and Health Administration,
and on the Associate Solicitor, Division of Fair Labor Standards, U.S.
Department of Labor, Washington, DC 20210, even if the Assistant
Secretary is not a party.
(d) If the ARB concludes that the party charged has violated the
law, the ARB shall order the party charged to take appropriate
affirmative action to abate the violation, including, where
appropriate, reinstatement of the complainant to that person's former
position, together with the compensation (including back pay), terms,
conditions, and privileges of that employment, and compensatory
damages. At the request of the complainant, the Board shall assess
against the named person all costs and expenses (including attorney and
expert witness fees) reasonably incurred. The ARB's order is subject to
discretionary review by the Secretary as provided in Secretary's Order
01-2020.
(e) If the ARB concludes that the party charged has not violated
the law, the ARB shall issue an order denying the complaint. If, upon
the request of the named person, the Board determines that a complaint
was frivolous or was brought in bad faith, the Board may award to the
named person reasonable attorney fees, not exceeding $1,000. An order
under this section is subject to discretionary review by the Secretary
as provided in Secretary's Order 01-2020.
0
61. In Sec. 1979.112, revise paragraph (a) to read as follows:
Sec. 1979.112 Judicial review.
(a) Within 60 days after the issuance of a final order (including a
decision issued by the Secretary upon his or her discretionary review)
for which judicial review is available, any person adversely affected
or aggrieved by the order may file a petition for review of the order
in the United States Court of Appeals for the circuit in which the
violation allegedly occurred or the circuit in which the complainant
resided on the date of the violation. A final order of the Secretary is
not subject to judicial review in any criminal or other civil
proceeding.
* * * * *
PART 1980--PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS
UNDER SECTION 806 OF THE SARBANES-OXLEY ACT OF 2002, AS AMENDED
0
62. The authority citation for part 1980 is revised to read as follows:
Authority: 18 U.S.C. 1514A, as amended by the Dodd-Frank Wall
Street Reform and Consumer Protection Act of 2010, Pub. L. 111-203
(July 21, 2010); Secretary's Order No. 01-2012 (Jan. 18, 2012), 77
FR 3912 (Jan. 25, 2012); Secretary's Order No. 01-2020.
0
63. In Sec. 1980.110, revise paragraphs (a), (c), (d), and (e) to read
as follows:
Sec. 1980.110 Decision and orders of the Administrative Review Board.
(a) Any party desiring to seek review, including judicial review,
of a decision of the ALJ, or a respondent alleging that the complaint
was frivolous or brought in bad faith who seeks an award of attorney
fees, must file a written petition for review with the ARB. The parties
should identify in their petitions for review the legal conclusions or
orders to which they object, or the objections may be deemed waived. A
petition must be filed within 14 days of the date of the decision of
the ALJ. The date of the postmark, facsimile transmittal, or electronic
communication transmittal will be considered to be the date of filing;
if the petition is filed in person, by hand delivery or other means,
the petition is considered filed upon receipt. The petition must be
served on all parties and on the Chief Administrative Law Judge at the
time it is filed with the ARB. Copies of the petition for review must
be served on the Assistant Secretary and on the Associate Solicitor,
Division of Fair Labor Standards, U.S. Department of Labor.
* * * * *
(c) The decision of the ARB shall be issued within 120 days of the
conclusion of the hearing, which will be deemed to be 14 days after the
date of the decision of the ALJ unless a motion for reconsideration has
been filed with the ALJ in the interim. In such case, the conclusion of
the hearing is the date the motion for reconsideration is ruled upon or
14 days after a new decision is issued. The ARB's decision will be
served upon all parties and the Chief Administrative Law Judge by mail.
The decision will also be served on the Assistant Secretary and on the
Associate Solicitor, Division of Fair Labor Standards, even if the
Assistant Secretary is not a party.
(d) If the ARB concludes that the respondent has violated the law,
the ARB will issue an order providing all relief necessary to make the
complainant whole, including reinstatement with the same seniority
status that the complainant would have had but for the retaliation;
back pay with interest; and compensation for any special damages
sustained as a result of the retaliation, including litigation costs,
expert witness fees, and reasonable attorney fees. Interest on back pay
will be calculated using the interest rate applicable to underpayment
of taxes under 26 U.S.C. 6621 and will be compounded daily. The order
will also require the respondent to submit appropriate documentation to
the Social Security Administration allocating any back pay award to the
appropriate calendar quarters. Such order is subject to discretionary
review by the Secretary as provided in Secretary's Order 01-2020.
(e) If the ARB concludes that the respondent has not violated the
law, the ARB will issue an order denying the complaint. If, upon the
request of the respondent, the ARB determines that a complaint was
frivolous or was brought in bad faith, the ARB may award to the
respondent reasonable attorney fees, not exceeding $1,000. An order
under this section is subject to discretionary review by the Secretary
as provided in Secretary's Order 01-2020.
[[Page 13099]]
0
64. In Sec. 1980.112, revise paragraph (a) to read as follows:
Sec. 1980.112 Judicial review.
(a) Within 60 days after the issuance of a final order (including a
decision issued by the Secretary upon his or her discretionary review)
for which judicial review is available, any person adversely affected
or aggrieved by the order may file a petition for review of the order
in the United States Court of Appeals for the circuit in which the
violation allegedly occurred or the circuit in which the complainant
resided on the date of the violation.
* * * * *
PART 1981--PROCEDURES FOR THE HANDLING OF DISCRIMINATION COMPLAINTS
UNDER SECTION 6 OF THE PIPELINE SAFETY IMPROVEMENT ACT OF 2002
0
65. The authority citation for part 1981 continues to read as follows:
Authority: 49 U.S.C. 60129; Secretary's Order No. 01-2020.
0
66. In Sec. 1981.110, revise paragraphs (a), (c), (d), and (e) as
follows:
Sec. 1981.110 Decision and orders of the Administrative Review Board.
(a) Any party desiring to seek review, including judicial review,
of a decision of the Administrative Law Judge, or a named person
alleging that the complaint was frivolous or brought in bad faith who
seeks an award of attorney's fees, must file a written petition for
review with the Administrative Review Board (``the Board''). The
decision of the Administrative Law Judge will become the final order of
the Secretary unless, pursuant to this section, a petition for review
is timely filed with the Board. The petition for review must
specifically identify the findings, conclusions, or orders to which
exception is taken. Any exception not specifically urged ordinarily
will be deemed to have been waived by the parties. To be effective, a
petition must be filed within 10 business days of the date of the
decision of the Administrative Law Judge. The date of the postmark,
facsimile transmittal, or email communication will be considered to be
the date of filing; if the petition is filed in person, by hand
delivery or other means, the petition is considered filed upon receipt.
The petition must be served on all parties and on the Chief
Administrative Law Judge at the time it is filed with the Board. Copies
of the petition for review and all briefs must be served on the
Assistant Secretary, Occupational Safety and Health Administration, and
on the Associate Solicitor, Division of Fair Labor Standards, U.S.
Department of Labor, Washington, DC 20210.
* * * * *
(c) The decision of the Board shall be issued within 90 days of the
conclusion of the hearing, which will be deemed to be the conclusion of
all proceedings before the Administrative Law Judge--i.e., 10 business
days after the date of the decision of the Administrative Law Judge
unless a motion for reconsideration has been filed with the
Administrative Law Judge in the interim. The decision will be served
upon all parties and the Chief Administrative Law Judge by mail to the
last known address. The decision will also be served on the Assistant
Secretary, Occupational Safety and Health Administration, and on the
Associate Solicitor, Division of Fair Labor Standards, U.S. Department
of Labor, Washington, DC 20210, even if the Assistant Secretary is not
a party.
(d) If the ARB concludes that the party charged has violated the
law, the ARB shall order the party charged to take appropriate
affirmative action to abate the violation, including, where
appropriate, reinstatement of the complainant to that person's former
position, together with the compensation (including back pay), terms,
conditions, and privileges of that employment, and compensatory
damages. At the request of the complainant, the Board shall assess
against the named person all costs and expenses (including attorney and
expert witness fees) reasonably incurred. Such order is subject to
discretionary review by the Secretary as provided in Secretary's Order
01-2020.
(e) If the ARB concludes that the party charged has not violated
the law, the ARB will issue an order denying the complaint. If, upon
the request of the named person, the Board determines that a complaint
was frivolous or was brought in bad faith, the Board may award to the
named person reasonable attorney fees, not exceeding $1,000. An order
under this section is subject to discretionary review by the Secretary
as provided in Secretary's Order 01-2020.
0
67. In Sec. 1981.112, revise paragraph (a) to read as follows:
Sec. 1981.112 Judicial review.
(a) Within 60 days after the issuance of a final order (including a
decision issued by the Secretary upon his or her discretionary review)
for which judicial review is available, any person adversely affected
or aggrieved by the order may file a petition for review of the order
in the United States Court of Appeals for the circuit in which the
violation allegedly occurred or the circuit in which the complainant
resided on the date of the violation. A final order of the Secretary is
not subject to judicial review in any criminal or other civil
proceeding.
* * * * *
PART 1982--PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS
UNDER THE NATIONAL TRANSIT SYSTEMS SECURITY ACT AND THE FEDERAL
RAILROAD SAFETY ACT
0
68. The authority citation for part 1982 is revised to read as follows:
Authority: 6 U.S.C. 1142 and 49 U.S.C. 20109; Secretary's Order
01-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012); Secretary's
Order No. 01-2020.
0
69. In Sec. 1982.110, revise paragraphs (a), (c), (d), and (e) to read
as follows:
Sec. 1982.110 Decision and orders of the Administrative Review Board.
(a) Any party desiring to seek review, including judicial review,
of a decision of the ALJ, or a respondent alleging that the complaint
under NTSSA was frivolous or brought in bad faith who seeks an award of
attorney fees, must file a written petition for review with the ARB.
The parties should identify in their petitions for review the legal
conclusions or orders to which they object, or the objections may be
deemed waived. A petition must be filed within 14 days of the date of
the decision of the ALJ. The date of the postmark, facsimile
transmittal, or electronic communication transmittal will be considered
to be the date of filing; if the petition is filed in person, by hand
delivery or other means, the petition is considered filed upon receipt.
The petition must be served on all parties and on the Chief
Administrative Law Judge at the time it is filed with the ARB. Copies
of the petition for review must be served on the Assistant Secretary,
and on the Associate Solicitor, Division of Fair Labor Standards.
* * * * *
(c) The decision of the ARB will be issued within 120 days of the
conclusion of the hearing, which will be deemed to be 14 days after the
date of the decision of the ALJ, unless a motion for reconsideration
has been filed with the ALJ in the interim. In such case, the
conclusion of the hearing is the date the motion for reconsideration is
denied or 14 days after a new decision is issued. The ARB's decision
will be served upon all parties and the Chief Administrative Law Judge
by mail. The decision also
[[Page 13100]]
will be served on the Assistant Secretary, and on the Associate
Solicitor, Division of Fair Labor Standards, U.S. Department of Labor,
even if the Assistant Secretary is not a party.
(d) If the ARB concludes that the respondent has violated the law,
the ARB will issue an order providing relief to the complainant. The
order will include, where appropriate, affirmative action to abate the
violation; reinstatement with the same seniority status that the
employee would have had but for the retaliation; any back pay with
interest; and payment of compensatory damages, including compensation
for any special damages sustained as a result of the retaliation,
including litigation costs, expert witness fees, and reasonable
attorney fees. Interest on back pay will be calculated using the
interest rate applicable to underpayment of taxes under 26 U.S.C. 6621
and will be compounded daily. The order will also require the
respondent to submit documentation to the Social Security
Administration or the Railroad Retirement Board, as appropriate,
allocating any back pay award to the appropriate months or calendar
quarters. The order may also require the respondent to pay punitive
damages up to $250,000. Such order is subject to discretionary review
by the Secretary as provided in Secretary's Order 01-2020.
(e) If the ARB concludes that the respondent has not violated the
law, the ARB will issue an order denying the complaint. If, upon the
request of the respondent, the ARB determines that a complaint under
NTSSA was frivolous or was brought in bad faith, the ARB may award to
the respondent reasonable attorney fees, not exceeding $1,000. An order
under this section is subject to discretionary review by the Secretary
as provided in Secretary's Order 01-2020.
0
70. In Sec. 1982.112, revise paragraph (a) to read as follows:
Sec. 1982.112 Judicial review.
(a) Within 60 days after the issuance of a final order (including a
decision issued by the Secretary upon his or her discretionary review)
for which judicial review is available, any person adversely affected
or aggrieved by the order may file a petition for review of the order
in the United States Court of Appeals for the circuit in which the
violation allegedly occurred or the circuit in which the complainant
resided on the date of the violation.
* * * * *
PART 1983--PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS
UNDER SECTION 219 OF THE CONSUMER PRODUCT SAFETY IMPROVEMENT ACT OF
2008
0
71. The authority citation for part 1983 is revised to read as
follows:
Authority: 15 U.S.C. 2087; Secretary's Order 1-2012 (Jan. 18,
2012), 77 FR 3912 (Jan. 25, 2012); Secretary's Order 01-2020.
0
72. In Sec. 1983.110, revise paragraphs (a), (c), (d), and (e) as
follows:
Sec. 1983.110 Decision and orders of the Administrative Review Board.
(a) Any party desiring to seek review, including judicial review,
of a decision of the ALJ, or a respondent alleging that the complaint
was frivolous or brought in bad faith who seeks an award of attorney's
fees, must file a written petition for review with the ARB. The parties
should identify in their petitions for review the legal conclusions or
orders to which they object, or the objections may be deemed waived. A
petition must be filed within 14 days of the date of the decision of
the ALJ. The date of the postmark, facsimile transmittal, or electronic
communication transmittal will be considered to be the date of filing;
if the petition is filed in person, by hand delivery or other means,
the petition is considered filed upon receipt. The petition must be
served on all parties and on the Chief Administrative Law Judge at the
time it is filed with the ARB. Copies of the petition for review must
be served on the Assistant Secretary and on the Associate Solicitor,
Division of Fair Labor Standards, U.S. Department of Labor.
* * * * *
(c) The decision of the ARB will be issued within 120 days of the
conclusion of the hearing, which will be deemed to be 14 days after the
date of the decision of the ALJ, unless a motion for reconsideration
has been filed with the ALJ in the interim. In such case, the
conclusion of the hearing is the date the motion for reconsideration is
ruled upon or 14 days after a new decision is issued. The ARB's
decision will be served upon all parties and the Chief Administrative
Law Judge by mail. The decision will also be served on the Assistant
Secretary and on the Associate Solicitor, Division of Fair Labor
Standards, U.S. Department of Labor, even if the Assistant Secretary is
not a party.
(d) If the ARB concludes that the respondent has violated the law,
the ARB will issue an order providing relief to the complainant. The
order will require, where appropriate, affirmative action to abate the
violation; reinstatement of the complainant to his or her former
position, together with the compensation (including back pay and
interest), terms, conditions, and privileges of the complainant's
employment; and payment of compensatory damages, including, at the
request of the complainant, the aggregate amount of all costs and
expenses (including attorney and expert witness fees) reasonably
incurred. Interest on back pay will be calculated using the interest
rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will
be compounded daily. Such order is subject to discretionary review by
the Secretary as provided in Secretary's Order 01-2020.
(e) If the ARB concludes that the respondent has not violated the
law, the ARB will issue an order denying the complaint. If, upon the
request of the respondent, the ARB determines that a complaint was
frivolous or was brought in bad faith, the ARB may award to the
respondent a reasonable attorney's fee, not exceeding $1,000. An order
under this section is subject to discretionary review by the Secretary
as provided in Secretary's Order 01-2020.
0
73. In Sec. 1983.112, revise paragraph (a) to read as follows:
Sec. 1983.112 Judicial review.
(a) Within 60 days after the issuance of a final order (including a
decision issued by the Secretary upon his or her discretionary review)
for which judicial review is available, any person adversely affected
or aggrieved by the order may file a petition for review of the order
in the United States Court of Appeals for the circuit in which the
violation allegedly occurred or the circuit in which the complainant
resided on the date of the violation.
* * * * *
PART 1984--PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS
UNDER SECTION 1558 OF THE AFFORDABLE CARE ACT
0
74. The authority citation for part 1984 is revised to read as follows:
Authority: 29 U.S.C. 218C; Secretary's Order 1-2012 (Jan. 18,
2012), 77 FR 3912 (Jan. 25, 2012); Secretary's Order No. 01-2020.
0
75. In Sec. 1984.110, revise paragraphs (a), (c), (d), and (e) as
follows:
Sec. 1984.110 Decision and orders of the Administrative Review Board.
(a) Any party desiring to seek review, including judicial review,
of a decision of the ALJ, or a respondent alleging that the complaint
was frivolous or brought
[[Page 13101]]
in bad faith who seeks an award of attorney fees, must file a written
petition for review with the Administrative Review Board (ARB). The
parties should identify in their petitions for review the legal
conclusions or orders to which they object, or the objections may be
deemed waived. A petition must be filed within 14 days of the date of
the decision of the ALJ. The date of the postmark, facsimile
transmittal, or electronic communication transmittal will be considered
to be the date of filing; if the petition is filed in person, by hand
delivery or other means, the petition is considered filed upon receipt.
The petition must be served on all parties and on the Chief
Administrative Law Judge at the time it is filed with the ARB. Copies
of the petition for review must be served on the Assistant Secretary,
and on the Associate Solicitor, Division of Fair Labor Standards, U.S.
Department of Labor.
* * * * *
(c) The decision of the ARB will be issued within 120 days of the
conclusion of the hearing, which will be deemed to be 14 days after the
date of the decision of the ALJ, unless a motion for reconsideration
has been filed with the ALJ in the interim. In such case, the
conclusion of the hearing is the date the motion for reconsideration is
ruled upon or 14 days after a new decision is issued. The ARB's
decision will be served upon all parties and the Chief Administrative
Law Judge by mail. The decision will also be served on the Assistant
Secretary, and on the Associate Solicitor, Division of Fair Labor
Standards, U.S. Department of Labor, even if the Assistant Secretary is
not a party.
(d) If the ARB concludes that the respondent has violated the law,
the ARB will issue an order providing relief to the complainant. The
order will require, where appropriate, affirmative action to abate the
violation; reinstatement of the complainant to the complainant's former
position, together with the compensation (including back pay and
interest), terms, conditions, and privileges of the complainant's
employment; and payment of compensatory damages, including, at the
request of the complainant, the aggregate amount of all costs and
expenses (including attorney and expert witness fees) reasonably
incurred. Interest on back pay will be calculated using the interest
rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will
be compounded daily. The order will also require the respondent to
submit appropriate documentation to the Social Security Administration
allocating any back pay award to the appropriate period. Such order is
subject to discretionary review by the Secretary as provided in
Secretary's Order 01-2020.
(e) If the ARB concludes that the respondent has not violated the
law, the ARB will issue an order denying the complaint. If, upon the
request of the respondent, the ARB determines that a complaint was
frivolous or was brought in bad faith, the ARB may award to the
respondent reasonable attorney fees, not exceeding $1,000. An order
under this section is subject to discretionary review by the Secretary
as provided in Secretary's Order 01-2020.
0
76. In Sec. 1984.112, revise paragraph (a) to read as follows:
Sec. 1984.112 Judicial review.
(a) Within 60 days after the issuance of a final order (including a
decision issued by the Secretary upon his or her discretionary review)
for which judicial review is available, any person adversely affected
or aggrieved by the order may file a petition for review of the order
in the United States Court of Appeals for the circuit in which the
violation allegedly occurred or the circuit in which the complainant
resided on the date of the violation.
* * * * *
PART 1985--PROCEDURES FOR HANDLING RETALIATION COMPLAINTS UNDER THE
EMPLOYEE PROTECTION PROVISION OF THE CONSUMER FINANCIAL PROTECTION
ACT OF 2010
0
77. The authority citation for part 1985 is revised to read as
follows:
Authority: 12 U.S.C. 5567; Secretary's Order No. 1-2012 (Jan.
18, 2012), 77 FR 3912 (Jan. 25, 2012); Secretary's Order No. 01-
2020.
0
78. In Sec. 1985.110, revise paragraphs (a), (c), (d), and (e) to
read as follows:
Sec. 1985.110 Decision and orders of the Administrative Review Board.
(a) Any party desiring to seek review, including judicial review,
of a decision of the ALJ, or a respondent alleging that the complaint
was frivolous or brought in bad faith who seeks an award of attorney
fees, must file a written petition for review with the ARB. The parties
should identify in their petitions for review the legal conclusions or
orders to which they object, or the objections may be deemed waived. A
petition must be filed within 14 days of the date of the decision of
the ALJ. The date of the postmark, facsimile transmittal, or electronic
communication transmittal will be considered to be the date of filing;
if the petition is filed in person, by hand delivery or other means,
the petition is considered filed upon receipt. The petition must be
served on all parties and on the Chief Administrative Law Judge at the
time it is filed with the ARB. Copies of the petition for review must
be served on the Assistant Secretary and on the Associate Solicitor,
Division of Fair Labor Standards, U.S. Department of Labor.
* * * * *
(c) The decision of the ARB will be issued within 120 days of the
conclusion of the hearing, which will be deemed to be 14 days after the
decision of the ALJ, unless a motion for reconsideration has been filed
with the ALJ in the interim. In such case, the conclusion of the
hearing is the date the motion for reconsideration is ruled upon or 14
days after a new decision is issued. The ARB's decision will be served
upon all parties and the Chief Administrative Law Judge by mail. The
decision will also be served on the Assistant Secretary and on the
Associate Solicitor, Division of Fair Labor Standards, U.S. Department
of Labor, even if the Assistant Secretary is not a party.
(d) If the ARB concludes that the respondent has violated the law,
the ARB will issue an order providing relief to the complainant. The
order will require, where appropriate, affirmative action to abate the
violation; reinstatement of the complainant to his or her former
position, together with the compensation (including back pay and
interest), terms, conditions, and privileges of the complainant's
employment; and payment of compensatory damages, including, at the
request of the complainant, the aggregate amount of all costs and
expenses (including attorney and expert witness fees) reasonably
incurred. Interest on back pay will be calculated using the interest
rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will
be compounded daily. The order will also require the respondent to
submit appropriate documentation to the Social Security Administration
allocating any back pay award to the appropriate calendar quarters.
Such order is subject to discretionary review by the Secretary as
provided in Secretary's Order 01-2020.
(e) If the ARB concludes that the respondent has not violated the
law, the ARB will issue an order denying the complaint. If, upon the
request of the respondent, the ARB determines that a complaint was
frivolous or was brought
[[Page 13102]]
in bad faith, the ARB may award to the respondent reasonable attorney
fees, not exceeding $1,000. An order under this section is subject to
discretionary review by the Secretary as provided in Secretary's Order
01-2020.
0
79. In Sec. 1985.112, revise paragraph (a) to read as follows:
Sec. 1985.112 Judicial review.
(a) Within 60 days after the issuance of a final order (including a
decision issued by the Secretary upon his or her discretionary review)
for which judicial review is available, any person adversely affected
or aggrieved by the order may file a petition for review of the order
in the United States Court of Appeals for the circuit in which the
violation allegedly occurred or the circuit in which the complainant
resided on the date of the violation.
* * * * *
PART 1986--PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS
UNDER THE EMPLOYEE PROTECTION PROVISION OF THE SEAMAN'S PROTECTION
ACT (SPA), AS AMENDED
0
80. The authority citation for part 1986 is revised to read as follows:
Authority: 46 U.S.C. 2114; 49 U.S.C. 31105; Secretary's Order 1-
2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012); Secretary's Order
No. 01-2020.
0
81. In Sec. 1986.110, revise paragraphs (a), (c), (d), and (e) to read
as follows:
Sec. 1986.110 Decisions and orders of the Administrative Review
Board.
(a) The Assistant Secretary or any other party desiring to seek
review, including judicial review, of a decision of the ALJ must file a
written petition for review with the ARB. The parties should identify
in their petitions for review the legal conclusions or orders to which
they object, or the objections may be deemed waived. A petition must be
filed within 14 days of the date of the decision of the ALJ. The date
of the postmark, facsimile transmittal, or electronic communication
transmittal will be considered to be the date of filing; if the
petition is filed in person, by hand delivery or other means, the
petition is considered filed upon receipt. The petition must be served
on all parties and on the Chief Administrative Law Judge at the time it
is filed with the ARB. Copies of the petition for review and all briefs
must be served on the Assistant Secretary and, in cases in which the
Assistant Secretary is a party, on the Associate Solicitor, Division of
Occupational Safety and Health, U.S. Department of Labor.
* * * * *
(c) The decision of the ARB will be issued within 120 days of the
conclusion of the hearing, which will be deemed to be 14 days after the
date of the decision of the ALJ, unless a motion for reconsideration
has been filed with the ALJ in the interim. In such case, the
conclusion of the hearing is the date the motion for reconsideration is
ruled upon or 14 days after a new decision is issued. The ARB's
decision will be served upon all parties and the Chief Administrative
Law Judge by mail. The decision also will be served on the Assistant
Secretary and on the Associate Solicitor, Division of Occupational
Safety and Health, U.S. Department of Labor, even if the Assistant
Secretary is not a party.
(d) If the ARB concludes that the respondent has violated the law,
the ARB will issue an order providing relief to the complainant. The
order will require, where appropriate, affirmative action to abate the
violation; reinstatement of the complainant to his or her former
position, with the same compensation, terms, conditions, and privileges
of the complainant's employment; payment of compensatory damages (back
pay with interest and compensation for any special damages sustained as
a result of the retaliation, including any litigation costs, expert
witness fees, and reasonable attorney fees the complainant may have
incurred); and payment of punitive damages up to $250,000. Interest on
back pay will be calculated using the interest rate applicable to
underpayment of taxes under 26 U.S.C. 6621 and will be compounded
daily. Such order is subject to discretionary review by the Secretary
as provided in Secretary's Order 01-2020.
(e) If the ARB concludes that the respondent has not violated the
law, the ARB will issue an order denying the complaint. Such order is
subject to discretionary review by the Secretary as provided in
Secretary's Order 01-2020.
0
82. In Sec. 1986.112, revise paragraph (a) to read as follows:
Sec. 1986.112 Judicial review.
(a) Within 60 days after the issuance of a final order (including a
decision issued by the Secretary upon his or her discretionary review)
for which judicial review is available, any person adversely affected
or aggrieved by the order may file a petition for review of the order
in the court of appeals of the United States for the circuit in which
the violation allegedly occurred or the circuit in which the
complainant resided on the date of the violation.
* * * * *
PART 1987--PROCEDURES FOR HANDLING RETALIATION COMPLAINTS UNDER
SECTION 402 OF THE FDA FOOD SAFETY MODERNIZATION ACT
0
83. The authority citation for part 1987 is revised to read as follows:
Authority: 21 U.S.C. 399d; Secretary's Order No. 1-2012 (Jan.
18, 2012), 77 FR 3912 (Jan. 25, 2012); Secretary's Order No. 01-
2020.
0
84. In Sec. 1987.110, revise paragraphs (a), (c), (d), and (e) to
read as follows:
Sec. 1987.110 Decision and orders of the Administrative Review Board.
(a) Any party desiring to seek review, including judicial review,
of a decision of the ALJ, or a respondent alleging that the complaint
was frivolous or brought in bad faith who seeks an award of attorney
fees, must file a written petition for review with the ARB. The parties
should identify in their petitions for review the legal conclusions or
orders to which they object, or the objections may be deemed waived. A
petition must be filed within 14 days of the date of the decision of
the ALJ. The date of the postmark, facsimile transmittal, or electronic
communication transmittal will be considered to be the date of filing;
if the petition is filed in person, by hand delivery or other means,
the petition is considered filed upon receipt. The petition must be
served on all parties and on the Chief Administrative Law Judge at the
time it is filed with the ARB. Copies of the petition for review must
be served on the Assistant Secretary and on the Associate Solicitor,
Division of Fair Labor Standards, U.S. Department of Labor.
* * * * *
(c) The decision of the ARB will be issued within 120 days of the
conclusion of the hearing, which will be deemed to be 14 days after the
date of the decision of the ALJ, unless a motion for reconsideration
has been filed with the ALJ in the interim. In such case the conclusion
of the hearing is the date the motion for reconsideration is denied or
14 days after a new decision is issued. The ARB's decision will be
served upon all parties and the Chief Administrative Law Judge by mail.
The decision will also be served on the Assistant Secretary and on the
Associate Solicitor, Division of Fair Labor Standards, U.S. Department
of Labor, even if the Assistant Secretary is not a party.
[[Page 13103]]
(d) If the ARB concludes that the respondent has violated the law,
the ARB will issue an order providing relief to the complainant. The
order will require, where appropriate, affirmative action to abate the
violation; reinstatement of the complainant to his or her former
position, together with the compensation (including back pay and
interest), terms, conditions, and privileges of the complainant's
employment; and payment of compensatory damages, including, at the
request of the complainant, the aggregate amount of all costs and
expenses (including attorney and expert witness fees) reasonably
incurred. Interest on back pay will be calculated using the interest
rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will
be compounded daily. The order will also require the respondent to
submit appropriate documentation to the Social Security Administration
allocating any back pay award to the appropriate calendar quarters.
Such order is subject to discretionary review by the Secretary as
provided in Secretary's Order 01-2020.
(e) If the ARB concludes that the respondent has not violated the
law, the ARB will issue an order denying the complaint. If, upon the
request of the respondent, the ARB determines that a complaint was
frivolous or was brought in bad faith, the ARB may award to the
respondent reasonable attorney fees, not exceeding $1,000. An order
under this section is subject to discretionary review by the Secretary
as provided in Secretary's Order 01-2020.
0
85. In Sec. 1987.112, revise paragraph (a) to read as follows:
Sec. 1987.112 Judicial review.
(a) Within 60 days after the issuance of a final order (including a
decision issued by the Secretary upon his or her discretionary review)
for which judicial review is available, any person adversely affected
or aggrieved by the order may file a petition for review of the order
in the United States Court of Appeals for the circuit in which the
violation allegedly occurred or the circuit in which the complainant
resided on the date of the violation.
* * * * *
PART 1988--PROCEDURES FOR HANDLING RETALIATION COMPLAINTS UNDER
SECTION 31307 OF THE MOVING AHEAD FOR PROGRESS IN THE 21ST CENTURY
ACT (MAP-21)
0
86. The authority citation for part 1988 is revised to read as follows:
Authority: 49 U.S.C. 30171; Secretary's Order No. 1-2012 (Jan.
18, 2012), 77 FR 3912 (Jan. 25, 2012); Secretary's Order No. 01-
2020.
0
87. In Sec. 1988.110, revise paragraphs (a), (c), (d), and (e) to read
as follows:
Sec. 1988.110 Decision and orders of the Administrative Review Board.
(a) Any party desiring to seek review, including judicial review,
of a decision of the ALJ, or a respondent alleging that the complaint
was frivolous or brought in bad faith who seeks an award of attorney
fees, must file a written petition for review with the ARB. The parties
should identify in their petitions for review the legal conclusions or
orders to which they object, or the objections may be deemed waived. A
petition must be filed within 14 days of the date of the decision of
the ALJ. The date of the postmark, facsimile transmittal, or electronic
communication transmittal will be considered to be the date of filing;
if the petition is filed in person, by hand delivery or other means,
the petition is considered filed upon receipt. The petition must be
served on all parties and on the Chief Administrative Law Judge at the
time it is filed with the ARB. Copies of the petition for review must
be served on the Assistant Secretary and on the Associate Solicitor,
Division of Fair Labor Standards, U.S. Department of Labor.
* * * * *
(c) The decision of the ARB will be issued within 120 days of the
conclusion of the hearing, which will be deemed to be 14 days after the
decision of the ALJ, unless a motion for reconsideration has been filed
with the ALJ in the interim. In such case, the conclusion of the
hearing is the date the motion for reconsideration is ruled upon or 14
days after a new decision is issued. The ARB's decision will be served
upon all parties and the Chief Administrative Law Judge by mail. The
decision will also be served on the Assistant Secretary and on the
Associate Solicitor, Division of Fair Labor Standards, U.S. Department
of Labor, even if the Assistant Secretary is not a party.
(d) If the ARB concludes that the respondent has violated the law,
the ARB will issue an order providing relief to the complainant. The
order will require, where appropriate, affirmative action to abate the
violation; reinstatement of the complainant to his or her former
position, together with the compensation (including back pay and
interest), terms, conditions, and privileges of the complainant's
employment; and payment of compensatory damages, including, at the
request of the complainant, the aggregate amount of all costs and
expenses (including attorney and expert witness fees) reasonably
incurred. Interest on back pay will be calculated using the interest
rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will
be compounded daily. The order will also require the respondent to
submit appropriate documentation to the Social Security Administration
allocating any back pay award to the appropriate calendar quarters.
Such order is subject to discretionary review by the Secretary as
provided in Secretary's Order 01-2020.
(e) If the ARB concludes that the respondent has not violated the
law, the ARB will issue an order denying the complaint. If, upon the
request of the respondent, the ARB determines that a complaint was
frivolous or was brought in bad faith, the ARB may award to the
respondent reasonable attorney fees, not exceeding $1,000. An order
under this section is subject to discretionary review by the Secretary
as provided in Secretary's Order 01-2020.
0
88. In Sec. 1988.112, revise paragraph (a) to read as follows:
Sec. 1988.112 Judicial review.
(a) Within 60 days after the issuance of a final order (including a
decision issued by the Secretary upon his or her discretionary review)
for which judicial review is available, any person adversely affected
or aggrieved by the order may file a petition for review of the order
in the United States Court of Appeals for the circuit in which the
violation allegedly occurred or the circuit in which the complainant
resided on the date of the violation.
* * * * *
Title 41: Public Contracts and Property Management
Office of Federal Contract Compliance Programs
PART 50-203--RULES OF PRACTICE
0
89. The authority citation for part 50-203 continues to read as
follows:
Authority: Sec. 4, 49 Stat. 2038; 41 U.S.C. 38, unless
otherwise noted.
0
90. In Sec. 50-203.21, revise paragraph (d) to read as follows:
Sec. 50-203.21 Decisions.
* * * * *
(d) Thereafter, the Administrative Review Board may issue a
decision ruling upon each exception filed and including any appropriate
wage determination. Any such decision shall be published in the Federal
Register
[[Page 13104]]
after it becomes the final action of the Department.
PART 60-30--RULES OF PRACTICE FOR ADMINISTRATIVE PROCEEDINGS TO
ENFORCE EQUAL OPPORTUNITY UNDER EXECUTIVE ORDER 11246
0
91. The authority citation for part 60-30 continues to read as
follows:
Authority: Executive Order 11246, as amended, 30 FR 12319, 32
FR 14303, as amended by E.O. 12086; 29 U.S.C. 793, as amended, and
38 U.S.C. 4212, as amended.
0
92. Revise Sec. 60-30.29 to read as follows:
Sec. 60-30.29 Record.
After expiration of the time for filing briefs and exceptions, the
Administrative Review Board, United States Department of Labor, shall
make a decision, which shall be the Administrative order, on the basis
of the record. The record shall consist of the record for recommended
decision, the rulings and recommended decision of the Administrative
Law Judge and the exceptions and briefs filed subsequent to the
Administrative Law Judge's decision.
0
93. Revise Sec. 60-30.30 to read as follows:
Sec. 60-30.30 Administrative Order.
After expiration of the time for filing, the Administrative Review
Board, United States Department of Labor, shall make a decision which
shall be served on all parties. If the Administrative Review Board,
United States Department of Labor, concludes that the defendant has
violated the Executive Order, the equal opportunity clause, or the
regulations, an Administrative Order shall be issued enjoining the
violations, and requiring the contractor to provide whatever remedies
are appropriate, and imposing whatever sanctions are appropriate, or
any of the above. In any event, failure to comply with the
Administrative Order shall result in the immediate cancellation,
termination, and suspension of the respondent's contracts and/or
debarment of the respondent from further contracts.
0
94. Revise Sec. 60-30.37 to read as follows:
Sec. 60-30.37 Final Administrative Order.
After expiration of the time for filing exceptions, the
Administrative Review Board, United States Department of Labor, shall
issue an Administrative Order which shall be served on all parties.
Unless the Administrative Review Board, United States Department of
Labor, issues an Administrative Order within 30 days after the
expiration of the time for filing exceptions, the Administrative Law
Judge's recommended decision shall become a final Administrative Order
which shall become effective on the 31st day after expiration of the
time for filing exceptions. Except as to specific time periods required
in this subsection, 41 CFR 60-30.30 shall be applicable to this
section.
[FR Doc. 2020-04018 Filed 3-5-20; 8:45 am]
BILLING CODE 4510-HL-P
