[Federal Register Volume 85, Number 98 (Wednesday, May 20, 2020)]
[Rules and Regulations]
[Pages 30608-30627]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-10909]
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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
29 CFR Parts 2, 7, 8, 10, 13, 18, 24, 29, 38, and 96
Office of Labor-Management Standards
29 CFR Part 471
Wage and Hour Division
29 CFR Parts 501 and 580
Occupational Safety and Health Administration
29 CFR Parts 1978 through 1988
Office of Federal Contract Compliance Programs
41 CFR Parts 50-203 and 60-30
RIN 1290-AA39
Rules Concerning Discretionary Review by the Secretary
AGENCY: Office of the Secretary
ACTION: Final rule.
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SUMMARY: The Department of Labor is issuing this final rule 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
established in this rule and in Secretary's Order 01-2020.
DATES: This final rule is effective June 19, 2020.
FOR FURTHER INFORMATION CONTACT: Mr. Thomas Shepherd, Clerk of the
Appellate Boards, at 202-693-6319 or Shepherd.Thomas@dol.gov.
SUPPLEMENTARY INFORMATION:
I. Background
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. Previously, 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 is
establishing systems of discretionary secretarial review over the
decisions of the ARB and decisions of and appeals before BALCA, which
is being accomplished through this rule and the earlier issuance of a
Secretary's Order governing the ARB. The Department's authority to
effect 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 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 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. With respect to the provisions revised by this
rule under which decisions of the ARB become final, the Department
notes that such decisions become final irrespective of whether a
petition for secretarial review is filed under Secretary's Order 01-
2020. Parties are not required by Secretary's Order 01-2020 to file
petitions to exhaust their administrative remedies. See Darby v.
Cisneros, 509 U.S. 137 (1993). 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 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 regulations modifying BALCA's authority 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 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 affirms the Certifying
Officer's decision or reverses and remands for further processing, the
parties 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.
II. Discussion of Changes
This final rule revises 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 parts
417 and 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.
This rule also revises 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 made 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, including
rules providing for secretarial review, 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 this rule becomes effective.
III. Response to Comments
On March 6, 2020, the Department simultaneously published a direct
final rule (DFR) and a notice of proposed rulemaking (NPRM) to effect
the reforms described above. The Department treated comments received
on the companion NPRM as comments also regarding the DFR, and vice
versa. We describe the NPRM and DFR together as the ``NPRM-DFR.'' Some
comments raised concerns while others expressed support for the
Department's NPRM-DFR. After carefully considering the comments
received, the Department determined that none of the comments required
refraining to make the revisions set forth in the NPRM-DFR, as
explained in more detail below, and has decided to issue this final
rule, which, with the exception of one substantive change described
below and some technical corrections,\1\ is identical to the NPRM-DFR.
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\1\ Technical corrections have been made to 29 CFR 2.8; 29 CFR
7.1(d); 29 CFR 8.1(c); 29 CFR 10.57(c); 29 CFR 13.57(c); and 29 CFR
parts 1978-1988.
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By its terms, the DFR became effective on April 20, 2020. However,
because the Department received significant adverse comments on the
NPRM-DFR, the Department has not exercised, and does not intend to
exercise any authority under the provisions contained in the DFR, and
the Department has not published in the Federal Register a document
confirming the effective date of the DFR and withdrawing the NPRM.
Rather, the Department is now issuing this final rule to respond to the
comments received and to finalize the NPRM.
The Department received multiple adverse comments to the NPRM-DFR.
The commenters expressed concerns that the new systems of discretionary
review in the NPRM-DFR and established in Secretary's Order 01-2020
would result in significant delays in the resolution of cases. Further,
some commenters argued that secretarial review would result in
inconsistencies in how the Department decides cases, and also faulted
the NPRM-DFR for not specifying the standards under which the Secretary
would exercise review, which some commenters suggested would jeopardize
the fairness and due process afforded parties in Department
adjudications. Other concerns raised by commenters included a purported
lack of data or other justifications for the proposed system of
discretionary review and objections to the propriety of the direct
final rulemaking process. Finally, some commenters suggested that the
rule should include more public reporting requirements to increase
transparency with respect to how the Secretary exercises his review
authority.
The Department believes that many of the objections raised by the
commenters are already addressed by the provisions in the NPRM-DFR, and
also notes that some of the concerns are about the contents of
Secretary's Order 01-2020, which became effective on February 21, 2020,
and was not the subject of this rulemaking. To the extent the
commenters' concerns relate to Secretary's Order 01-2020, and not the
rule, the Department addresses them here insofar as doing so is helpful
in more fully explaining how the new systems of discretionary review
work.
As explained earlier in this preamble, the Department does not
anticipate that discretionary review will be frequently exercised. The
vast run of cases decided by the Department will therefore be minimally
affected in the rate at which they are processed. Importantly, the
timeline set for when BALCA decisions become final under the new rule
is unchanged, except with respect to cases over which the Secretary
decides to exercise review.
Some commenters argued that, despite BALCA decisions becoming final
upon issuance, employers would still be delayed in moving on to the
next step of the visa application process because they would have to
wait until the time period for secretarial review elapsed, and that the
time periods in which the Secretary is permitted to undertake review
are unnecessarily long. Commenters were specifically concerned with the
timing available for the Secretary to invoke jurisdiction over a case
and the lack of a deadline for the Secretary to make a decision,
particularly regarding the H-2A program given the time-sensitive nature
of the program. One commenter also suggested that the proposal is
inconsistent with Section 218(e) of the INA.
The Department does not agree with these assertions. For one thing,
the possibility that the Secretary may undertake review of a BALCA
decision that has become final no more impedes an employer's ability to
proceed to the next step in the visa application process than does the
possibility that BALCA may consider, and possibly grant, a motion for
reconsideration. Like the possibility of reconsideration, secretarial
review will be uncommon and will not significantly delay action on a
final BALCA decision. The time periods specified in this rule in which
secretarial review is allowed are included to limit further the already
minimal uncertainty that the chance of secretarial review might create
for employers by placing a strict time constraint on when secretarial
review is even possible. Finally, the Secretary's authority to review
BALCA decisions does not conflict with the INA. If an employer requests
a de novo hearing, they are entitled to that hearing in accordance with
the Department's regulations. It is only after that hearing that the
Secretary can exercise their authority to review the ALJ's decision
from that hearing.
In response to one commenter's question of whether the Department
will refund a filing fee paid to United States Citizenship and
Immigration Services (USCIS) in the event the Secretary undertakes
review after the fee has been submitted, the Department notes that
USCIS's refund policy is outside the Department's control. The
Department notes, however, that this final rule reduces the limited
risk of costs being incurred without a refund by allowing the Secretary
to undertake review of cases pending before the BALCA before a decision
is issued. That feature of the rule is formulated in recognition of the
expeditious nature of many BALCA cases and ensures that, wherever
possible, the Secretary may review a case before a party has filed a
petition with USCIS.
As to the ARB, the Department notes that the ARB currently takes on
average nineteen months to process a case; the up-to approximately two
months' more \2\ added by Secretary's Order 01-2020 to allow the
Secretary time to determine whether to undertake review is not
unreasonable. A modest extension of case processing times to give the
Secretary the opportunity to ensure a case was properly decided is not,
in the Department's judgment, inconsistent with the fair and timely
adjudication of administrative appeals. The Department also believes
that additional delay in the issuance of a final decision in the
uncommon cases where the Secretary has undertaken review is appropriate
and consistent with current practices at the Department.
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\2\ Under Secretary's Order 01-2020, the maximum period of time
possible between when the ARB issues a decision and when the
decision becomes final in cases where the Secretary does not
undertake review is 63 calendar days, or nine weeks. In particular,
the Order allows parties up to 14 calendar days to file a petition
for secretarial review after the ARB's decision has been issued. The
ARB then has up to 21 calendar days from the date the petition was
filed to determine whether to refer the decision to the Secretary
for review. In cases where the ARB has referred the decision to the
Secretary, the Secretary has up to 28 calendar days from the date of
referral to decide whether to undertake review. Thus, it is possible
under the Order that a decision of the ARB would not become final
until 63 calendar days after the decision was issued. See
Secretary's Order 01-2020--Delegation of Authority and Assignment of
Responsibility to the Administrative Review Board, 85 FR 13186,
13187-88 (March 6, 2020). However, there are a variety of
circumstances that can shorten the period between when a decision is
issued and when it becomes final. See id.
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Contrary to some commenters' concerns that secretarial review will
lead to inconsistency and inefficiencies in Department adjudications
because of the supposed haphazard manner in which they believe the
review power will be exercised, the Department expects that it will in
fact increase consistency and efficiency. Decisions of the Secretary
under this rule and Secretary's Order 01-2020 are binding on all
Department employees, and thus will serve as authoritative
pronouncements within the Department on the statutes and regulations
within the BALCA's and ARB's jurisdictions. That will serve to improve
the consistency and efficiency of Department adjudications.
Commenters similarly suggested that the Department establish with
more specificity both the standards the Secretary will use when
deciding to exercise his authority and the standards that will govern
the Secretary's review of a case. The Department does not believe that
further specification of the standards that govern discretionary review
is necessary to ensure the proper use of this power. When review is
undertaken, the Secretary will adhere to all relevant sources of law,
including, where applicable, 5 U.S.C. 557(b), which sets a standard of
review for administrative appeals in formal adjudications. Further,
providing that, generally, cases will be subject to secretarial review
only if they present a matter of exceptional importance strikes the
right balance between providing some clarity about when review will be
undertaken while not unnecessarily precluding review in cases where
secretarial involvement may be warranted under circumstances that are
difficult to anticipate.
Several commenters raised concerns that the system of discretionary
secretarial review does not adequately protect due process rights or
risks undermining the fundamental fairness of DOL adjudications,
including by failing to provide a mechanism for the parties to the
proceeding to be notified when the Secretary exercises his discretion,
the relevant issues under consideration, the lack of timeframe for the
Secretary to make a decision, and a concern that the process will only
be used to reverse decisions unfavorable to the Department. The
Department notes that this final rule contains a number of important
fairness safeguards, and does not believe that further protections are
necessary. Whenever review of cases pending before or decided by BALCA
is undertaken by the Secretary, parties are to be promptly notified.
The Secretary is also to receive the Appeal File and any briefs filed
to ensure parties have an opportunity to be heard. Further, the
Secretary must state his decision in writing, and the parties are to be
promptly notified of his decision. Finally, this rule provides that no
individual involved in the investigation or prosecution of a case will
advise the Secretary on the exercise of review with respect to that
case or a case involving a common nucleus of operative fact.\3\ This
ensures the integrity of the review process by preventing the
intermingling of functions within the Department. The Department also
notes that the APA's separation of functions provision does not apply
to the heads of agencies. 5 U.S.C. 554(d)(C). Finally, to the extent
commenters have suggested that the Secretary will in all cases rule for
the Department or a preferred party, or only consider undertaking
review in cases where the Department lost before the BALCA, the
Department regards those concerns as unfounded, and reiterates that the
Secretary will decide all cases in accordance with law.
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\3\ For example, a Department attorney who substantively
participates in a hearing before BALCA would not advise the
Secretary on that case if it were reviewed.
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Some commenters' objected that the Department's reasons for
establishing discretionary secretarial review do not sufficiently
justify the rule, including failing to provide evidence or data that
the ARB and BALCA issue obviously wrong decisions on a regular-enough
basis to justify the establishment of this procedure.
The Department reiterates that ensuring the Secretary's ability to
supervise and direct functions of the Department that are entrusted to
his care by Congress is a compelling reason for the rule taken on its
own terms, and will promote good governance within the Department. The
Department does not believe it is unreasonable for the Secretary to
execute the duties he has been assigned by Congress. As for evidence,
past experience with the unreviewability of BALCA decisions indicates
that it is necessary for the Secretary to have the option of reviewing
decisions issued on his behalf lest disagreement on law and policy
within the Department lead to protracted uncertainty and intractable
problems for regulated communities. See, e.g., Withdrawal of Notice of
Intent To Issue a Declaratory Order, 85 FR 14706, 14708 (March 13,
2020) (recounting historical facts). The overall effect of this process
will be to establish binding secretarial precedent on certain issues,
which will ensure consistency in the Department's review and
adjudication of matters, ultimately saving time and providing greater
certainty for the regulated community.
Some commenters objected that this rule is being promulgated
through improper procedures, and specifically argued that the DFR
process is not permitted under the APA. The Department disagrees. The
Department emphasizes that, while it does not believe it was required
to issue this procedural rule through notice-and-comment procedures, it
nevertheless
gave the public the opportunity to comment through the NPRM, received
public submissions on the NPRM-DFR, and is now issuing this final rule
having considered and responded to those submissions.
As to commenters' suggestions regarding transparency and the public
reporting of decisions rendered by the Secretary, the Department notes
that Secretary's Order 01-2020 already requires the publication of such
decisions issued following the review of an ARB decision. Because the
Department agrees with commenters that publishing decisions is an
appropriate and effective way for the public to be informed about how
the discretionary review power is exercised, the Department is adding
an express publication requirement to 29 CFR 18.95(c)(2)(iii) for
secretarial decisions issued after the review of cases decided by or
pending before the BALCA. Commenters' other suggestions to promote
transparency, including requiring BALCA to notify an employer of
recommendations to the Secretary or for the Secretary to provide public
explanations of his reasons for declining review in cases and providing
the public with additional information about how the Secretary has
handled specific referrals under Secretary's Order 01-2020, would, in
Department's judgment, introduce more inefficiencies into the review
processes than are warranted by the marginal benefits such transparency
measures would generate.
Finally, the Department declines to grant some commenters' request
for an extension of the comment period. The NPRM-DFR was not long or
complex relative to other proposed rules issued by the Department.
Further, the NPRM-DFR was made public on the Department's website on
February 21, meaning interested parties have had notice of and have had
the opportunity to examine it and to prepare comments for longer than
the 30 days provided for comment. Some commenters argued that the
disruption caused by the coronavirus pandemic, including the closure of
law libraries or other institutions that commenters may use as a
resource to submit comments, justifies an extension. The Department
notes that while the pandemic has caused general disruption to the
lives of all Americans, comments to proposed rules can be submitted
electronically and do not rely on physical means of delivery or
preparation that may be hindered by the pandemic, and that the research
and work needed to prepare comments can also generally be carried on
through electronic means.
To the extent that DOL received comments unrelated to the proposal
to establish a system of discretionary secretarial review, such
comments are outside the scope of this rulemaking. DOL did not consider
any other aspects of its administrative adjudicative processes, either
explicitly or implicitly, as part of this rulemaking. As such, DOL
declines to address any comments unrelated to this very narrow
rulemaking.
IV. Rulemaking Analyses and Notices
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 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 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.\4\
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\4\ One commenter objected to the lack of a cost-benefit
analysis. This rule reflects revisions to the Department's internal
review processes, which do not change any party's substantive rights
or obligations. As discussed above, these internal Departmental
revisions do not raise applicable novel issues nor are they expected
to have an annual effect of $100 million or more.
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Regulatory Flexibility Act of 1980
Because no notice of proposed rulemaking was 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 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 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 rule in accordance with Executive
Order 13175 and has determined that it does not have ``tribal
implications.'' The 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.''
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 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.
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 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.
Dated: May 15, 2020.
Eugene Scalia,
Secretary of Labor.
For the reasons set forth in the preamble, the Department of Labor
amends 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:
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 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).
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 (or
any successor to that order).
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 (or any successor to that order).
* * * * *
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 (or any
successor to that order).
* * * * *
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:
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 (or any successor to that order).
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 (or
any successor to that order).
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 publish the decision and transmit 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).
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) to read 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 Suspension, termination, withholding, denial, or
discontinuation of financial assistance.
* * * * *
(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 471--OBLIGATIONS OF FEDERAL CONTRACTORS AND SUBCONTRACTORS;
NOTIFICATION OF EMPLOYEE RIGHTS UNDER FEDERAL LABOR LAWS
0
49. 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
50. 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
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
51. 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 Public Law 114-74 at Sec. 701.
0
52. 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
53. 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
54. 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
55. 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
56. 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 (or any successor to that
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.
(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 (or any successor to that order).
* * * * *
0
57. 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
58. The authority citation for part 1979 continues to read as follows:
Authority: 49 U.S.C. 42121; Secretary's Order No. 01-2020.
0
59. 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. 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 (or any successor to that order).
(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 (or any successor to that
order).
0
60. 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
61. 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, Public Law 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
62. 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 (or
any successor to that order).
(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 (or any successor to that
order).
0
63. 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
64. The authority citation for part 1981 continues to read as follows:
Authority: 49 U.S.C. 60129; Secretary's Order No. 01-2020.
0
65. 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 (or any successor to that order).
(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 (or any successor to that
order).
0
66. 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
67. 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
68. In Sec. 1982.110, revise paragraph (a) and add paragraphs (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 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 (or any
successor to that order).
(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 (or any successor to that
order).
0
69. 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
70. 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
71. 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 (or any
successor to that order).
(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 (or any successor to that
order).
0
72. 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
73. 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
74. 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 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 (or any successor to that order).
(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 (or any successor to that
order).
0
75. 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
76. 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
77. 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 (or any successor to that order).
(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 (or any successor to that
order).
0
78. 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
79. 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
80. 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 (or any successor to that
order).
(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 (or any successor to that order).
0
81. 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
82. 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
83. 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.
(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 (or any successor to that order).
(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 (or any successor to that
order).
0
84. 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
85. 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
86. 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 (or any successor to that order).
(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 (or any successor to that
order).
0
87. 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
88. 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
89. 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 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
90. 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
91. 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
92. 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
93. 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. 2020-10909 Filed 5-19-20; 8:45 am]
BILLING CODE 4510-HL-P
