Federal Register / Vol. 85, No. 98 / Wednesday, May 20, 2020 / Rules and Regulations

Agency decision

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Federal Register / Vol. 85, No. 98 / Wednesday, May 20, 2020 / Rules and Regulations

I. Environmental Considerations

The Commission’s regulations

provide a categorical exclusion for the

Commission’s rules from any

requirement to prepare an

environmental assessment or an

environmental impact statement where

they ‘‘have little or no potential for

affecting the human environment.’’ 16

CFR 1021.5(c)(2). This rule falls within

the categorical exclusion, so no

environmental assessment or

environmental impact statement is

required.

J. Preemption

Section 26(a) of the CPSA, 15 U.S.C.

2075(a), provides that where a consumer

product safety standard is in effect and

applies to a product, no state or political

subdivision of a state may either

establish or continue in effect a

requirement dealing with the same risk

of injury unless the state requirement is

identical to the federal standard. Section

26(c) of the CPSA also provides that

states or political subdivisions of states

may apply to the CPSC for an exemption

from this preemption under certain

circumstances. Section 104(b) of the

CPSIA deems rules issued under that

provision ‘‘consumer product safety

rules.’’ Therefore, once a rule issued

under section 104 of the CPSIA takes

effect, it will preempt in accordance

with section 26(a) of the CPSA.

K. Effective Date

Under the procedure set forth in

section 104(b)(4)(B) of the CPSIA, when

a voluntary standard organization

revises a standard that the Commission

adopted as a mandatory standard, the

revision becomes the CPSC standard

within 180 days of notification to the

Commission, unless the Commission

determines that the revision does not

improve the safety of the product, or the

Commission sets a later date in the

Federal Register. The Commission has

not set a different effective date. Thus,

in accordance with this provision, this

rule takes effect 180 days after we

received notification from ASTM of

revision to this standard. As discussed

in the preceding section, this is a direct

final rule. Unless we receive a

significant adverse comment within 30

days, the rule will become effective on

August 3, 2020.

L. The Congressional Review Act

The Congressional Review Act (CRA;

5 U.S.C. 801–808) states that, before a

rule may take effect, the agency issuing

the rule must submit the rule, and

certain related information, to each

House of Congress and the Comptroller

General. 5 U.S.C. 801(a)(1). The

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submission must indicate whether the

rule is a ‘‘major rule.’’ The CRA states

that the Office of Information and

Regulatory Affairs (OIRA) determines

whether a rule qualifies as a ‘‘major

rule.’’ Pursuant to the CRA, this rule

does not qualify as a ‘‘major rule,’’ as

defined in 5 U.S.C. 804(2). To comply

with the CRA, the Office of the General

Counsel will submit the required

information to each House of Congress

and the Comptroller General.

DEPARTMENT OF LABOR

List of Subjects in 16 CFR Part 1225

Office of Labor-Management

Standards

Consumer protection, Imports,

Incorporation by reference, Infants and

children, Law enforcement, Safety,

Toys.

For the reasons stated above, the

Commission amends 16 CFR chapter II

as follows:

PART 1225—SAFETY STANDARD FOR

HAND-HELD INFANT CARRIERS

■ 1. Revise the authority citation for part

1225 to read as follows:

Authority: 15 U.S.C. 2056a(b)(4)(B).

■ 2. Revise § 1225.2 to read as follows:

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

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

§ 1225.2 Requirements for hand-held

infant carriers.

RIN 1290–AA39

Each hand-held infant carrier must

comply with all applicable provisions of

ASTM F2050–19, Standard Consumer

Safety Specification for Hand-Held

Infant Carriers, approved on December

15, 2019. The Director of the Federal

reference listed in this section in

accordance with 5 U.S.C. 552(a) and 1

CFR part 51. You may obtain a copy of

this ASTM standard from ASTM

International, 100 Barr Harbor Drive,

P.O. Box C700, West Conshohocken, PA

19428–2959 USA; phone: 610–832–

9585; www.astm.org. A read-only copy

of the standard is available for viewing

on the ASTM website at https://

www.astm.org/READINGLIBRARY/. You

may inspect a copy at the Division of

the Secretariat, U.S. Consumer Product

Safety Commission, Room 820, 4330

East-West Highway, Bethesda, MD

20814, telephone 301–504–7479, or at

the National Archives and Records

Administration (NARA). For

information on the availability of this

material at NARA, email fedreg.legal@

nara.gov, or go to: www.archives.gov/

federal-register/cfr/ibr-locations.html.

Rules Concerning Discretionary

Review by the Secretary

Alberta E. Mills,

Secretary, U.S. Consumer Product Safety

Commission.

[FR Doc. 2020–09166 Filed 5–19–20; 8:45 am]

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AGENCY: Office of the Secretary

ACTION: Final rule.

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

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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

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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

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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

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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

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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.

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

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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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

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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.

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

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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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.

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-andcomment procedures, it nevertheless

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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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.

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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

Regulatory Flexibility Act of 1980

Because no notice of proposed

rulemaking was required for this rule

under section 553 of the Administrative

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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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.

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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-forperformance contract strategies,

Reporting and recordkeeping

requirements, Rules, costs, and

limitations, Sanctions, corrective

actions, and waiver of liability,

Workforce Innovation And Opportunity

Act.

29 CFR Part 18

29 CFR Part 1981

Administrative practice and

procedure.

Administrative practice and

procedure, Employee protection,

Findings, Litigation, Investigations,

Pipeline Safety Improvement Act of

2002, Retaliation complaints.

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

29 CFR Part 501

29 CFR Part 2

29 CFR Part 580

Administrative practice and

procedure, Claims, Courts, Government

employees.

Administrative practice and

procedure, Assessing and contesting,

Civil money penalties.

29 CFR Part 7

29 CFR Part 1978

Administrative practice and

procedure, Government contracts,

Minimum wages.

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 10

Administrative practice and

procedure, Construction industry,

Government procurement, Law

enforcement, Reporting and

recordkeeping requirements, Wages.

29 CFR Part 1980

29 CFR Part 13

Administrative practice and

procedure, Government contracts, Law

enforcement, Reporting and

recordkeeping requirements, Wages.

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Administrative practice and

procedure, Contract obligations;

Enforcement, Immigration and

Nationality Act, Temporary alien

agricultural workers.

Administrative practice and

procedure; Employee protection;

Findings, Investigations, Litigation,

Retaliation complaints, Surface

Transportation Assistance Act of 1982.

29 CFR Part 8

Administrative practice and

procedure, Employee protection,

Findings, Investigations, Litigation,

Retaliation complaints, Sarbanes-Oxley

Act of 2002.

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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, Complaint procedures,

Compliance review, Contractor

obligations, Federal labor law.

20 CFR Part 702

Administrative practice and

procedure, Claims, Penalties, Reporting

and recordkeeping requirements,

Whistleblowing, Workers’

compensation.

Administrative practice and

procedure, Government contracts,

Minimum wages.

30613

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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.

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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

■ 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).

■ 2. In § 641.900, revise paragraph (e) to

read as follows:

§ 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.

■ 3. In § 641.920, revise paragraph (d)(5)

to read as follows:

§ 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

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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

■ 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).

■ 5. In § 655.171, revise paragraphs (a)

and (b)(2) to read as follows:

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§ 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.

■ 6. In § 655.181, revise paragraph (b)(3)

to read as follows:

§ 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 § 655.171.

■ 7. In § 655.182, revise paragraph (f)(6)

to read as follows:

§ 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.

■ 8. In § 655.183, revise paragraph (c) to

read as follows:

§ 655.183

Less than substantial violations.

procedures. If the OFLC Administrator

determines that the employer has failed

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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

§ 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.

rebuttal evidence to BALCA, according

to the appeal procedures of § 655.461.

■ 11. In § 655.473, revise paragraph

(f)(6) to read as follows:

■ 9. In § 655.461, revise paragraph (e) to

continues to read as follows:

read as follows:

§ 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.

■ 10. In § 655.472, revise paragraph

(b)(3) to read as follows:

§ 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

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§ 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.

■ 12. In § 655.845, revise paragraphs (h)

and (i) to read as follows:

§ 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 § 655.850.

PART 656—LABOR CERTIFICATION

PROCESS FOR PERMANENT

EMPLOYMENT OF ALIENS IN THE

UNITED STATES

■ 13. The authority citation for part 656

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.

■ 14. In § 656.27, revise paragraph (c) to

read as follows:

30615

(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

■ 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.

■ 16. In § 658.711, revise paragraph (b)

to read as follows:

§ 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

■ 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.

§ 656.27 Consideration by and decisions

of the Board of Alien Labor Certification

Appeals.

■ 18. In § 667.830, revise paragraph (b)

§ 667.830 When will the Administrative

Law Judge issue a decision?

of Alien Labor Certification Appeals

must review a denial of labor

certification under § 656.24, a

revocation of a certification under

§ 656.32, or an affirmation of a

prevailing wage determination under

§ 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

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to read as follows:

(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

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§ 702.433

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

■ 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).

■ 20. In § 683.830, revise paragraph (b)

to read as follows:

§ 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

§ 702.434

Judicial review.

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.

■ 22. In § 702.433, revise paragraphs (e)

PART 2—GENERAL REGULATIONS

■ 24. The authority citation for part 2

PART 7—PRACTICE BEFORE THE

ADMINISTRATIVE REVIEW BOARD

WITH REGARD TO FEDERAL AND

FEDERALLY ASSISTED

CONSTRUCTION CONTRACTS

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.

■ 27. In § 7.1, revise paragraph (d) to

read as follows:

§ 7.1

(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

■ 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.

■ 29. In § 8.1, revise paragraph (c) to

read as follows:

§ 8.1

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.

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Purpose and scope.

continues to read as:

■ 25. Revise § 2.8 to read as follows:

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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).

■ 26. The authority citation for part 7

(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.

the Department’s final decision, if based

on substantial evidence in the record as

a whole, shall be conclusive.

Office of the Secretary of Labor

■ 21. The authority citation for part 702

16:29 May 19, 2020

follows:

Title 29—Labor

PART 702—ADMINISTRATION AND

PROCEDURE

VerDate Sep<11>2014

§ 2.8

(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.

■ 23. Revise § 702.434 to read as

and (f) to read as follows:

Requests for hearing.

Purpose and scope.

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

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such matters, except as provided in

Secretary’s Order 01–2020 (or any

successor to that order).

PART 13—ESTABLISHING PAID SICK

LEAVE FOR FEDERAL

CONTRACTORS

■ 32. The authority citation for part 13

PART 10—ESTABLISHING A MINIMUM

WAGE FOR CONTRACTORS

■ 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.

■ 31. Revise § 10.57 to read as follows:

§ 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 § 10.51(c)(1) or (2),

Administrator’s rulings issued under

§ 10.58, and decisions of Administrative

Law Judges issued under § 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).

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).

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PART 18—RULES OF PRACTICE AND

PROCEDURE FOR ADMINISTRATIVE

HEARINGS BEFORE THE OFFICE OF

ADMINISTRATIVE LAW JUDGES

■ 34. The authority citation for part 18

continues to read as follow:

continues to read as follows:

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.

Authority: 5 U.S.C. 301; 5 U.S.C. 551–553;

5 U.S.C. 571 note; E.O. 12778; 57 FR 7292.

■ 33. Revise § 13.57 to read as follows:

■ 35. Revise § 18.95 to read as follows:

§ 13.57 Administrative Review Board

proceedings.

§ 18.95 Review of decision and review by

the Secretary.

(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 § 13.51(c)(1) or the final

sentence of § 13.51(c)(2)(ii),

Administrator’s rulings issued under

§ 13.58, and decisions of Administrative

Law Judges issued under § 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).

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 § 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).

(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.

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

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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

■ 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.

■ 37. In § 24.110, revise paragraphs (a),

(c), and (d) to read as follows:

§ 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

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16:29 May 19, 2020

Jkt 250001

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.

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.

■ 38. Revise § 24.112 to read as follows:

§ 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

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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.

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 § 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 § 24.100(a) is determined by

the time period applicable under the

other statute(s).

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(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.

§ 29.14 Derecognition of State

Apprenticeship Agencies.

PART 29—LABOR STANDARDS FOR

THE REGISTRATION OF

APPRENTICESHIP PROGRAMS

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).

■ 40. In § 29.10, revise paragraph (c) to

read as follows:

Hearings for deregistration.

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.

■ 41. In § 29.13, revise paragraph (g)(4)

to read as follows:

§ 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

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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 § 38.112(b); and

■ 46. In § 38.115, revise paragraph (c)(5)

to read as follows:

(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

§ 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.

§ 38.115

PART 38—IMPLEMENTATION OF THE

NONDISCRIMINATION AND EQUAL

OPPORTUNITY PROVISIONS OF THE

WORKFORCE INNOVATION AND

OPPORTUNITY ACT

to read as follows:

■ 39. The authority citation for part 29

§ 29.10

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.

■ 42. In § 29.14, revise paragraph (c)(3)

to read as follows:

■ 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.

■ 44. In § 38.112, revise paragraph

(b)(1)(viii) to read as follows:

§ 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.

■ 45. In § 38.113, revise paragraph (c) to

read as follows:

§ 38.113 Suspension, termination,

withholding, denial, or discontinuation of

financial assistance.

Administrative Review Board has

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Post-termination proceedings.

(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

■ 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.

■ 48. In § 96.63, revise paragraph (b)(5)

§ 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

■ 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.

■ 50. In § 471.13, revise paragraph (b)(4)

to read as follows:

§ 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

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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 § 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

■ 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 § 701.

■ 52. Revise § 501.45 to read as follows:

§ 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

■ 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.

■ 54. Revise § 580.16 to read as follows:

§ 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.

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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

■ 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.

■ 56. In § 1978.110, revise paragraphs

(a), (c), (d), and (e) to read as follows:

§ 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.

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,

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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).

■ 57. In § 1978.112, revise paragraph (a)

to read as follows:

§ 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

■ 58. The authority citation for part

1979 continues to read as follows:

Authority: 49 U.S.C. 42121; Secretary’s

Order No. 01–2020.

■ 59. In § 1979.110, revise paragraphs

(a), (c), (d), and (e) to read as follows:

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§ 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.

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

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Jkt 250001

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).

■ 60. In § 1979.112, revise paragraph (a)

to read as follows:

§ 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

■ 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.

■ 62. In § 1980.110, revise paragraphs

(a), (c), (d), and (e) to read as follows:

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30621

§ 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.

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

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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).

■ 63. In § 1980.112, revise paragraph (a)

to read as follows:

§ 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

■ 64. The authority citation for part

1981 continues to read as follows:

Authority: 49 U.S.C. 60129; Secretary’s

Order No. 01–2020.

■ 65. In § 1981.110, revise paragraphs

(a), (c), (d), and (e) as follows:

§ 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

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Jkt 250001

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.

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

PO 00000

Frm 00034

Fmt 4700

Sfmt 4700

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).

■ 66. In § 1981.112, revise paragraph (a)

to read as follows:

§ 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

■ 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.

■ 68. In § 1982.110, revise paragraph (a)

and add paragraphs (c), (d), and (e) to

read as follows:

§ 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

E:\FR\FM\20MYR1.SGM

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Federal Register / Vol. 85, No. 98 / Wednesday, May 20, 2020 / Rules and Regulations

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.

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

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Jkt 250001

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).

■ 69. In § 1982.112, revise paragraph (a)

to read as follows:

§ 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

■ 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.

■ 71. In § 1983.110, revise paragraphs

(a), (c), (d), and (e) as follows:

§ 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.

PO 00000

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Fmt 4700

Sfmt 4700

30623

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).

■ 72. In § 1983.112, revise paragraph (a)

to read as follows:

§ 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

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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

■ 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.

■ 74. In § 1984.110, revise paragraphs

(a), (c), (d), and (e) as follows:

§ 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.

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

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Jkt 250001

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).

■ 75. In § 1984.112, revise paragraph (a)

to read as follows:

§ 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.

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PART 1985—PROCEDURES FOR

HANDLING RETALIATION

COMPLAINTS UNDER THE EMPLOYEE

PROTECTION PROVISION OF THE

CONSUMER FINANCIAL PROTECTION

ACT OF 2010

■ 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.

■ 77. In § 1985.110, revise paragraphs

(a), (c), (d), and (e) to read as follows:

§ 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.

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

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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).

■ 78. In § 1985.112, revise paragraph (a)

to read as follows:

§ 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

■ 79. The authority citation for part

1986 is revised to read as follows:

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Jkt 250001

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.

■ 80. In § 1986.110, revise paragraphs

(a), (c), (d), and (e) to read as follows:

§ 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.

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

PO 00000

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Fmt 4700

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30625

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).

■ 81. In § 1986.112, revise paragraph (a)

to read as follows:

§ 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

■ 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.

■ 83. In § 1987.110, revise paragraphs

(a), (c), (d), and (e) to read as follows:

§ 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

E:\FR\FM\20MYR1.SGM

20MYR1

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Federal Register / Vol. 85, No. 98 / Wednesday, May 20, 2020 / Rules and Regulations

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.

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

VerDate Sep<11>2014

16:29 May 19, 2020

Jkt 250001

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).

■ 84. In § 1987.112, revise paragraph (a)

to read as follows:

§ 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)

■ 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.

■ 86. In § 1988.110, revise paragraphs

(a), (c), (d), and (e) to read as follows:

§ 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

PO 00000

Frm 00038

Fmt 4700

Sfmt 4700

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.

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).

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■ 87. In § 1988.112, revise paragraph (a)

to read as follows:

§ 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

■ 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.

■ 89. In § 50–203.21, revise paragraph

(d) to read as follows:

§ 50–203.21

to the Administrative Law Judge’s

decision.

■ 92. Revise § 60–30.30 to read as

follows:

§ 60–30.30

§ 60–30.37

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

■ 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.

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.

■ 93. Revise § 60–30.37 to read as

follows:

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.

§ 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

VerDate Sep<11>2014

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Jkt 250001

SUMMARY: The Mine Safety and Health

Administration (MSHA) is correcting a

footnote in the preamble of a direct final

rule that appeared in the Federal

became effective on March 16, 2020.

The direct final rule revised certain

safety standards for explosives at metal

and nonmetal mines.

DATES: Effective May 20, 2020.

ADDRESSES:

Federal Register Publications: Access

rulemaking documents electronically at

https://www.msha.gov/regulations/

rulemaking or http://

www.regulations.gov [Docket Number:

MSHA–2019–0007].

Email Notification: To subscribe to

receive email notification when MSHA

publishes rulemaking documents in the

Federal Register, go to https://

www.msha.gov/subscriptions.

FOR FURTHER INFORMATION CONTACT:

Roslyn B. Fontaine, Acting Director,

Office of Standards, Regulations, and

Variances, MSHA, at fontaine.roslyn@

dol.gov (email), 202–693–9440 (voice),

or 202–693–9441 (fax). These are not

toll-free numbers.

SUPPLEMENTARY INFORMATION: In FR Doc.

2019–28446 appearing on page 2022 in

the Federal Register of Tuesday,

January 14, 2020, the following

correction is made: On page 2023, in the

third column, under II. Background, A.

General Discussion, footnote 1 is

corrected to read:

‘‘MSHA considers detonators fired by

a shock tube and incorporating a preprogrammed microchip delay rather

than a pyrotechnic one to be nonelectric detonators, not electronic

detonators.’’

David G. Zatezalo,

Assistant Secretary of Labor for Mine Safety

and Health Administration.

[FR Doc. 2020–08859 Filed 5–19–20; 8:45 am]

BILLING CODE 4520–43–P

[FR Doc. 2020–10909 Filed 5–19–20; 8:45 am]

BILLING CODE 4510–HL–P

FEDERAL COMMUNICATIONS

COMMISSION

DEPARTMENT OF LABOR

47 CFR Part 11

Mine Safety and Health Administration

[EB Docket No. 04–296; PS Docket No. 15–

94; FRS 16653]

■ 91. Revise § 60–30.29 to read as

follows:

30627

30 CFR Parts 56 and 57

Review of the Emergency Alert System

[Docket No. MSHA–2019–0007]

AGENCY: Federal Communications

RIN 1219–AB88

Commission.

Electronic Detonators; Correction

ACTION: Final rule.

AGENCY: Mine Safety and Health

SUMMARY: In this document, the Federal

Administration, Labor.

ACTION: Direct final rule; correction.

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Communications Commission (FCC or

Commission) partially grants a petition

for partial reconsideration of the

E:\FR\FM\20MYR1.SGM

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.