# Federal Register / Vol. 85, No. 45 / Friday, March 6, 2020 / Proposed Rules

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/agency%3Adol%3Af83722a2be8d05a8

## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

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Federal Register / Vol. 85, No. 45 / Friday, March 6, 2020 / Proposed Rules

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software systems, but failed to do so.
Equifax even stored sensitive usernames
and passwords in plain text.4
The costs of maintaining the status
quo approach are significant and
mounting. According to industry
analysis, the majority of small
businesses currently ‘‘do not have a
cyberattack prevention plan,’’ 5 yet
nearly half of them have experienced at
least one breach within the last year.6
Data breaches can be particularly
perilous for small businesses and new
entrants, with one survey finding that
66 percent could face temporary or
permanent closure if their systems are
compromised.7
The process of putting into place clear
rules requiring corporations to prevent
abuse and misuse personal data is long
overdue. As the agency responsible for
data protection across most of the
economy, the Federal Trade
Commission plays a central role.
While the effort to update the
Safeguards Rule is a start, its reach will
be limited to certain nonbank financial
institutions like Equifax, and violations
don’t even come with any civil
penalties. Given the ongoing harms to
individuals and our country, we should
use every tool in our toolbox to address
data security issues. The Commission
has urged Congress to act, but I agree
with Commissioner Rebecca Kelly
Slaughter, who has argued that ‘‘we
cannot simply hold our breath and
wait.’’ 8 There are many ways that we
can curtail the collection, misuse, and
abuse of personal data, including
launching a rulemaking that broadly
applies to companies across sectors so
4 Fed. Trade Comm’n v. Equifax, Case 1:19-mi99999-UNA, U.S. District Court for the Northern
District of Georgia, Atlanta Division, Complaint for
Permanent Injunction and Other Relief at 7–8 (July
22, 2019), https://www.ftc.gov/system/files/
documents/cases/172_3203_equifax_complaint_722-19.pdf.
5 Craig Lurey, Cyber Mindset Exposed: Keeper
Unveils its 2019 SMB Cyberthreat Study, Keeper
Security, (July 24, 2019), https://
www.keepersecurity.com/blog/2019/07/24/cybermindset-exposed-keeper-unveils-its-2019-smbcyberthreat-study/.
6 Hiscox Cyber Readiness Report 2019, Hiscox
Ltd., (Apr. 23, 2019), https://
www.keepersecurity.com/blog/2019/07/24/cybermindset-exposed-keeper-unveils-its-2019-smbcyberthreat-study/.
7 Press Release, VIPRE Announces Launch of
VIPRE Endpoint Security—Cloud Edition, Business
Wire, (Oct. 2, 2017), https://www.businesswire.com/
news/home/20171002005176/en.
8 Last year, Commissioner Slaughter described
how the FTC could use its existing authority to
initiate a data protection rulemaking. See Rebecca
Kelly Slaughter, Commissioner, Fed. Trade
Comm’n, Remarks at the Silicon Flatirons
Conference at the University of Colorado Law
School: The Near Future of U.S. Privacy Law,
(September 6, 2019), https://www.ftc.gov/system/
files/documents/public_statements/1543396/
slaughter_silicon_flatirons_remarks_9-6-19.pdf.

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there are meaningful sanctions for
violators. We have this authority today.
Commissioners Wilson and Phillips
argue that we must consider the impact
of data security on competition. I agree.
Data security must also be top of mind
in our competition enforcement work
across sectors of the economy. We
should be reviewing how mergers can
lead to a race to the bottom on data
security. We need to rigorously
scrutinize data deals. Companies are
being bought and sold based on the data
they have and the data they can
continue to collect. Acquired data is
being merged into larger databases and
used in ways that people may not have
authorized when they signed up for the
service or initially provided their
information.
We need to continue to take a close
look at what promises were made in
exchange for data access and whether
those promises were upheld when the
data was sold. We also need to examine
how companies are integrating different
security systems, whether strong
security standards are being maintained,
and whether sensitive data is being
handled appropriately.
Finally, we need to consider whether
there are limits to the amount of data
one company can collect and compile,
the types of data one company can
combine, and the ways in which data
can be used and monetized. The scale
and scope of data collection that large
companies are engaging in has made
them—and us—sitting ducks for
malicious actors. Since these companies
are more fixated on monetizing that data
than securing it, their mass surveillance
has become a national security threat.
Our adversaries know that these large
firms have essentially done the dirty
work of collecting intelligence on our
citizens, and lax security standards
make it easy to steal. Ultimately, we
need to fix the market structures and
incentives that drive firms to harvest
and traffic in our private information, so
that complacent companies are
punished when they don’t care about
our security needs or expectations.
The extraordinary step of criminal
indictments of members of the Chinese
People’s Liberation Army announced by
the Attorney General is yet another
wake-up call. Until we take serious
steps to curb corporate surveillance, the
risks to our citizens and country will
only grow as bad actors continue to steal
and stockpile our data. The FTC will
need to act decisively to protect
families, businesses, and our country
from these unquantifiable harms.
[FR Doc. 2020–04610 Filed 3–5–20; 8:45 am]
BILLING CODE 6750–01–P

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DEPARTMENT OF LABOR
Employment and Training
Administration
20 CFR Parts 641, 655, 656, 658, 667,
683, and 702
Office of the Secretary of Labor
29 CFR Parts 2, 7, 8, 10, 13, 18, 24, 29,
38, and 96
Office of Labor-Management
Standards
29 CFR Parts 417 and 471
Wage and Hour Division
29 CFR Parts 501 and 580
Occupational Health and Safety
Administration
29 CFR Parts 1978 Through 1988
Office of Federal Contract Compliance
Programs
41 CFR Parts 50–203 and 60–30
RIN 1290–AA39

Discretionary Review by the Secretary
AGENCY: Office of the Secretary, DOL.
ACTION: Notice of proposed rulemaking.
SUMMARY: The Department of Labor is

issuing this Notice of Proposed
Rulemaking to seek public comments on
a proposal to establish a system of
discretionary secretarial review over
cases pending before or decided by the
Board of Alien Labor Certification
Appeals and to make technical changes
to Departmental regulations governing
the timing and finality of decisions of
the Administrative Review Board and
the Board of Alien Labor Certification
Appeals to ensure consistency with the
new discretionary review processes
proposed in this rule and established in
Secretary’s Order 01–2020.
DATES: The Department invites
interested persons to submit comments
on the proposed rules. To ensure
consideration, comments must be in
writing and must be submitted
(transmitted, postmarked, or delivered)
by April 6, 2020.
ADDRESSES: You may send comments,
identified by Regulatory Identification
Number (RIN) 1290–AA39, by either
one of the following methods:
• Federal e-Rulemaking Portal: http://
www.regulations.gov. Follow the
website instructions for submitting

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Federal Register / Vol. 85, No. 45 / Friday, March 6, 2020 / Proposed Rules
comments. To facilitate receipt and
processing of comments, the
Department encourages interested
parties to submit their comments
electronically.
• Mail, hand delivery, express mail,
courier service, or email. You may
submit your comments and attachments
to Mr. Thomas Shepherd, Clerk of the
Appellate Boards, Room S–5220, 200
Constitution Avenue NW, Washington,
DC 20210, or you may submit them by
email to Shepherd.Thomas@dol.gov.
The Office of the Clerk is open during
business hours on all days except
Saturdays, Sundays, and federal
holidays, from 8:30 a.m. to 5:00 p.m.,
Eastern Time.
Instructions: All submissions received
must include the agency name and
Regulatory Information Number (RIN)
for this rulemaking. All comments
received will generally be posted
without change to http://
www.regulations.gov, including any
personal information provided.
FOR FURTHER INFORMATION CONTACT: Mr.
Thomas Shepherd, Clerk of the
Appellate Boards, at 202–693–6319 or
Shepherd.Thomas@dol.gov.
SUPPLEMENTARY INFORMATION: This
preamble is divided into five sections:
Section I describes the process of
rulemaking using a direct final rule with
a companion proposed rule; Section II
provides general background
information on the development of the
proposed rulemaking; Section III
summarizes the proposed regulatory
text; Section IV covers the
administrative requirements for this
proposed rulemaking; and Section V
provides additional information and
instructions to those wishing to
comment on the rule.
This proposed rule is not expected to
be an Executive Order 13771 regulatory
action because it is not significant under
Executive Order 12866. Pursuant to the
Congressional Review Act (5 U.S.C. 801
et seq.), the Office of Information and
Regulatory Affairs designated this as not
a major rule as defined by 5 U.S.C.
804(2).

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I. Proposed Rule Published
Concurrently With Companion Direct
Final Rule
The Department is simultaneously
publishing with this proposed rule a
‘‘direct final’’ rule elsewhere in this
issue of the Federal Register, which
makes identical changes to the
regulatory text. In direct final
rulemaking, an agency publishes a final
rule with a statement that the rule will
go into effect unless the agency receives
significant adverse comments within a

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specified period. If the agency receives
no significant adverse comments in
response to the direct final rule, the rule
goes into effect. If the agency receives
significant adverse comments, the
agency withdraws the direct final rule
and treats such comments as
submissions on the proposed rule. The
proposed rule then provides the
procedural framework to finalize the
rule. An agency typically uses direct
final rulemaking when it anticipates the
rule will be non-controversial.
The Department has determined that
this rule is suitable for direct final
rulemaking. The proposed revisions to
the Department’s internal adjudicatory
processes would establish a mechanism
by which the Secretary can review cases
pending before or decided by BALCA,
and make other conforming
amendments to Departmental
regulations to align with this new
system of discretionary review as well
as the similar system of discretionary
review established in Secretary’s Order
01–2020 over decisions of the ARB.
These are rules of agency management
and personnel and are entirely
procedural changes to how officers
within the Department of Labor exercise
delegated authority on behalf of the
Secretary; therefore, the Department is
not required to engage in a notice and
comment process to issue them. See 5
U.S.C. 553(a)(2), (b)(A). Indeed, the vast
majority of the proposed changes are
merely technical amendments to rules
governing the manner in which the ARB
issues decisions that are designed to
eliminate any potential for confusion or
ambiguity in light of the issuance of
Secretary’s Order 01–2020. Further,
discretionary review by an agency head
over adjudicatory decisions exists in
many other executive branch agencies,
including at the Department of Justice,
the Department of the Interior, and the
Department of Education. The proposed
rules are thus consistent with wellknown and well-established models of
internal agency review. In consequence,
the proposed changes to the
Department’s internal adjudicatory
processes should not be controversial.
The comment period for this
proposed rule runs concurrently with
the comment period for the direct final
rule. Any comments received in
response to this proposed rule will also
be considered as comments regarding
the direct final rule and vice versa. For
purposes of this rulemaking, a
significant adverse comment is one that
explains: (1) Why the rule is
inappropriate, including challenges to
the rule’s underlying premise or
approach; or (2) Why the direct final
rule will be ineffective or unacceptable

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without a change. In determining
whether a significant adverse comment
necessitates withdrawal of the direct
final rule, the Department will consider
whether the comment raises an issue
serious enough to warrant a substantive
response. A comment recommending an
addition to the rule will not be
considered significant and adverse
unless the comment explains how the
direct final rule would be ineffective
without the addition.
The Department requests comments
on all issues related to this rule,
including economic or other regulatory
impacts of this rule on the public. All
interested parties should comment at
this time because the Department will
not initiate an additional comment
period on the proposed rule even if it
withdraws the direct final rule.
II. Background of This Rulemaking
Two of the four review boards within
the Department of Labor were created by
voluntary delegations of authority by
previous Secretaries of Labor.
Specifically, the Administrative Review
Board (ARB)—which has authority to
hear appeals from the decisions of the
Department’s Office of Administrative
Law Judges (OALJ) about certain
immigration, child labor, employment
discrimination, federal construction/
service contracts, and other issues—and
the Board of Alien Labor Certification
Appeals (BALCA)—which has authority
over appeals from the decisions of the
Employment and Training
Administration’s adjudication of foreign
labor certification applications—were
created, respectively, by a Secretary’s
Order and by regulation. Their existence
is neither compelled nor governed by
statute. Notably, before the ARB was
created in 1996, many of the types of
cases now subject to its jurisdiction
were decided directly by the Secretary.
Each board was also entrusted with the
power to issue final agency decisions in
the name of the Secretary. Currently, the
Secretary’s Order and regulations
establishing the ARB and BALCA
provide no mechanism by which the
Secretary can review, where necessary,
the decisions of the officers who
exercise power on his behalf.
To ensure that the Secretary has the
ability to properly supervise and direct
the actions of the Department, the
Department proposes to establish
systems of discretionary secretarial
review over the decisions of the ARB
and decisions of and appeals before
BALCA, which will be accomplished
through the proposed rule contained
herein and the simultaneous issuance of
a Secretary’s Order governing the ARB.
The Department’s authority to effect

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these reforms derives from 5 U.S.C. 301,
which authorizes the heads of agencies
to regulate the internal operations of
their departments, 5 U.S.C. 305, which
provides for continuing review of
agency operations, and the Secretary’s
authority to administer the statutes and
programs at issue in ARB and BALCA
proceedings. In combination, these
statutes establish many of the powers of
the Department within the Office of the
Secretary, and give the Secretary wide
latitude to delegate those powers to his
subordinates on the terms he deems
appropriate. Thus, the Secretary has the
power to delegate his authority to
appropriately supervise the adjudicatory
process within the Department, and is
now exercising that same authority to
assert his decision-making prerogatives
duly assigned to him by Congress by
modifying the terms on which the
members of the ARB and BALCA
exercise his delegated authority.
The proposed reforms to BALCA (and
conforming edits to various
Departmental regulations governing the
ARB, BALCA, and the OALJ) preserve
the existing structures by which the
Department processes adjudications
while giving the Secretary the option, in
his sole discretion, to initiate review
directly in a case where the Secretary’s
involvement is necessary and
appropriate. Again, Congress has
assigned the administration of various
statutes to the Secretary of Labor,
meaning that the Secretary is obligated
to ensure that those laws are
administered, executed, interpreted, and
enforced according to law and Executive
Branch priorities and policies. Under
these reforms, the Secretary will rely on
the ARB and BALCA to assist him in
identifying cases where secretarial
review may be warranted. Consistent
with the practice of other agencies, the
Department does not anticipate that the
power of secretarial review will be used
often. The Department similarly
anticipates that secretarial review—
while completely within the Secretary’s
discretion as the officer assigned to
administer the laws in the first place—
will typically be reserved for matters of
significant importance. Finally, the
Department will ensure that the
secretarial review process will be
accomplished in a manner that complies
with any applicable legal requirements.
Because of significant differences
between how the ARB and BALCA
operate, the proposed systems of review
for each board are designed somewhat
differently. Most importantly, whereas
with respect to the ARB the Secretary
will not exercise review over cases until
after a decision has been rendered, the
proposed regulations modifying

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BALCA’s authority would allow the
Secretary to assume jurisdiction over
most cases even before a decision has
been issued. This is because BALCA
processes significantly more cases each
year than does the ARB, and, due to the
nature of the temporary visa programs
and DOL’s role in administering these
programs, does so much more quickly
than does the ARB. As a result, under
the BALCA regulations, the Secretary
will be able to initiate review of a case
even before BALCA has issued a
decision.
The Department appreciates the
expeditious nature of many types of
BALCA proceedings, such as those
involving temporary labor certification,
and does not anticipate that the new
system of secretarial review established
over such cases will significantly
disrupt or otherwise impede the way
such cases are currently processed. As
noted above, the department expects
that secretarial review over BALCA
decisions will, as with agency head
review at other departments, likely not
be exercised often. Further, the
proposed changes to 29 CFR 18.95
provide that a BALCA decision is the
Secretary’s final administrative decision
unless the Secretary assumes
jurisdiction over the case. For example,
once the BALCA issues a decision that
grants a labor certification or remands
for further processing, the private party
in the case will be able to proceed
immediately to the next step of the
application process, and will only be
delayed in doing so if the Secretary later
decides to undertake review. Moreover,
the revised 29 CFR 18.95 limits any
potential uncertainty that may exist
because of the possibility of secretarial
review by placing strict time limits on
when the Secretary will have the option
of assuming jurisdiction over a case.
III. Analysis of Proposed Rules
The Department proposes to revise
several sections of the Code of Federal
Regulations including 20 CFR parts 641,
655, 656, 658, 667, 683, and 702; 29 CFR
parts 2, 7, 8, 10, 13, 18, 24, 29, 38, and
96; 29 CFR part 471; 29 CFR parts 501
and 580; 29 CFR parts 1978–1988; and
41 CFR parts 50–203 and 60–30 to
harmonize the manner in which the
ARB issues decisions on behalf of the
Secretary under the Department’s
regulations with the scope of the final
decision-making authority delegated to
the ARB by the Secretary in Secretary’s
Order 01–2020. Specifically, references
to final decisions of the ARB have been
modified or removed to ensure that no
regulation contradicts the terms on
which an ARB decision becomes final
under the Secretary’s Order. Certain

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provisions governing the timing of
petitions for review to the ARB and
when the ARB is required to issue
decisions have also been amended to
eliminate potential ambiguity or
confusion over the distinction between
when the ARB is required to issue a
decision and when such decision
becomes the final action of the
Department pursuant to the Secretary’s
Order.
The Department also proposes to
revise 29 CFR part 18 by modifying the
conditions under which a decision of
BALCA becomes the final decision of
the Department and by creating a
process by which the Secretary of Labor
can exercise discretionary review over
cases pending before or decided by the
BALCA. Technical amendments are also
proposed to 20 CFR parts 655 and 656
to harmonize the manner in which
BALCA issues decisions on behalf of the
Secretary with the new system of
discretionary review established in 29
CFR part 18.
The Department of Labor and the
Department of Homeland Security
(DHS) have determined that it is
appropriate to issue a separate rule
regarding the Secretary of Labor’s
review authority over H–2B cases under
29 CFR 18.95 to address the same issues
addressed by this rule in the H–2B
context. It is the Departments’ intent to
promulgate this separate rule after the
publication of this rule. This
determination follows conflicting court
decisions concerning DOL’s authority to
issue legislative rules on its own to
carry out its duties in the H–2B
program. Although DOL and DHS each
have authority to issue rules
implementing their respective duties in
the H–2B program, the Departments
plan to make the amendments to the
applicable regulations jointly to ensure
that there can be no question about the
authority underlying such technical
amendments. This approach is
consistent with the joint rulemaking
governing the Temporary NonAgricultural Employment of H–2B
Aliens in the United States, 80 FR 24042
(Apr. 29, 2015) (codified at 8 CFR part
214, 20 CFR part 655, and 29 CFR part
503).
In order to ensure that all parties
appearing before the ARB and BALCA
have fair notice of the new systems of
discretionary review established in this
rulemaking and in Secretary’s Order 01–
2020, the Secretary will not exercise his
review authority over any decision of
either Board issued before the passage of
30 calendar days from the date on
which the rule becomes effective.

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IV. Administrative Requirements of the
Proposed Rulemaking
Executive Orders 12866, Regulatory
Planning and Review, and 13563,
Improving Regulation and Regulatory
Review
Executive Orders 12866 and 13563
direct agencies to assess the costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits, of
reducing costs, of harmonizing rules,
and of promoting flexibility.
This proposed rule has been drafted
and reviewed in accordance with
Executive Order 12866. The Department
of Labor, in coordination with the Office
of Management and Budget (OMB),
determined that this proposed rule is
not a significant regulatory action under
section 3(f) of Executive Order 12866
because the rule will not have an annual
effect on the economy of $100 million
or more; will not create a serious
inconsistency or otherwise interfere
with an action taken or planned by
another agency; and will not materially
alter the budgetary impact of
entitlements, grants, user fees, or loan
programs or the rights and obligations of
recipients thereof. Furthermore, the rule
does not raise a novel legal or policy
issue arising out of legal mandates, the
President’s priorities, or the principles
set forth in the Executive Order.
Accordingly, OMB has waived
review.

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Regulatory Flexibility Act of 1980
Because no notice of proposed
rulemaking is required for this rule
under section 553 of the Administrative
Procedure Act, the regulatory flexibility
analysis requirements of the Regulatory
Flexibility Act, 5 U.S.C. 603, 604, do not
apply to this rule. See 5 U.S.C. 601(2).
Paperwork Reduction Act
The Department has determined that
this proposed rule is not subject to the
requirements of the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq.,
as this rulemaking does not involve any
collections of information. See 5 CFR
1320.3(c).
Unfunded Mandates Reform Act of 1995
and Executive Order 13132, Federalism
The Department has reviewed this
proposed rule in accordance with the
requirements of Executive Order 13132

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and the Unfunded Mandates Reform Act
of 1995, 2 U.S.C. 1501 et seq., and has
found no potential or substantial direct
effects on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government. As there
is no Federal mandate contained herein
that could result in increased
expenditures by State, local, and tribal
governments, or by the private sector,
the Department has not prepared a
budgetary impact statement.
Executive Order 13175, Consultation
and Coordination With Indian Tribal
Governments
The Department has reviewed this
proposed rule in accordance with
Executive Order 13175 and has
determined that it does not have ‘‘tribal
implications.’’ The proposed rule does
not ‘‘have substantial direct effects on
one or more Indian tribes, on the
relationship between the Federal
government and Indian tribes, or on the
distribution of power and
responsibilities between the Federal
government and Indian tribes.’’
V. Instructions for Providing Comments
A. APA Requirements for Notice and
Comment
This proposed rule addresses matters
of internal agency management and
personnel, as well as matters of agency
organization, practice and procedure,
and consequently are exempt from the
notice and public comments
requirements of the Administrative
Procedure Act. See 5 U.S.C. 553(a)(2),
(b)(A). Nevertheless, the Department
wishes to provide the public an
opportunity to submit comments.
B. Publication of Comments
Please be advised that the Department
will generally post all comments
without making any change to the
comments, including any personal
information provided. The
www.regulations.gov website is the
Federal e-rulemaking portal, and all
comments received electronically or by
mail, hand delivery, express mail, or
courier service will be available and
accessible to the public on this website.
Therefore, the Department recommends
that commenters safeguard their
personal information by not including
social security numbers, personal
addresses, telephone numbers, or email
addresses in comments. It is the
responsibility of the commenter to
safeguard his or her information.

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C. Access to Docket
In addition to all comments received
by the Department being accessible on
www.regulations.gov, the Department
will make all the comments available for
public inspection during normal
business hours at the office listed in the
ADDRESSES section above. If you need
assistance to review the comments, the
Department will provide you with
appropriate aids such as readers or print
magnifiers. The Department will make
copies of the proposed rule available,
upon request, in large print or electronic
file on portable digital media. The
Department will consider providing the
proposed rule in other formats upon
request. To schedule an appointment to
review the comments or obtain the
proposed rule in an alternate format,
contact Thomas Shepherd at the office
of the Clerk of the Appellate Boards, at
(202)–693–6319 or Shepherd.Thomas@
dol.gov.
Individuals with hearing or speech
impairments may access the telephone
number above by TTY by calling the
toll-free Federal Information Relay
Service at (800) 877–8339.
Dated: February 21, 2020.
Eugene Scalia,
Secretary of Labor.

List of Subjects
20 CFR Part 641
Administrative practice and
procedure, Grievance procedure and
appeals process, Senior Community
Service Employment Program, Services
to participants.
20 CFR Part 655
Administrative practice and
procedure, Labor certification processes
for temporary employment.
20 CFR Part 656
Administrative practice and
procedure, Fraud, Reporting and
recordkeeping requirements, Wages.
20 CFR Part 658
Administrative practice and
procedure, Complaint system;
Discontinuation of services, State
workforce agency compliance, Federal
application of remedial action to state
workforce agencies, Wagner-Peyser Act
Employment Service.
20 CFR Part 667
Adjudication and Judicial Review,
Administrative practice and procedure;
Oversight and monitoring, Grievance
procedures, complaints, and state
appeal processes, Sanctions, corrective
actions, and waiver of liability,
Reporting and recordkeeping

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requirements, Resolution of findings,
Workforce Investment Act.

Labor standards, State apprenticeship
agencies.

20 CFR Part 683

29 CFR Part 38
Administrative practice and
procedure, Compliance procedures,
Obligations of recipients and governors,
Workforce Innovation and Opportunity
Act.

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.
20 CFR Part 702
Administrative practice and
procedure, Claims, Penalties, Reporting
and recordkeeping requirements,
Whistleblowing, Workers’
compensation.
29 CFR Part 2
Administrative practice and
procedure, Claims, Courts, Government
employees.
29 CFR Part 7
Administrative practice and
procedure, Government contracts,
Minimum wages.
Administrative practice and
procedure, Government contracts,
Minimum wages.
29 CFR Part 10
Administrative practice and
procedure, Construction industry,
Government procurement, Law
enforcement, Reporting and
recordkeeping requirements, Wages.
29 CFR Part 13
Administrative practice and
procedure, Government contracts, Law
enforcement, Reporting and
recordkeeping requirements, Wages.
29 CFR Part 18
Administrative practice and
procedure, Grievance procedure and
appeals process, Senior Community
Service Employment Program, Services
to participants.
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29 CFR Part 24
Administrative practice and
procedure, Review of other proceedings
and related matters, Review of wage
determinations.
Administrative practice and
procedure, Apprenticeship programs,

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29 CFR Part 417
Labor management standards,
Procedures for removal of local labor
organization officers.
29 CFR Part 471
Administrative practice and
procedure, Complaint procedures,
Compliance review, Contractor
obligations, Federal labor law.
29 CFR Part 501
Administrative practice and
procedure, Contract obligations;
Enforcement, Immigration and
Nationality Act, Temporary alien
agricultural workers.
29 CFR Part 580
Administrative practice and
procedure, Assessing and contesting,
Civil money penalties.

29 CFR Part 8

29 CFR Part 29

29 CFR Part 96
Administrative practice and
procedure, Audit requirements, Grants,
contracts, and other agreements.

Federal Railroad Safety Act, Findings,
Investigations, Litigation, National
Transit Systems Security Act,
Retaliation complaints.
29 CFR Part 1983
Administrative practice and
procedure, Consumer Product Safety
Improvement Act of 2008, Employee
protection, Findings, Investigations,
Litigation, Retaliation complaints.
29 CFR Part 1984
Administrative practice and
procedure, Affordable Care Act,
Employee protection, Findings,
Investigations, Litigation, Retaliation
complaints.
29 CFR Part 1985
Administrative practice and
procedure, Consumer Financial
Protection Act of 2010, Employee
protection, Findings, Investigations,
Litigation, Retaliation complaints.
29 CFR Part 1986
Administrative practice and
procedure, Employee protection,
Findings, Investigations, Litigation,
Retaliation complaints, Seaman’s
Protection Act.
29 CFR Part 1987

29 CFR Part 1978
Administrative practice and
procedure; Employee protection;
Findings, Investigations, Litigation,
Retaliation complaints, Surface
Transportation Assistance Act of 1982.

Administrative practice and
procedure, Employee protection, FDA
Food Safety Modernization Act,
Findings, Investigations, Litigation,
Retaliation complaints.

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.

Administrative practice and
procedure, Employee protection,
Findings, Investigations, Litigation,
Moving Ahead for Progress in the 21st
Century Act, Retaliation complaints.

29 CFR Part 1980
Administrative practice and
procedure, Employee protection,
Findings, Investigations, Litigation,
Retaliation complaints, Sarbanes-Oxley
Act of 2002.

Administrative practice and
procedure, Government procurement,
Minimum wages, Occupational safety
and health.

29 CFR Part 1981
Administrative practice and
procedure, Employee protection,
Findings, Litigation, Investigations,
Pipeline Safety Improvement Act of
2002, Retaliation complaints.
29 CFR Part 1982
Administrative practice and
procedure, Employee protection,

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29 CFR Part 1988

41 CFR Part 50–203

41 CFR Part 60–30
Administrative practice and
procedure, Equal opportunity, Executive
Order 11246, Property management,
Public contracts.
For the reasons set forth in the
preamble, the Department of Labor
proposes to amend 20 CFR chapters V
and VI, 29 CFR subtitle A and chapters
IV, V, and XVII, and 41 CFR parts 50–
203 and 60–30 as follows:

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Federal Register / Vol. 85, No. 45 / Friday, March 6, 2020 / Proposed Rules
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?

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*

*
*
*
*
(d) * * *
(5) The decision of the ALJ constitutes
final agency action unless, within 21
days of the decision, a party dissatisfied
with the ALJ’s decision, in whole or in
part, has filed a petition for review with
the ARB (established under Secretary’s
Order No. 01–2020), specifically
identifying the procedure, fact, law, or
policy to which exception is taken. The
mailing address for the ARB is 200
Constitution Ave. NW, Room N5404,
Washington, DC 20210. The Department
will deem any exception not specifically
argued to have been waived. A copy of

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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:
§ 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

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13091

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.

*

*
*
*
*
(c) Failure to comply with special
procedures. If the OFLC Administrator
determines that the employer has failed
to comply with special procedures
required pursuant to paragraph (a) of
this section, the OFLC Administrator
will send a written notice to the
employer, stating that the employer’s
otherwise affirmative H–2A certification
determination will be reduced by 25
percent of the total number of H–2A
workers requested (which cannot be
more than those requested in the
previous year) for a period of 1 year.
Notice of such a reduction in the
number of workers requested will be

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Federal Register / Vol. 85, No. 45 / Friday, March 6, 2020 / Proposed Rules

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.
■ 9. In § 655.461, revise paragraph (e) to
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
rebuttal evidence to BALCA, according
to the appeal procedures of § 655.461.
*
*
*
*
*
■ 11. In § 655.473, revise paragraph
(f)(6) to read as follows:
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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:

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Jkt 250001

§ 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

continues to read as follows:
Authority: 8 U.S.C. 1182(a)(5)(A),
1182(p)(1); sec.122, Public Law 101–649, 109
Stat. 4978; and Title IV, Public Law 105–277,
112 Stat. 2681.
■ 14. In § 656.27, revise paragraph (c) to

read as follows:
§ 656.27 Consideration by and decisions
of the Board of Alien Labor Certification
Appeals.

*

*
*
*
*
(c) Review on the record. The Board
of Alien Labor Certification Appeals
must review a denial of labor
certification under § 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
(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.

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

to read as follows:
§ 667.830 When will the Administrative
Law Judge issue a decision?

*

*
*
*
*
(b) The decision of the ALJ constitutes
final agency action unless, within 20
days of the decision, a party dissatisfied
with the ALJ’s decision has filed a
petition for review with the
Administrative Review Board (ARB)
(established under Secretary’s Order No.
01–2020), specifically identifying the
procedure, fact, law, or policy to which
exception is taken. Any exception not
specifically urged is deemed to have
been waived. A copy of the petition for
review must be sent to the opposing
party at that time. Thereafter, the
decision of the ALJ constitutes final
agency action unless the ARB, within 30
days of the filing of the petition for
review, notifies the parties that the case
has been accepted for review. In any
case accepted by the ARB, a decision
must be issued by the ARB within 180
days of acceptance. If a decision is not
so issued, the decision of the ALJ
constitutes final agency action.
PART 683—ADMINISTRATIVE
PROVISIONS UNDER TITLE I OF THE
WORKFORCE INNOVATION AND
OPPORTUNITY ACT
■ 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).

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Federal Register / Vol. 85, No. 45 / Friday, March 6, 2020 / Proposed Rules
■ 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
PART 702—ADMINISTRATION AND
PROCEDURE
continues to read as follows:

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

and (f) to read as follows:

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*

*
*
*
*
(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

18:04 Mar 05, 2020

§ 702.434

■ 26. The authority citation for part 7

Judicial review.

(a) Any physician, health care
provider, or claims representative who
participated as a party in the hearing
may obtain review of the Department’s
final decision made by the
Administrative Review Board or the
Secretary, as appropriate, regardless of
the amount of controversy, by
commencing a civil action within sixty
(60) days after the decision is
transmitted to him or her. The pendency
of such review will not stay the effect
of the decision. Such action must be
brought in the Court of Appeals of the
United States for the judicial circuit in
which the plaintiff resides or has his or
her principal place of business, or the
Court of Appeals for the District of
Columbia pursuant to section 7(j)(4) of
the Act, 33 U.S.C. 907(j)(4).
(b) As part of the Department’s
answer, the Administrative Review
Board must file a certified copy of the
transcript of the record of the hearing,
including all evidence submitted in
connection therewith.
(c) The findings of fact contained in
the Department’s final decision, if based
on substantial evidence in the record as
a whole, shall be conclusive.
Office of the Secretary of Labor

Jkt 250001

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

Purpose and scope.

*

*
*
*
*
(d) In considering the matters within
the scope of its jurisdiction the Board
shall act as the authorized
representative of the Secretary of Labor.
The Board shall act as fully and finally
as might the Secretary of Labor
concerning such matters, except as
provided in Secretary’s Order 01–2020.
*
*
*
*
*
PART 8—PRACTICE BEFORE THE
ADMINISTRATIVE REVIEW BOARD
WITH REGARD TO FEDERAL SERVICE
CONTRACTS
■ 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

■ 24. The authority citation for part 2

read as follows:

continues to read as:

§ 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.
■ 25. Revise § 2.8 to read as follows:

Requests for hearing.

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PART 7—PRACTICE BEFORE THE
ADMINISTRATIVE REVIEW BOARD
WITH REGARD TO FEDERAL AND
FEDERALLY ASSISTED
CONSTRUCTION CONTRACTS

PART 2—GENERAL REGULATIONS

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.

§ 702.433

administrative law judge, the
Administrative Review Board will issue
a decision.
■ 23. Revise § 702.434 to read as
follows:

Title 29: Labor

■ 21. The authority citation for part 702

13093

§ 2.8

Final agency decisions.

Final agency decisions issued under
the statutory authority of the U.S.
Department of Labor may be issued by
the Secretary of Labor, or by his or her
designee under a written delegation of
authority. The Administrative Review
Board, an organizational entity within
the Office of the Secretary, has been
delegated authority to issue final agency
decisions under the statutes, executive
orders, and regulations according to,
and except as provided in Secretary’s
Order 01–2020.

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Purpose and scope.

*

*
*
*
*
(c) In considering the matters within
the scope of its jurisdiction the Board
shall act as the authorized
representative of the Secretary of Labor
and shall act as fully and finally as
might the Secretary of Labor concerning
such matters, except as provided in
Secretary’s Order 01–2020.
*
*
*
*
*
PART 10—ESTABLISHING A MINIMUM
WAGE FOR CONTRACTORS
■ 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:

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§ 10.57 Administrative Review Board
proceedings.

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(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).
(c) Orders. If the Board concludes a
violation occurred, an order shall be
issued mandating action to remedy the
violation, including, but not limited to,
monetary relief for unpaid wages.
Where the Administrator has sought
imposition of debarment, the Board
shall determine whether an order
imposing debarment is appropriate. The
ARB’s order is subject to discretionary
review by the Secretary as provided in
Secretary’s Order 01–2020.

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).
(c) Orders. If the Board concludes a
violation occurred, an order shall be
issued mandating action to remedy the
violation, including, but not limited to,
any monetary or equitable relief
described in § 13.44. Where the
Administrator has sought imposition of
debarment, the Administrative Review
Board shall determine whether an order
imposing debarment is appropriate. The
ARB’s order is subject to discretionary
review by the Secretary as provided in
Secretary’s Order 01–2020.

PART 13—ESTABLISHING PAID SICK
LEAVE FOR FEDERAL
CONTRACTORS

PART 18—RULES OF PRACTICE AND
PROCEDURE FOR ADMINISTRATIVE
HEARINGS BEFORE THE OFFICE OF
ADMINISTRATIVE LAW JUDGES

■ 32. The authority citation for part 13

■ 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:

§ 18.95 Review of decision and review by
the Secretary.

§ 13.57 Administrative Review Board
proceedings.

(a) Authority—(1) General. The
Administrative Review Board has
jurisdiction to hear and decide in its
discretion appeals concerning questions

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■ 35. Revise § 18.95 to read as follows:

(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,

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the judge’s decision becomes the
Secretary’s final administrative
decision, except as provided in
paragraph (b) of this section.
(b) Finality. A decision of the Board
of Alien Labor Certification Appeals
(BALCA) shall constitute the Secretary’s
final administrative decision except in
those cases over which the Secretary
has, in accordance with this paragraph
(b) and paragraph (c) of this section,
assumed jurisdiction:
(1) In any case for which
administrative review is sought or
handled in accordance with 20 CFR
655.171(a) or 20 CFR 655.461, at any
point from when the BALCA receives a
request for review until the passage of
10 business days after the date on which
BALCA has issued its decision.
(2) In any case for which a de novo
hearing is sought or handled under 20
CFR 655.171(b), at any point within 15
business days after the date on which
the BALCA has issued its decision.
(3) In any case for which review is
sought or handled in accordance with
20 CFR 656.26 and 20 CFR 656.27, at
any point from when the BALCA
receives a request for review until the
passage of 30 business days after the
BALCA has issued its decision.
(c) Review by the Secretary—(1)
Transmission of information. (i)
Whenever the BALCA receives a request
for review, it shall immediately transmit
a copy of such request to the Deputy
Secretary.
(ii) Within 3 business days of when
the BALCA issues a decision, the Chair
of the BALCA, or his or her designee,
shall transmit to the Deputy Secretary a
copy of the decision and a concise
recommendation as to whether the
decision involves an issue or issues of
such exceptional importance that
review by the Secretary is warranted.
(2) Review. (i) The Secretary may, at
any point within the time periods
provided for in paragraph (b) of this
section, and in his or her sole
discretion, assume jurisdiction to
review the decision or determination of
the Certifying Officer, the Office of
Foreign Labor Certification
Administrator, the National Prevailing
Wage Center Director, or the BALCA, as
the case may be.
(ii) When the Secretary assumes
jurisdiction over a case, the Secretary
shall promptly notify the BALCA. The
BALCA shall promptly notify the parties
to the case of such action and shall
submit the Appeal File and any briefs
filed to the Secretary.
(iii) In any case the Secretary decides,
the Secretary’s decision shall be stated
in writing and transmitted to the
BALCA, which shall promptly transmit

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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:

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§ 24.110 Decisions and orders of the
Administrative Review Board.

(a) Any party desiring to seek review,
including judicial review, of a decision
of the ALJ must file a written petition
for review with the ARB, U.S.
Department of Labor, 200 Constitution
Ave. NW, Washington, DC 20210. The
decision of the ALJ will become the
final order of the Secretary unless,
pursuant to this section, a timely
petition for review is filed with the ARB
and the ARB accepts the case for review.
The parties should identify in their
petitions for review the legal
conclusions or orders to which they
object, or the objections will ordinarily
be deemed waived. A petition must be
filed within 10 business days of the date
of the decision of the ALJ. The date of
the postmark, facsimile transmittal, or
email communication will be
considered to be the date of filing; if the
petition is filed in person, by hand
delivery or other means, the petition is
considered filed upon receipt. The
petition must be served on all parties
and on the Chief Administrative Law
Judge at the time it is filed with the
ARB. Copies of the petition for review
and all briefs must be served on the

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Assistant Secretary, Occupational Safety
and Health Administration, and on the
Associate Solicitor, Division of Fair
Labor Standards, U.S. Department of
Labor.
*
*
*
*
*
(c) The decision of the ARB will be
issued within 90 days of the filing of the
complaint. The decision will be served
upon all parties and the Chief
Administrative Law Judge by mail. The
decision will also be served on the
Assistant Secretary, Occupational Safety
and Health Administration, and on the
Associate Solicitor, Division of Fair
Labor Standards, U.S. Department of
Labor, even if the Assistant Secretary is
not a party.
(d) If the ARB concludes that the
respondent has violated the law, the
order will order the respondent to take
appropriate affirmative action to abate
the violation, including reinstatement of
the complainant to that person’s former
position, together with the
compensation (including back pay),
terms, conditions, and privileges of
employment, and compensatory
damages. In cases arising under the Safe
Drinking Water Act or the Toxic
Substances Control Act, exemplary
damages may also be awarded when
appropriate. At the request of the
complainant, the ARB will assess
against the respondent all costs and
expenses (including attorney’s fees)
reasonably incurred.
*
*
*
*
*
■ 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
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

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review of the order in the United States
Court of Appeals for the circuit in
which the violation allegedly occurred
or the circuit in which the complainant
resided on the date of the violation.
(c) Under the Solid Waste Disposal
Act, within 90 days after the issuance of
a final order (including a decision
issued by the Secretary upon his or her
discretionary review) for which judicial
review is available, any person
adversely affected or aggrieved by the
order may file a petition for review of
the order in the United States Court of
Appeals for the circuit in which the
violation allegedly occurred or the
circuit in which the complainant
resided on the date of the violation.
(d) Under the Comprehensive
Environmental Response, Compensation
and Liability Act, after the issuance of
a final order (including a decision
issued by the Secretary upon his or her
discretionary review) for which judicial
review is available, any person
adversely affected or aggrieved by the
order may file a petition for review of
the order in the United States district
court in which the violation allegedly
occurred. For purposes of judicial
economy and consistency, when a final
order under the Comprehensive
Environmental Response, Compensation
and Liability Act also is issued under
any other statute listed in § 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).
(e) If a timely petition for review is
filed, the record of a case, including the
record of proceedings before the
administrative law judge, will be
transmitted by the ARB or the ALJ, as
appropriate, to the appropriate court
pursuant to the Federal Rules of
Appellate Procedure and the local rules
of the court.
PART 29—LABOR STANDARDS FOR
THE REGISTRATION OF
APPRENTICESHIP PROGRAMS
■ 39. The authority citation for part 29

continues to read as follows:
Authority: Section 1, 50 Stat. 664, as
amended (29 U.S.C. 50; 40 U.S.C. 276c; 5
U.S.C. 301); Reorganization Plan No. 14 of
1950, 64 Stat. 1267 (5 U.S.C. App. P. 534).

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

read as follows:
§ 29.10

Hearings for deregistration.

*

*
*
*
*
(c) The Administrative Law Judge
should issue a written decision within
90 days of the close of the hearing
record. The Administrative Law Judge’s
decision constitutes final agency action
unless, within 15 days from receipt of
the decision, a party dissatisfied with
the decision files a petition for review
with the Administrative Review Board,
specifically identifying the procedure,
fact, law, or policy to which exception
is taken. Any exception not specifically
urged is deemed to have been waived.
A copy of the petition for review must
be sent to the opposing party at the
same time. Thereafter, the decision of
the Administrative Law Judge remains
final agency action unless the
Administrative Review Board, within 30
days of the filing of the petition for
review, notifies the parties that it has
accepted the case for review. The
Administrative Review Board may set a
briefing schedule or decide the matter
on the record. The Administrative
Review Board must issue a decision in
any case it accepts for review within
180 days of the close of the record. If a
decision is not so issued, the
Administrative Law Judge’s decision
constitutes final agency action.
■ 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
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:
§ 29.14 Derecognition of State
Apprenticeship Agencies.
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*

*
*
*
*
(c) * * *
(3) Requests a hearing. The
Administrator shall refer the matter to
the Office of Administrative Law Judges.
An Administrative Law Judge will
convene a hearing in accordance with
§ 29.13(g) and submit proposed findings
and a recommended decision to the

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Administrative Review Board. The
Administrative Review Board must
issue a decision in any case it accepts
for review within 180 days of the close
of the record. If a decision is not so
issued, the Administrative Law Judge’s
decision constitutes final agency action.
*
*
*
*
*
PART 38—IMPLEMENTATION OF THE
NONDISCRIMINATION AND EQUAL
OPPORTUNITY PROVISIONS OF THE
WORKFORCE INNOVATION AND
OPPORTUNITY ACT
■ 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) and remove paragraph (b)(3).
The revision reads 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

Post-termination proceedings.

*

*
*
*
*
(c) A decision issued by the
Administrative Review Board has
become final, the Administrative Law
Judge’s decision and order has become
the Final Agency Decision, or the Final
Determination or Notification of
Conciliation Agreement has been
deemed the Final Agency Decision,
under § 38.112(b); and
*
*
*
*
*
■ 46. In § 38.115, revise paragraph (c)(5)
to read as follows:
§ 38.115

Post-termination proceedings.

*

*
*
*
*
(c) * * *
(5) The Administrative Review Board
must issue a decision denying or
granting the recipient’s or grant
applicant’s request for restoration to
eligibility.

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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)

to read as follows:
§ 96.63

Federal financial assistance.

*

*
*
*
*
(b) * * *
(5) Review by the Administrative
Review Board. In any case accepted for
review by the Administrative Review
Board, a decision shall be issued within
180 days of such acceptance. If a
decision is not so issued, the decision
of the Administrative Law Judge shall
become the final decision of the
Secretary.
Office of Labor-Management Standards
PART 417—OBLIGATIONS OF
FEDERAL CONTRACTORS AND
SUBCONTRACTORS; NOTIFICATION
OF EMPLOYEE RIGHTS UNDER
FEDERAL LABOR LAWS
■ 49. The authority citation for part 417

is revised to read as follows:
Authority: Secs. 401, 402, 73 Stat. 533,
534 (29 U.S.C. 481, 482); Secretary’s Order
No. 03–2012, 77 FR 69376, November 16,
2012; Secretary’s Order No. 01–2020.

PART 471—OBLIGATIONS OF
FEDERAL CONTRACTORS AND
SUBCONTRACTORS; NOTIFICATION
OF EMPLOYEE RIGHTS UNDER
FEDERAL LABOR LAWS
■ 50. The authority citation for part 471

is revised to read as follows:
Authority: 40 U.S.C. 101 et seq.; Executive
Order 13496, 74 FR 6107, February 4, 2009;
Secretary’s Order No. 7–2009, 74 FR 58834,
November 13, 2009; Secretary’s Order No.
01–2020.
■ 51. 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
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

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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
■ 52. The authority citation for part 501

continues to read as follows:
Authority: 8 U.S.C. 1101(a)(15)(H)(ii)(a),
1184(c), and 1188; 28 U.S.C. 2461 Note
(Federal Civil Penalties Inflation Adjustment
Act of 1990); and Pub. L. 114–74 at § 701.
■ 53. 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
■ 54. The authority citation for part 580

continues to read as follows:
Authority: 29 U.S.C. 9a, 203, 209, 211, 212,
213(c), 216; Reorg. Plan No. 6 of 1950, 64
Stat. 1263, 5 U.S.C. App; secs. 25, 29, 88 Stat.
72, 76; Secretary’s Order 01–2014 (Dec. 19,
2014), 79 FR 77527 (Dec. 24, 2014); 5 U.S.C.
500, 503, 551, 559; 103 Stat. 938.
■ 55. 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
■ 56. The authority citation for part

1978 is revised to read as follows:

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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.
■ 57. 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.
*
*
*
*
*
(c) The decision of the ARB will be
issued within 120 days of the
conclusion of the hearing, which will be
deemed to be 14 days after the date of
the decision of the ALJ, unless a motion
for reconsideration has been filed with
the ALJ in the interim. In such case, the
conclusion of the hearing is the date the
motion for reconsideration is ruled
upon or 14 days after a new decision is
issued. The ARB’s decision will be
served upon all parties and the Chief
Administrative Law Judge by mail. The
decision also will be served on the
Assistant Secretary, and on the
Associate Solicitor, Division of
Occupational Safety and Health, U.S.
Department of Labor, even if the
Assistant Secretary is not a party.
(d) If the ARB concludes that the
respondent has violated the law, the
ARB will issue an order providing relief
to the complainant. The order, which
will be subject to discretionary review
by the Secretary as provided in
Secretary’s Order 01–2020, will require,
where appropriate: Affirmative action to
abate the violation; reinstatement of the
complainant to his or her former
position with the same compensation,
terms, conditions, and privileges of the

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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.
*
*
*
*
*
■ 58. 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
■ 59. The authority citation for part

1979 continues to read as follows:
Authority: 49 U.S.C. 42121; Secretary’s
Order No. 01–2020.
■ 60. In § 1979.110, revise paragraphs

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

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The petition for review must
specifically identify the findings,
conclusions, or orders to which
exception is taken. Any exception not
specifically urged ordinarily shall be
deemed to have been waived by the
parties. To be effective, a petition must
be filed within ten business days of the
date of the decision of the
Administrative Law Judge. The date of
the postmark, facsimile transmittal, or
email communication will be
considered to be the date of filing; if the
petition is filed in person, by hand
delivery or other means, the petition is
considered filed upon receipt. The
petition must be served on all parties
and on the Chief Administrative Law
Judge at the time it is filed with the
Board. Copies of the petition for review
and all briefs must be served on the
Assistant Secretary, Occupational Safety
and Health Administration, and on the
Associate Solicitor, Division of Fair
Labor Standards, U.S. Department of
Labor, Washington, DC 20210.
*
*
*
*
*
(c) The decision of the Board shall be
issued within 120 days of the
conclusion of the hearing, which shall
be deemed to be the conclusion of all
proceedings before the Administrative
Law Judge—i.e., 10 business days after
the date of the decision of the
Administrative Law Judge unless a
motion for reconsideration has been
filed with the Administrative Law Judge
in the interim. The decision will be
served upon all parties and the Chief
Administrative Law Judge by mail to the
last known address. The decision will
also be served on the Assistant
Secretary, Occupational Safety and
Health Administration, and on the
Associate Solicitor, Division of Fair
Labor Standards, U.S. Department of
Labor, Washington, DC 20210, even if
the Assistant Secretary is not a party.
(d) If the ARB concludes that the
party charged has violated the law, the
ARB shall order the party charged to
take appropriate affirmative action to
abate the violation, including, where
appropriate, reinstatement of the
complainant to that person’s former
position, together with the
compensation (including back pay),
terms, conditions, and privileges of that
employment, and compensatory
damages. At the request of the
complainant, the Board shall assess
against the named person all costs and
expenses (including attorney and expert
witness fees) reasonably incurred. The
ARB’s order is subject to discretionary
review by the Secretary as provided in
Secretary’s Order 01–2020.

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(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.
■ 61. 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
■ 62. The authority citation for part

1980 is revised to read as follows:
Authority: 18 U.S.C. 1514A, as amended
by the Dodd-Frank Wall Street Reform and
Consumer Protection Act of 2010, Pub. L.
111–203 (July 21, 2010); Secretary’s Order
No. 01–2012 (Jan. 18, 2012), 77 FR 3912 (Jan.
25, 2012); Secretary’s Order No. 01–2020.
■ 63. In § 1980.110, revise paragraphs

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

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petition is filed in person, by hand
delivery or other means, the petition is
considered filed upon receipt. The
petition must be served on all parties
and on the Chief Administrative Law
Judge at the time it is filed with the
ARB. Copies of the petition for review
must be served on the Assistant
Secretary and on the Associate Solicitor,
Division of Fair Labor Standards, U.S.
Department of Labor.
*
*
*
*
*
(c) The decision of the ARB shall be
issued within 120 days of the
conclusion of the hearing, which will be
deemed to be 14 days after the date of
the decision of the ALJ unless a motion
for reconsideration has been filed with
the ALJ in the interim. In such case, the
conclusion of the hearing is the date the
motion for reconsideration is ruled
upon or 14 days after a new decision is
issued. The ARB’s decision will be
served upon all parties and the Chief
Administrative Law Judge by mail. The
decision will also be served on the
Assistant Secretary and on the Associate
Solicitor, Division of Fair Labor
Standards, even if the Assistant
Secretary is not a party.
(d) If the ARB concludes that the
respondent has violated the law, the
ARB will issue an order providing all
relief necessary to make the
complainant whole, including
reinstatement with the same seniority
status that the complainant would have
had but for the retaliation; back pay
with interest; and compensation for any
special damages sustained as a result of
the retaliation, including litigation
costs, expert witness fees, and
reasonable attorney fees. Interest on
back pay will be calculated using the
interest rate applicable to underpayment
of taxes under 26 U.S.C. 6621 and will
be compounded daily. The order will
also require the respondent to submit
appropriate documentation to the Social
Security Administration allocating any
back pay award to the appropriate
calendar quarters. Such order is subject
to discretionary review by the Secretary
as provided in Secretary’s Order 01–
2020.
(e) If the ARB concludes that the
respondent has not violated the law, the
ARB will issue an order denying the
complaint. If, upon the request of the
respondent, the ARB determines that a
complaint was frivolous or was brought
in bad faith, the ARB may award to the
respondent reasonable attorney fees, not
exceeding $1,000. An order under this
section is subject to discretionary
review by the Secretary as provided in
Secretary’s Order 01–2020.

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■ 64. 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
■ 65. The authority citation for part

1981 continues to read as follows:
Authority: 49 U.S.C. 60129; Secretary’s
Order No. 01–2020.
■ 66. In § 1981.110, revise paragraphs

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

lotter on DSKBCFDHB2PROD with PROPOSALS

§ 1981.110 Decision and orders of the
Administrative Review Board.

(a) Any party desiring to seek review,
including judicial review, of a decision
of the Administrative Law Judge, or a
named person alleging that the
complaint was frivolous or brought in
bad faith who seeks an award of
attorney’s fees, must file a written
petition for review with the
Administrative Review Board (‘‘the
Board’’). The decision of the
Administrative Law Judge will become
the final order of the Secretary unless,
pursuant to this section, a petition for
review is timely filed with the Board.
The petition for review must
specifically identify the findings,
conclusions, or orders to which
exception is taken. Any exception not
specifically urged ordinarily will be
deemed to have been waived by the
parties. To be effective, a petition must
be filed within 10 business days of the
date of the decision of the
Administrative Law Judge. The date of
the postmark, facsimile transmittal, or
email communication will be
considered to be the date of filing; if the
petition is filed in person, by hand
delivery or other means, the petition is
considered filed upon receipt. The
petition must be served on all parties
and on the Chief Administrative Law
Judge at the time it is filed with the
Board. Copies of the petition for review
and all briefs must be served on the
Assistant Secretary, Occupational Safety

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and Health Administration, and on the
Associate Solicitor, Division of Fair
Labor Standards, U.S. Department of
Labor, Washington, DC 20210.
*
*
*
*
*
(c) The decision of the Board shall be
issued within 90 days of the conclusion
of the hearing, which will be deemed to
be the conclusion of all proceedings
before the Administrative Law Judge—
i.e., 10 business days after the date of
the decision of the Administrative Law
Judge unless a motion for
reconsideration has been filed with the
Administrative Law Judge in the
interim. The decision will be served
upon all parties and the Chief
Administrative Law Judge by mail to the
last known address. The decision will
also be served on the Assistant
Secretary, Occupational Safety and
Health Administration, and on the
Associate Solicitor, Division of Fair
Labor Standards, U.S. Department of
Labor, Washington, DC 20210, even if
the Assistant Secretary is not a party.
(d) If the ARB concludes that the
party charged has violated the law, the
ARB shall order the party charged to
take appropriate affirmative action to
abate the violation, including, where
appropriate, reinstatement of the
complainant to that person’s former
position, together with the
compensation (including back pay),
terms, conditions, and privileges of that
employment, and compensatory
damages. At the request of the
complainant, the Board shall assess
against the named person all costs and
expenses (including attorney and expert
witness fees) reasonably incurred. Such
order is subject to discretionary review
by the Secretary as provided in
Secretary’s Order 01–2020.
(e) If the ARB concludes that the party
charged has not violated the law, the
ARB will issue an order denying the
complaint. If, upon the request of the
named person, the Board determines
that a complaint was frivolous or was
brought in bad faith, the Board may
award to the named person reasonable
attorney fees, not exceeding $1,000. An
order under this section is subject to
discretionary review by the Secretary as
provided in Secretary’s Order 01–2020.
■ 67. 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

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Frm 00024

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Sfmt 4702

13099

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
■ 68. The authority citation for part

1982 is revised to read as follows:
Authority: 6 U.S.C. 1142 and 49 U.S.C.
20109; Secretary’s Order 01–2012 (Jan. 18,
2012), 77 FR 3912 (Jan. 25, 2012); Secretary’s
Order No. 01–2020.
■ 69. In § 1982.110, revise paragraphs

(a), (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
considered filed upon receipt. The
petition must be served on all parties
and on the Chief Administrative Law
Judge at the time it is filed with the
ARB. Copies of the petition for review
must be served on the Assistant
Secretary, and on the Associate
Solicitor, Division of Fair Labor
Standards.
*
*
*
*
*
(c) The decision of the ARB will be
issued within 120 days of the
conclusion of the hearing, which will be
deemed to be 14 days after the date of
the decision of the ALJ, unless a motion
for reconsideration has been filed with
the ALJ in the interim. In such case, the
conclusion of the hearing is the date the
motion for reconsideration is denied or
14 days after a new decision is issued.
The ARB’s decision will be served upon
all parties and the Chief Administrative
Law Judge by mail. The decision also

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will be served on the Assistant
Secretary, and on the Associate
Solicitor, Division of Fair Labor
Standards, U.S. Department of Labor,
even if the Assistant Secretary is not a
party.
(d) If the ARB concludes that the
respondent has violated the law, the
ARB will issue an order providing relief
to the complainant. The order will
include, where appropriate, affirmative
action to abate the violation;
reinstatement with the same seniority
status that the employee would have
had but for the retaliation; any back pay
with interest; and payment of
compensatory damages, including
compensation for any special damages
sustained as a result of the retaliation,
including litigation costs, expert witness
fees, and reasonable attorney fees.
Interest on back pay will be calculated
using the interest rate applicable to
underpayment of taxes under 26 U.S.C.
6621 and will be compounded daily.
The order will also require the
respondent to submit documentation to
the Social Security Administration or
the Railroad Retirement Board, as
appropriate, allocating any back pay
award to the appropriate months or
calendar quarters. The order may also
require the respondent to pay punitive
damages up to $250,000. Such order is
subject to discretionary review by the
Secretary as provided in Secretary’s
Order 01–2020.
(e) If the ARB concludes that the
respondent has not violated the law, the
ARB will issue an order denying the
complaint. If, upon the request of the
respondent, the ARB determines that a
complaint under NTSSA was frivolous
or was brought in bad faith, the ARB
may award to the respondent reasonable
attorney fees, not exceeding $1,000. An
order under this section is subject to
discretionary review by the Secretary as
provided in Secretary’s Order 01–2020.
■ 70. In § 1982.112, revise paragraph (a)
to read as follows:

lotter on DSKBCFDHB2PROD with PROPOSALS

§ 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.
*
*
*
*
*

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PART 1983—PROCEDURES FOR THE
HANDLING OF RETALIATION
COMPLAINTS UNDER SECTION 219
OF THE CONSUMER PRODUCT
SAFETY IMPROVEMENT ACT OF 2008
■ 71. The authority citation for part

1983 is revised to read as follows:
Authority: 15 U.S.C. 2087; Secretary’s
Order 1–2012 (Jan. 18, 2012), 77 FR 3912
(Jan. 25, 2012); Secretary’s Order 01–2020.
■ 72. 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.
*
*
*
*
*
(c) The decision of the ARB will be
issued within 120 days of the
conclusion of the hearing, which will be
deemed to be 14 days after the date of
the decision of the ALJ, unless a motion
for reconsideration has been filed with
the ALJ in the interim. In such case, the
conclusion of the hearing is the date the
motion for reconsideration is ruled
upon or 14 days after a new decision is
issued. The ARB’s decision will be
served upon all parties and the Chief
Administrative Law Judge by mail. The
decision will also be served on the
Assistant Secretary and on the Associate
Solicitor, Division of Fair Labor
Standards, U.S. Department of Labor,
even if the Assistant Secretary is not a
party.
(d) If the ARB concludes that the
respondent has violated the law, the
ARB will issue an order providing relief
to the complainant. The order will
require, where appropriate, affirmative

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Fmt 4702

Sfmt 4702

action to abate the violation;
reinstatement of the complainant to his
or her former position, together with the
compensation (including back pay and
interest), terms, conditions, and
privileges of the complainant’s
employment; and payment of
compensatory damages, including, at
the request of the complainant, the
aggregate amount of all costs and
expenses (including attorney and expert
witness fees) reasonably incurred.
Interest on back pay will be calculated
using the interest rate applicable to
underpayment of taxes under 26 U.S.C.
6621 and will be compounded daily.
Such order is subject to discretionary
review by the Secretary as provided in
Secretary’s Order 01–2020.
(e) If the ARB concludes that the
respondent has not violated the law, the
ARB will issue an order denying the
complaint. If, upon the request of the
respondent, the ARB determines that a
complaint was frivolous or was brought
in bad faith, the ARB may award to the
respondent a reasonable attorney’s fee,
not exceeding $1,000. An order under
this section is subject to discretionary
review by the Secretary as provided in
Secretary’s Order 01–2020.
■ 73. 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
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
■ 74. The authority citation for part

1984 is revised to read as follows:
Authority: 29 U.S.C. 218C; Secretary’s
Order 1–2012 (Jan. 18, 2012), 77 FR 3912
(Jan. 25, 2012); Secretary’s Order No. 01–
2020.
■ 75. 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

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in bad faith who seeks an award of
attorney fees, must file a written
petition for review with the
Administrative Review Board (ARB).
The parties should identify in their
petitions for review the legal
conclusions or orders to which they
object, or the objections may be deemed
waived. A petition must be filed within
14 days of the date of the decision of the
ALJ. The date of the postmark, facsimile
transmittal, or electronic
communication transmittal will be
considered to be the date of filing; if the
petition is filed in person, by hand
delivery or other means, the petition is
considered filed upon receipt. The
petition must be served on all parties
and on the Chief Administrative Law
Judge at the time it is filed with the
ARB. Copies of the petition for review
must be served on the Assistant
Secretary, and on the Associate
Solicitor, Division of Fair Labor
Standards, U.S. Department of Labor.
*
*
*
*
*
(c) The decision of the ARB will be
issued within 120 days of the
conclusion of the hearing, which will be
deemed to be 14 days after the date of
the decision of the ALJ, unless a motion
for reconsideration has been filed with
the ALJ in the interim. In such case, the
conclusion of the hearing is the date the
motion for reconsideration is ruled
upon or 14 days after a new decision is
issued. The ARB’s decision will be
served upon all parties and the Chief
Administrative Law Judge by mail. The
decision will also be served on the
Assistant Secretary, and on the
Associate Solicitor, Division of Fair
Labor Standards, U.S. Department of
Labor, even if the Assistant Secretary is
not a party.
(d) If the ARB concludes that the
respondent has violated the law, the
ARB will issue an order providing relief
to the complainant. The order will
require, where appropriate, affirmative
action to abate the violation;
reinstatement of the complainant to the
complainant’s former position, together
with the compensation (including back
pay and interest), terms, conditions, and
privileges of the complainant’s
employment; and payment of
compensatory damages, including, at
the request of the complainant, the
aggregate amount of all costs and
expenses (including attorney and expert
witness fees) reasonably incurred.
Interest on back pay will be calculated
using the interest rate applicable to
underpayment of taxes under 26 U.S.C.
6621 and will be compounded daily.
The order will also require the
respondent to submit appropriate

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documentation to the Social Security
Administration allocating any back pay
award to the appropriate period. Such
order is subject to discretionary review
by the Secretary as provided in
Secretary’s Order 01–2020.
(e) If the ARB concludes that the
respondent has not violated the law, the
ARB will issue an order denying the
complaint. If, upon the request of the
respondent, the ARB determines that a
complaint was frivolous or was brought
in bad faith, the ARB may award to the
respondent reasonable attorney fees, not
exceeding $1,000. An order under this
section is subject to discretionary
review by the Secretary as provided in
Secretary’s Order 01–2020.
■ 76. 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.
*
*
*
*
*
PART 1985—PROCEDURES FOR
HANDLING RETALIATION
COMPLAINTS UNDER THE EMPLOYEE
PROTECTION PROVISION OF THE
CONSUMER FINANCIAL PROTECTION
ACT OF 2010
■ 77. The authority citation for part

1985 is revised to read as follows:
Authority: 12 U.S.C. 5567; Secretary’s
Order No. 1–2012 (Jan. 18, 2012), 77 FR 3912
(Jan. 25, 2012); Secretary’s Order No. 01–
2020.
■ 78. 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

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13101

communication transmittal will be
considered to be the date of filing; if the
petition is filed in person, by hand
delivery or other means, the petition is
considered filed upon receipt. The
petition must be served on all parties
and on the Chief Administrative Law
Judge at the time it is filed with the
ARB. Copies of the petition for review
must be served on the Assistant
Secretary and on the Associate Solicitor,
Division of Fair Labor Standards, U.S.
Department of Labor.
*
*
*
*
*
(c) The decision of the ARB will be
issued within 120 days of the
conclusion of the hearing, which will be
deemed to be 14 days after the decision
of the ALJ, unless a motion for
reconsideration has been filed with the
ALJ in the interim. In such case, the
conclusion of the hearing is the date the
motion for reconsideration is ruled
upon or 14 days after a new decision is
issued. The ARB’s decision will be
served upon all parties and the Chief
Administrative Law Judge by mail. The
decision will also be served on the
Assistant Secretary and on the Associate
Solicitor, Division of Fair Labor
Standards, U.S. Department of Labor,
even if the Assistant Secretary is not a
party.
(d) If the ARB concludes that the
respondent has violated the law, the
ARB will issue an order providing relief
to the complainant. The order will
require, where appropriate, affirmative
action to abate the violation;
reinstatement of the complainant to his
or her former position, together with the
compensation (including back pay and
interest), terms, conditions, and
privileges of the complainant’s
employment; and payment of
compensatory damages, including, at
the request of the complainant, the
aggregate amount of all costs and
expenses (including attorney and expert
witness fees) reasonably incurred.
Interest on back pay will be calculated
using the interest rate applicable to
underpayment of taxes under 26 U.S.C.
6621 and will be compounded daily.
The order will also require the
respondent to submit appropriate
documentation to the Social Security
Administration allocating any back pay
award to the appropriate calendar
quarters. Such order is subject to
discretionary review by the Secretary as
provided in Secretary’s Order 01–2020.
(e) If the ARB concludes that the
respondent has not violated the law, the
ARB will issue an order denying the
complaint. If, upon the request of the
respondent, the ARB determines that a
complaint was frivolous or was brought

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Federal Register / Vol. 85, No. 45 / Friday, March 6, 2020 / Proposed Rules

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.
■ 79. 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
■ 80. The authority citation for part

1986 is revised to read as follows:
Authority: 46 U.S.C. 2114; 49 U.S.C.
31105; Secretary’s Order 1–2012 (Jan. 18,
2012), 77 FR 3912 (Jan. 25, 2012); Secretary’s
Order No. 01–2020.
■ 81. In § 1986.110, revise paragraphs

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

lotter on DSKBCFDHB2PROD with PROPOSALS

§ 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

VerDate Sep<11>2014

18:04 Mar 05, 2020

Jkt 250001

Safety and Health, U.S. Department of
Labor.
*
*
*
*
*
(c) The decision of the ARB will be
issued within 120 days of the
conclusion of the hearing, which will be
deemed to be 14 days after the date of
the decision of the ALJ, unless a motion
for reconsideration has been filed with
the ALJ in the interim. In such case, the
conclusion of the hearing is the date the
motion for reconsideration is ruled
upon or 14 days after a new decision is
issued. The ARB’s decision will be
served upon all parties and the Chief
Administrative Law Judge by mail. The
decision also will be served on the
Assistant Secretary and on the Associate
Solicitor, Division of Occupational
Safety and Health, U.S. Department of
Labor, even if the Assistant Secretary is
not a party.
(d) If the ARB concludes that the
respondent has violated the law, the
ARB will issue an order providing relief
to the complainant. The order will
require, where appropriate, affirmative
action to abate the violation;
reinstatement of the complainant to his
or her former position, with the same
compensation, terms, conditions, and
privileges of the complainant’s
employment; payment of compensatory
damages (back pay with interest and
compensation for any special damages
sustained as a result of the retaliation,
including any litigation costs, expert
witness fees, and reasonable attorney
fees the complainant may have
incurred); and payment of punitive
damages up to $250,000. Interest on
back pay will be calculated using the
interest rate applicable to underpayment
of taxes under 26 U.S.C. 6621 and will
be compounded daily. Such order is
subject to discretionary review by the
Secretary as provided in Secretary’s
Order 01–2020.
(e) If the ARB concludes that the
respondent has not violated the law, the
ARB will issue an order denying the
complaint. Such order is subject to
discretionary review by the Secretary as
provided in Secretary’s Order 01–2020.
■ 82. 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

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Frm 00027

Fmt 4702

Sfmt 4702

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
■ 83. The authority citation for part

1987 is revised to read as follows:
Authority: 21 U.S.C. 399d; Secretary’s
Order No. 1–2012 (Jan. 18, 2012), 77 FR 3912
(Jan. 25, 2012); Secretary’s Order No. 01–
2020.
■ 84. 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
the date of the decision of the ALJ. The
date of the postmark, facsimile
transmittal, or electronic
communication transmittal will be
considered to be the date of filing; if the
petition is filed in person, by hand
delivery or other means, the petition is
considered filed upon receipt. The
petition must be served on all parties
and on the Chief Administrative Law
Judge at the time it is filed with the
ARB. Copies of the petition for review
must be served on the Assistant
Secretary and on the Associate Solicitor,
Division of Fair Labor Standards, U.S.
Department of Labor.
*
*
*
*
*
(c) The decision of the ARB will be
issued within 120 days of the
conclusion of the hearing, which will be
deemed to be 14 days after the date of
the decision of the ALJ, unless a motion
for reconsideration has been filed with
the ALJ in the interim. In such case the
conclusion of the hearing is the date the
motion for reconsideration is denied or
14 days after a new decision is issued.
The ARB’s decision will be served upon
all parties and the Chief Administrative
Law Judge by mail. The decision will
also be served on the Assistant Secretary
and on the Associate Solicitor, Division
of Fair Labor Standards, U.S.
Department of Labor, even if the
Assistant Secretary is not a party.

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(d) If the ARB concludes that the
respondent

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Adol%3Af83722a2be8d05a8. Public record. Not legal advice.