(a) Administrative review--(1) Consideration. Whenever an employer
has requested an administrative review before an administrative law
judge of a decision not to accept for consideration a temporary alien
agricultural labor certification application, of the denial of a
temporary alien agricultural labor certification, or of a penalty under
Sec. 655.110 of this part, the RA shall send a certified copy of the ETA
case file to the Chief Administrative Law Judge by means normally
assuring next-day delivery. The Chief Administrative Law Judge shall
immediately assign an administrative law judge (which may be a panel of
such persons designated by the Chief Administrative Law Judge from the
Board of Alien Labor Certification Appeals established by part 656 of
this chapter, but which shall hear and decide the appeal as set forth in
this section) to review the record for legal sufficiency. The
administrative law judge shall not remand the case and shall not receive
additional evidence.
(2) Decision. Within five working days after receipt of the case
file the administrative law judge shall, on the basis of the written
record and after due consideration of any written submissions submitted
from the parties involved or amici curiae, either affirm, reverse, or
modify the RA's denial by written decision. The decision of the
administrative law judge shall specify the reasons for the action taken
and shall be immediately provided to the employer, RA, the Director, and
INS by means normally assuring next-day delivery. The administrative law
judge's decision shall be the final decision of the Secretary and no
further review shall be given to the temporary alien agricultural labor
certification application or
the temporary alien agricultural labor certification determination by
any DOL official.
(b) De novo hearing--(1) Request for hearing; conduct of hearing.
Whenever an employer has requested a de novo hearing before an
administrative law judge of a decision not to accept for consideration a
temporary alien agricultural labor certification application, of the
denial of a temporary alien agricultural labor certification, or of a
penalty under Sec. 655.110 of this part, the RA shall send a certified
copy of the case file to the Chief Administrative Law Judge by means
normally assuring next-day delivery. The Chief Administrative Law Judge
shall immediately assign an administrative law judge (which may be a
panel of such persons designated by the Chief Administrative Law Judge
from the Board of Alien Labor Certification Appeals established by part
656 of this chapter, but which shall hear and decide the appeal as set
forth in this section) to conduct the de novo hearing. The procedures
contained in 29 CFR part 18 shall apply to such hearings, except that:
(i) The appeal shall not be considered to be a complaint to which an
answer is required,
(ii) The administrative law judge shall ensure that, at the request
of the employer, the hearing is scheduled to take place within five
working days after the administrative law judge's receipt of the case
file, and
(iii) The administrative law judge's decision shall be rendered
within ten working days after the hearing.
(2) Decision. After a de novo hearing, the administrative law judge
shall either affirm, reverse, or modify the RA's determination, and the
administrative law judge's decision shall be provided immediately to the
employer, RA, Director, and INS by means normally assuring next-day
delivery. The administrative law judge's decision shall be the final
decision of the Secretary, and no further review shall be given to the
temporary alien agricultural labor certification application or the
temporary alien agricultural labor certification determination by any
DOL official.
[52 FR 20507, June 1, 1987, as amended at 59 FR 41876, Aug. 15, 1994]
