(a) Appeal right--(1) Attestations; when to file appeals from
acceptances and rejections. On the basis that the explanation and
documentation provided and maintained by the facility does not or did
not meet the criteria set forth at Sec. 655.310(d)(2)(ii),
(g)(1)(i)(B)(5), (g)(1)(ii), or (k)(3)(iii), an interested party may
appeal an acceptance or rejection by ETA of an attestation submitted by
a facility for filing in those cases where DOL performed an attestation
review function under those provisions. The appeal shall be limited to
ETA's determinations on the element(s) reviewed and shall not be an
appeal as to any other element(s) in the attestation. An interested
party may also appeal ETA's invalidation or suspension of a filed
attestation due to a discovery by ETA that it made an error in its
reviewing of the attestation (see Sec. 655.310(o). In the case of an
appeal of an acceptance, the facility shall be a party to the appeal; in
the case of the appeal of a rejection, invalidation, or suspension, the
collective bargaining representative (if any) representing nurses at the
facility shall be a party to the appeal. Appeals shall be in writing;
shall set forth the grounds for the appeal; shall state if de novo
consideration by BALCA is requested; and shall be mailed by certified
mail within 30 calendar days of the date of the action from which the
appeal is taken (i.e., the acceptance, rejection, suspension or
invalidation of the attestation).
(2) Annual State plans; when to file appeals from disapprovals. A
Governor of a State may appeal ETA's disapproval of an annual State
plan. Individual facilities in the State may file briefs as amici
curiae. Appeals shall be in writing and shall be mailed by certified
mail within 30 calendar days of the disapproval of the annual State
plan.
(3) Where to file appeals. Appeals made pursuant to this section
shall be in writing and shall be mailed by certified mail to: Director,
U.S. Employment Service, Employment and Training Administration,
Department of Labor, 200
Constitution Avenue, NW., Room N-4456, Washington, DC 20210.
(4) Complaints. Appeals under this paragraph (a) shall not encompass
questions of misrepresentation by a health care facility or
nonperformance by such a facility of its attestation. Such complaints
shall be filed with an office of the Wage and Hour Division, United
States Department of Labor.
(b) Transmittal to BALCA; case file. Upon receipt of an appeal
pursuant to this section, the Certifying Officer (or, in the case of
State plans, the Director, USES), shall send to BALCA a certified copy
of the ETA case file, containing the attestation and supporting
documentation and any other information or data considered by ETA in
taking the action being appealed. The administrative law judge chairing
BALCA shall assign a panel of one or more administrative law judges who
serve on BALCA to review the record for legal sufficiency and to
consider and rule on the appeal.
(c) Consideration on the record; de novo hearings--(1) General.
BALCA shall not remand, dismiss, or stay the case, except as provided in
paragraph (c)(2) of this section, but may otherwise consider the appeal
on the record or in a de novo hearing (on its own motion or on a party's
request). Interested parties and amici curiae may submit briefs in
accordance with a schedule set by BALCA. The ETA official making the
determination from which the appeal was taken shall be represented by
the Associate Solicitor for Employment and Training Legal Services,
Office of the Solicitor, Department of Labor, or the Associate
Solicitor's designee. If BALCA determines to hear the appeal on the
record without a de novo hearing, BALCA shall render a decision within
30 calendar days after BALCA's receipt of the case file. If BALCA
determines to hear the appeal through a 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) BALCA shall ensure that, at the request of the appellant, the
hearing is scheduled to take place within a reasonable period after
BALCA's receipt of the case file (see also the time period described in
paragraph (c)(1)(iv) of this section);
(iii) Technical rules of evidence, such as the Federal Rules of
Evidence and subpart B of the Rules of Practice and Procedure for
Administrative Hearings Before the Office of Administrative Law Judges
(29 CFR part 18, subpart B), shall not apply to any hearing conducted
pursuant to this subpart, but rules or principles designed to assure
production of the most credible evidence available and to subject
testimony to test by cross-examination shall be applied where reasonably
necessary by BALCA in conducting the hearing; BALCA may exclude
irrelevant, immaterial, or unduly repetitious evidence; the certified
copy of the case file transmitted to BALCA by the Certifying Officer
(or, in the case of State plans, the Director, USES), shall be part of
the evidentiary record of the case and need not be removed into
evidence; and
(iv) BALCA's decision shall be rendered within 120 calendar days
after BALCA's receipt of the case file.
(2) Dismissals and stays. If the BALCA determines that the appeal is
solely a question of misrepresentation by the facility or is solely a
complaint of the facility's nonperformance of the attestation, BALCA
shall dismiss the case and refer the matter to the Administrator, Wage
and Hour Division, for action under subpart E. If the BALCA determines
that the appeal is partially a question of misrepresentation by the
facility or is partially a complaint of the facility's nonperformance of
the attestation, BALCA shall refer the matter to the Administrator, Wage
and Hour Division, for action under Subpart E of this part and shall
stay BALCA consideration of the case pending final agency action on such
referral. During such stay, the 120-day period described in paragraph
(c)(1)(iv) of this section shall be suspended.
(d) BALCA's decision. After consideration on the record or a de novo
hearing, BALCA shall either affirm or reverse ETA's decision, and shall
so notify the appellant; the Director, if the affirmation or denial
involves a State plan; Certifying Officer; Chief, Division of Foreign
Labor Certifications; and
any other parties. See Sec. 655.450 custody of the record of the appeal.
(e) Decisions on attestations. With respect to an appeal of the
acceptance, rejection, suspension or invalidation of an attestation, the
decision of BALCA shall be the final decision of the Secretary, and no
further review shall be given to the matter by any DOL official.
(f) Decisions on annual State plans. With respect to an appeal of
the disapproval of an annual State plan, the decision of BALCA shall be
the final decision by the Secretary, unless a petition for review of the
BALCA decision is filed with the Secretary and the Secretary determines
to review the decision.
(1) Filing of petition for review. The Director or the State
desiring review of the decision and order of BALCA may petition the
Secretary to review the decision and order. To be effective, such
petition shall be received by the Secretary within 30 days of the date
of the decision and order. Copies of the petition shall be served on all
parties and on BALCA.
(2) Form of petition for review. No particular form is prescribed
for any petition for Secretary's review permitted by this paragraph (f).
However, any such petition shall:
(i) Be dated;
(ii) Be typewritten or legibly written;
(iii) Specify the issue or issues stated in the BALCA decision and
order giving rise to such petition;
(iv) State the specific reason or reasons why the party petitioning
for review believes such decision and order are in error;
(v) Be signed by the party filing the petition or by an authorized
representative of such party;
(vi) Include the address at which such party or authorized
representative desires to receive further communications relating
thereto; and
(vii) Attach copies of BALCA's decision and order, and any other
record documents which would assist the Secretary in determining whether
review is warranted.
(3) Notice of determination to review. Whenever the Secretary
determines to review the decision and order of BALCA on an annual State
plan, a notice of the Secretary's determination to do so shall be served
upon BALCA and upon all parties to the proceeding within 30 days after
the Secretary's receipt of the petition for review.
(4) Hearing record. Upon receipt of the Secretary's notice, BALCA
shall within 15 days forward the complete hearing record to the
Secretary.
(5) Contents of Secretary's notice. The Secretary's notice shall
specify:
(i) The issue or issues to be reviewed;
(ii) The form in which submissions shall be made by the parties; and
(iii) The time within which such submissions shall be made.
(6) Filing of documents. All documents submitted to the Secretary
pursuant to this paragraph (f) shall be filed with the Secretary of
Labor, U.S. Department of Labor, Washington, DC 20210, Attention:
Executive Director, Office of Administrative Appeals, Room S-4309. An
original and two copies of all documents shall be filed. Documents are
not deemed filed with the Secretary until actually received by the
Secretary. All documents, including documents filed by mail, shall be
received by the Secretary either on or before the due date.
(7) Service of documents. Copies of all documents filed with the
Secretary pursuant to this paragraph (f) shall be served simultaneously
upon all other parties involved in the proceeding. Service upon the
Director shall be in accordance with paragraph (a)(3) of this section.
(8) Secretary's decision. The Secretary's final decision pursuant to
this paragraph (f) shall be issued within 180 days from the date of the
notice of intent to review. The Secretary's decision shall be served
upon all parties and BALCA.
(9) Transmittal of record. Upon issuance of the Secretary's decision
under this paragraph (f), the Secretary shall transmit the entire record
to the Chief Administrative Law Judge for custody pursuant to
Sec. 655.450.
