(a) Appeals of acceptances or rejections. Any interested party may
appeal ETA's acceptance or rejection of
an Attestation submitted by a facility for filing. However, such an
appeal shall be limited to ETA's determination on one or more of the
attestation elements for which ETA conducts a substantive review (as
described in Sec. 655.1130(a)). Such appeal must be filed no later than
30 days after the date of the acceptance or rejection, and will be
considered under the procedures set forth at paragraphs (d) and (f) of
this section.
(b) Appeal of invalidation or suspension. An interested party may
appeal ETA's invalidation or suspension of a filed Attestation due to a
discovery by ETA that it made an error in its review of the
Attestation, as described in Sec. 655.1132.
(c) Parties to the appeal. In the case of an appeal of an
acceptance, the facility will 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).
(d) Where to file appeals. Appeals made under this section must be
in writing and must be mailed by certified mail to: Director, Office of
Workforce Security, Employment Training Administration, U.S. Department
of Labor, Room C-4318, 200 Constitution Avenue, NW., Washington, DC
20210.
(e) Transmittal of the case file to BALCA. Upon receipt of an
appeal under this section, the Certifying Office 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.
(f) Consideration on the record; de novo hearings. BALCA may not
remand, dismiss, or stay the case, except as provided in paragraph (h)
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 who made the
determination which was appealed will 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 will apply to such hearings, except that:
(1) The appeal will not be considered to be a complaint to which an
answer is required.
(2) 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 (f)(4) of this section).
(3) 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), will 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 must be made part of the evidentiary record of the case and
need not be moved into evidence.
(4) BALCA's decision shall be rendered within 120 calendar days
after BALCA's receipt of the case file.
(g) Dismissals and stays. If 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 M. If 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 M 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 (f)(1)(iv) of this section shall be suspended.
(h) 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; and any other parties.
(i) 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.
