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termination to the last known address of the individual, officer, or attorney. If done by certified mail, service is complete upon mailing. If done by regular mail or in person, service is complete upon receipt by the addressee or the addressee's representative;
(b) Time will be computed beginning with the day following the action and includes the last day of the period unless it is a Saturday, Sunday, or Federally observed holiday, in which case the time period includes the next business day; and
(c) When a request for hearing is filed by mail, five (5) days shall be added to the prescribed period during which the party has the right to request a hearing on the determination. [54 FR 13329, Mar. 31, 1989]
§ 500.221 Commencement of proceeding.
Each administrative proceeding permitted under the Act and these regulations shall be commenced upon receipt of a timely request for hearing filed in accordance with § 500.212.
§ 500.222 Designation of record.
Except as provided in paragraph (c) of this section:
(a) Each administrative proceeding instituted under the Act and these regulations shall be identified of record by a number preceded by the year and the letters "MSPA" and followed by one or more of the following designations:
(1) Proceedings involving the "refusal to issue or to renew, or to suspend or to revoke Certificate of Registration" shall be designated as "R".
(2) Proceedings involving the "assessment of civil money penalties" shall be designated as "P".
(3) Proceedings involving both Certificate of Registration and assessment of civil money penalties shall be designated as "R and P".
(b) The number, letter(s), and designation assigned to each such proceeding shall be clearly displayed on each pleading, motion, brief, or other formal document filed and docketed of record.
(c) Each administrative proceeding involving violations of FLCRA prior to April 14, 1983 and filed with the Office of the Chief Administrative Law Judge
on or after April 14, 1983, shall be identified of record by a number preceded by the year and the letters "FLCRA-MSPA" and followed by one or more of the letter designations provided in paragraphs (a)(1) through (a)(3) of this section, i.e., (year) FLCRA-MSPA-(#)-(R and/or P).
§ 500.223 Caption of proceeding.
(a) Each administrative proceeding instituted under the Act and these regulations shall be captioned in the name of the person requesting such hearing, and shall be styled as follows:
In The Matter of —, Respondent.
(b) For the purposes of such administrative proceeding the "Secretary of Labor" shall be identified as plaintiff and the person requesting such hearing shall be named as respondent.
REFERRAL FOR HEARING
§ 500.224 Referral to Administrative Law Judge.
(a) Upon receipt of a timely request for a hearing filed pursuant to and in accordance with § 500.212, the Secretary, by the Associate Solicitor for the Division of Fair Labor Standards or by the Regional Solicitor for the Region in which the action arose, shall, by Order of Reference, promptly refer an authenticated copy of the notice of administrative determination complained of, and the original or a duplicate copy of the request for hearing signed by the person requesting such hearing or by the authorized representative of such person, to the Chief Administrative Law Judge, for a determination in an administrative proceeding as provided herein. The notice of administrative determination and request for hearing shall be filed of record in the Office of the Chief Administrative Law Judge and shall, respectively, be given the effect of a complaint and answer thereto for purposes of the administrative proceeding, subject to any amendment that may be permitted under these regulations.
(b) A copy of the Order of Reference, together with a copy of these regulations, shall be served by counsel for the Secretary upon the person re
questing the hearing, in the manner provided in 29 CFR 18.3.
§ 500.225 Notice of docketing.
The Chief Administrative Law Judge shall promptly notify the parties of the docketing of each matter.
§ 500.226 Service upon attorneys for the Department of Labor-number of copies.
Two copies of all pleadings and other documents required for any administrative proceeding provided herein shall be served on the attorneys for the Department of Labor. One copy shall be served on the Associate Solicitor, Division of Fair Labor Standards, Office of the Solicitor, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210, and one copy on the Attorney representing the Department in the proceeding.
PROCEDURES BEFORE ADMINISTRATIVE LAW JUDGE
§ 500.231 Appearances; representation of the Department of Labor.
The Associate Solicitor, Division of Fair Labor Standards, and such other counsel, as designated, shall represent the Secretary in any proceeding under these regulations.
§ 500.232 Consent findings and order.
(a) General. At any time after the commencement of a proceeding under this part, but prior to the reception of evidence in any such proceeding, a party may move to defer the receipt of any evidence for a reasonable time to permit negotiation of an agreement containing consent findings and an order disposing of the whole or any part of the proceeding. The allowance of such deferment and the duration thereof shall be at the discretion of the Administrative Law Judge, after consideration of the nature of the proceeding, the requirements of the public interest, the representations of the parties, and the probability of an agreement being reached which will result in a just disposition of the issues involved.
(b) Content. Any agreement containing consent findings and an order dis
posing of a proceeding or any part thereof shall also provide:
(1) That the order shall have the same force and effect as an order made after full hearing;
(2) That the entire record on which any order may be based shall consist solely of the notice of administrative determination (or amended notice, if one is filed), and the agreement;
(3) A waiver of any further procedural steps before the Administrative Law Judge; and
(4) A waiver of any right to challenge or contest the validity of the findings and order entered into in accordance with the agreement.
(c) Submission. On or before the expiration of the time granted for negotiations, the parties or their authorized representatives or their counsel may:
(1) Submit the proposed agreement for consideration by the Administrative Law Judge; or
(2) Inform the Administrative Law Judge that agreement cannot be reached.
(d) Disposition. In the event an agreement containing consent findings and an order is submitted within the time allowed therefor, the Administrative Law Judge, within thirty (30) days thereafter, shall, if satisfied with its form and substance, accept such agreement by issuing a decision based upon the agreed findings.
§ 500.262 Decision and order of Administrative Law Judge.
(a) The Administrative Law Judge shall prepare, as promptly as practicable after the expiration of the time set for filing proposed findings and related papers a decision on the issues referred by the Secretary.
(b) The decision of the Administrative Law Judge shall be limited to a determination whether the respondent has violated the Act or these regulations, and the appropriateness of the remedy or remedies imposed by the Secretary. The Administrative Law Judge shall not render determinations on the legality of a regulatory provision or the constitutionality of a statutory provision.
(c) The decision of the Administrative Law Judge, for purposes of the Equal Access to Justice Act (5 U.S.C. 504), shall be limited to determinations of attorney fees and/or other litigation expenses in adversary proceedings requested pursuant to § 500.212 which involve the modification, suspension or revocation of a Certificate of Registration issued under the Act and these Regulations, and/or the imposition of a civil money penalty assessed for a violation of the Act or these Regulations. The Administrative Law Judge shall have no power or authority to award attorney fees and/or other litigation expenses pursuant to the provisions of the Equal Access to Justice Act or Regulations issued thereunder in any proceeding under MSPA or these Regulations involving the refusal to issue or renew a Certificate of Registration.
(d) The decision of the Administrative Law Judge shall include a statement of findings and conclusions, with reasons and basis therefor, upon each material issue presented on the record. The decision shall also include an appropriate order which may be to affirm, deny, reverse, or modify, in whole or in part, the determination of the Secretary. The reason or reasons for such order shall be stated in the decision.
(e) The Administrative Law Judge shall transmit to the Chief Administrative Law Judge the entire record including the decision. The Chief Administrative Law Judge shall serve copies of the decision on each of the parties.
(f) The decision when served shall constitute the final order of the Secretary unless the Secretary, pursuant to section 103(b)(2) or section 503(b)(2) of the Act, modifies or vacates the decision and order of the Administrative Law Judge.
(g) Except as provided in §§ 500.263 through 500.268, the administrative remedies available to the parties under the Act will be exhausted upon service of the decision of the Administrative Law Judge.
MODIFICATION OR VACATION OF ORDER
OF ADMINISTRATIVE LAW JUDGE
§ 500.263 Authority of the Secretary.
The Secretary may modify or vacate the Decision and Order of the Administrative Law Judge whenever he concludes that the Decision and Order:
(a) Is inconsistent with a policy or precedent established by the Depart-i ment of Labor,
(b) Encompasses determinations not within the scope of the authority of the Administrative Law Judge,
(c) Awards attorney fees and/or other litigation expenses pursuant to the Equal Access to Justice Act which are unjustified or excessive, or
(d) Otherwise warrants modifying or vacating.
[54 FR 13330, Mar. 31, 1989]
§ 500.264 Procedures for initiating review.
(a) Within twenty (20) days after the date of the decision of the Administrative Law Judge, the respondent, the Administrator, or any other party desiring review thereof, may file with the Secretary an original and two copies of a petition for issuance of a Notice of Intent as described under § 500.265. The petition shall be in writ ing and shall contain a concise and plain statement specifying the grounds on which review is sought. A copy of the Decision and Order of the Administrative Law Judge shall be attached to the petition.
(b) Copies of the petition shall be served upon all parties to the proceeding and on the Chief Administrative Law Judge.
[54 FR 13330, Mar. 31, 1989]
§ 500.265 Implementation by the Secretary.
(a) Whenever, on the Secretary's own motion or upon acceptance of a party's petition, the Secretary believes that a Decision and Order may warrant modifying or vacating, the Secretary shall issue a Notice of Intent to modify or vacate.
(b) The Notice of Intent to Modify or Vacate a Decision and Order shall specify the issue or issues to be considered, the form in which submission
shall be made (i.e., briefs, oral argument, etc.), and the time within which such presentation shall be submitted. The Secretary shall closely limit the time within which the briefs must be filed or oral presentations made, so as to avoid unreasonable delay.
(c) The Notice of Intent shall be issued within thirty (30) days after the date of the Decision and Order in question.
(d) Service of the Notice of Intent shall be made upon each party to the proceeding, and upon the Chief Administrative Law Judge, in person or by certified mail.
[54 FR 13330, Mar. 31, 1989]
§ 500.266 Responsibility of the Office of Administrative Law Judges.
Upon receipt of the Secretary's Notice of Intent to Modify or Vacate a Decision and Order of an Administrative Law Judge, the Chief Administrative Law Judge shall, within fifteen (15) days, index, certify and forward a copy of the complete hearing record to the Secretary.
[48 FR 36741, Aug. 21, 1983. Redesignated at 54 FR 13330, Mar. 31, 1989]
§ 500.267 Filing and service.
(a) Filing. All documents submitted to the Secretary shall be filed with the Secretary of Labor, U.S. Department of Labor, Washington, DC 20210.
(b) Number of copies. An original and two copies of all documents shall be filed.
(c) Computation of time for delivery by mail. Documents are not deemed filed with the Secretary until actually received by that office. All documents, including documents filed by mail, must be received by the Secretary either on or before the due date.
(d) Manner and proof of service. A copy of all documents filed with the Secretary shall be served upon all other parties involved in the proceeding. Service under this section shall be by personal delivery or by mail. Service by mail is deemed effected at the time of mailing to the last known address.
[54 FR 13330, Mar. 31, 1989]
§ 500.268 Final decision of the Secretary.
(a) The Secretary's final decision shall be issued and forwarded to the Chief Administrative Law Judge for service upon the parties to such proceeding. Such service shall be made in accordance with paragraph (b) of this section.
(b) Upon receipt of an Order of the Secretary modifying or vacating the Decision and Order of an Administrative Law Judge, the Chief Administrative Law Judge shall substitute such Order for the Decision and Order of the Administrative Law Judge and serve same upon each party to the proceeding.
[54 FR 13330, Mar. 31, 1989]
§ 500.269 Stay pending decision of the Secretary.
(a) The filing of a petition seeking review by the Secretary of a Decision and Order of an Administrative Law Judge, pursuant to § 500.264, does not stop the running of the thirty-day time limit in which respondent may file an appeal to obtain a review in the United States District Court of an administrative order, as provided in section 103(b)(2) or section 503(b)(2) of the Act, unless the Secretary issues a Notice of Intent pursuant to § 500.265.
(b) In the event a respondent has filed a notice of appeal of the Administrative Law Judge's Decision and Order in a United States District Court and the Secretary issues & Notice of Intent, the Secretary will seek a stay of proceedings in the Court until such time as the Secretary issues the final decision, as provided in § 500.268.
(c) Where the Secretary has issued a Notice of Intent, the time for filing an appeal under sections 103(b)(2) or 503(b)(2) of the Act shall commence from the date of the issuance of the Secretary's final decision, as provided in § 500.268.
[54 FR 13330, Mar. 31, 1989]
§ 500.270 Retention of official record. The official record of every completed administrative hearing provided by
501.33 Request for hearing.
RULES OF PRACTICE
501.35 Commencement of proceeding. 501.36 Caption of proceeding.
REFERRAL FOR HEARING
501.37 Referral to Administrative Law Judge.
501.38 Notice of docketing.
501.39 Service upon attorneys for the Department of Labor-number of copies. PROCEDURES BEFORE ADMINISTRATIVE LAW
501.40 Consent findings and order.
501.41 Decision and order of Administrative Law Judge.
REVIEW OF ADMINISTRATIVE LAW JUDGE'S DECISION
501.42 Procedures for initiating and undertaking review.
501.43 Responsibility of the Office of Administrative Law Judges.
501.44 Additional information, if required. 501.45 Final decision of the Secretary.
501.46 Retention of official record. 501.47 Certification.
AUTHORITY: 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1186.
SOURCE: 52 FR 20527, June 1, 1987, unless otherwise noted.
Subpart A-General Provisions
8 501.0 Introduction.
These regulations cover the enforcement of all contractual obligations provisions applicable to the employment of H-2A workers under section 216 of the Immigration and Nationality Act (INA), as amended by the Immigration Reform and Control Act of 1986 (IRCA). These regulations are also applicable to the employment of other workers hired by employers of H-2A workers in the occupations and for the period of time set forth in the job order approved by ETA as a condition for granting H-2A certification, including any extension thereof. Such other workers hired by H-2A employ