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accordance with 502.34 of this part, 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 this part.
(b) A copy of the Order of Reference, together with a copy of this part, shall be served by counsel for the Secretary upon the person requesting the hearing, in the manner provided in 29 CFR 18.3.
§ 502.44 Notice of docketing.
The Chief Administrative Law Judge shall promptly notify the parties of the docketing of each matter.
§ 502.45 Service upon attorneys for the Department of Labor-number of copies.
Two (2) copies of all pleadings and other documents required for any administrative proceeding provided by this part 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
§ 502.46 Appearances; representation of the Department of Labor.
The Associate Solicitor, Division of Fair Labor Standards, and such other counsel as may be designated, shall represent the Department in any proceeding under this part.
§ 502.47 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 disposing 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 therefore, the Administrative Law Judge, within thrity (30) days thereafter, shall, if satisfied with its form and substance, accept such agreement by issuing a decision based upon the agreed findings.
§ 502.48 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 § 502.34 of this part which involve the imposition of a civil money penalty assessed for a violation of the Act or this part.
(d) The decision of the Administrative Law Judge shall include a statement of findings and conclusions, with reasons and basis therefore, 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 210A(f)(4) of the INA modifies or vacates the decision and order of the Administrative Law Judge.
(g) Except as provided in §§ 502.48 through 502.53 of this part, 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
§ 502.49 Authority of the Secretary.
The Secretary may modify or vacate the Decision and Order of the Administrative Law Judge whenever the Secretary concludes that the Decision and Order:
(a) Is inconsistent with a policy or precedent established by the Department 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.
§ 502.50 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 § 500.51. The petition shall be in writing 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.
§ 502.51 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 the Decision and Order in question.
(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.
§ 502.52 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 the Secretary. 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.
§ 502.53 Responsibility of the Office of Administrative Law Judges.
Upon receipt of the Secretary's Notice of Intent to Modify or Vacate the 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.
§ 502.54 Final decision of the Secretary.
(a) The Secretary's final decision and Order shall be issued within 120 days from the Notice of intent granting the petition, and shall be served upon all parties and the Chief Administrative Law Judge, in person or by certified mail.
(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.
§ 502.55 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 § 502.50 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, under section 210A of the INA, as provided in section 503(b)(c) of the MSPA, unless the Secretary issues a Notice of Intent pursuant to § 502.51.
(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 prior to receipt of the Secretary's Notice of Intent, the Secretary shall seek a stay of proceedings in such United States District Court.
(c) Where the Secretary has issued a Notice of Intent, the time for filing an appeal of a Decision and Order issued under this part, shall commence from the date of the issuance of the Secretary's final decision, as provided in § 502.54.
Subpart C-Emergency Procedure for Increase in Shortage Number
503.20 Request by group or association representing employers.
Subpart D-Procedure for Decreasing the
503.30 Request by group of special agricultural workers.
AUTHORITY: 8 U.S.C. 1161.
SOURCE: 55 FR 117, Jan. 2, 1990, unless otherwise noted.
Subpart A-General Provisions
§ 503.0 Introduction.
(a) Section 210 of the Immigration and Nationality Act (INA), as added by section 302 of the Immigration Reform and Control Act of 1986 (IRCA), established the special agricultural worker (SAW) program. Under this program, aliens could apply (during the 18-month period ending November 30, 1988) to have their status adjusted to that of an alien lawfully admitted for temporary residence, provided they could demonstrate residence in the United States and performance of seasonal agricultural services (SAS) for at least 90 man-days during the 12-month period ending May 1, 1986. While employment in SAS was required in order to qualify for SAW status, there is no requirement that SAWS continue to work in agriculture. Because SAWS may seek employment in any occupation or industry, the INA provides a framework for admitting additional aliens to work in SAS if a shortage of workers develops.
(b) Pursuant to section 210A(a)(1) of the INA, before the beginning of each fiscal year (FY), beginning with FY 1990 and ending with FY 1993, the Secretaries of Agriculture and Labor (the Secretaries) shall determine jointly the number (if any) of additional aliens who should be admitted to the United States or who should otherwise acquire the status of aliens lawfully admitted for temporary residence under section 210A of the INA during the FY to meet a shortage of workers to perform SAS. Such number is
known as the "shortage number", which may not exceed the annual numerical limitation on the admission of additional SAWS, known in this part as replenishment agricultural workers (RAWS).
(c) This part sets forth the procedure that will be used by the Secretaries in making a determination of the shortage number, and of the annual numerical limitation. This part also establishes the procedure which a group or association of employers of individuals who work in SAS must use in order to request the Secretaries to increase the shortage number. Further, this part sets forth the procedure through which a group of RAWS may request the Secretaries to decrease the number of work-days of employment required for a given FY in order to maintain their temporary resident alien status.
§ 503.1 Purpose and scope.
(a) This part has a narrow focus. It is based in part on regulations already promulgated by the United States Department of Labor (DOL), the United States Department
(USDA), and the Immigration and Naturalization Service (INS), all of which have responsibilities under the INA. Where appropriate in this part, reference will be made to existing regulations and their location.
(b) Section 210A(a)(1) of the INA requires action by the Secretaries to determine the shortage number. That number will become the basis upon which the Attorney General will provide for the admission for lawful temporary resident status, or for the adjustment of status to lawful temporary resident status, of a number of aliens. The number (if any) of such aliens to be admitted will be the lesser of the shortage number or the annual numerical limitation on admission of additional SAWS, which is set by formula in section 210A(b) of the INA. These additional SAWs are known as RAWS and may be admitted beginning with FY 1990.
(c) This part establishes the procedure by which the Secretaries will use available information to make the determination required by the INA. This part is not concerned with the proce
For purposes of this part:
(a) Act and INA mean the Immigration and Nationality Act (8 U.S.C. 1101, et seq.), as amended by the Immigration Reform and Control Act of 1986 (IRCA), with reference particularly to sections 210 and 210A (8 U.S.C. 1160 and 1161).
(b) Alien 'A' Number refers to an INS Alien Registration Number assigned to each alien.
(c) Annual numerical limitation refers to the upper limit on the number of aliens who may be admitted as RAWS in any FY and is set by stat utory formula in section 210A(b) of INA. If the shortage number determined under this part exceeds the annual numerical limitation, the number of aliens who may be admitted, or have their status adjusted, cannot exceed the annual numerical limitation.
(d) Director means the Director of the Bureau of the Census, United States Department of Commerce.
(e) DOL means the United States Department of Labor.
(f) Immigration and Naturalization Service (INS) is the agency within the United States Department of Justice which is responsible for administering the INA.
(g) Replenishment Agricultural Worker (RAW) is an alien identified with an INS Alien Registration Number in the A94000000 series (A94 followed by any six digits) who is admitted during FY 1990 through FY 1993 for lawful temporary resident alien status or whose status is adjusted to that of an alien lawfully admitted for temporary residence, in accordance with section 210A of the INA, to meet a shortage of workers employed in SAS.
(h) Reportable Worker is an alien employed in SAS who is admitted with lawful temporary resident alien status or whose status is adjusted to that of an alien lawfully admitted for temporary residence, and who is identified by an INS Alien Registration Number