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e-CFR data is current as of August 6, 2020

Title 20Chapter VPart 655Subpart E → Subject Group

Title 20: Employees' Benefits
Subpart E—Labor Certification Process for Temporary Employment in the Commonwealth of the Northern Marianas Islands (CW-1 Workers)

Post Certification Activities

§655.460   Extensions.

(a) Basis for extension. Under certain circumstances an employer may apply for extensions of the period of employment. A request for extension must be related to weather conditions or other factors beyond the control of the employer (which may include unforeseen changes in market conditions). Such requests must be supported in writing, with documentation showing that the extension is needed and that the need could not have been reasonably foreseen by the employer. The CO will not grant an extension where the total period of employment under that CW-1 Application for Temporary Employment Certification and the authorized extension would exceed the maximum applicable duration permitted under §655.420(g).

(b) Decision by the CO. The CO will notify the employer of the decision in writing. The employer may appeal a denial of a request for an extension by following the appeal procedures in §655.461.

(c) Obligations during period of extension. The CW-1 employer's assurances and obligations under the TLC will continue to apply during the extended period of employment. The employer must immediately provide to its CW-1 workers and workers in corresponding employment a copy of any approved extension.

§655.461   Administrative review.

(a) Request for review. Where authorized in this subpart, an employer wishing review of a determination by the CO must request an administrative review before BALCA of that determination to exhaust its administrative remedies. In such cases, the request for review:

(1) Must be received by BALCA, and the CO who issued the determination, within 10 business days from the date of the determination;

(2) Must clearly identify the particular determination for which review is sought;

(3) Must include a copy of the CO's determination;

(4) Must set forth the particular grounds for the request, including the specific factual issues the requesting party alleges needs to be examined in connection with the CO's determination;

(5) May contain any legal argument that the employer believes will rebut the basis for the CO's determination, including any briefing the employer wishes to submit; and

(6) May contain only such evidence as was actually before the CO at the time of the CO's determination.

(b) Appeal File. After the receipt of a request for review, the CO will send a copy of the Appeal File, as soon as practicable by means normally assuring next-day delivery, to BALCA, the employer, the employer's attorney or agent (if applicable), and the Associate Solicitor for Employment and Training Legal Services, Office of the Solicitor, U.S. Department of Labor (counsel).

(c) Assignment. The Chief ALJ will immediately, upon receipt of the appeal file from the CO, assign either a single member or a three-member panel of BALCA to consider a particular case.

(d) Administrative review—(1) Briefing schedule. If the employer wishes to submit a brief on appeal, it must do so as part of its request for review. Within 7 business days of receipt of the Appeal File, the counsel for the CO may submit a brief in support of the CO's decision and, if applicable, in response to the employer's brief.

(2) Standard of review. The ALJ must uphold the CO's decision unless shown by the employer to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.

(e) Scope of review. BALCA will, except in cases over which the Secretary has assumed jurisdiction pursuant to 29 CFR 18.95, affirm, reverse, or modify the CO's determination, or remand to the CO for further action. BALCA will reach this decision after due consideration of the documents in the Appeal File that were before the CO at the time of the CO's determination, the request for review, and any legal briefs submitted. BALCA may not consider evidence not before the CO at the time of the CO's determination, even if such evidence is in the Appeal File, request for review, or legal briefs.

(f) Decision. The decision of BALCA must specify the reasons for the action taken and must be provided to the employer, the CO, and counsel for the CO within 7 business days of the submission of the CO's brief or 10 business days after receipt of the Appeal File, whichever is later, using means normally assuring expedited delivery.

[84 FR 12431, Apr. 1, 2019, as amended at 85 FR 13029, Mar. 6, 2020; 85 FR 30615, May 20, 2020]

§655.462   Withdrawal of a CW-1 Application for Temporary Employment Certification.

(a) The employer may withdraw a CW-1 Application for Temporary Employment Certification after it has been submitted to the NPC for processing, including after the CO grants certification under §655.450. However, the employer is still obligated to comply with the terms and conditions of employment contained in the CW-1 Application for Temporary Employment Certification and work contract with respect to all workers recruited and hired in connection with that application.

(b) To request withdrawal, the employer must submit a request in writing to the NPC identifying the CW-1 Application for Temporary Employment Certification and stating the reason(s) for the withdrawal.

§655.463   Public disclosure.

The Department will maintain an electronic file accessible to the public with information on all employers applying for TLCs. The database will include such information as the number of workers requested, the date filed, the date decided, and the final disposition.

§§655.464-655.469   [Reserved]

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