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Federal Register / Vol. 86, No. 138 / Thursday, July 22, 2021 / Proposed Rules may be made as necessary to make them conform to the evidence. Proposed 23.530b further provides that the presiding ALJ can, upon reasonable notice and upon such terms as are just, permit supplemental pleadings setting forth transactions, occurrences, or events which had happened since the date of the pleadings and which are relevant to any of the issues involved.
It also authorizes the ALJ to grant a continuance in the hearing, or leave the record open, to enable the new allegations to be addressed.

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Section 23.540 Consent Findings and Order Proposed 23.540, which the Department derived from 29 CFR 6.18
and 6.32, provides a process whereby parties may at any time prior to the ALJs receipt of evidence or, at the ALJs discretion, at any time prior to issuance of a decision, agree to dispose of the matter, or any part thereof, by entering into consent findings and an order.
Proposed 23.540b identifies four requirements of any agreement containing consent findings and an order. Proposed 23.540c provides that within 30 calendar days of receipt of any proposed consent findings and order, the ALJ will accept the agreement by issuing a decision based on the agreed findings and order, provided the ALJ is satisfied with the proposed agreements form and substance.
Section 23.550 Proceedings of the Administrative Law Judge Proposed 23.550, which the Department primarily derived from 29
CFR 6.19 and 6.33, addresses the ALJs proceedings and decision. Proposed 23.550a provides that the Office of Administrative Law Judges has jurisdiction to hear and decide appeals concerning questions of law and fact from the Administrators determinations issued under 23.510 or 23.520. It further provides that any party can, when requesting an appeal or during the pendency of a proceeding on appeal, timely move an ALJ to consolidate a proceeding initiated thereunder with a proceeding initiated under the SCA or DBA. The purpose of the proposed language is to allow the Office of Administrative Law Judges and interested parties to efficiently dispose of related proceedings arising out of the same contract with the Federal Government.
Proposed 23.550b provides that each party may file with the ALJ
proposed findings of fact, conclusions of law, and a proposed order, together with a brief, within 20 calendar days of filing of the transcript or a longer period if
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the ALJ permits. It also provides that each party would serve such proposals and brief on all other parties.
Proposed 23.550c1 requires an ALJ to issue a decision within a reasonable period of time after receipt of the proposed findings of fact, conclusions of law, and order, or within 30 calendar days after receipt of an agreement containing consent findings and an order disposing of the matter in whole. It further provides that the decision must contain appropriate findings, conclusions of law, and an order and be served upon all parties to the proceeding. Proposed 23.550c2
provides that if the Administrator requested debarment, and the ALJ
concludes the contractor has violated the Executive order or part 23, the ALJ
will issue an order regarding whether the contractor is subject to the ineligible list that would include any findings related to the contractors disregard of its obligations to workers or subcontractors under the Executive order or part 23.
Proposed 23.550d provides that the Equal Access to Justice Act EAJA, as amended, 5 U.S.C. 504, does not apply to proceedings under part 23. The proceedings proposed in subpart E are not required by an underlying statute to be determined on the record after an opportunity for an agency hearing.
Therefore, an ALJ has no authority to award attorneys fees and/or other litigation expenses pursuant to the provisions of the EAJA for any proceeding under part 23.
Proposed 23.550e provides that if the ALJ concludes a violation occurred, the final order will require action to correct the violation, including, but not limited to, monetary relief for unpaid wages. It also requires an ALJ to determine whether an order imposing debarment is appropriate, if the Administrator has sought debarment.
Proposed 23.550f provides that the ALJs decision will become the final order of the Secretary, provided a party does not timely appeal the matter to the ARB.
Section 23.560 Petition for Review Proposed 23.560, which the Department derived from 29 CFR 6.20
and 6.34, describes the process to apply to petitions for review to the ARB from ALJ decisions. Proposed 23.560a provides that within 30 calendar days after the date of the decision of the ALJ, or such additional time as the ARB
granted, any party aggrieved thereby who desires review must file a petition for review with supporting reasons in writing to the ARB with a copy thereof to the Chief ALJ. It further requires that
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the petition refer to the specific findings of fact, conclusions of law, and order at issue and that a petition concerning a debarment decision state the disregard of obligations to workers and subcontractors, or lack thereof, as appropriate. It additionally requires a party to serve the petition for review, and all briefs, on all parties and on the Chief ALJ. It also states a party must timely serve copies of the petition and all briefs on the Administrator and the Associate Solicitor, Division of Fair Labor Standards, Office of the Solicitor, U.S. Department of Labor.
Proposed 23.560b provides that if a party files a timely petition for review, the ALJs decision will be inoperative unless and until the ARB issues an order affirming the letter or decision, or the letter or decision otherwise becomes a final order of the Secretary. It further provides that if a petition for review concerns only the imposition of debarment, the remainder of the decision will be effective immediately.
Proposed 23.560b additionally states that judicial review will not be available unless a timely petition for review to the ARB is first filed. Failure of the aggrieved party to file a petition for review with the ARB within 30 calendar days of the ALJ decision will render the decision final, without further opportunity for appeal.
Section 23.570 Administrative Review Board Proceedings Proposed 23.570, which the Department derived primarily from 29
CFR 10.57, outlines the ARB
proceedings under the Executive order.
Proposed 23.570a1 states the ARB
has jurisdiction to hear and decide in its discretion appeals from the Administrators investigative findings letters issued under 23.510c1 or 2, Administrators rulings issued under 23.580, and from ALJ decisions issued under 23.550. Proposed 23.570a2
identifies the limitations on the ARBs scope of review, including a restriction on passing on the validity of any provision of part 23, a general prohibition on receiving new evidence in the record because the ARB is an appellate body and must decide cases before it based on substantial evidence in the existing record, and a bar on granting attorneys fees or other litigation expenses under the EAJA.
Proposed 23.570b requires the ARB
to issue a final decision within a reasonable period of time following receipt of the petition for review and to serve the decision by mail on all parties at their last known address, and on the Chief ALJ, if the case involves an appeal from an ALJs decision. Proposed
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