(a) Availability.

1. (1)

   1. (i) Review of the decision of the Administrative Law Judge by the Secretary's designee is not a right. The Secretary's designee may, in his or her discretion, review the decision of the Administrative Law Judge on the petition of either the respondent or the Director, or upon his or her own motion. The Secretary's designee shall determine whether to review a decision:

      1. (A) If a petition for review has been filed by the respondent or the Director, not later than 30 days after that date the Administrative Law Judge filed his or her report with the Secretary's designee pursuant to paragraph (b)(2) of this section; or
      2. (B) If no petition for review has been filed by the respondent or the Director, not later than 40 days after the date the Administrative Law Judge filed his or her decision with the Secretary's designee pursuant to paragraph (b)(1) of this section.

   2. (ii) In determining whether to review a decision upon petition of the respondent or the Director, the Secretary's designee shall consider whether the petition for review makes a reasonable showing that:

      1. (A) A prejudicial error was committed in the conduct of the proceeding; or

      2. (B) The decision embodies:

         (1) A finding or conclusion of material fact that is clearly erroneous;

         (2) A conclusion of law that is erroneous; or

         (3) An exercise of discretion or decision of law or policy that is important and that the Secretary's designee should review.

2. (2) Interlocutory review of ruling. The Secretary's designee shall review any ruling of an Administrative Law Judge involving privileged or confidential material that is the subject of a petition for review. See § 501.725.