[Federal Register: January 25, 2006 (Volume 71, Number 16)]
[Notices]
[Page 4219-4221]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25ja06-150]
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Part II
Department of Labor
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Delegation of Authority and Assignment of Responsibility to the
Benefits Review Board; Notice
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DEPARTMENT OF LABOR
Office of the Secretary
[Secretary's Order 03-2006]
Delegation of Authority and Assignment of Responsibility to the
Benefits Review Board
1. Purpose
To delegate authority and assign responsibility to the Benefits
Review Board, define its composition, and describe its functions.
2. Background
The Benefits Review Board (hereinafter referred to as the ``Board''
or ``BRB'') has been given by statute and regulation the authority and
responsibility to decide certain appeals raising a substantial question
of law or fact taken by any party in interest from decisions with
respect to claims for compensation or benefits under the Longshoremen's
and Harbor Workers' Compensation Act (33 U.S.C. 921), and its
extensions, as well as pneumoconiosis disability and death claims under
the provisions of Title IV of the Federal Coal Mine Health and Safety
Act of 1969 as amended (30 U.S.C. 932(a)). Provision is made under the
statute, for judicial review of final orders of the Benefits Review
Board in the United States Courts of Appeals. Pursuant to a statutory
amendment to Section 21 of the Longshoremen's and Harbor Workers'
Compensation Act, the Secretary was required to create the Board in
Secretary's Order 38-72, which delegated authority and assigned
responsibilities to the Board. A later statutory amendment made other
organizational and structural changes, including renaming the act to
the ``Longshore and Harbor Workers' Compensation Act.'' This
Secretary's Order delegates authority and assigns responsibility to the
BRB with certain modifications to Secretary's Order 38-72.
Specifically, this Order: (1) Increases the total membership of the
Board from three Members to five Members consistent with statutory
authority; and (2) codifies the location of the BRB in the Department's
organizational structure, consistent with regulatory authority.
3. Directives Affected
Secretary's Order 38-72, establishing the Benefits Review Board, is
hereby canceled.
4. Delegation of Authority and Assignment of Responsibilities
As prescribed by statute, the Board has been delegated authority
and assigned responsibility to hear and determine appeals raising a
substantial question of law or fact taken by any party in interest from
decisions with respect to claims for compensation or benefits arising
under:
A. The Longshore and Harbor Workers' Compensation Act, 33 U.S.C.
901 et seq. as amended;
B. The Defense Base Act, 42 U.S.C. 1651 et seq.;
C. The District of Columbia Workmen's Compensation Act, 36 D.C.
Code 501 et seq.;
D. The Outer Continental Shelf Lands Act, 43 U.S.C. 1331;
E. The Nonappropriated Fund Instrumentalities Act, 5 U.S.C. 8171 et
seq.;
F. Title IV, Section 415 and Part C, of the Federal Mine Health and
Safety Act of 1977, Public Law 95-164, 91 Stat. 1290 (formerly the
Federal Coal Mine Health and Safety Act, hereinafter, FCMHSA, of 1969),
as amended by the Black Lung Benefits Act Reform Act of 1977, Public
Law 92-239, 92 Stat. 95, the Black Lung Benefits Revenue Act of 1977,
Public Law 95-227, 92 Stat. 11, and the Black Lung Benefits Amendments
of 1981, Public Law 97-119, 95 Stat. 1643 (30 U.S.C. 901 et seq.).
G. Any laws or regulations subsequently enacted or promulgated that
provide for final decisions by the BRB upon appeal or review of
decisions, as directed by the Secretary, which are similar to those
listed under paragraph 4.A. through 4.F. of this section.
5. Composition, Panel Configuration, and Voting
As prescribed by statute:
A. The Board shall consist of five permanent Members, one of whom
shall be designated Chair. The Members of the Board shall be appointed
by the Secretary of Labor, and shall be especially qualified to serve
on such Board. The Chair shall have the authority as chief
administrative officer, as delegated by the Secretary, to exercise all
administrative functions necessary to operate the Board. The four
remaining permanent Members shall be the Associate Members of the
Board. Each permanent Member shall serve an indefinite term subject to
the discretion of the Secretary.
B. For the purpose of carrying out Board functions, three Members
of the Board shall constitute a quorum and official action can be taken
only on the affirmative vote of at least three Members.
C. Notwithstanding paragraph 5.(A) and (B), upon application of the
Chair of the Board, the Secretary may designate up to four Department
of Labor administrative law judges to serve on the Board as temporary
Members, for not more than one year.
D. The Board is authorized to delegate to panels of three Members
any or all of the powers which the Board may exercise. Each such panel
shall have no more than one temporary Member. Two Members shall
constitute a quorum of a panel. Official adjudicative action may be
taken only on the affirmative vote of at least two Members of a panel.
Any party aggrieved by a decision of a panel of the Board may, within
thirty days after the date of entry of the decision, petition the
entire permanent Board for review of the panel's decision. Upon
affirmative vote of the majority of the permanent Members of the Board
sitting en banc, the petition shall be granted. Notwithstanding this
paragraph, en banc action is not available in cases arising under the
District of Columbia Workmen's Compensation Act.
6. Organizational Placement
As prescribed by the statute, the functions of the Benefits Review
Board are quasi-judicial in nature and involve review of decisions made
in the course of the administration of the above statutes by the
Employment Standards Administration in the Department of Labor. The
Board is placed in and shall receive from the Office of the Deputy
Secretary necessary funds, personnel, supplies, equipment and records
services (20 CFR 801.103).
7. Questions Reviewable; Record; Conclusiveness of Findings; Stay of
Payments; Remand
As prescribed by statute:
A. The Board shall be authorized to hear and determine appeals
raising a substantial question of law or fact taken by any party in
interest from decisions with respect to claims of employees under this
Act and the extensions thereof. The Board's orders shall be based upon
the hearing record. The findings of fact in the decision under review
by the Board shall be conclusive if supported by substantial evidence
in the record considered as a whole. The payment of the amounts
required by an award shall not be stayed pending final decision in any
such proceeding unless ordered by the Board. No stay shall be issued
unless irreparable injury would otherwise ensue to the employer or
carrier.
B. The Board may, on its own motion or at the request of the
Secretary, remand a case to the administrative law judge for further
appropriate action. The consent of the parties in interest shall
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not be a prerequisite to a remand by the Board.
8. Time for Appeal to the Board
Notice of appeal must be filed within 30 days of the date the
decision or order being appealed from is filed in the office of a
district director (20 CFR 701.301(a) (7)). Such notice of appeal shall
be in writing and contain the names of the parties, docket or case
number, and the date of the decision or order appealed from.
9. Location of Board's Proceedings
The Board shall hold its proceedings in Washington, DC, unless for
good cause the Board orders that proceedings in a particular matter be
held in another location.
10. Rules and Regulations
The Deputy Secretary may promulgate such rules and regulations as
may be necessary or appropriate for effective operation of the Benefits
Review Board as an independent quasi-judicial body in accordance with
the provisions of the statute. Procedural rules for performance by the
Board of its review functions and for ensuring an adequate record for
any judicial review of its orders shall be promulgated by the Benefits
Review Board with the approval of the Deputy Secretary. Such rules
shall incorporate and implement procedural requirements of section
21(b) of the Longshore and Harbor Workers' Compensation Act, as
amended.
11. Departmental Counsel
A. Representation before the Board. On any issues requiring
representation of the Secretary, the Director, Office of Workers'
Compensation Programs, a district director, or an administrative law
judge before the Board, such representation shall be provided by
attorneys designated by the Solicitor of Labor. Representation of all
other persons before the Board shall be as provided for by statute or
by the rules of practice and procedure promulgated under Paragraph 10
of this Order (20 CFR 801.401).
B. Representation of Board in Court Proceedings. Except in
proceedings in the Supreme Court of the United States, any
representation of the Benefits Review Board in court proceedings shall
be by attorneys provided by the Solicitor of Labor (20 CFR 801.402).
12. Effective Date
This delegation of authority and assignment of responsibility is
effective immediately.
Dated: January 18, 2006.
Elaine L. Chao,
Secretary of Labor.
[FR Doc. 06-696 Filed 1-24-06; 8:45 am]
BILLING CODE 4510-23-P