[Federal Register: October 17, 2002 (Volume 67, Number 201)]
[Notices]
[Page 64271-64273]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17oc02-116]
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Part IV
Department of Labor
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Office of the Secretary
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Delegation of Authority and Assignment of Responsibility to the
Administrative Review Board; Notice
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DEPARTMENT OF LABOR
Office of the Secretary
[Secretary's Order 1-2002]
Delegation of Authority and Assignment of Responsibility to the
Administrative Review Board
1. Purpose
To delegate authority and assign responsibility to the
Administrative Review Board, define its composition, and describe its
functions.
2. Background
The Secretary of Labor (hereinafter referred to as the
``Secretary'') has been given by statute and regulation the authority
and responsibility to decide certain appeals from administrative
decisions. The Secretary created the Administrative Review Board
(``Board'' or ``ARB'') in Secretary's Order 02-96, which delegated
authority and assigned responsibilities to the Board. Canceling
Secretary's Order 02-96, this Secretary's Order delegates authority and
assigns responsibility to the ARB with certain modifications to the
earlier Order. Specifically, this Order: (1) Increases the total
membership of the Board from a maximum of four (three Members and one
Alternate Member) to a maximum of five Members; and (2) clarifies ARB
procedural authority and further delineates the authority and
responsibilities of the Secretary. In addition, the Order codifies the
location of the ARB in the Department's organizational structure.
3. Directives Affected
Secretary's Order 02-96, delegating authority and assigning
responsibilities to the Board, is hereby canceled.
4. Delegation of Authority and Assignment of Responsibilities
The Board is hereby delegated authority and assigned responsibility
to act for the Secretary of Labor in review or on appeal of the matters
listed below, including, but not limited to, the issuance of final
agency decisions. The Board shall report to the Secretary of Labor
through the Deputy Secretary of Labor.
a. Final decisions of the Administrator of the Wage and Hour
Division or an authorized representative of the Administrator, and
final decisions of Administrative Law Judges (``ALJs''), under the
following:
(1) The Davis-Bacon Act, as amended (40 U.S.C. 276a et seq.); any
laws now existing or which may be subsequently enacted, providing for
prevailing wages determined by the Secretary of Labor in accordance
with or pursuant to the Davis-Bacon Act; the Contract Work Hours and
Safety Standards Act (40 U.S.C. 327 et seq.) (except matters pertaining
to safety); the Copeland Act (40 U.S.C. 276c); Reorganization Plan No.
14 of 1950; and 29 CFR parts 1, 3, 5, 6, subpart C and D.
b. Final decisions of the Administrator of the Wage and Hour
Division or an authorized representative of the Administrator, and from
decisions of ALJ, arising under the McNamara-O'Hara Service Contract
Act, as amended (41 U.S.C. 351); the Contract Work Hours and Safety
Standards Act (40 U.S.C. 327 et seq.) (except matters pertaining to
safety) where the contract is also subject to the McNamara-O'Hara
Service Contract Act; and 29 CFR parts 4, 5, 6, subparts B, D, E.
c. Decisions and recommended decisions by ALJs as provided for or
pursuant to the following laws and implementing regulations:
(1) Age Discrimination Act of 1975, 42 U.S.C. 6103;
(2) Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d-l; 29
CFR part 31;
(3) Clean Air Act, 42 U.S.C. 7622; 29 CFR part 24;
(4) Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. 9610; 29 CFR part 24;
(5) Title IX of the Education Amendments of 1972, 20 U.S.C. 1682;
29 CFR part 36;
(6) Employee Polygraph Protection Act of 1988, 29 U.S.C. 2005(a);
29 CFR part 801, subpart E;
(7) Energy Reorganization Act of 1974, as amended, 42 U.S.C. 5851;
29 CFR part 24;
(8) Equal Access to Justice Act, 5 U.S.C. 504; 29 CFR part 16;
(9) Executive Order No. 11246, as amended, 3 CFR 339 (1964-1965
Comp.); reprinted in 42 U.S.C. 2000e app.; 41 CFR parts 60-1 and 60-30;
(10) Fair Labor Standards Act of 1938, as amended, 29 U.S.C.
203(m); 29 CFR part 531, sections 531.4, 531.5;
(11) Fair Labor Standards Act of 1938, as amended, 29 U.S.C.
211(d); 29 CFR part 530, subpart E;
(12) Fair Labor Standards Act of 1938, as amended, 29 U.S.C. 214(c)
29 CFR part 525, sections 525.22;
(13) Fair Labor Standards Act of 1938, as amended, 29 U.S.C.
216(e); 29 CFR part 580;
(14) Federal Unemployment Tax Act, 26 U.S.C. 3303(b)(3), 3304(c);
(15) Federal Unemployment Tax Act (addressing agreements under the
Trade Act of 1974, as amended), 26 U.S.C. 3302(c)(3); 20 CFR part 617;
(16) Federal Water Pollution Control Act, 33 U.S.C. 1367; 29 CFR
part 24;
(17) Immigration and Nationality Act, as amended, 8 U.S.C.
1188(g)(2); 29 CFR part 501, subpart C;
(18) Immigration and Nationality Act, as amended, 8 U.S.C. 1182(n);
20 CFR part 655, subpart I;
(19) Immigration and Nationality Act as amended, 8 U.S.C. 1182(m)
(1989); 20 CFR part 655, subpart E;
(20) Immigration and Nationality Act as amended, 8 U.S.C. 1182(m);
20 CFR part 655, subpart M;
(21) Immigration and Nationality Act, as amended, 8 U.S.C. 1288(c)
and (d); 20 CFR part 655, subpart G;
(22) Job Training Partnership Act, 29 U.S.C. 1576; 20 CFR part 627;
20 CFR part 636; 29 CFR part 34;
(23) Longshore and Harbor Workers' Compensation Act, 33 U.S.C.
907(j)(2); 20 CFR part 702;
(24) Migrant and Seasonal Agricultural Worker Protection Act, 29
U.S.C. 1813, 1853; 29 CFR part 500, subpart F;
(25) National Apprenticeship Act, 29 U.S.C. 50; 29 CFR parts 29 and
30;
(26) Older Americans Senior Community Service Employment Program,
42 U.S.C. 3056, 20 CFR 641.415(c)(5);
(27) Program Fraud Civil Remedies Act of 1986, 31 U.S.C. 3803; 29
CFR part 22;
(28) Reports of alleged unlawful discharge or discrimination under
Section 428 of the Black Lung Benefits Act, 30 U.S.C. 938;
(29) Section 503 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. 793; 41 CFR part 60-741, subpart B;
(30) Section 504 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. 794; 29 CFR part 32;
(31) Safe Drinking Water Act, 42 U.S.C. 300j-9(i); 29 CFR part 24;
(32) Single Audit Act of 1984, 31 U.S.C. 7505; OMB Circular Nos. A-
128 and A-110; 29 CFR part 96;
(33) Social Security Act, 42 U.S.C. 503; 20 CFR part 601;
(34) Solid Waste Disposal Act, 42 U.S.C. 6971; 29 CFR part 24;
(35) Surface Transportation Assistance Act, 49 U.S.C. 31105; 29 CFR
part 1978;
(36) Toxic Substances Control Act, 15 U.S.C. 2622; 29 CFR part 24;
(37) Vietnam Era Veterans Readjustment Assistance Act, as amended,
38 U.S.C. 4211, 4212; 41 CFR part 60-250, subpart B;
(38) Wagner-Peyser Act, as amended, 29 U.S.C. 49; 20 CFR part 658;
(39) Walsh-Healey Public Contracts Act, as amended, 41 U.S.C. 38;
41 CFR part 50-203;
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(40) Welfare to Work Act, 20 CFR 645.800(c);
(41) Wendell H. Ford Aviation Investment and Reform Act of the 21st
Century, 49 U.S.C. 42121; 29 CFR part 1979;
(42) Workforce Investment Act, 29 U.S.C. 2936(b), 20 CFR 667.830;
29 CFR part 37 (see 37.110-112);
(43) Sarbanes-Oxley Act of 2002, 18 U.S.C. 1514A; and
(44) Any laws or regulation subsequently enacted or promulgated
that provide for final decisions by the Secretary of Labor upon appeal
or review of decisions, or recommended decisions, issued by ALJs.
The Board shall not have jurisdiction to pass on the validity of
any portion of the Code of Federal Regulations that has been duly
promulgated by the Department of Labor and shall observe the provisions
thereof, where pertinent, in its decisions. The Board also shall not
have jurisdiction to review decisions to deny or grant exemptions,
variations, and tolerances and does not have the authority
independently to take such actions. In issuing its decisions, the Board
shall adhere to the rules of decision and precedent applicable under
each of the laws enumerated in Sections 4(a), 4(b), and 4(c) of this
Order, until and unless the Board or other authority explicitly
reverses such rules of decision or precedent. The Board's authority
includes the discretionary authority to review interlocutory rulings in
exceptional circumstances, provided such review is not prohibited by
statute.
5. Composition and Panel Configuration
a. The Board shall consist of a maximum of five Members, one of
whom shall be designated Chair. The Members of the Board shall be
appointed by the Secretary of Labor, and shall be selected upon the
basis of their qualifications and competence in matters within the
authority of the Board.
b. Except as provided in Section 5(c), the Board shall sit, hear
cases, render decisions, and perform all other related functions in
panels of two or three Members, as may be assigned by the Chair, unless
the Chair specifically directs that an appeal or review will be decided
by the full Board.
c. Except as otherwise provided by law or duly promulgated
regulation (see, e.g., 29 CFR Parts 7 and 8), if the petitioner(s) and
the respondent(s) (or the appellant(s) and the appellees(s) consent to
disposition by a single Member, the Chair may determine that the
decision shall be by a single Member. Upon an affirmative
determination, the Chair of the Board shall, in his or her discretion,
designate himself, herself, or any other Member of the Board to decide
such an appeal under Section 7.
6. Terms of the Members
a. Members of the Board shall be appointed for a term of two years
or less.
b. Appointment of a Member of the Board to a term not to exceed a
specified time period shall not affect the authority of the Secretary
to remove, in his or her sole discretion, any Member at any time.
c. Vacancies in the membership of the Board shall not impair the
authority of the remaining Member(s) to exercise all the powers and
duties of the Board.
7. Voting
A petition for review may be granted upon the affirmative vote of
one Member, except where otherwise provided by law or regulation. A
decision in any matter, including the issuance of any procedural rules,
shall be by a majority vote, except as provided in Section 5(c).
8. Location of Board 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.
9. Rules of Practice and Procedure
The Board shall prescribe such rules of practice and procedure, as
it deems necessary or appropriate, for the conduct of its proceedings.
The rules (1) which are prescribed as of the date of this Order in 29
CFR part 7 and part 8 with respect to Sections 4(a) and 4(b),
respectively, of this Order and (2) which apply as of the date of this
Order to appeals and review described in Section 4(c) of this Order
shall, until changed, govern the respective proceedings of the Board
when it is deciding appeals described in Section 4 of this Order.
10. Departmental Counsel
The Solicitor of Labor shall have the responsibility for
representing the Secretary, the Deputy Secretary, and other officials
of the Department and/or the Board in any administrative or judicial
proceedings involving agency decisions issued pursuant to this Order,
including representing officials of the Department before the Board. In
addition, the Solicitor of Labor shall have the responsibility for
providing legal advice to the Secretary, the Deputy Secretary, and
other officials of the Department with respect to decisions covered by
this Order, as well as the implementation and administration of this
Order. The Solicitor of Labor may also provide legal advice and
assistance to the Chair of the Board, as appropriate.
11. Effective Date
This delegation of authority and assignment of responsibility is
effective immediately.
Dated: September 24, 2002.
Elaine L. Chao,
Secretary of Labor.
[FR Doc. 02-26346 Filed 10-16-02; 8:45 am]
BILLING CODE 4510-23-P