[Federal Register Volume 77, Number 222 (Friday, November 16, 2012)]
[Notices]
[Pages 69377-69380]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-27805]
[[Page 69377]]
Vol. 77
Friday,
No. 222
November 16, 2012
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
Federal Register / Vol. 77, No. 222 / Friday, November 16, 2012 /
Notices
[[Page 69378]]
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DEPARTMENT OF LABOR
Office of the Secretary
[Secretary's Order 02-2012]
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. Authorities. This Order is issued under the authority of 5
U.S.C. 301 (Departmental Regulations); 29 U.S.C. 551 et seq.
(Establishment of Department; Secretary; Seal); Reorganization Plan No.
6 1950 (5 U.S.C. App. 1 Reorg. Plan 6 1950); and the authorities cited
in Section 5 of this Order.
3. Background. The Secretary of Labor (``Secretary'') has 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.
Secretary's Order 01-2002 delegated this authority and assigned
responsibility to the ARB, defined and expanded its composition,
clarified ARB procedural authorities, and codified the location of the
ARB in the Department's organizational structure. Secretary's Order 01-
2010, then, created and designated a Vice-Chair to maintain and operate
the Board during a Chair's absence or vacancy. Additionally, S.O. 01-
2010 delegated the responsibility for the operational management of the
Board and its affairs to the newly created Vice-Chair. This Order would
provide updates to the delegation of authority and assignment of
responsibilities laid out in the previous orders.
4. Directives Affected. Secretary's Order 01-2010 is hereby
canceled.
5. 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, 40 U.S.C. Sec. 3141 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. Sec. 3701 et seq. (except matters pertaining
to safety); the Copeland Act, 40 U.S.C. Sec. 3145; 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
decisions of ALJs, arising under the McNamara-O'Hara Service Contract
Act, as amended, 41 U.S.C. Sec. 6701 et seq.; the Contract Work Hours
and Safety Standards Act, 40 U.S.C. Sec. 3701 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. Sec. 6103;
(2) Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d-l; 29
CFR Part 31;
(3) Civil Service Reform Act of 1978, 5 U.S.C. Sec. 7120; 29 CFR
Part 458, sections 458.70, 458.72, 458.76, 458.81, 458.82, 458.88,
458.90, 459.91, and 458.93;
(4) Clean Air Act, 42 U.S.C. Sec. 7622; 29 CFR Part 24;
(5) Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. Sec. 9610; 29 CFR Part 24;
(6) Congressional Accountability Act of 1995, 2 U.S.C. 1351(a)(1);
29 CFR Part 458, sections 458.70, 458.72, 458.76, 458.81, 458.82,
458.88, 458.90, 459.91, and 458.93;
(7) Consumer Financial Protection Act of 2010, Section 1057 of the
Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, 12
U.S.C. Sec. 5567, Public Law 111-203;
(8) Consumer Product Safety Improvement Act of 2008, 15 U.S.C.
Sec. 2087; 29 CFR Part 1983;
(9) Title IX of the Education Amendments of 1972, 20 U.S.C. Sec.
1682; 29 CFR Part 36;
(10) Employee Polygraph Protection Act of 1988, 29 U.S.C. Sec.
2005(a); 29 CFR Part 801, Subpart E;
(11) Energy Reorganization Act of 1974, as amended, 42 U.S.C. Sec.
5851; 29 CFR Part 24;
(12) Equal Access to Justice Act, 5 U.S.C. Sec. 504; 29 CFR Part
16;
(13) Executive Order No. 11246, as amended, 3 CFR part 339 (1964-
1965 Comp.); reprinted in 42 U.S.C. 2000e app.; 41 CFR Parts 60-1 and
60-30;
(14) Fair Labor Standards Act of 1938, as amended, 29 U.S.C.
203(m); 29 CFR Part 531, sections 531.4, 531.5;
(15) Fair Labor Standards Act of 1938, as amended, 29 U.S.C.
211(d); 29 CFR Part 530, Subpart E;
(16) Fair Labor Standards Act of 1938, as amended, 29 U.S.C. 214(c)
29 CFR Part 525, section 525.22;
(17) Fair Labor Standards Act of 1938, as amended, 29 U.S.C.
216(e); 29 CFR Part 580;
(18) Fair Labor Standards Act of 1938, as amended by the Affordable
Care Act, 29 U.S.C. 218C, Public Law 111-148, section 1558;
(19) Federal Railroad Safety Act, 49 U.S.C. Sec. 20109; 29 CFR
Part 1982;
(20) Federal Unemployment Tax Act, 26 U.S.C. 3303(b)(3), 3304(c);
(21) 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;
(22) Federal Water Pollution Control Act, 33 U.S.C. 1367; 29 CFR
Part 24;
(23) Foreign Service Act of 1980, 22 U.S.C. Sec. 4117; 29 CFR Part
458, sections 458.70, 458.72, 458.76, 458.81, 458.82, 458.88, 458.90,
459.91, 458.92, and 458.93;
(24) Immigration and Nationality Act, as amended, 8 U.S.C. 1182(m);
20 CFR Part 655, Subpart E;
(25) Immigration and Nationality Act, as amended, 8 U.S.C. 1182(m);
20 CFR Part 655, Subpart M;
(26) Immigration and Nationality Act, as amended, 8 U.S.C. 1182(n);
20 CFR Part 655, Subpart I;
(27) Immigration and Nationality Act, as amended, 8 U.S.C.
1184(c)(14), 20 CFR Part 655, Subpart A, 29 CFR Part 503, Subpart C;
(28) Immigration and Nationality Act, as amended, 8 U.S.C.
1188(b)(2), 20 CFR Part 655, Subpart A, 29 CFR Part 503, Subpart C;
(29) Immigration and Nationality Act, as amended, 8 U.S.C. 1288(c)
and (d); 20 CFR Part 655, Subpart G;
(30) Immigration and Nationality Act, as amended, 8 U.S.C.
1188(g)(2); 29 CFR Part 501, Subpart C;
(31) Labor-Management Reporting and Disclosure Act of 1959, 29
U.S.C. 481(h); 29 CFR Part 417, sections 417.6, 417.7, 417.9(c),
417.13, 417.14, and 417.15;
(32) Longshore and Harbor Workers' Compensation Act, 33 U.S.C.
907(j)(2); 20 CFR Part 702;
(33) Migrant and Seasonal Agricultural Worker Protection Act, 29
[[Page 69379]]
U.S.C. Sec. 1813, 1853; 29 CFR Part 500, Subpart F;
(34) Motor Vehicle and Highway Safety Improvement Act of 2012,
Section 31307 of the Moving Ahead for Progress in the 21st Century Act,
49 U.S.C. Sec. 30171;
(35) National Apprenticeship Act, 29 U.S.C. Sec. 50; 29 CFR Parts
29 and 30;
(36) National Transit Systems Security Act of 2007, 6 U.S.C. Sec.
1142; 29 CFR Part 1982;
(37) Notification of Employee Rights Under Federal Labor Laws, 29
CFR Part 471;
(38) Older Americans Senior Community Service Employment Program,
42 U.S.C. Sec. 3056, 20 CFR 641.900;
(39) Part B of the Black Lung Benefits Act, 30 U.S.C. Sec. Sec.
921-924; Section 3(d)(3) of the Black Lung Consolidation of
Administrative Responsibility Act (2002); 20 CFR Part 410 (2011);
(40) Pipeline Safety Improvement Act of 2002, 49 U.S.C. 60129; 29
CFR Part 1981;
(41) Program Fraud Civil Remedies Act of 1986, 31 U.S.C. Sec.
3803; 29 CFR Part 22;
(42) Robert T. Stafford Disaster Relief and Emergency Assistance
Act, 42 U.S.C. 5177(a) and 5189a; 20 CFR Part 625;
(43) Section 423(d)(1) of the Black Lung Benefits Act, 30 U.S.C.
933(d)(1); 20 CFR Part 726;
(44) Section 428 of the Black Lung Benefits Act, 30 U.S.C. Sec.
938;
(45) Seaman's Protection Act, 46 U.S.C. Sec. 2114;
(46) Section 402 of the FDA Food Safety Modernization Act, Public
Law 111-353, 21 U.S.C. 399d;
(47) Section 503 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. Sec. 793; 41 CFR Part 60-741, Subpart B;
(48) Section 504 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. Sec. 794; 29 CFR Part 32;
(49) Safe Drinking Water Act, 42 U.S.C. 300j-9(i); 29 CFR Part 24;
(50) Sarbanes-Oxley Act of 2002, 18 U.S.C. 1514A, as amended by
Sections 922 and 929A of the Dodd-Frank Wall Street Reform and Consumer
Protection Act of 2010, Public Law 111-203, 29 CFR Part 1980;
(51) Single Audit Act of 1984, as amended, 31 U.S.C. Sec. 7501 et
seq.; OMB Circular No. A-133, as amended; 29 CFR Part 96;
(52) Social Security Act, 42 U.S.C. Sec. 503; 20 CFR Parts 601 and
602;
(53) Solid Waste Disposal Act, 42 U.S.C. Sec. 6971; 29 CFR Part
24;
(54) Surface Transportation Assistance Act, 49 U.S.C. Sec. 31105;
29 CFR Part 1978;
(55) Toxic Substances Control Act, 15 U.S.C. Sec. 2622; 29 CFR
Part 24;
(56) Trade Act of 1974, as amended, 19 U.S.C. Sec. 2101-2321; 20
CFR Part 617;
(57) Unemployment Compensation for Federal Civilian Employees
Program, 5 U.S.C. Sec. 8501-8508; 20 CFR Part 609;
(58) Unemployment Compensation for Ex-Servicemembers Program, 5
U.S.C. Sec. 8521-8525; 20 CFR Part 614;
(59) Vietnam Era Veterans Readjustment Assistance Act, as amended,
38 U.S.C. Sec. Sec. 4211, 4212; 41 CFR Part 60-250, Subpart B, and
Part 60-300, Subpart B;
(60) Wagner-Peyser Act, as amended, 29 U.S.C. Sec. 49; 20 CFR Part
658;
(61) Walsh-Healey Public Contracts Act, as amended, 41 U.S.C. Sec.
38; 41 CFR Part 50-203;
(62) Welfare to Work Act, 20 CFR 645.800(c);
(63) Wendell H. Ford Aviation Investment and Reform Act for the
21st Century, 49 U.S.C. Sec. 42121; 29 CFR Part 1979;
(64) Workforce Investment Act of 1998, as amended, 29 U.S.C. Sec.
2936; 20 CFR 667.830;
(65) Workforce Investment Act of 1998, as amended, 29 U.S.C. Sec.
2938; 29 CFR Part 37 (see 37.110-112); and
(66) 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, and
any Federal law that extends or supplements unemployment compensation
and provides for final decisions by the Secretary of Labor.
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 5(a), 5(b), and 5(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.
6. Composition and Panel Configuration.
a. The Board shall consist of a maximum of five Members, one of
whom the Secretary shall designate as Chair, and a second of whom the
Secretary shall designate as Vice-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 6(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 8.
d. The Vice-Chair shall preside at meetings in the absence of the
Chair. In the event of the vacancy of the Chair's position, the Vice-
Chair shall assume all of the Chair's authority and shall act as Chair.
e. The Vice-Chair shall be responsible for the operational
management of the Board and its affairs.
7. 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.
8. 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 6(c).
9. 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.
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10. 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 5(a) and 5(b), respectively, of this Order and (2) which
apply as of the date of this Order to appeals and review described in
Section 5(c) of this Order shall, until changed, govern the respective
proceedings of the Board when it is deciding appeals described in
Section 5 of this Order.
11. Departmental Counsel. The Solicitor of Labor shall have the
responsibility for representing the Secretary, the Deputy Secretary,
and other officials of the Department and 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 and/or Vice-
Chair of the Board, as appropriate.
12. Effective Date. This delegation of authority and assignment of
responsibility is effective immediately.
Dated: October 19, 2012.
Hilda L. Solis,
Secretary of Labor.
[FR Doc. 2012-27805 Filed 11-15-12; 8:45 am]
BILLING CODE 4510-23-P