[Federal Register Volume 61, Number 87 (Friday, May 3, 1996)]
[Notices]
[Pages 19978-19979]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-9909]
[[Page 19977]]
_______________________________________________________________________
Part II
Department of Labor
_______________________________________________________________________
Office of the Secretary
_______________________________________________________________________
Authority and Responsibilities of the Administrative Review Board;
Notice
Federal Register / Vol. 61, No. 87 / Friday, May 3, 1996 / Notices
[[Page 19978]]
DEPARTMENT OF LABOR
Office of the Secretary
[Secretary's Order 2-96]
Authority and Responsibilities of the Administrative Review Board
April 17, 1996.
1. Purpose. To establish the Administrative Review Board, delegate
authority to it, define its composition, and describe its
responsibilities.
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. This authority and responsibility has been
delegated to several entities within the Department of Labor which
currently decide the categories of appeals assigned to them by
Secretarial Orders. In particular, the Wage Appeals Board and the Board
of Service Contract Appeals have both been given authority to decide
certain administrative appeals. In addition, the Office of
Administrative Appeals has been given the responsibility of advising
and assisting the Secretary in the issuance of final agency decisions
under a variety of laws. The current fragmented structure for carrying
out these responsibilities of the Secretary has created inefficiencies.
There have also been delays in the issuance of final agency decisions
for which the Office of Administrative Appeals provided advice and
assistance. To remedy these problems, the functions of the Wage Appeals
Board, the Board of Service Contract Appeals and the Office of
Administrative Appeals will be consolidated into the Administrative
Review Board. This new Board will be given the authority to issue final
agency decisions in cases in which the Office of Administrative Appeals
has until now only provided assistance and advice.
3. Directives Affected.
a. Secretary's Order 3-90, delegating certain authority and
assigning certain responsibilities to the Director of the Office of
Administrative Appeals, is hereby canceled.
b. Secretary's Order 1-91, delegating certain authority and
assigning certain responsibilities to the Wage Appeals Board, is hereby
canceled.
c. Secretary's Order 3-92, delegating certain authority and
assigning certain responsibilities to the Board of Service Contract
Appeals, is hereby canceled.
4. Delegation of Authority and Assignment of Responsibility.
The Administrative Review Board is hereby delegated authority and
assigned responsibility to act for the Secretary of Labor in issuing
final agency decisions on questions of law and fact arising in review
or on appeal of the following matters:
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- 276a-7);
any laws now existing or which may be subsequently enacted,
providing for prevailing wage findings 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.); the
Copeland Act (40 U.S.C. 276c); Reorganization Plan No. 14 of 1950;
and 29 C.F.R. Parts 1, 3, 5, 6, Subpart C.
(2) The final decisions include those involving wage
determinations, debarment, disputes and the assessment of liquidated
damages under the Contract Work Hours and Safety Standards Act
(except matters pertaining to safety).
b. Final decisions of the Administrator of the Wage and Hour
Division or an authorized representative of the Administrator, and from
decisions of Administrative Law Judges, arising under the McNamara-
O'Hara Service Contract Act, as amended (41 U.S.C. 351 et seq.); 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 C.F.R.
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-1;
29 C.F.R. Part 31;
(3) Clean Air Act, 42 U.S.C. 7622; 29 C.F.R. Part 24;
(4) Comprehensive Employment and Training Act, 29 U.S.C. 801-999
(Supp. V 1981); 20 C.F.R. Part 676 (1990);
(5) Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. 9610; 29 C.F.R. Part 24;
(6) Title IX of the Education Amendments of 1972, 20 U.S.C.
1682;
(7) Employee Polygraph Protection Act of 1988, 29 U.S.C. 2005;
29 C.F.R. Part 801, Subpart E;
(8) Energy Reorganization Act of 1974, as amended, 42 U.S.C.
5851; 29 C.F.R. Part 24;
(9) Equal Access to Justice Act, 5 U.S.C. 504; 29 C.F.R. Part
16;
(10) Executive Order No. 11,246, as amended, 3 C.F.R. 339 (1964-
1965 Comp.); reprinted in 42 U.S.C. 2000e app.; 41 C.F.R. Parts 60-1
and 60-30;
(11) Fair Labor Standards Act of 1938, as amended, 29 U.S.C.
203(m); 29 C.F.R. Part 531;
(12) Fair Labor Standards Act of 1938, as amended, 29 U.S.C.
211(d); 29 C.F.R. Part 530, Subpart E;
(13) Fair Labor Standards Act of 1938, as amended, 29 U.S.C.
214(c); 29 C.F.R. Part 525;
(14) Fair Labor Standards Act of 1938, as amended, 29 U.S.C.
216(e); 29 C.F.R. Part 580;
(15) Federal Unemployment Tax Act, 26 U.S.C. 3303(b)(3),
3304(c);
(16) Federal Unemployment Tax Act (addressing agreements under
the Trade Act of 1974, as amended), 26 U.S.C. 3302(c)(3); 20 C.F.R.
Part 617;
(17) Federal Water Pollution Control Act, 33 U.S.C. 1367; 29
C.F.R. Part 24;
(18) Immigration and Nationality Act, as amended, 8 U.S.C. 1188;
29 C.F.R. Part 501, Subpart C;
(19) Immigration and Nationality Act, as amended, 8 U.S.C.
1182(n); 29 C.F.R. Part 507, Subpart I; 20 C.F.R. Part 655, Subpart
I;
(20) Immigration and Nationality Act as amended, 8 U.S.C.
1182(m); 29 C.F.R. Part 504, Subpart E; 20 C.F.R. Part 655, Subpart
E;
(21) Immigration and Nationality Act, as amended, 8 U.S.C.
1288(c); 29 C.F.R. Part 506, Subpart G; 20 C.F.R. Part 655, Subpart
G;
(22) Immigration Act of 1990, Pub. L. 101-649 as amended, Sec.
221(a); 29 C.F.R. Part 508, Subpart K; 20 C.F.R. Part 655, Subpart
K;
(23) Job Training Partnership Act, 29 U.S.C. 1576; 20 C.F.R.
Part 627;
(24) Longshore and Harbor Workers' Compensation Act, 33 U.S.C.
907(j)(2); 20 C.F.R. Part 702;
(25) Migrant and Seasonal Agricultural Worker Protection Act, 29
U.S.C. 1813, 1853; 29 C.F.R. Part 500, Subpart F;
(26) National Apprenticeship Act, 29 U.S.C. 50; 29 C.F.R. Parts
29 and 30;
(27) Program Fraud Civil Remedies Act of 1986, 31 U.S.C. 3803;
29 C.F.R. Part 22;
(28) Section 503 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. 793; 41 C.F.R. Part 60-741, Subpart B;
(29) Section 504 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. 794; 29 C.F.R. Part 32;
(30) Safe Drinking Water Act, 42 U.S.C. 300j-9(i); 29 C.F.R.
Part 24;
(31) Single Audit Act of 1984, 31 U.S.C. 7505; OMB Circular Nos.
A-128 and A-110; 29 C.F.R. Part 96;
(32) Social Security Act, 42 U.S.C. 503; 20 C.F.R. Part 601;
(33) Solid Waste Disposal Act, 42 U.S.C. 6971; 29 C.F.R. Part
24;
(34) Surface Transportation Assistance Act, 49 U.S.C. 31105; 29
C.F.R. Part 1978;
(35) Toxic Substances Control Act, 15 U.S.C. 2622; 29 C.F.R.
Part 24;
(36) Vietnam Era Veterans Readjustment Assistance Act, as
amended, 38 U.S.C. 4211, 4212; 41 C.F.R. Part 60-250, Subpart B;
(37) Wagner-Peyser Act, as amended, 29 U.S.C. 49 et seq.; 20
C.F.R. Part 658;
(38) Walsh-Healey Public Contracts Act, as amended, 41 U.S.C.
38; 41 C.F.R. Part 50-203; and
[[Page 19979]]
(39) any laws subsequently enacted, which by statute, law or
regulation 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 which 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 4a., 4b., and 4c. of this
Order, until and unless the Board or other authority explicitly
reverses such rules of decision or precedent.
5. Composition. The Administrative Review Board shall consist of
three public 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. The Secretary may also
appoint one additional Senior or Alternate Member, who shall perform
such duties as are assigned by the Chair. However, the Board shall sit,
hear cases, render decisions and perform all other functions only in
panels of 3 or fewer Members (whether or not including a Senior or
Alternate Member) assigned by the Chair.
6. Terms of the Members.
a. Of the initial appointments of Members of the Administrative
Review Board made pursuant to this Order, the Member designated Chair
shall be appointed for a term not to exceed 2 years, one Member shall
be appointed for a term not to exceed 18 months and one Member shall be
appointed for a term not to exceed 1 year. Thereafter each member shall
be appointed for a term not to exceed 2 years, except that an
individual chosen to fill a vacancy shall be appointed for the
unexpired term of the Member replaced.
b. A Senior or Alternate Member shall be appointed for a term not
to exceed 2 years.
c. Appointment of a Member of the Board to a term not to exceed
some time period shall not affect the authority of the Secretary to
remove, in his or her sole discretion, any Member at any time.
d. A vacancy 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 Administrative Review Board.
7. Voting. The Chair of the Board may, in his or her discretion
designate himself, herself, or any other Member of the Board to decide
any appeal under 29 C.F.R. Parts 7 and 8, provided the interested
persons or parties in the appeal have consented to the disposition of
the appeal in this manner. The Chair may also direct that any appeal or
review may be decided by the full Board (but not to exceed panels of 3
Members). When an appeal is decided by more than one Member, a majority
vote shall be necessary for a decision. Any decision in any other
matter and the issuance of any procedural rules under section 8 shall
also be by a majority vote, except that, where appropriate (see 29
C.F.R. Parts 7 and 8), a case will be heard upon the affirmative vote
of one Member.
8. Location of Board Proceedings. The Board shall hold its
proceedings in Washington, D.C., 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 which are prescribed in
29 C.F.R. Part 7 as of the date of this Order shall, until changed,
govern the proceedings of the Board when it is deciding appeals
described in section 4a. of this Order. The rules which are prescribed
in 29 C.F.R. Part 8 as of the date of this Order shall, until changed,
govern the proceedings of the Board when it is deciding appeals
described in section 4b. of this Order. The rules which applied to
appeals and review described in section 4c. of this Order on the day of
the issuance of this Order shall remain in effect until they are
changed.
10. Departmental Counsel. The Solicitor of Labor shall have the
responsibility for representing the Secretary, other officials of the
Department, and/or the Administrative Review Board, in any
administrative or judicial proceedings involving final agency decisions
issued pursuant to this Order, including representing officials of the
Department before the Administrative Review Board. The Solicitor of
Labor shall have the responsibility for providing legal advice and
assistance to all officials of the Department of Labor relating to the
implementation and administration of this Order and to the Chair of the
Board on all administrative matters.
11. Effective Date. This delegation of authority and responsibility
is effective upon publication in the Federal Register.
Robert B. Reich,
Secretary of Labor.
[FR Doc. 96-9909 Filed 5-2-96; 8:45 am]
BILLING CODE 4510-23-P
