Delegation of Authority and Assignment of Responsibility to the Administrative Review Board, 69377-69380 [2012-27805]

Agencies

• DEPARTMENT OF LABOR
• Office of the Secretary

[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.

[[Page 69380]]

    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]
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