[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]




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Part II





Department of Labor





_______________________________________________________________________



Office of the Secretary



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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