[Federal Register Volume 71, Number 16 (Wednesday, January 25, 2006)]
[Notices]
[Pages 4220-4221]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-696]



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Part II





Department of Labor





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Delegation of Authority and Assignment of Responsibility to the 
Benefits Review Board; Notice

  Federal Register / Vol. 71, No. 16 / Wednesday, January 25, 2006 / 
Notices  

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DEPARTMENT OF LABOR

Office of the Secretary

[Secretary's Order 03-2006]


Delegation of Authority and Assignment of Responsibility to the 
Benefits Review Board

1. Purpose

    To delegate authority and assign responsibility to the Benefits 
Review Board, define its composition, and describe its functions.

2. Background

    The Benefits Review Board (hereinafter referred to as the ``Board'' 
or ``BRB'') has been given by statute and regulation the authority and 
responsibility to decide certain appeals raising a substantial question 
of law or fact taken by any party in interest from decisions with 
respect to claims for compensation or benefits under the Longshoremen's 
and Harbor Workers' Compensation Act (33 U.S.C. 921), and its 
extensions, as well as pneumoconiosis disability and death claims under 
the provisions of Title IV of the Federal Coal Mine Health and Safety 
Act of 1969 as amended (30 U.S.C. 932(a)). Provision is made under the 
statute, for judicial review of final orders of the Benefits Review 
Board in the United States Courts of Appeals. Pursuant to a statutory 
amendment to Section 21 of the Longshoremen's and Harbor Workers' 
Compensation Act, the Secretary was required to create the Board in 
Secretary's Order 38-72, which delegated authority and assigned 
responsibilities to the Board. A later statutory amendment made other 
organizational and structural changes, including renaming the act to 
the ``Longshore and Harbor Workers' Compensation Act.'' This 
Secretary's Order delegates authority and assigns responsibility to the 
BRB with certain modifications to Secretary's Order 38-72. 
Specifically, this Order: (1) Increases the total membership of the 
Board from three Members to five Members consistent with statutory 
authority; and (2) codifies the location of the BRB in the Department's 
organizational structure, consistent with regulatory authority.

3. Directives Affected

    Secretary's Order 38-72, establishing the Benefits Review Board, is 
hereby canceled.

4. Delegation of Authority and Assignment of Responsibilities

    As prescribed by statute, the Board has been delegated authority 
and assigned responsibility to hear and determine appeals raising a 
substantial question of law or fact taken by any party in interest from 
decisions with respect to claims for compensation or benefits arising 
under:
    A. The Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 
901 et seq. as amended;
    B. The Defense Base Act, 42 U.S.C. 1651 et seq.;
    C. The District of Columbia Workmen's Compensation Act, 36 D.C. 
Code 501 et seq.;
    D. The Outer Continental Shelf Lands Act, 43 U.S.C. 1331;
    E. The Nonappropriated Fund Instrumentalities Act, 5 U.S.C. 8171 et 
seq.;
    F. Title IV, Section 415 and Part C, of the Federal Mine Health and 
Safety Act of 1977, Public Law 95-164, 91 Stat. 1290 (formerly the 
Federal Coal Mine Health and Safety Act, hereinafter, FCMHSA, of 1969), 
as amended by the Black Lung Benefits Act Reform Act of 1977, Public 
Law 92-239, 92 Stat. 95, the Black Lung Benefits Revenue Act of 1977, 
Public Law 95-227, 92 Stat. 11, and the Black Lung Benefits Amendments 
of 1981, Public Law 97-119, 95 Stat. 1643 (30 U.S.C. 901 et seq.).
    G. Any laws or regulations subsequently enacted or promulgated that 
provide for final decisions by the BRB upon appeal or review of 
decisions, as directed by the Secretary, which are similar to those 
listed under paragraph 4.A. through 4.F. of this section.

5. Composition, Panel Configuration, and Voting

    As prescribed by statute:
    A. The Board shall consist of five permanent Members, one of whom 
shall be designated Chair. The Members of the Board shall be appointed 
by the Secretary of Labor, and shall be especially qualified to serve 
on such Board. The Chair shall have the authority as chief 
administrative officer, as delegated by the Secretary, to exercise all 
administrative functions necessary to operate the Board. The four 
remaining permanent Members shall be the Associate Members of the 
Board. Each permanent Member shall serve an indefinite term subject to 
the discretion of the Secretary.
    B. For the purpose of carrying out Board functions, three Members 
of the Board shall constitute a quorum and official action can be taken 
only on the affirmative vote of at least three Members.
    C. Notwithstanding paragraph 5.(A) and (B), upon application of the 
Chair of the Board, the Secretary may designate up to four Department 
of Labor administrative law judges to serve on the Board as temporary 
Members, for not more than one year.
    D. The Board is authorized to delegate to panels of three Members 
any or all of the powers which the Board may exercise. Each such panel 
shall have no more than one temporary Member. Two Members shall 
constitute a quorum of a panel. Official adjudicative action may be 
taken only on the affirmative vote of at least two Members of a panel. 
Any party aggrieved by a decision of a panel of the Board may, within 
thirty days after the date of entry of the decision, petition the 
entire permanent Board for review of the panel's decision. Upon 
affirmative vote of the majority of the permanent Members of the Board 
sitting en banc, the petition shall be granted. Notwithstanding this 
paragraph, en banc action is not available in cases arising under the 
District of Columbia Workmen's Compensation Act.

6. Organizational Placement

    As prescribed by the statute, the functions of the Benefits Review 
Board are quasi-judicial in nature and involve review of decisions made 
in the course of the administration of the above statutes by the 
Employment Standards Administration in the Department of Labor. The 
Board is placed in and shall receive from the Office of the Deputy 
Secretary necessary funds, personnel, supplies, equipment and records 
services (20 CFR 801.103).

7. Questions Reviewable; Record; Conclusiveness of Findings; Stay of 
Payments; Remand

    As prescribed by statute:
    A. The Board shall be authorized to hear and determine appeals 
raising a substantial question of law or fact taken by any party in 
interest from decisions with respect to claims of employees under this 
Act and the extensions thereof. The Board's orders shall be based upon 
the hearing record. The findings of fact in the decision under review 
by the Board shall be conclusive if supported by substantial evidence 
in the record considered as a whole. The payment of the amounts 
required by an award shall not be stayed pending final decision in any 
such proceeding unless ordered by the Board. No stay shall be issued 
unless irreparable injury would otherwise ensue to the employer or 
carrier.
    B. The Board may, on its own motion or at the request of the 
Secretary, remand a case to the administrative law judge for further 
appropriate action. The consent of the parties in interest shall

[[Page 4221]]

not be a prerequisite to a remand by the Board.

8. Time for Appeal to the Board

    Notice of appeal must be filed within 30 days of the date the 
decision or order being appealed from is filed in the office of a 
district director (20 CFR 701.301(a) (7)). Such notice of appeal shall 
be in writing and contain the names of the parties, docket or case 
number, and the date of the decision or order appealed from.

9. Location of Board's 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.

10. Rules and Regulations

    The Deputy Secretary may promulgate such rules and regulations as 
may be necessary or appropriate for effective operation of the Benefits 
Review Board as an independent quasi-judicial body in accordance with 
the provisions of the statute. Procedural rules for performance by the 
Board of its review functions and for ensuring an adequate record for 
any judicial review of its orders shall be promulgated by the Benefits 
Review Board with the approval of the Deputy Secretary. Such rules 
shall incorporate and implement procedural requirements of section 
21(b) of the Longshore and Harbor Workers' Compensation Act, as 
amended.

11. Departmental Counsel

    A. Representation before the Board. On any issues requiring 
representation of the Secretary, the Director, Office of Workers' 
Compensation Programs, a district director, or an administrative law 
judge before the Board, such representation shall be provided by 
attorneys designated by the Solicitor of Labor. Representation of all 
other persons before the Board shall be as provided for by statute or 
by the rules of practice and procedure promulgated under Paragraph 10 
of this Order (20 CFR 801.401).
    B. Representation of Board in Court Proceedings. Except in 
proceedings in the Supreme Court of the United States, any 
representation of the Benefits Review Board in court proceedings shall 
be by attorneys provided by the Solicitor of Labor (20 CFR 801.402).

12. Effective Date

    This delegation of authority and assignment of responsibility is 
effective immediately.

    Dated: January 18, 2006.
Elaine L. Chao,
Secretary of Labor.
[FR Doc. 06-696 Filed 1-24-06; 8:45 am]
BILLING CODE 4510-23-P