[Federal Register Volume 75, Number 15 (Monday, January 25, 2010)]
[Notices]
[Pages 3924-3925]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-1259]


-----------------------------------------------------------------------

DEPARTMENT OF LABOR

Office of the Secretary


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

January 15, 2010.

Secretary's Order 1-2010

    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. This Order creates 
and designates a Vice-Chair to maintain and operate the Board during a 
Chair's absence or vacancy. Additionally, this Order delegates the 
responsibility for the operational management of the Board and its 
affairs to the newly created Vice-Chair.
    4. Directives Affected. Secretary's Orders 01-2002 and 02-96 are 
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, as amended (40 U.S.C. 276a 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. 327 et seq.) (except matters pertaining 
to safety); the Copeland Act (40 U.S.C. 276c); 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 from 
decisions of ALJ, arising under the McNamara-O'Hara Service Contract 
Act, as amended (41 U.S.C. 351); 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 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. 6103;
    (2) Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d-l; 29 
CFR Part 31;
    (3) Clean Air Act, 42 U.S.C. 7622; 29 CFR Part 24;
    (4) Comprehensive Environmental Response, Compensation and 
Liability Act of 1980, 42 U.S.C. 9610; 29 CFR Part 24;
    (5) Consumer Product Safety Improvement Act of 2008, 15 U.S.C. 
2087;
    (6) Title IX of the Education Amendments of 1972, 20 U.S.C. 1682; 
29 CFR Part 36;
    (7) Employee Polygraph Protection Act of 1988, 29 U.S.C. 2005(a); 
29 CFR Part 801, Subpart E;
    (8) Energy Reorganization Act of 1974, as amended, 42 U.S.C. 5851; 
29 CFR Part 24;
    (9) Equal Access to Justice Act, 5 U.S.C. 504; 29 CFR Part 16;
    (10) Executive Order No. 11246, as amended, 3 CFR 339 (1964-1965 
Comp.); reprinted in 42 U.S.C. 2000e app.; 41 CFR Parts 60-1 and 60-30;
    (11) Fair Labor Standards Act of 1938, as amended, 29 U.S.C. 
203(m); 29 CFR Part 531, sections 531.4, 531.5;
    (12) Fair Labor Standards Act of 1938, as amended, 29 U.S.C. 
211(d); 29 CFR Part 530, Subpart E;
    (13) Fair Labor Standards Act of 1938, as amended, 29 U.S.C. 214(c) 
29 CFR Part 525, sections 525.22;
    (14) Fair Labor Standards Act of 1938, as amended, 29 U.S.C. 
216(e); 29 CFR Part 580;
    (15) Federal Railroad Safety Act, 49 U.S.C. 20109;
    (16) Federal Unemployment Tax Act, 26 U.S.C. 3303(b)(3), 3304(c);
    (17) 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;
    (18) Federal Water Pollution Control Act, 33 U.S.C. 1367; 29 CFR 
Part 24;
    (19) Immigration and Nationality Act, as amended, 8 U.S.C. 
1188(g)(2); 29 CFR Part 501, Subpart C;
    (20) Immigration and Nationality Act, as amended, 8 U.S.C. 1182(n); 
20 CFR Part 655, Subpart I;
    (21) Immigration and Nationality Act as amended, 8 U.S.C. 1182(m) 
(1989); 20 CFR Part 655, Subpart E;
    (22) Immigration and Nationality Act as amended, 8 U.S.C. 1182(m); 
20 CFR Part 655, Subpart M;
    (23) Immigration and Nationality Act as amended, 8 U.S.C. 
1184(c)(14), 20 CFR Part 655, Subpart A;
    (24) Immigration and Nationality Act, as amended, 8 U.S.C. 1288(c) 
and (d); 20 CFR Part 655, Subpart G;
    (25) Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 
907(j)(2); 20 CFR Part 702;
    (26) Migrant and Seasonal Agricultural Worker Protection Act, 29 
U.S.C. 1813, 1853; 29 CFR Part 500, Subpart F;
    (27) National Apprenticeship Act, 29 U.S.C. 50; 29 CFR Parts 29 and 
30;
    (28) National Transit Systems Security Act of 2007, 6 U.S.C. 1142;
    (29) Older Americans Senior Community Service Employment Program, 
42 U.S.C. 3056, 20 CFR 641.415(c)(5);
    (30) Program Fraud Civil Remedies Act of 1986, 31 U.S.C. 3803; 29 
CFR Part 22;

[[Page 3925]]

    (31) Reports of alleged unlawful discharge or discrimination under 
Section 428 of the Black Lung Benefits Act, 30 U.S.C. 938;
    (32) Section 503 of the Rehabilitation Act of 1973, as amended, 29 
U.S.C. 793; 41 CFR Part 60-741, Subpart B;
    (33) Section 504 of the Rehabilitation Act of 1973, as amended, 29 
U.S.C. 794; 29 CFR Part 32;
    (34) Safe Drinking Water Act, 42 U.S.C. 300j-9(i); 29 CFR Part 24;
    (35) Single Audit Act of 1984, 31 U.S.C. 7505; OMB Circular Nos. A-
128 and A-110; 29 CFR Part 96;
    (36) Social Security Act, 42 U.S.C. 503; 20 CFR Part 601;
    (37) Solid Waste Disposal Act, 42 U.S.C. 6971; 29 CFR Part 24;
    (38) Surface Transportation Assistance Act, 49 U.S.C. 31105; 29 CFR 
Part 1978;
    (39) Toxic Substances Control Act, 15 U.S.C. 2622; 29 CFR Part 24;
    (40) Vietnam Era Veterans Readjustment Assistance Act, as amended, 
38 U.S.C. 4211, 4212; 41 CFR Part 60-250, Subpart B;
    (41) Wagner-Peyser Act, as amended, 29 U.S.C. 49; 20 CFR Part 658;
    (42) Walsh-Healey Public Contracts Act, as amended, 41 U.S.C. 38; 
41 CFR Part 50-203;
    (43) Welfare to Work Act, 20 CFR 645.800(c);
    (44) Wendell H. Ford Aviation Investment and Reform Act of the 21st 
Century, 49 U.S.C. 42121; 29 CFR Part 1979;
    (45) Workforce Investment Act, 29 U.S.C. 2936(b), 20 CFR 667.830; 
29 CFR Part 37 (see 37.110-112);
    (46) Workforce Investment Act of 1998, 29 U.S.C. 2936; 20 CFR Part 
627; 20 CFR Part 636; 29 CFR Part 37;
    (47) Sarbanes-Oxley Act of 2002, 18 U.S.C. 1514A; and
    (48) Any laws or regulations 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.
    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.
    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: January 15, 2010.
Hilda L. Solis,
Secretary of Labor.
[FR Doc. 2010-1259 Filed 1-22-10; 8:45 am]
BILLING CODE 4510-23-P