4220 Federal Register / Vol. 71, No. 16 / Wednesday, January 25, 2006 / Notices 

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 


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


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