[Federal Register Volume 66, Number 64 (Tuesday, April 3, 2001)]
[Notices]
[Pages 17762-17765]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-8144]



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Part III





Department of Labor





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Office of the Secretary



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Delegation of Authorities and Assignment of Responsibilities to the 
Assistant Secretary for Employment Standards and Other Officials in the 
Employment Standards Administration; Notice

  Federal Register / Vol. 66, No. 64 / Tuesday, April 3, 2001 / 
Notices  

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DEPARTMENT OF LABOR

Office of the Secretary

[Secretary's Order 3-2001]


Delegation of Authorities and Assignment of Responsibilities to 
the Assistant Secretary for Employment Standards and Other Officials in 
the Employment Standards Administration

March 26, 2001.
    1. Purpose. To delegate authorities and assign responsibilities to 
the Assistant Secretary for Employment Standards and other officials in 
the Employment Standards Administration.
    2. Directives Affected. This Order repeals and supersedes 
Secretary's Order 5-96 (Employment Standards).
    3. Background. This Order, which repeals and supersedes Secretary's 
Order 5-96, constitutes the generic Secretary's Order for the 
Employment Standards Administration (ESA). Specifically, this Order 
delegates and assigns responsibility to ESA for the implementation, 
administration, and enforcement, to the extent permitted by law, of 
responsibilities under Executive Order 13201, ``Notification of 
Employee Rights Concerning Payment of Union Dues or Fees'' (February 
17, 2001), to promote economy and efficiency in Government procurement, 
and to better inform workers of their rights. Section 4(a)(29) of this 
Order contains this delegation of authority and assignment of 
responsibility.
    a. Delegation to the Assistant Secretary for Employment Standards, 
authority under Section 1(b) of Executive Order 13201, (EO 13201) ``the 
Notification of Employee Rights Concerning Payment of Union Dues or 
Fees'' (February 17, 2001). Responsibility for the administration and 
enforcement of EO 13201 is assigned to the Secretary, who is directed 
to adopt ``rules and regulations and issue such orders as are deemed 
necessary and appropriate to achieve the purposes of this order.'' 
Among other things, EO 13201 requires non-exempt Federal contractors to 
post workplace notices advising employees of certain rights. Under 
certain conditions, the law permits a union and an employer to enter 
into a union-security agreement requiring employees to pay uniform 
periodic dues and initiation fees. Employees who are not union members, 
however, can object to the use of their payments for certain purposes 
and can only be required to pay their share of union costs for 
activities relating to collective bargaining, contract administration, 
and grievance adjustment. By this Order, the Secretary delegates 
authority and assigns responsibility for carrying out this Executive 
Order to the Assistant Secretary for Employment Standards.
    b. Continuation of prior delegations and assignments to the 
Assistant Secretary for Employment Standards. All other authorities and 
responsibilities set forth in this Order were delegated or assigned 
previously to the Assistant Secretary for Employment Standards and 
other officials in ESA in Secretary's Order 5-96, and this Order 
continues those delegations and assignments in full force and effect, 
except as expressly modified herein.
    4. Delegation of Authority and Assignment of Responsibility. a. The 
Assistant Secretary for Employment Standards is hereby delegated 
authority and assigned responsibility, except as hereinafter provided, 
for carrying out the employment standards, labor standards, and labor-
management standards policies, programs, and activities of the 
Department of Labor, including those functions to be performed by the 
Secretary of Labor under the designated provisions of the following 
statutes:
    (1) The Fair Labor Standards Act of 1938, as amended, 29 U.S.C. 201 
et seq. (FLSA), including the issuance thereunder of child labor 
hazardous occupation orders and other regulations concerning child 
labor standards, and subpoena authority under 29 U.S.C. 209. Authority 
and responsibility for the Equal Pay Act, Section 6(d) of the FLSA, 
were transferred to the Equal Employment Opportunity Commission on July 
1, 1979, pursuant to the President's Reorganization Plan No. 1 of 
February 1978, set out in the Appendix to Title 5, Government 
Organization and Employees.
    (2) The Walsh-Healey Public Contracts Act of 1936, as amended, 41 
U.S.C. 35 et seq., except those provisions relating to safety and 
health delegated to the Assistant Secretary for Occupational Safety and 
Health or the Assistant Secretary for Mine Safety and Health. The 
authority of the Assistant Secretary for Employment Standards includes 
subpoena authority under 41 U.S.C. 39.
    (3) The McNamara-O'Hara Service Contract Act of 1965, as amended, 
41 U.S.C. 351 et seq., except those provisions relating to safety and 
health delegated to the Assistant Secretary for Occupational Safety and 
Health. The authority of the Assistant Secretary for Employment 
Standards includes subpoena authority under 41 U.S.C. 353(a).
    (4) The Davis-Bacon Act, as amended, 40 U.S.C. 276a et seq., and 
any laws now existing or subsequently enacted, providing for prevailing 
wage findings by the Secretary in accordance with or pursuant to the 
Davis-Bacon Act; the Copeland Act, 40 U.S.C. 276c; Reorganization Plan 
No. 14 of 1950; and the Tennessee Valley Authority Act, 16 U.S.C. 831.
    (5) The Contract Work Hours and Safety Standards Act, as amended, 
40 U.S.C. 327 et seq., except those provisions relating to safety and 
health delegated to the Assistant Secretary for Occupational Safety and 
Health.
    (6) Title III of the Consumer Credit Protection Act, 15 U.S.C. 1671 
et seq.
    (7) The labor standards provisions contained in Sections 5(i) and 
7(g) of the National Foundation for the Arts and the Humanities Act, 20 
U.S.C. 954(i) and 956(g), except those provisions relating to safety 
and health delegated to the Assistant Secretary for Occupational Safety 
and Health.
    (8) The Migrant and Seasonal Agricultural Worker Protection Act of 
1983, 29 U.S.C. 1801 et seq., including subpoena authority under 29 
U.S.C. 1862(b).
    (9) The Employee Polygraph Protection Act of 1988, 29 U.S.C. 2001 
et seq., including subpoena authority under 29 U.S.C. 2004(b).
    (10) The Federal Employees' Compensation Act, as amended and 
extended, 5 U.S.C. 8101 et seq., except 5 U.S.C. 8149, as it pertains 
to the Employees' Compensation Appeals Board.
    (11) The Longshore and Harbor Workers' Compensation Act, as amended 
and extended, 33 U.S.C. 901 et seq., except: 33 U.S.C. 919(d), with 
respect to administrative law judges in the Office of Administrative 
Law Judges; 33 U.S.C. 921(b), as it applies to the Benefits Review 
Board; and activities pursuant to 33 U.S.C. 941, assigned to the 
Assistant Secretary for Occupational Safety and Health.
    (12) The Black Lung Benefits Act, as amended, 30 U.S.C. 901 et seq.
    (13) The affirmative action provisions of the Vietnam Era Veterans' 
Readjustment Assistance Act of 1974, as amended, 38 U.S.C. 4212, except 
for monitoring of the Federal contractor job listing activities under 
38 U.S.C. 4212(a) and the annual Federal contractor reporting 
obligations under 38 U.S.C. 4212(d), delegated to the Assistant 
Secretary for Veterans' Employment and Training.
    (14) Sections 501(a), 501(f), 502, and 503 of the Rehabilitation 
Act of 1973, as amended, 29 U.S.C. 791(a), 791(f), 792, and 793; and 
Executive Order 11758 (``Delegating Authority of the President

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Under the Rehabilitation Act of 1973'') of January 15, 1974.
    (15) Executive Order 11246 ``Equal Employment Opportunity'' 
(September 24, 1965), as amended by Executive Order 11375 of October 
13, 1967; and Executive Order 12086 (``Consolidation of Contract 
Compliance Functions for Equal Employment Opportunity'') of October 5, 
1978.
    (16) The following provisions of the Immigration and Nationality 
Act of 1952, as amended, 8 U.S.C. 1101 et seq. (INA): Section 
218(g)(2), 8 U.S.C. 1188(g)(2), relating to assuring employer 
compliance with terms and conditions of employment under the temporary 
alien agricultural labor certification (H-2A) program; and Section 
274A(b)(3), 8 U.S.C. 1324A(b)(3), relating to employment eligibility 
verification and related recordkeeping.
    (17) Section 212(m)(2)(E)(ii) through (v) of the INA, 8 U.S.C. 
1182(m)(2)(E)(ii) through (v), relating to the complaint, 
investigation, and penalty provisions of the attestation process for 
users of nonimmigrant registered nurses (i.e., H-1C Visas).
    (18) The enforcement of the attestations required by employers 
under the INA pertaining to the employment of nonimmigrant longshore 
workers, Section 258 of the INA, 8 U.S.C. 1288(c)(4)(B)-(F); and 
foreign students working off-campus, 8 U.S.C. 1184 note; and 
enforcement of labor condition applications for employment of 
nonimmigrant professionals, Section 212(n)(2) of the INA, 8 U.S.C. 
1182(n)(2).
    (19) Joint responsibility and authority with the Assistant 
Secretary for Employment and Training for enforcing the Equal 
Employment Opportunity in Apprenticeship and Training requirements, as 
identified in Secretary's Order 4-90.
    (20) Title I of the Americans with Disabilities Act of 1990, 42 
U.S.C. 12101 et seq., and the regulations at 41 CFR part 60-742.
    (21) The Family and Medical Leave Act of 1993, 29 U.S.C. 2601 et 
seq., including subpoena authority under 29 U.S.C. 2616.
    (22) The Occupational Safety and Health Act of 1970, 29 U.S.C. 651 
et seq., to conduct inspections and investigations, issue 
administrative subpoenas, issue citations, assess and collect 
penalties, and enforce any other remedies available under the statute, 
and to develop and issue compliance interpretations under the statute, 
with regard to the standards on:
    (a) field sanitation, 29 CFR 1928.110; and
    (b) temporary labor camps, 29 CFR 1910.142, with respect to any 
agricultural establishment where employees are engaged in 
``agricultural employment'' within the meaning of the Migrant and 
Seasonal Agricultural Worker Protection Act, 29 U.S.C. 1802(3), 
regardless of the number of employees, including employees engaged in 
hand packing of produce into containers, whether done on the ground, on 
a moving machine, or in a temporary packing shed, except that the 
Assistant Secretary for Occupational Safety and Health retains 
enforcement responsibility over temporary labor camps for employees 
engaged in egg, poultry, or red meat production, or the post-harvest 
processing of agricultural or horticultural commodities.
    The authority of the Assistant Secretary for Employment Standards 
under the Occupational Safety and Health Act with regard to the 
standards on field sanitation and temporary labor camps does not 
include any other agency authorities or responsibilities, such as 
rulemaking authority. Such authorities under the statute are retained 
by the Assistant Secretary for Occupational Safety and Health.
    Moreover, nothing in this Order shall be construed as derogating 
from the right of States operating OSHA-approved State plans under 29 
U.S.C. 667 to continue to enforce field sanitation and temporary labor 
camp standards if they so choose. The Assistant Secretary for 
Occupational Safety and Health retains the authority to monitor the 
activity of such States with respect to field sanitation and temporary 
labor camps.
    (23) The Labor-Management Reporting and Disclosure Act of 1959, as 
amended, 29 U.S.C. 401 et seq.
    (24) Section 701 (Standards of Conduct for Labor Organizations) of 
the Civil Service Reform Act of 1978, 5 U.S.C. 7120; Section 1017 of 
the Foreign Service Act of 1980, 22 U.S.C. 4117; Section 220(a)(1) of 
the Congressional Accountability Act of 1995, 2 U.S.C. 1351(a)(1); and 
the regulations pertaining to such sections at 29 CFR parts 457-3459.
    (25) Section 1209 of the Postal Reorganization Act of 1970, 39 
U.S.C. 1209.
    (26) The employee protection provisions of the Federal Transit law, 
as codified at 49 U.S.C. 5333(b), and related provisions.
    (27) The employee protection provisions certified under Section 
405(a), (b), (c), and (e) of the Rail Passenger Service Act of 1970, 45 
U.S.C. 565(a), (b), (c), and (e).
    (28) Executive Order 13201 (``the Notification of Employee Rights 
Concerning Payment of Union Dues or Fees'') of February 17, 2001.
    (29) Such additional Federal acts that from time to time may assign 
to the Secretary or the Department duties and responsibilities similar 
to those listed under subparagraphs (1)-(28) of this paragraph, as 
directed by the Secretary.
    b. The Wage and Hour Administrator of the Employment Standards 
Administration is hereby delegated authority and assigned 
responsibility to:
    (1) Issue administrative subpoenas under Section 9 of the Fair 
Labor Standards Act of 1938, as amended, 29 U.S.C. 209; Section 5 of 
the Walsh-Healey Public Contracts Act, 41 U.S.C. 39; Section 4(a) of 
the McNamara-O'Hara Service Contract Act, 41 U.S.C. 353(a); Section 
512(b) of the Migrant and Seasonal Agricultural Worker Protection Act 
of 1983, 29 U.S.C. 1862(b); Section 5(b) of the Employee Polygraph 
Protection Act of 1988, 29 U.S.C. 2004(b); Section 106 of the Family 
and Medical Leave Act of 1993, 29 U.S.C. 2616; and Section 8(b) of the 
Occupational Safety and Health Act of 1970, 29 U.S.C. 657(b), with 
respect to the authority delegated by this Order.
    (2) Invoke all appropriate claims of privilege, arising from the 
functions of the Wage and Hour Division, following his/her personal 
consideration of the matter and in accordance with the following 
guidelines:
    (a) Informant's Privilege (to protect from disclosure the identity 
of any person who has provided information to the Wage and Hour 
Division in cases arising under the statutory provisions listed in 
subparagraph 4.a. of this Order that are delegated or assigned to the 
Wage and Hour Division): A claim of privilege may be asserted where the 
Wage and Hour Administrator has determined that disclosure of the 
privileged matter may: interfere with the Wage and Hour Division's 
enforcement of a particular statute for which that Division exercises 
investigative or enforcement authority; adversely affect persons who 
have provided information to the Wage and Hour Division; or deter other 
persons from reporting violations of the statute.
    (b) Deliberative Process Privilege (to withhold information which 
may disclose predecisional intra-agency or inter-agency deliberations, 
including: the analysis and evaluation of facts; written summaries of 
factual evidence; and recommendations, opinions, or advice on legal or 
policy matters; in cases arising under the statutory provisions listed 
in subparagraph 4.a. of this Order that are delegated or assigned

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to the Wage and Hour Division): A claim of privilege may be asserted 
where the Wage-Hour Administrator has determined that disclosure of the 
privileged matter would have an inhibiting effect on the agency's 
decision-making processes.
    (c) Privilege for Investigative Files compiled for law enforcement 
purposes (to withhold information which may reveal the Wage and Hour 
Division's confidential investigative techniques and procedures): The 
investigative files privilege may be asserted where the Wage and Hour 
Administrator has determined that disclosure of the privileged matter 
may have an adverse impact upon the Wage and Hour Division's 
enforcement of the statutory provisions that have been delegated or 
assigned to the Division in subparagraph 4.a. of this Order, by: 
disclosing investigative techniques and methodologies; deterring 
persons from providing information to the Wage and Hour Division; 
prematurely revealing the facts of the Wage and Hour Division's case; 
or disclosing the identities of persons who have provided information 
under an express or implied promise of confidentiality.
    (d) Prior to filing a formal claim of privilege, the Wage and Hour 
Administrator shall personally review: all the documents sought to be 
withheld (or, in cases where the volume is so large all of the 
documents cannot be personally reviewed in a reasonable time, an 
adequate and representative sample of such documents); and a 
description or summary of the litigation in which the disclosure is 
sought.
    (e) In asserting a claim of governmental privilege, the Wage and 
Hour Administrator may ask the Solicitor of Labor or the Solicitor's 
representative to file any necessary legal papers or documents.
    c. The Wage and Hour Regional Administrators of the Employment 
Standards Administration are hereby delegated authority and assigned 
responsibility to issue administrative subpoenas under Section 9 of the 
Fair Labor Standards Act of 1938, as amended, 29 U.S.C. 209; Section 5 
of the Walsh-Healey Public Contracts Act, 41 U.S.C. 39; Section 4(a) of 
the McNamara-O'Hara Service Contract Act, 41 U.S.C. 353(a); Section 
512(b) of the Migrant and Seasonal Agricultural Worker Protection Act 
of 1983, 29 U.S.C. 1862(b); Section 5(b) of the Employee Polygraph 
Protection Act of 1988, 29 U.S.C. 2004(b); Section 106 of the Family 
and Medical Leave Act of 1993, 29 U.S.C. 2616; and Section 8(b) of the 
Occupational Safety and Health Act of 1970, 29 U.S.C. 657(b), with 
respect to the authority delegated by this Order.
    d. The Deputy Assistant Secretary for Federal Contract Compliance 
of the Employment Standards Administration is hereby delegated 
authority and assigned responsibility to invoke all appropriate claims 
of privilege, arising from the functions of the Office of Federal 
Contract Compliance Programs (OFCCP), following his/her personal 
consideration of the matter and in accordance with the following 
guidelines:
    (1) Informant's Privilege (to protect from disclosure the identity 
of any person who has provided information to OFCCP in cases arising 
under an authority delegated or assigned to OFCCP in subparagraph 4.a. 
of this Order): A claim of privilege may be asserted where the Deputy 
Assistant Secretary for Federal Contract Compliance has determined that 
disclosure of the privileged matter may: interfere with an 
investigative or enforcement action taken by OFCCP under an authority 
delegated or assigned to OFCCP in subparagraph 4.a. of this Order; 
adversely affect persons who have provided information to OFCCP; or 
deter other persons from reporting violations of the statute or other 
authority.
    (2) Deliberative Process Privilege (to withhold information which 
may disclose predecisional intra-agency or inter-agency deliberations, 
including: the analysis and evaluation of facts; written summaries of 
factual evidence; and recommendations, opinions or advice on legal or 
policy matters; in cases arising under an authority delegated or 
assigned to OFCCP in subparagraph 4.a. of this Order): A claim of 
privilege may be asserted where the Deputy Assistant Secretary for 
Federal Contract Compliance has determined that disclosure of the 
privileged matter would have an inhibiting effect on the agency's 
decision-making processes.
    (3) Privilege for Investigative Files compiled for law enforcement 
purposes (to withhold information which may reveal OFCCP's confidential 
investigative techniques and procedures): The investigative files 
privilege may be asserted where the Deputy Assistant Secretary for 
Federal Contract Compliance has determined that disclosure of the 
privileged matter may have an adverse impact upon OFCCP's enforcement 
of an authority delegated or assigned to OFCCP in subparagraph 4.a. of 
this Order, by: disclosing investigative techniques and methodologies; 
deterring persons from providing information to OFCCP; prematurely 
revealing the facts of OFCCP's case; or disclosing the identities of 
persons who have provided information under an express or implied 
promise of confidentiality.
    (4) Prior to filing a formal claim of privilege, the Director shall 
personally review: all the documents sought to be withheld (or, in 
cases where the volume is so large that all of the documents cannot be 
personally reviewed in a reasonable time, an adequate and 
representative sample of such documents); and a description or summary 
of the litigation in which the disclosure is sought.
    (5) In asserting a claim of governmental privilege, the Deputy 
Assistant Secretary for Federal Contract Compliance may ask the 
Solicitor or the Solicitor's representative to file any necessary legal 
papers or documents.
    e. The Assistant Secretary for Employment Standards and the 
Assistant Secretary for Occupational Safety and Health are directed to 
confer regularly on enforcement of the Occupational Safety and Health 
Act with regard to the standards on field sanitation and temporary 
labor camps (see subparagraph 4.a.(22) of this Order), and to enter 
into any memoranda of understanding which may be appropriate to clarify 
questions of coverage which arise in the course of such enforcement.
    f. The Chief Financial Officer is assigned responsibility, in 
accordance with applicable appropriations enactments, for assuring that 
resources associated with the programs and functions of the 
Occupational Safety and Health Administration and the Office of Labor-
Management Standards are reallocated and transferred to ESA, as 
appropriate, in an orderly and equitable manner.
    g. The Assistant Secretary for Administration and Management is 
assigned responsibility to assure that any transfer of resources 
effecting this Order is fully consistent with the budget policies of 
the Department and that consultation and negotiation, as appropriate, 
with representatives of any employees affected by this exchange of 
responsibilities is conducted. The Assistant Secretary for 
Administration and Management is also responsible for providing or 
assuring that appropriate administrative and management support is 
furnished, as required, for the efficient and effective operation of 
these programs.
    h. The Solicitor of Labor shall have the responsibility for 
providing legal advice and assistance to all officers of the Department 
relating to the administration of the statutory

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provisions, regulations, and Executive Orders listed above. The 
bringing of legal proceedings under those authorities, the 
representation of the Secretary and/or other officials of the 
Department of Labor, and the determination of whether such proceedings 
or representations are appropriate in a given case, are delegated 
exclusively to the Solicitor.
    5. Reservation of Authority and Responsibility. a. The submission 
of reports and recommendations to the President and the Congress 
concerning the administration of the statutory provisions and Executive 
Orders listed above is reserved to the Secretary.
    b. Nothing in this Order shall limit or modify the delegation of 
authority and assignment of responsibility to the Administrative Review 
Board by Secretary's Order 2-96 (April 17, 1996).
    c. Except as expressly provided, nothing in this Order shall limit 
or modify the provisions of any other Order, including Secretary's 
Order 2-90 (Office of Inspector General).
    6. Redelegation of Authority. The Assistant Secretary for 
Employment Standards, the Chief Financial Officer, the Assistant 
Secretary for Administration and Management, and the Solicitor of Labor 
may redelegate authority delegated in this Order.
    7. Effective Date. This order is effective immediately.

Elaine L. Chao,
Secretary of Labor.
[FR Doc. 01-8144 Filed 4-2-01; 8:45 am]
BILLING CODE 4510-23-P