[Federal Register: June 6, 2008 (Volume 73, Number 110)][Notices] [Page 32423-32426]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06jn08-144]
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Part IV
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
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DEPARTMENT OF LABOR
Office of the Secretary
[Secretary's Order 01-2008]
Delegation of Authorities and Assignment of Responsibilities to
the Assistant Secretary for Employment Standards and Other Officials in
the Employment Standards Administration
1. Purpose. To delegate authorities and assign responsibilities to
the Assistant Secretary for Employment Standards and other officials in
the Employment Standards Administration.
2. Authorities. This Order is issued under the authority of 5
U.S.C. 301 (Departmental Regulations); 29 U.S.C. 551 (Establishment of
Department; Secretary; Seal); Reorganization Plan No. 6 1950 (5 U.S.C.
App. 1 Reorg. Plan 6 1950); National Apprenticeship Act of 1937 (29
U.S.C. 50); 29 CFR part 30.
3. References. Secretary's Order 10-83; Secretary's Order 14-77;
and Secretary's Order 9-75.
4. Directives Affected. Secretary's Order 4-2007 is hereby canceled
(Employment Standards). Secretary's Order 9-75 is superseded to the
extent that it is inconsistent with section 7a.(29) of this Order.
5. Background. This Order, which supersedes Secretary's Order 4-
2007, constitutes the generic Secretary's Order for the Employment
Standards Administration (ESA). Specifically, this Order delegates
authorities and assigns responsibilities to the Assistant Secretary for
Employment Standards and other officials in ESA.
This Order clarifies the leadership role of the Inspector General
with respect to organized crime and labor racketeering investigations
under the Labor-Management Reporting and Disclosure Act of 1959 for
which both the Inspector General and the Assistant Secretary for
Employment Standards have investigative authority.
6. Delegation to the Assistant Secretary for Employment Standards.
A. Paragraph 7.a. (29) of this Order contains the delegation of
authority and the assignment of responsibility for section 211(a) of
the LMRA, 29 U.S.C. 181(a) ("Compilation of Collective Bargaining
Agreements, etc., Use Data").
B. 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 the Employment
Standards Administration in Secretary's Order 4-2001, and this Order
continues those delegations and assignments in full force and effect,
except as expressly modified herein.
7. 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) Section 503 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. 793; and Executive Order 11758 ("Delegating Authority of the
President 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-1A 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) 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.
(20) The Family and Medical Leave Act of 1993, 29 U.S.C. 2601 et
seq., including subpoena authority under 29 U.S.C. 2616.
(21) 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.
(22) The Labor-Management Reporting and Disclosure Act of 1959, as
amended, 29 U.S.C. 401 et seq. If, in the course of investigations
under the Labor-Management Reporting and Disclosure Act, there appear
to be indications of organized crime and labor racketeering , the
Assistant Secretary for Employment Standards shall promptly notify the
Inspector General, who also has statutory authority to investigate such
issues. The Inspector General shall have the power to assume the lead
in further investigative activities arising from such case with respect
to issues involving organized crime and labor racketeering.
(23) 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 457-459.
(24) Section 1209 of the Postal Reorganization Act of 1970, 39
U.S.C. 1209.
(25) The employee protection provisions of the Federal Transit law,
as codified at 49 U.S.C. 5333(b), and related provisions.
(26) 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).
(27) Executive Order 13201, ("the Notification of Employee Rights
Concerning Payment of Union Dues or Fees") of February 17, 2001.
(28) The Energy Employees Occupational Illness Compensation Program
Act of 2000, Title XXXVI of the Floyd D. Spence National Defense
Authorization Act for Fiscal Year 2001 (Pub. L. 106-398), and Executive
Order 13179 ("Providing Compensation to America's Nuclear Weapons
Workers") of December 7, 2000.
(29) Section 211(a) of the Labor Management Relations Act, 1947, 29
U.S.C. 181(a) ("Compilation of Collective Bargaining Agreements, etc.;
Use of Data").
(30) 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)--(29) 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.
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 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 section 7.a. (21) 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.
E. The Assistant Secretary for Administration and Management is
delegated authority and assigned responsibility to assure that any
transfer of resources affecting 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.
F. The Solicitor of Labor is delegated authority and assigned
responsibility for providing legal advice and assistance to all
officers of the Department relating to the administration of the
statutory 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.
8. 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 4-2006 (Office of Inspector General).
9. Redelegation of Authority. The Assistant Secretary for
Employment Standards, the Assistant Secretary for Administration and
Management, and the Solicitor of Labor may re-delegate authority
delegated in this Order.
10. Effective Date. This order is effective immediately.
Dated: May 30, 2008.
Elaine L. Chao,
Secretary of Labor.
[FR Doc. E8-12700 Filed 6-5-08; 8:45 am]
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