29656 Federal Register / Vol. 66, No. 105 / Thursday, May 31, 2001 / Notices

DEPARTMENT OF LABOR

Office of the Secretary

[Secretary’s Order 4–2001]

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. Directives Affected. This Order

repeals and supersedes Secretary’s

Order 3–2001 (Employment Standards).

3. Background. This Order, which

repeals and supersedes Secretary’s

Order 3–2001, constitutes the generic

Secretary’s Order for the Employment

Standards Administration (ESA).

Specifically, this Order delegates

authority and assigns responsibilities to

the Assistant Secretary for Employment

Standards and other officials in ESA.

Section 4.a. (29) delegates the duties

and responsibilities of the Secretary of

Labor under 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.

This Order also makes certain changes

to the responsibilities contained in

Section 4.a. (14) of this Order which are

the result of the recent elimination of

the President’s Committee on the

Employment of Persons with

Disabilities and the creation of the

Office of Disability Employment Policy.

A formal delegation and reassignment of

responsibilities for Sections 501(a),

501(f), and 502 of the Rehabilitation Act

of 1973, as amended, 29 U.S.C. 791(a),

791(f), and 792, will be made at a later

date.

This Order also makes technical and

conforming changes to the generic

assignment of responsibility to the

Office of the Chief Financial Officer in

Section 4.f. of this Order.

a. Delegation to the Assistant

Secretary for Employment Standards.

Section 4.a. (29) of this Order contains

the delegation of authority and

assignment of responsibility for the

Energy Employees Occupational Illness

Compensation Program Act of 2000.

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 ESA in

Secretary’s Order 3–2001, 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) 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.

Federal Register / Vol. 66, No. 105 / Thursday, May 31, 2001 / Notices 29657

(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) 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 OSHAapproved 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—459.

(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) 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

(P.L. 106–398), and Executive Order

13179 (‘‘Providing Compensation to

America’s Nuclear Weapons Workers’’)

of December 7, 2000.

(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 WalshHealey Public Contracts Act, 41 U.S.C.

39; Section 4(a) of the McNamaraO’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

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 would have an

29658 Federal Register / Vol. 66, No. 105 / Thursday, May 31, 2001 / Notices

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 Deputy Assistant

Secretary 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 section 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

delegated authority and assigned

responsibility, in accordance with

applicable appropriations enactments,

for establishing policies and procedures:

that ensure the accounting, financial,

and asset management systems of the

Department are designed, maintained,

and used effectively to provide financial

or program performance data for

financial statements; ensure financial

and related program performance data

are provided on a reliable, consistent,

and timely basis; and, ensure that

financial statements support

assessments and revisions of missionrelated processes and administrative

processes and performance management

of the program activities.

g. The Assistant Secretary for

Administration and Management is

delegated authority and 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.

Federal Register / Vol. 66, No. 105 / Thursday, May 31, 2001 / Notices 29659

h. 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.

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.

Dated: May 24, 2001.

Elaine L. Chao,

Secretary of Labor.

[FR Doc. 01–13612 Filed 5–30–01; 8:45 am]

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