[Federal Register: September 10, 2010 (Volume 75, Number 175)]
[Notices]               
[Page 55352-55354]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10se10-81]                         
 
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DEPARTMENT OF LABOR
 
Office of the Secretary
 
 
Delegation of Authorities and Assignment of Responsibilities
 
Secretary's Order 5-2010
 
    Subject: Delegation of Authorities and Assignment of 
Responsibilities to the Administrator, Wage and Hour Division.
    1. Purpose. To delegate authorities and assign responsibilities to 
the Administrator, Wage and Hour Division (WHD).
    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 of 1950 (5 U.S.C. App. 1 Reorg. Plan 6 1950); and the authorities 
cited in Section 5 of this Order.
    3. Directives Affected. Secretary's Order 9-2009 (Administrator, 
Wage and Hour Division) is hereby canceled. All other Secretary's 
Orders and DOL directives (including policies and guidance) which 
reference Secretary's Orders 9-2009, are amended to refer to this 
Order.
    4. Background. The Secretary of Labor (``Secretary'') has the 
authority to issue U Nonimmigrant Status Certifications under Section 
1513(b) of the Victims of Trafficking and Violence Protection Act of 
2000, as amended, 8 U.S.C. 1101(a)(15)(U) and related Department of 
Homeland Security regulations (see 8 CFR 214.14). This Order cancels 
Secretary's Order 9-2009 and delegates the Secretary's authority to 
issue U Nonimmigrant Status Certifications to the Administrator, WHD. 
In addition, this Order addresses certain provisions enacted recently 
as amendments to the Fair Labor Standards Act in sections 1511 and 1512 
of the Patient Protection and Affordable Care Act of 2010, Public Law 
(Pub. L.) 111-148. These particular FLSA authorities of the Secretary 
of Labor are delegated to the Assistant Secretary for Employee Benefits 
Security rather than the Administrator, WHD (see also Secretary's Order 
3-2010).
    5. Delegations of Authority and Assignment of Responsibility
 
[[Page 55353]]
 
    A. The Administrator, Wage and Hour Division is hereby delegated 
authority and assigned responsibility, except as hereinafter provided, 
for carrying out the employment standards and labor 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) Except as hereinafter provided, 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 sections 18A and 
18B of FLSA (29 U.S.C. 218A and 218B) and the associated FLSA 
authorities in sections 9 and 11 (20 U.S.C. 209 and 211) to issue 
subpoenas and conduct investigations under sections 18A and 18B are 
delegated and assigned to the Assistant Secretary for Employee Benefits 
Security. Authority and responsibility for section 18C of the FLSA (29 
U.S.C. 218C) and the associated FLSA authorities in sections 9 and 11 
(20 U.S.C. 209 and 211) to issue subpoenas and conduct investigations 
under section 18C are delegated and assigned to the Assistant Secretary 
for Occupational Safety and Health. Authority and responsibility for 
the Equal Pay Act, Section 6(d) of the FLSA, were transferred to the 
Equal Employment Opportunity Commission 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 Administrator, WHD 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 Administrator, WHD includes subpoena 
authority under 41 U.S.C. 353(a).
    (4) The Davis-Bacon Act, as amended, 40 U.S.C. 3141 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. 3145; 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. 3701 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), (m), 
(n) and 7(g) of the National Foundation for the Arts and the Humanities 
Act, 20 U.S.C. 954(i), (m), (n) 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, as amended, 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 following provisions of the Immigration and Nationality 
Act of 1952, as amended, 8 U.S.C. 1101 et seq. (INA): Section 258, 8 
U.S.C. 1288(c)(4)(B)-(F), relating to the enforcement of the 
attestations required by employers pertaining to the employment of 
nonimmigrant longshore workers (D visas); Section 212(n)(2), (t)(3), 8 
U.S.C. 1182(n)(2), (t)(3); relating to the enforcement of labor 
condition applications for employment of nonimmigrant professionals (H-
1B, H-1B1, and E-3 visas); Section 212(m)(2)(E)(ii) through (v), 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 (H-1C Visas); 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 program (H-2A visas); Section 
214(c)(14), 8 U.S.C. 1184(c)(14), relating to assuring employer 
compliance with the terms and conditions of employment under the 
temporary alien labor certification program in occupations other than 
agriculture or registered nursing (H-2B visas); and Section 274A(b)(3), 
8 U.S.C. 1324A(b)(3), relating to employment eligibility verification 
and related recordkeeping.
    (11) The Family and Medical Leave Act of 1993, as amended, 29 
U.S.C. 2601 et seq. (FMLA), including subpoena authority under 29 
U.S.C. 2616.
    (12) The Occupational Safety and Health Act of 1970, as amended, 29 
U.S.C. 651 et seq. (OSH Act), 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 Administrator, WHD 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.
    (13) Executive Order 13,495 (``Nondisplacement of Qualified Workers 
Under Service Contracts'') of January 30, 2009.
    (14) Such additional Federal laws that from time to time may assign 
to the Secretary or the Department duties and responsibilities similar 
to those listed under subparagraphs (1)-(13) of this paragraph, as 
directed by the Secretary.
 
[[Page 55354]]
 
    B. The Administrator, Wage and Hour Division is 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, as 
amended, 41 U.S.C. 39; Section 4(a) of the McNamara-O'Hara Service 
Contract Act, as amended, 41 U.S.C. 353(a); Section 512(b) of the 
Migrant and Seasonal Agricultural Worker Protection Act of 1983, as 
amended, 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, as amended, 29 U.S.C. 2616; and Section 
8(b) of the Occupational Safety and Health Act of 1970, as amended, 29 
U.S.C. 657(b), with respect to the authority delegated by this Order.
    C. The Wage and Hour Regional Administrators are hereby redelegated 
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, as 
amended, 41 U.S.C. 39; Section 4(a) of the McNamara-O'Hara Service 
Contract Act, as amended, 41 U.S.C. 353(a); Section 512(b) of the 
Migrant and Seasonal Agricultural Worker Protection Act of 1983, as 
amended, 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, as amended, 29 U.S.C. 2616; and Section 
8(b) of the Occupational Safety and Health Act of 1970, as amended, 29 
U.S.C. 657(b), with respect to the authority delegated by this Order.
    D. The Administrator, Wage and Hour Division is hereby delegated 
authority and assigned responsibility to issue U Nonimmigrant Status 
Certifications under Section 1513(b) of the Victims of Trafficking and 
Violence Protection Act of 2000, as amended, 8 U.S.C. 1101(a)(15)(U) 
and related Department of Homeland Security regulations (see 8 CFR 
214.14).
    E. The Administrator, Wage and Hour Division 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. (12) 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 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.
    6. 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 01-2002 (September 24, 2002).
    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).
    7. Redelegation of Authority. Except as otherwise provided by law, 
all of the authorities delegated in this Order may be redelegated.
    8. Effective Date. This Order is effective immediately.
 
    Dated: September 2, 2010.
Hilda L. Solis,
Secretary of Labor.
[FR Doc. 2010-22654 Filed 9-9-10; 8:45 am]
BILLING CODE 4510-23-P
 

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