Pilot Project to Create Concurrent Authorities and Responsibilities for the Assistant Secretary for Occupational Safety and Health and the Assistant Secretary for Employment Standards With Respect to Certain Whistleblower Protection Laws and Certain Laws Establishing Labor Standards Affecting Field Sanitation and Migrant Housing

DEPARTMENT OF LABOR

[Secretary's Order 6-94]

Pilot Project to Create Concurrent Authorities and

Responsibilities for the Assistant Secretary for Occupational Safety

and Health and the Assistant Secretary for Employment Standards With

Respect to Certain Whistleblower Protection Laws and Certain Laws

Establishing Labor Standards Affecting Field Sanitation and Migrant

Housing

December 28, 1994.

1. Purpose

To delegate certain authorities and responsibilities now assigned

to the Assistant Secretary for Occupational Safety and Health to the

Assistant Secretary for Employment Standards; and, to delegate certain

authorities and responsibilities of the Assistant Secretary for

Employment Standards to the Assistant Secretary for Occupational Safety

and Health.

2. Background and Overview

The Employment Standards Administration (ESA) has developed

considerable expertise in the administration and enforcement of a

variety of labor standards programs, including those affecting

agricultural employers and employees. ESA's [[Page 3656]] resources,

however, have not permitted the same degree of specialization in the

enforcement of certain whistleblower protection laws, delegated to it

under Secretary's Order No. 1-93 (listed in section 4.a. of this

Order). On the other hand, the Occupational Safety and Health

Administration (OSHA) has developed considerable expertise in the

administration and enforcement of whistleblower protection laws. Its

resources, however, have not permitted the same degree of

specialization in the enforcement of safety and health standards

affecting the agricultural industry, delegated to it under Secretary's

Order No. 1-90 (listed in section 4.b. of this Order). With a view

toward better utilizing the respective agencies' program expertise, and

thereby more effectively and efficiently utilizing the Department's

resources, the Assistant Secretaries for ESA and OSHA have requested

authority to conduct a pilot program for approximately one year to test

the efficacy of a limited exchange of enforcement responsibilities for

these whistleblower and agriculture safety and health programs. By this

Order, I approve this request by granting to these Assistant

Secretaries limited concurrent authority to enforce the whistleblower

protections and agricultural safety and health laws enumerated in

sections 4.a. and 4.b. of this Order.

As provided by section 7 of the Order, the pilot program will

commence in the Dallas Region, Southwest Division (excluding New

Mexico). However, section 7 also authorizes the two Assistant

Secretaries to modify the geographic scope of the program by written

agreement, approved by the Secretary. The delegation of authority and

responsibility in this Order expires at the end of the calendar year

1995.

This pilot program will allow the Department to assess whether a

permanent and complete transfer of enforcement responsibilities between

ESA and OSHA for these whistleblower and agricultural safety and health

programs would promote more effective enforcement of these programs. By

this Order, I direct certain Department of Labor agencies to take steps

to implement the pilot program and, if it proves successful, to assess

whether action should be taken to implement the program on a wider, and

possibly nationwide basis.

3. Directives Affected

Section 3.a. of Secretary's Order 1-93 (ESA) is amended with regard

to the delegation of authority and assignment of responsibility to the

Assistant Secretary for Employment Standards to perform the additional

statutory functions listed in section 4.a. of this order. The authority

and responsibility to perform those statutory functions are thus

delegated concurrently to the Assistant Secretary for Employment

Standards and to the Assistant Secretary for Occupational Safety and

Health, subject to the terms and conditions of sections 4., 5., 6., 7.,

and 8. of this Order.

Section 4.a.(1) of Secretary's Order No. 1-90 (OSHA) is amended

with regard to the delegation of authority and assignment of

responsibility to the Assistant Secretary for Occupational Safety and

Health to perform the additional statutory functions listed in section

4.b. of this Order. The authority and responsibility to perform those

statutory functions are thus delegated concurrently to the Assistant

Secretary for Occupational Safety and Health and to the Assistant

Secretary for Employment Standards, subject to the terms and conditions

of sections 4., 5., 6., 7. and 8. of this Order.

4. Delegation of Authority and Assignment of Responsibilities

a. The Assistant Secretary for Occupational Safety and Health and

the Assistant Secretary for Employment Standards, consistent with the

terms of this Order and except as hereinafter provided, are hereby

concurrently delegated the authority and assigned responsibility for

carrying out the employment 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, arising

under the following statutes:

--Energy Reorganization Act of 1974, as amended, 42 U.S.C. 5851;

--Safe Drinking Water Act, 42 U.S.C. 300j-9(i);

--Comprehensive Environmental Response, Compensation and Liability Act

of 1980, 42 U.S.C. 9610;

--Federal Water Pollution Control Act, 33 U.S.C. 1367;

--Toxic Substances Control Act, 15 U.S.C. 2622;

--Solid Waste Disposal Act, 42 U.S.C. 6971;

--Clean Air Act, 42 U.S.C. 7622.

Under the foregoing statutory provisions, the Secretary is charged

with the responsibility of investigating and resolving allegations of

discriminatory actions taken by employers against employees in

violation of various environmental and public health related statutes

(so called ``whistleblower'' protections). This delegation to the

Assistant Secretaries also encompasses such responsibilities as may

arise under 29 CFR Part 24 and other responsibilities as may arise as

the result of pertinent amendments to the statutory and regulatory

provisions enumerated in section 4.a. The Secretary explicitly reserves

the authority to issue final decisions under these provisions.

b. The Assistant Secretary for Employment Standards and the

Assistant Secretary for Occupational Safety and Health, consistent with

the terms of this Order and except as hereinafter provided, are hereby

concurrently delegated the authority and assigned responsibility for

carrying out the employment 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, arising

under the following provisions:

--Under sections 8, 9 and 10 of the Occupational Safety and Health Act

of 1970, to conduct inspections, issue citations and propose penalties

to enforce compliance by agricultural employers with the standards on

field sanitation, 29 CFR 1928.110, and temporary labor camps, 29 CFR

1910.142.

This delegation to the Assistant Secretaries also encompasses such

responsibilities as may arise as the result of pertinent amendments to

the statutory and regulatory provisions enumerated in section 4.b. The

Secretary explicitly reserves the authority to issue final decisions

under these provisions.

c. 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 statutes listed in sections 4.a.

and 4.b. and to legal issues arising under this order. The bringing of

legal proceedings on behalf of the Secretary of Labor and/or other

officials of the Department of Labor under the statutes listed in

sections 4.a. and 4.b., the representation of Departmental officials in

these proceedings, and the determination of whether such proceedings or

representations are appropriate in a given case are delegated

exclusively to the Solicitor of Labor.

d. The Chief Financial Officer and the Assistant Secretary for

Administration and Mangement shall have the authority and

responsibility to assure an appropriate allocation of costs and

resources to the Assistant Secretaries, as required by law, to assure

effectuation of this Order. [[Page 3657]]

5. Application of Effective Regulations

In concurrently exercising authority under this Order the Assistant

Secretaries shall operate affected programs under regulations currently

effective, unless otherwise authorized by the Secretary.

6. Reservation of Authority

a. The submission of reports and recommendations to the President

and the Congress concerning the administration of the statutes listed

in section 4. is reserved to the Secretary.

b. The authority delegated and the responsibilities assigned to the

Director of the Office of Administrative Appeals by Secretary's Order

3-90 are reserved.

7. Redelegation of Authority

The Assistant Secretary for Occupational Safety and Health, the

Assistant Secretary for Employment Standards, the Solicitor of Labor,

the Chief Financial Officer, and the Assistant Secretary for

Administration and Management may redelegate authority delegated by

this Order.

8. Effective Dates and Geographic Scope

This Order is effective immediately. The delegations of authority

and assignment of responsibilities of this Order expire on December 31,

1995, and have effect only in the Dallas Region, Southwest Division

[excluding the State of New Mexico], unless modification of the

geographic scope of the pilot program is made. Any such modification

must be made by the written agreement of the Assistant Secretary for

Occupational Safety and Health and the Assistant Secretary for

Employment Standards, after consultation with the Solicitor of Labor,

the Chief Financial Officer and the Assistant Secretary for

Administration and Management. Such written agreement shall become

effective upon approval by the Secretary and proper notice to the

public.

9. Report

By August 15, 1995, or such other date established by the Secretary

of Labor, the Assistant Secretary for Occupational Safety and Health

and the Assistant Secretary for Employment Standards shall, after

consultation with the Solicitor of Labor, the Chief Financial Officer,

and the Assistant Secretary for Administration and Management, report

to the Secretary on the findings of and the conclusions drawn from the

pilot program and shall recommend further action for the Secretary with

respect to the pilot program.

Robert B. Reich,

Secretary of Labor.

[FR Doc. 95-1123 Filed 1-17-95; 8:45 am]

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