Delegation of Authority and Assignment of Responsibility to the Assistant Secretary for Occupation Safety and Health

DEPARTMENT OF LABOR

[Secretary's Order 6-96]

Delegation of Authority and Assignment of Responsibility to the

Assistant Secretary for Occupation Safety and Health

December 27, 1996.

1. Purpose. To delegate authority and assign responsibility to the

Assistant Secretary for Occupational Safety and Health.

2. Directives Affected. This Order repeals and supersedes

Secretary's Order 1-90 (Occupational Safety and Health). In addition,

this Order cancels Secretary's Orders 6-94 (previously superseded in

part by Secretary's Order 1-96) and 1-96.

3. Background. This Order, which repeals and supersedes Secretary's

Order 1-90, constitutes the generic Secretary's Order for the

Occupational Safety and Health Administration. Specifically, this

Order, in conjunction with Secretary's Order 5-96, effects an exchange

of particular authorities and responsibilities between the Assistant

Secretary for Employment Standards and the Assistant Secretary for

Occupational Safety and Health. The exchange was tested in a pilot

project for Region VI established by Secretary's Order 6-94 (extended

by Secretary's Order 1-96), that granted these Assistant Secretaries

limited concurrent authority to enforce certain laws establishing labor

standards affecting field sanitation and migrant housing, which had

been delegated to the Occupational Safety and Health Administration

(OSHA) under Secretary's Order 1-90, and certain environmental and

public health-related whiteblower protection laws, which had been

delegated to the Employment Standards Administration (ESA) under

Secretary's Order 1-93. The pilot project resulted in a determination

that the respective agencies would make better

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use of their program expertise, and, therefore, that the Department of

Labor would more effectively and efficiently utilize its resources, by

a permanent transfer of specific enforcement activities between the

Assistant Secretaries for OSHA and ESA.

Accordingly, this Order grants the Assistant Secretary for OSHA

authority to investigate and resolve allegations of discriminatory

actions taken by employers against employees in violation of the

following statutory whitleblower protection provisions: (1) Section

1450(i) of the Safe Drinking Water Act, 42 U.S.C. 300j-9(i); (2)

Section 211 of the Energy Reorganization Act of 1974, as amended, 42

U.S.C. 5851; (3) Section 110(a)-(d) of the Comprehensive Environmental

Response Compensation and Liability Act of 1980, 42 U.S.C. 9610(a)-(d);

(4) Section 507 of the Federal Water Pollution Control Act, 33 U.S.C.

1367; (5) Section 23 of the Toxic Substances Control act, 15 U.S.C.

2622; (6) Section 7001 of the Solid Waste Disposal Act, 42 U.S.C. 6971;

and (7) Section 322 of the Clean Air Act, 42 U.S.C. 7622. (See

subparagraphs 4.a. (1)(l)-(r) of this Order.) Secretary's Order 5-96

grants the Assistant Secretary for ESA authority under the Occupational

Safety and Health Act of 1970, 29 U.S.C. 651 et seq., to enforce

compliance by agricultural employers with, and to develop and issue

compliance interpretations regarding, the standards on: (1) Field

sanitation, 29 C.F.R. 1928.110; and (2) temporary labor camps, 29

C.F.R. 1910.142, as described in subparagraph 4.a.(2)(b) of this Order.

(See subparagraph 4.a. (2) of this Order).

All other authority and responsibility set forth in this Order were

delegated or assigned previously to the Assistant Secretary for OSHA in

Secretary's Order 1-90, 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 Occupational Safety and Health

(1) The Assistant Secretary for Occupational Safety and Health is

delegated authority and assigned responsibility for administering the

safety and health programs and activities of the Department of Labor,

except as provided in subparagraph 4.a.(2) below, under the designated

provisions of the following statutes:

(a) The Occupational Safety and Health Act of 1970, 29 U.S.C. 651

et seq.

(b) The Walsh-Healey Public Contracts Act of 1936, as amended, 41

U.S.C. 35, 37-41, 43-45.

(c) The McNamara-O'Hara Service Contract Act of 1965, as amended,

41 U.S.C. 351-354, 356-357.

(d) The Contract Work Hours and Safety Standards Act, as amended,

40 U.S.C. 329, 333.

(e) The Maritime Safety Act of 1958, 33 U.S.C. 941.

(f) The National Foundation on the Arts and the Humanities Act of

1965, 20 U.S.C. 954(i)(2).

(g) 5 U.S.C. 7902 and any Executive Order thereunder.

(h) Executive Order 12196 (``Occupational Safety and Health

Programs for Federal Employees'') of February 26, 1980.

(i) 49 U.S.C. 31105, the whistleblower provision of the Surface

Transportation Assistance Act of 1982.

(j) Section 211 of the Asbestos Hazard Emergency Response Act of

1986, 15 U.S.C. 2651.

(k) Section 7 of the International Safe Container Act, 46 U.S.C.

App. 1505.

(l) Section 1450(i) of the Safe Drinking Water Act, 42 U.S.C. 300J-

9(i).

(m) Section 211 of the Energy Reorganization Act of 1974, as

amended, 42 U.S.C. 5851.

(n) Section 110 (a)-(d) of the Comprehensive Environmental

Response, Compensation and Liability Act of 1980, 42 U.S.C. 9610 (a)-

(d).

(o) Section 507 of the Federal Water Pollution Control Act, 33

U.S.C. 1367.

(p) Section 23 of the Toxic Substances Control Act, 15 U.S.C. 2622.

(q) Section 7001 of the Solid Waste Disposal Act, 42 U.S.C. 6971.

(r) Section 322 of the Clean Air Act, 42 U.S.C. 7622.

(s) Responsibilities of the Secretary of Labor with respect to

safety and health provisions of any other Federal statutes except those

related to mine safety and health, the issuance of child labor

hazardous occupation orders, and Department of Labor employee safety

and health, which are administered pursuant to Secretary's Orders 3-78,

5-96, and 5-95, respectively.

(2) The authority of the Assistant Secretary for Occupational

Safety and Health under the Occupational Safety and Health Act of 1970

does not include authority to conduct inspections and investigations,

issue citations, assess and collect penalties, or enforce any other

remedies available under the statute, or 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.

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 OSHA retains

the authority to monitor the activity of such States with respect to

field sanitation and temporary labor camps. Moreover, the Assistant

Secretary for OSHA retains all other agency authority and

responsibility under the Occupational Safety and Health Act with regard

to the standards on field sanitation and temporary labor camps, such as

rulemaking authority.

(3) The Assistant Secretary for Occupational Safety and Health is

also delegated authority and assigned responsibility for:

(a) Serving as Chairperson of the Federal Advisory Council on

Occupational Safety and Health, as provided for by Executive Order

12196.

(b) Coordinating Agency efforts with those of other officials or

agencies having responsibilities in the occupational safety and health

area.

b. The Assistant Secretary for Occupational Safety and Health and

the Assistant Secretary for Employment Standards 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. (2) 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.

c. 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 Employment

Standards Administration are reallocated and transferred to OSHA, as

appropriate, in an orderly and equitable manner.

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d. 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.

e. 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 provisions 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.

f. The Commissioner of Labor Statistics is delegated authority and

assigned responsibility for:

(1) Furthering the purpose of the Occupational Safety and Health

Act by developing and maintaining an effective program of collection,

compilation, analysis, and publication of occupational safety and

health statistics consistent with the provisions of Secretary's Orders

4-81 and 5-95.

(2) Making grants to states or political subdivisions thereof in

order to assist them in developing and administering programs dealing

with occupational safety and health statistics under Sections 18, 23,

and 24 of the Occupational Safety and Health Act.

(3) Coordinating the above functions with the Assistant Secretaries

for Occupational Safety and Health and Employment Standards.

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 in subparagraph 4.a. above is

reserved to the Secretary.

b. The commencement of legal proceedings under the statutory

provisions listed in subparagraph 4.a. above, except proceedings before

Department of Labor administrative law judges and the Administrative

Review Board under 49 U.S.C. 31105 (the whistleblower provision of the

Surface Transportation Assistance Act), is reserved to the Secretary.

The Solicitor will determine in each case whether such legal

proceedings are appropriate and may represent the Secretary in

litigation as authorized by law.

c. 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).

6. Redelegation of Authority. The Assistant Secretary for

Occupational Safety and Health, the Chief Financial Officer, the

Assistant Secretary for Administration and Management, the Solicitor of

Labor, and the Commissioner of Labor Statistics may redelegate

authority delegated in this Order.

7. Effective Date. This delegation of authority and assignment of

responsibility shall be effective on February 3, 1997.

Robert B. Reich,

Secretary of Labor.

[FR Doc. 96-33366 Filed 12-31-96; 8:45 am]

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