[Federal Register Volume 67, Number 204 (Tuesday, October 22, 2002)]
[Notices]
[Pages 65008-65009]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-26836]



[[Page 65007]]

-----------------------------------------------------------------------

Part VII





Department of Labor





-----------------------------------------------------------------------



Secretary's Order 5-2002; Delegation of Authority and Assignment of 
Responsibility to the Assistant Secretary for Occupational Safety and 
Health; Notice

  Federal Register / Vol. 67, No. 204 / Tuesday, October 22, 2002 / 
Notices  

[[Page 65008]]


-----------------------------------------------------------------------

DEPARTMENT OF LABOR

Office of the Secretary


Secretary's Order 5-2002; Delegation of Authority and Assignment 
of Responsibility to the Assistant Secretary for Occupational Safety 
and Health

1. Purpose

    To delegate authority and assign responsibility to the Assistant 
Secretary for Occupational Safety and Health.

2. Authorities and Directives Affected.

a. Authorities

    This Order is issued pursuant to 29 U.S.C. 551 et seq.; 5 U.S.C. 
301; 5 U.S.C. 5315; the Occupational Safety and Health Act of 1970, 29 
U.S.C. 651, et seq.; the Walsh-Healey Public Contracts Act of 1936, as 
amended, 41 U.S.C. 35, 37-41, 43-45; the McNamara-O'Hara Service 
Contract Act of 1965, as amended, 41 U.S.C. 351-354, 356-357; the 
Contract Work Hours and Safety Standards Act, as amended, 40 U.S.C. 
329, 333; the Maritime Safety Act of 1958, 33 U.S.C. 941; the National 
Foundation on the Arts and the Humanities Act of 1965, 20 U.S.C. 
954(m)(2); 5 U.S.C. 7902 and any executive order thereunder, including 
Executive Order 12196 (``Occupational Safety and Health Programs for 
Federal Employees'') (February 26, 1980); the Surface Transportation 
Assistance Act of 1982, 49 U.S.C. 31105; the Asbestos Hazard Emergency 
Response Act of 1986, 15 U.S.C. 2651; the International Safe Container 
Act, 46 U.S.C. App.1506; the Safe Drinking Water Act, 42 U.S.C. 300j-
9(i); the Energy Reorganization Act of 1974, as amended, 42 U.S.C. 
5851; the Comprehensive Environmental Response, Compensation and 
Liability Act of 1980, 42 U.S.C. 9610 (a)--(d); the Federal Water 
Pollution Control Act, 33 U.S.C. 1367; the Toxic Substances Control 
Act, 15 U.S.C. 2622; the Solid Waste Disposal Act, 42 U.S.C. 6971; the 
Clean Air Act, 42 U.S.C. 7622; the Wendell H. Ford Aviation Investment 
and Reform Act For the 21st Century, 49 U.S.C. 42121; the Sarbanes-
Oxley Act of 2002, 18 U.S.C. 1514A.

b. Directives Affected

    Secretary's Order 3-2000 is cancelled.

3. Background

    This Order constitutes the basic Secretary's Order for the 
Occupational Safety and Health Administration (OSHA), superseding Order 
3-2000. This Order delegates and assigns responsibility to OSHA for 
enforcement of Section 806 (protection for employees of publicly-traded 
companies providing evidence of fraud) of Pub. L. 107-204, the 
Sarbanes-Oxley Act of 2002, 18 U.S.C. 1514A, and makes other minor 
conforming modifications. All other authorities and responsibilities 
set forth in this Order were delegated or assigned previously to the 
Assistant Secretary for OSHA in Secretary's Order 3-2000, 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, and whistleblower, programs and activities of the Department of 
Labor, except as provided in paragraph 4.a.(2) below, under the 
designated provisions of the following laws:
    (a) Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et 
seq.
    (b) Walsh-Healey Public Contracts Act of 1936, as amended, 41 
U.S.C. 35, 37-41, 43-45.
    (c) McNamara-O'Hara Service Contract Act of 1965, as amended, 41 
U.S.C. 351-354, 356-357.
    (d) Contract Work Hours and Safety Standards Act, as amended, 40 
U.S.C. 329, 333.
    (e) Maritime Safety Act of 1958, 33 U.S.C. 941.
    (f) National Foundation on the Arts and the Humanities Act of 1965, 
20 U.S.C. 954(m)(2).
    (g) 5 U.S.C. 7902 and any executive order thereunder, including 
Executive Order 12196 (``Occupational Safety and Health Programs for 
Federal Employees'') (February 26, 1980).
    (h) Surface Transportation Assistance Act of 1982, 49 U.S.C. 31105.
    (i) Asbestos Hazard Emergency Response Act of 1986, 15 U.S.C. 2651.
    (j) International Safe Container Act, 46 U.S.C. App.1506.
    (k) Safe Drinking Water Act, 42 U.S.C. 300j-9(i).
    (l) Energy Reorganization Act of 1974, as amended, 42 U.S.C. 5851.
    (m) Comprehensive Environmental Response, Compensation and 
Liability Act of 1980, 42 U.S.C. 9610 (a)--(d).
    (n) Federal Water Pollution Control Act, 33 U.S.C. 1367.
    (o) Toxic Substances Control Act, 15 U.S.C. 2622.
    (p) Solid Waste Disposal Act, 42 U.S.C. 6971.
    (q) Clean Air Act, 42 U.S.C. 7622.
    (r) Wendell H. Ford Aviation Investment and Reform Act For the 21st 
Century, 49 U.S.C. 42121.
    (s) Sarbanes-Oxley Act of 2002, 18 U.S.C. 1514A.
    (t) Responsibilities of the Secretary of Labor with respect to 
safety and health, or whistleblower, provisions of any other Federal 
law except those responsibilities which are assigned to another DOL 
agency.
    (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 OSHA is hereby delegated authority 
and assigned responsibility to invoke all appropriate claims of 
governmental privilege, arising from the functions of OSHA, following 
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

[[Page 65009]]

OSHA in matters arising under an authority delegated or assigned in 
this paragraph): A claim of privilege may be asserted where the 
Assistant Secretary has determined that disclosure of the privileged 
matter may: (1) Interfere with an investigative or enforcement action 
taken by OSHA under an authority delegated or assigned to OSHA in this 
paragraph; (2) adversely affect persons who have provided information 
to OSHA; or (3) deter other persons from reporting a violation of law 
or other authority delegated or assigned to OSHA in this paragraph.
    (b) Deliberative Process Privilege (to withhold information which 
may disclose pre-decisional intra-agency or inter-agency deliberations, 
including the analysis and evaluation of fact, written summaries of 
factual evidence, and recommendations, opinions or advice on legal or 
policy matters in matters arising under this paragraph): A claim of 
privilege may be asserted where the Assistant Secretary has determined 
that disclosure of the privileged matter would have an inhibiting 
effect on the agency's decision-making processes.
    (c) Privilege for Investigational Files Compiled for Law 
Enforcement Purposes (to withhold information which may reveal OSHA's 
confidential investigative techniques and procedures): The 
investigative file privilege may be asserted where the Assistant 
Secretary has determined the disclosure of the privileged matter may 
have an adverse impact upon OSHA's implementation of an authority 
delegated or assigned in this paragraph, by: (1) Disclosing 
investigative techniques and methodologies; (2) deterring persons from 
providing information to OSHA; (3) prematurely revealing the facts of 
OSHA's case; or (4) 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 Assistant 
Secretary shall personally review all documents sought to be withheld 
(or, in a case where the volume is so large that all of them cannot be 
personally reviewed in a reasonable time, an adequate and 
representative sample of such documents), together with a description 
or summary of the litigation in which the disclosure is sought.
    (e) In asserting a claim of governmental privilege, the Assistant 
Secretary may ask the Solicitor of Labor, or the Solicitor's 
representative, to file any necessary legal papers or documents.
    (4) 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 paragraph 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 Solicitor of Labor is responsible for providing legal advice 
and assistance to all Department of Labor officials relating to 
implementation and administration of all aspects of this Order. 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.
    d. 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 paragraph 4.a. above is 
reserved to the Secretary.
    b. The commencement of legal proceedings under the statutory 
provisions listed in paragraph 4.a. above, except proceedings before 
Department of Labor administrative law judges and the Administrative 
Review Board under the statutes identified in paragraph 4.a.(1)(h) or 
paragraphs 4.a.(1)(k-t) above, 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 1-2002 (September 24, 2002).

6. Redelegation of Authority

    The Assistant Secretary for Occupational Safety and Health, 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 is 
effective immediately.

    Dated: October 10, 2002.
Elaine L. Chao,
Secretary of Labor.
[FR Doc. 02-26836 Filed 10-21-02; 8:45 am]
BILLING CODE 4510-23-P