[Federal Register Volume 77, Number 184 (Friday, September 21, 2012)]
[Rules and Regulations]
[Pages 58488-58491]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-23366]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1952
[Docket ID. OSHA 2012-0029]
RIN 1218-AC78
Hawaii State Plan for Occupational Safety and Health
AGENCY: Occupational Safety and Health Administration, Department of
Labor.
ACTION: Final rule.
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SUMMARY: This document announces the Occupational Safety and Health
Administration's (OSHA) decision to modify the Hawaii State Plan's
"final approval" determination under Section 18(e) of the
Occupational Safety and Health Act (the Act) and to transition to
"initial approval" status. OSHA is reinstating concurrent federal
enforcement authority over occupational safety and health issues in the
private sector, which have been solely covered by the Hawaii State Plan
since 1984.
DATES: Effective September 21, 2012.
FOR FURTHER INFORMATION CONTACT:
For press inquiries: Francis Meilinger, OSHA Office of
Communications, Room N-3647, U.S. Department of Labor, 200 Constitution
Avenue NW., Washington, DC 20210; telephone (202) 693-1999; email:
meilinger.francis2@dol.gov.
For general and technical information: Douglas J. Kalinowski,
Director, OSHA Directorate of Cooperative and State Programs, Room N-
3700, U.S. Department of Labor, 200 Constitution Avenue NW.,
Washington, DC 20210; telephone: (202) 693-2200; email:
kalinowski.doug@dol.gov.
SUPPLEMENTARY INFORMATION:
Background
Hawaii administers an OSHA-approved state plan to develop and
enforce occupational safety and health standards for public and private
sector employers, pursuant to the provisions of Section 18 of the Act.
The Hawaii State Plan received initial federal OSHA plan approval on
December 28, 1973 (39 FR 1010) and the Hawaii Occupational Safety and
Health Division (HIOSH) of the Hawaii Department of Labor and
Industrial Relations is designated as the state agency responsible for
administering the state plan. Pursuant to Section 18(e) of the Act,
OSHA granted Hawaii "final approval" effective April 30, 1984 (49 FR
19182). Final approval under Section 18(e) requires, among other
things, a finding by the Assistant Secretary that the plan, in actual
operation, provides worker protection "at least as effective as" that
provided by federal OSHA. A final approval determination results in the
relinquishment of federal concurrent enforcement authority in the state
with respect to occupational safety and health issues covered by the
plan. 29 U.S.C. 667(e).
During the past three years, the Hawaii State Plan has faced major
budgetary and staffing restraints that have significantly affected its
program. Impacts on the state plan are clearly reflected throughout
OSHA's recent monitoring reports. Joint efforts were made by federal
OSHA and HIOSH to address these issues, yet Hawaii continues to face severe programmatic,
staffing and training challenges. Therefore, the Hawaii Director of
Labor and Industrial Relations has requested a temporary modification
of the state plan's approval status from final approval to initial
approval, to permit exercise of supplemental federal enforcement
activity and to allow Hawaii sufficient time and assistance to
strengthen its state plan. Hawaii has pledged to accomplish the
necessary corrective action to regain final approval status in a timely
manner. Hawaii's proactive efforts demonstrate a commitment to ensuring
that workers are afforded adequate protection during this period of
program strengthening and improvement.
Pursuant to the procedures set forth at 29 CFR 1902.47 et seq.,
OSHA published notice of its reconsideration of Hawaii's 18(e)
determination; proposed resumption of concurrent federal enforcement
authority; and a request for written comments and opportunity to
request an informal hearing on July 19, 2012 (77 FR 42462). That notice
also contains a more detailed description of the Hawaii State Plan and
the identified deficiencies. The 35-day comment period closed on August
23, 2012 and OSHA received four (4) written comments, including two (2)
requests for a hearing.
Decision
Pursuant to the procedures set forth in 29 CFR 1902.47 et seq., the
Assistant Secretary for Occupational Safety and Health has made a final
decision to modify the Hawaii State Plan's approval status from 18(e)
final approval to initial approval, and to reinstate concurrent federal
enforcement authority over occupational safety and health issues in the
state, pending the necessary corrective action by the state plan in
order to once again meet the criteria for an 18(e) final approval
determination. Concurrent federal enforcement authority will be
exercised in Hawaii effective September 21, 2012.
The Assistant Secretary's decision is based upon the facts
determined by OSHA in monitoring the Hawaii State Plan and HIOSH's
request for enforcement assistance, and was reached after opportunity
for public comment. Three organizations and one individual filed a
comment with the agency within the public comment period. Comments were
received from the Hawaii Business League, Veterans of Safety Hawaii
Chapter, Island Insurance Company, Ltd., and Dr. Walter Chun. OSHA has
reviewed and considered the comments, and the following discussion
addresses the comments and OSHA's responses.
The Hawaii Business League stated a strong preference for Hawaii to
maintain a state plan and voiced favorable support for a transition to
initial approval as means to progress towards restoration of Hawaii's
18(e) final approval status. Island Insurance Company, Ltd. and Dr.
Walter Chun raised concerns about how HIOSH allows for greater penalty
reductions than federal OSHA, and about whether fines/penalties will be
part of the criteria for the Hawaii State Plan to regain its 18(e)
final approval status. Pursuant to 29 CFR 1902.42(a), "[i]n making an
affirmative 18(e) determination, the Assistant Secretary determines
that a State has applied the provisions of its plan, or any
modification thereof, in accordance with the criteria of Section 18(c)
of the Act and that the State has applied the provisions of this part
in a manner which renders the actual operations of the state program
'at least as effective as' operations under the Federal program." One
of the criteria in Section 18(c) of the Act is the development and
enforcement of safety and health standards, and penalties are an
essential component of effective safety and health enforcement in the
workplace. Therefore, Hawaii's overall penalty policy would be
evaluated in the course of regaining 18(e) final approval status.
In response to Dr. Walter Chun's further questions, the addendum
referenced in the Operational Status Agreement (OSA) will not be
available for public comment. The addendum is an internal working
document between the Director of the Hawaii Department of Labor and
Industrial Relations and OSHA's Regional Administrator for Region IX,
outlining the plan of action and milestones for the Hawaii State Plan
to work towards regaining 18(e) final approval status. During the
period of concurrent state and federal authority, both Hawaii and
federal OSHA have authority to conduct inspections and issue citations.
However, the terms of the OSA will delineate areas of coverage to
ensure employers are not burdened with duplicative enforcement efforts.
Federal OSHA compliance officers will be conducting inspections, in
accordance with the terms of the OSA, and issuing citations and
penalties under federal standards. OSHA is not aware that any changes
in the state's rules or regulations are necessary to accommodate
concurrent jurisdiction.
Dr. Walter Chun and Veterans of Safety Hawaii Chapter both
requested an informal public hearing, to address the public's questions
and comments. The public comments and questions submitted on the docket
have all been addressed in this notice and there are no substantial
issues raised that necessitate a public hearing.
Effect of the Decision
The Assistant Secretary's decision to modify the Hawaii State
Plan's status from final to initial approval would authorize OSHA to
carry on an enforcement program to supplement that of HIOSH, including
independent federal or joint state and federal inspections resulting in
issuance of appropriate federal citations. However, modifying Hawaii's
final approval status would not affect Hawaii's basic plan approval and
would not affect Hawaii's legal authority to enforce state occupational
safety and health standards in the state's workplaces. This
modification would leave Hawaii's federally-approved state plan
completely in place, and would simply reinstate federal OSHA's
authority to supplement state enforcement during this difficult period.
Federal OSHA inspections or joint state and federal OSHA
inspections may result in the issuance of appropriate federal citations
and penalties. Federal OSHA compliance officers may issue citations
effective immediately. Contested federal citations and penalties will
be reviewed by the Federal Occupational Safety and Health Review
Commission (OSHRC). Federal OSHA will continue to exercise federal
authority over safety and health issues excluded from coverage under
the state plan; monitoring inspections including accompanied visits;
and other federal authority not affected by the 1984 final approval
decision.
Notice of the Operational Status Agreement
Federal OSHA will exercise its enforcement authority according to
the terms of the 2012 OSA between OSHA and HIOSH, which specifies the
respective areas of federal and state authority. OSHA will continue to
exercise federal enforcement of federal requirements for safety and
health in private sector maritime activities, 29 CFR part 1915 and
parts 1917-1920, as well as provisions of the general industry and
construction standards appropriate to hazards found in those
employments. Federal jurisdiction also remains in effect over: Federal
government employers and workers, and contractors or subcontractors on
any federal establishment where the land is determined to be exclusive
federal jurisdiction; private sector employers within the secured
borders of all military installations where access is controlled; and U.S. Postal
Service (USPS), including USPS workers, and contract workers and
contractor-operated facilities engaged in USPS mail operations. OSHA
will also exercise authority over OSHA requirements promulgated under
the Act subsequent to the OSA where necessary to protect employers, as
in the case of emergency temporary standards promulgated under Section
6(c) of the Act, until Hawaii has promulgated comparable standards.
The OSA further provides that federal enforcement authority under
Section 18 of the Act may be exercised with regard to federal
occupational safety and health requirements over agriculture and
general industries, excluding transportation and warehousing. Potential
violations where the employer is in compliance with federal
regulations, but not with more stringent HIOSH regulations, shall be
referred to HIOSH.
HIOSH will retain enforcement authority in any case commenced
before September 21, 2012. Additionally, HIOSH will exercise inspection
and enforcement authority over: The construction industry,
transportation and warehousing; state and local government as an
employer; and referrals from federal OSHA to HIOSH.
The OSA also provides that HIOSH and federal OSHA will retain
concurrent enforcement authority over employment discrimination
complaints, pursuant to Section 11(c) of the Act. Employees may
continue to file occupational safety and health whistleblower
complaints with federal OSHA, the state, or both. However, the OSA
provides that, in accordance with OSHA's long-standing policy, OSHA
will generally continue to refer all employment discrimination
complaints that are federally-filed by private-sector and non-federal
public sector employees to HIOSH for investigation, a determination on
the merits, and the pursuit of a remedy, if appropriate. The OSA
explains that federal OSHA will investigate any allegations of
retaliation covered under the OSHA-administered whistleblower laws
other than Section 11(c).
If there arises any case or circumstance in which authority is not
clearly defined in the OSA, OSHA and HIOSH will resolve the issue. In
the meantime, (e.g., where quick response is required such as a
fatality, catastrophe or significant event), OSHA shall respond to the
situation.
Federal OSHA may conduct monitoring visits under Section 18(f) of
the OSH Act. The OSA also provides that OSHA may also accompany HIOSH
on enforcement activities for purposes of technical assistance and
training. And HIOSH may accompany federal OSHA on enforcement
activities for training purposes. The OSA is subject to revision or
termination by mutual agreement of the parties, by either party upon 30
days written notice, or when the results of evaluation or monitoring
reveal that state operations are at least as effective as the federal
program and responsibilities may be returned to the state. Finally, the
OSA includes an Addendum with goals and milestones for returning all
enforcement responsibilities to Hawaii.
Regulatory Flexibility Analysis and Unfunded Mandates
In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et
seq. (as amended), OSHA examined the regulatory requirements of the
final rule to determine whether it would have a significant economic
impact on a substantial number of small entities. Since no employer of
any size will have any new compliance obligations, the Agency certifies
that the final rule will not have a significant economic impact on a
substantial number of small entities. OSHA also reviewed this final
rule in accordance with the Unfunded Mandates Reform Act of 1995 (UMRA;
2 U.S.C. 1501 et seq.) and Executive Order 12875 (56 FR 58093). Because
this rule imposes no new compliance obligations, it requires no
additional expenditures by either private employers or State, local,
and tribal governments.
Federalism
Executive Order 13132, "Federalism," (64 FR 43255, August 10,
1999) emphasizes consultation between Federal agencies and the States
and establishes specific review procedures the Federal government must
follow as it carries out policies which affect State or local
governments. OSHA has consulted extensively with Hawaii about this
modification of its approval status. Although OSHA has determined that
the requirements and consultation procedures provided in Executive
Order 13132 are not applicable to approval decisions under the Act,
which have no effect outside the particular State, OSHA has reviewed
this final rule, and believes it is consistent with the principles and
criteria set forth in the Executive Order.
Why the Immediate Effective Date
OSHA finds that good cause exists for making this rule effective
immediately upon publication in the Federal Register. The current
situation in the state indicates the immediate need for supplementary
federal occupational safety and health enforcement activity for the
protection of workers in Hawaii. In addition, today's action does not
impose any new compliance obligations on affected employers since
standards enforced under the Hawaii State Plan are either identical to
federal standards, or more stringent.
List of Subjects in 29 CFR Part 1952
Intergovernmental relations, Law enforcement, Occupational safety
and health.
Authority and Signature
David Michaels, Ph.D., MPH, Assistant Secretary of Labor for
Occupational Safety and Health, U.S. Department of Labor, 200
Constitution Ave. NW., Washington, DC, authorized the preparation of
this notice. OSHA is issuing this notice under the authority specified
by Section 6(d) of the Occupational Safety and Health Act of 1970 (29
U.S.C. 655), Secretary of Labor's Order No. 1-2012 (77 FR 3912), and 29
CFR part 1905.
Signed in Washington, DC, on September 18, 2012.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
Accordingly, for the reasons set forth in the preamble, 29 CFR part
1952 is amended as set forth below.
PART 1952--[AMENDED]
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1. The authority citation for part 1952 is revised to read as follows:
Authority: Sec. 18, 84 Stat. 1608 (29 U.S.C. 667); 29 CFR part
1902; Secretary of Labor's Order No. 1-2012 (77 FR 3912).
Subpart Y--Hawaii
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2. Remove and reserve Sec. 1952.313, to read as follows:
Sec. 1952.313 [Reserved]
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3. Revise Sec. 1952.314 to read as follows:
Sec. 1952.314 Level of Federal enforcement.
(a) With Hawaii's agreement and as a result of the Assistant
Secretary's reinstatement of Hawaii's initial approval status, Hawaii
and Federal OSHA will begin exercising concurrent jurisdiction under
section 18(e) of the Act on September 21, 2012.
(b) To provide a workable division of enforcement responsibilities,
Hawaii and Federal OSHA have entered into an operational status
agreement. Notice of this agreement was provided in the Federal
Register on September 21, 2012.
Electronic copies of the agreement are available at: http://www.osha.gov/dcsp/osp/stateprogs/hawaii.html.
[FR Doc. 2012-23366 Filed 9-20-12; 8:45 am]
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