[Federal Register Volume 60, Number 175 (Monday, September 11, 1995)]
[Proposed Rules]
[Pages 47131-47133]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-22446]



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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1952


U.S. Virgin Islands State Plan for Occupational Safety and Health

AGENCY: Occupational Safety and Health Administration (OSHA), U.S. 
Department of Labor.

ACTION: U.S. Virgin Islands state plan: Notice of reconsideration of 
18(e) determination; proposed reassumption of concurrent Federal 
enforcement authority; request for written comments; notice of 
opportunity to request informal public hearing.

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SUMMARY: The U.S. Virgin Islands operates a state occupational safety 
and health program or ``state plan'' which is federally approved under 
section 18 of the Occupational Safety and Health Act. In 1984, the 
Occupational Safety and Health Administration made a ``final approval'' 
determination under section 18(e) of the Act which in effect gave 
exclusive regulatory authority over all safety and health issues 
covered by the state plan to the Virgin Islands Department of Labor. 
(The Virgin Islands State Plan is limited in coverage to safety issues, 
in the private sector.) The most recent Federal monitoring of the state 
plan indicates that state plan enforcement has ceased to be ``at least 
as effective as'' that provided under OSHA and that other 18(e) 
requirements are no longer being met. In response to that finding, the 
Virgin Islands Commissioner of Labor has agreed to voluntarily 
relinquish the State's final approval status, has requested the 
reassertion of concurrent Federal enforcement jurisdiction, and has 
pledged to accomplish the necessary corrective action. As a result, the 
affirmative 18(e) determination is under reconsideration by the 
Assistant Secretary of Labor for Occupational Safety and Health, (the 
``Assistant Secretary'') pursuant to procedures set forth in 29 CFR 
1902.47 et seq. Reconsideration and subsequent revocation/suspension of 
the 18(e) determination will result in reinstatement of concurrent 
enforcement authority by Federal OSHA over occupational safety issues 
in the U.S. Virgin Islands pending State corrective action. This notice 
affords an opportunity for the public to submit written information, 
views and comments on the proposed reconsideration. A similar notice 
will be published by the Virgin Islands within the next 10 days.
    OSHA is soliciting written comment from interested persons in its 
reconsideration of the U.S. Virgin Islands State Plan's affirmative 
18(e) determination to assure that all relevant information, views, 
data and arguments are available to the Assistant Secretary during this 
proceeding. Members of the public may also submit requests for an 
informal hearing; if the Assistant Secretary determines that 
substantial issues are presented which a hearing would likely resolve, 
an informal hearing will be scheduled in accordance with 29 CFR 
1902.49(c).

DATES: Comments and requests for an informal hearing must be received 
by October 16, 1995.


[[Page 47132]]

ADDRESSES: Written comments and requests for an informal hearing must 
be submitted in quadruplicate to the Docket Office. Telefaxes will be 
accepted, however, a hard copy original with three (3) copies must also 
be submitted. All comments and requests must be submitted to Docket No. 
T-030, U.S. Department of Labor, room N2625, 200 Constitution Avenue 
NW., Washington, DC 20210 (202) 219-7894. Written comments, and 
requests for an informal hearing will be made available for public 
inspection and copying in the Docket Office, Room n2625 at the 
previously mentioned address, between the hours of 8:15 a.m. and 4:45 
p.m.
    Copies of the applicable evaluation reports and the State's letters 
and Corrective Action Plan may be inspected and copied during normal 
business hours at the OSHA Technical Data Center (TDC), Room N2625, 200 
Constitution Avenue NW., Washington, DC; the approved plan may be 
inspected and copied during normal business hours at the OSHA Office of 
State Programs (OSP), Room N3700, 200 Constitution Avenue NW., 
Washington, DC; copies of the approved plan, the applicable evaluation 
reports and the State's letters and Corrective Action Plan may be 
inspected and copied during normal business hours at the Office of the 
Regional Administrator, Occupational Safety and Health Administration, 
201 Varick Street, Room 670, New York, New York 10014; Puerto Rico Area 
Office, Occupational Safety and Health Administration, U.S. Courthouse 
& FOB, Carlos Chardon Avenue, Room 555, Hato Rey, Puerto Rico 00918, 
and the Virgin Islands Department of Labor, Occupational Safety and 
Health Division, 3012 Golden Rock, Christiansted, St. Croix, Virgin 
Islands 00820.

FOR FURTHER INFORMATION CONTACT: Anne Cyr, Acting Director, Office of 
Information and Consumer Affairs, Occupational Safety and Health 
Administration, U.S. Department of Labor, Room N3637, 200 Constitution 
Avenue NW., Washington, DC 20210, Telephone (202) 219-8148.

SUPPLEMENTARY INFORMATION:

Background

    Section 18 of the Occupational Safety and Health Act of 1970 (the 
Act) provides that States which desire to assume responsibility for the 
development and enforcement of occupational safety and health standards 
may do so by submitting, and obtaining Federal approval of, a State 
plan. Section 3(7) of the Act makes several U.S. territories and 
possessions including the U.S. Virgin Islands eligible to submit State 
plans under section 18. Procedures for State plan submission and 
approval are set forth in regulations at 29 CFR Part 1902. If the 
Assistant Secretary, applying the criteria set forth in Section 18(c) 
of the Act and 29 CFR 1902.3 and 1902.4, finds that the plan provides 
or will provide for State standards and enforcement which are ``at 
least as effective as'' Federal standards and enforcement, ``initial 
approval'' is granted. A State may commence operations under its plan 
after this determination is made, but the Assistant Secretary retains 
discretionary Federal enforcement authority during the initial-approval 
period as provided by Section 18(e) of the Act.
    The Virgin Islands state plan received initial federal OSHA plan 
approval on September 11, 1973, 38 FR 16775. A description of the plan 
and a basic chronology of its submission and federal approval is 
codified in the Code of Federal Regulations at 29 CFR Part 1952, 
Subpart S. The Virgin Islands Department of Labor, Division of 
Occupational Safety and Health (VIDOSH) was designated as the state 
agency with responsibility for administering the state plan, and 
operations under the plan commenced at the time of initial plan 
approval in 1973. The Virgin Islands state plan covers all issues of 
occupational safety in workplaces located within the Virgin Islands. 
Although in the public sector the state plan covers occupational health 
as well as safety, in the private sector the state plan does not 
exercise enforcement authority over occupational health issues; 
enforcement of health standards and other health-related requirements 
in the Virgin Islands private sector is provided by the U.S. Department 
of Labor.
    During the 1970's the Virgin Islands plan proceeded through the 
various stages of federal approval, and after certification of 
completion of all required developmental steps in 1981 (29 CFR 
1952.252; 46 FR 46808, 09-22-81), Federal OSHA began to evaluate the 
program for final approval under section 18(e) of the Act in accordance 
with procedures at 29 CFR 1902.30 et seq., to determine, on the basis 
of actual operations under the plan, whether the criteria for final 
approval were being satisfied. An 18(e) or ``final approval'' 
determination results in the relinquishment of Federal concurrent 
enforcement authority in the State with respect to occupational safety 
and/or health issues covered by the plan, 29 U.S.C. 667(e).
    Based on OSHA's evaluation of operations under the plan, and after 
opportunity for public comment the Assistant Secretary determined that 
in actual operations, the Virgin Islands State plan was ``at least as 
effective as'' the Federal program in providing safe and healthful 
employment and places of employment, and met all other criteria for 
final State plan approval under Section 18(e) of the Act and 
implementing regulations at 29 CFR Part 1902 including compliance 
staffing consistent with benchmarks established pursuant to AFL-CIO v. 
Marshall 570 F.2d 1030 (D.C. Cir. 1978). Accordingly, the Virgin 
Islands plan was granted final approval, 29 CFR 1952.253, and 
concurrent Federal enforcement authority over occupational safety was 
relinquished under section 18(e) of the Act effective April 17, 1984. 
29 CFR 1952.254; 49 FR 16755 (April 20, 1984).

Summary of Current Situation

    The U.S. Virgin Islands state program is experiencing significant 
difficulties, and exhibiting deficiencies in many aspects of its 18(e) 
program, as documented in the three most recent Evaluation reports 
covering 1991 through 1994 as prepared by OSHA's Region II in New York. 
Despite many past assurances to OSHA that the administering agency will 
correct the deficiencies and satisfactorily address the problems, the 
deficiencies remain unabated. The most basic activities of the program, 
including scheduling of inspections, identification and citation of 
hazards, proposal of penalties, review of contested cases, staff 
training, and response to new Federal standards and Federal program 
changes are not being accomplished in an effective manner. Accompanied 
visits and case file reviews have uncovered significant deficiencies in 
critical enforcement areas, including inspection preparation, 
inspection procedures, hazard recognition, abatement assurance, case 
file documentation, and adjudication of contested cases. Additional 
deficiencies also exist in fiscal administration and reporting, and 
maintenance of sufficient, qualified staff. The severity of the 
program's present deficiencies along with the record of their last five 
(5) years of somewhat problematic performance has resulted in the 
mutual conclusion by OSHA's Regional Administrator and the Virgin 
Islands newly appointed Commissioner of Labor that the VIDOSH program 
does not currently meet the criteria requisite to retain an affirmative 
determination under Section 18(e) of the Act, as it is not operating in 
a manner that can be judged ``at least as effective as'' the Federal 
OSHA program.

[[Page 47133]]

    By letter dated July 19, 1995, Lisa Harris-Moorhead, Virgin 
Islands' Commissioner of Labor indicated the state's agreement to 
voluntary relinquishment of the U.S. Virgin Islands State plan's final 
approval status under Section 18(e) of the Act and to reassertion of 
concurrent Federal enforcement jurisdiction. On behalf of the Governor 
and his new administration she committed the state to making the Virgin 
Islands' workplaces safe and healthful and to ``marked improvement'' in 
the state's program by December.

Proposed Reconsideration of 18(e) Determination and Reinstatement of 
Concurrent Federal Enforcement Authority

    Section 18(f) of the Act requires the Assistant Secretary to make a 
continuing evaluation of the manner in which each state plan is being 
administered. Under regulations at 29 CFR 1902.32(e), after a State's 
plan has been given an affirmative 18(e) determination, the State is 
required to maintain a program which will meet the requirements of 
section 18(c) and will continue to be ``as least as effective as'' the 
Federal program. A failure to comply with this or other 18(e) 
requirements may result in the reconsideration and revocation or 
suspension of the affirmative 18(e) determination and the resumption of 
Federal enforcement authority, or, if circumstances warrant, the 
commencement of proceedings for the withdrawal of approval of the plan 
pursuant to 29 CFR Part 1955 and section 18(f) of the Act.
    Under the authority of section 18 of the Act and 29 CFR 1902.32(f) 
and 1902.47 et seq., the Assistant Secretary on his own initiative and 
in response to the state's request is seeking public comment on his 
proposal to reconsider the U.S. Virgin Islands State plan's affirmative 
18(e) determination and reinstate concurrent Federal enforcement 
authority in order to assure adequate worker protection and the 
effective enforcement of safety standards and regulations. A decision 
revoking or suspending the state's 18(e) status would not terminate 
federal approval of the state plan and would not affect the legal 
authority of the Virgin Islands to carry on enforcement activities 
under the state plan. Instead, revocation/suspension of a state's 18(e) 
determination restores the state plan to ``initial approval'' status 
and permits the resumption of concurrent federal enforcement activity 
including independent Federal or joint state and Federal inspections 
resulting in the issuance of appropriate Federal citations and 
penalties and the review of contested cases by the Occupational Safety 
and Health Review Commission (OSHRC). Federal enforcement activity will 
reflect all new OSHA compliance initiatives to promote voluntary 
compliance through common sense regulation and appropriately rewarding 
employers who take affirmative steps to assure worker protection. OSHA 
believes such action is an appropriate response to current 
circumstances in the Virgin Islands; restoring the state plan to its 
pre-1984 ``initial approval'' status acknowledges the deficiencies 
presently existing in the state program, which, while serious and 
extensive, do not in the Assistant Secretary's judgement warrant the 
commencement at this time of proceedings under 29 CFR Part 1955 and 
section 18(f) of the Act to entirely withdraw state plan approval. At 
the same time, reverting the state's federal approval status from final 
to initial approval would allow OSHA to exercise discretionary 
concurrent enforcement authority to compensate for the current 
deficiencies in state plan enforcement and allow the state sufficient 
time and assistance to improve its program. Pending a final decision, 
Federal OSHA compliance officers may accompany State inspectors, 
effective immediately, but no Federal citations will be issued until a 
final decision on this action is published.
    Final approval status may be renewed or a process to withdraw 
Federal approval of the State plan may be initiated subsequently, 
depending on the results of State efforts to address the identified 
State plan deficiencies.

    Signed at Washington, DC this 5th day of September, 1995.
Joseph A. Dear,
Assistant Secretary of Labor.
[FR Doc. 95-22446 Filed 9-8-95; 8:45 am]
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