[Federal Register Volume 60, Number 218 (Monday, November 13, 1995)]
[Rules and Regulations]
[Pages 56950-56952]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27915]



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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), Labor.

ACTION: Final rule.

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SUMMARY: This document announces the Occupational Safety and Health 
Administration's (OSHA) decision to suspend the U.S. Virgin Islands 
State Plan ``final approval'' determination under Section 18(e) of the 
Occupational Safety and Health Act. OSHA is reinstating concurrent 
Federal enforcement authority over occupational safety issues in the 
private sector which issues have been solely covered by the State Plan 
in the U.S. Virgin Islands since 1984. (OSHA currently exercises 
authority over occupational health issues in the private sector, which 
issues are excluded from the State plan.) The scope of the exercise of 
this concurrent Federal enforcement authority is further defined in 
this document under ``Level of Federal Enforcement.''

EFFECTIVE DATE: November 13, 1995.

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:

A. Background

    The Virgin Islands operates a State Plan to develop and enforce 
occupational safety standards for private sector employers and 
occupational safety and health standards for public sector (State and 
local government) employers, pursuant to the provisions of Section 18 
of the Occupational Safety and Health Act of 1970 (the Act). Pursuant 
to Section 18(e) of the Act, OSHA granted the Virgin Islands ``final 
approval'' (which is also referred to as an 18(e) determination) and 
relinquished concurrent Federal enforcement jurisdiction effective 
April 17, 1984. As a result of more recent Federal monitoring of the 
U.S. Virgin Islands State Plan, OSHA has now found that the State plan, 
in actual operation, is no longer ``at least as effective as'' Federal 
OSHA and that other 18(e) requirements are no longer being met. In 
response to this finding, in August 1995, Lisa Harris-Moorehead, the 
newly appointed Virgin Islands' Commissioner of Labor, indicated the 
Virgin Islands' agreement to voluntarily relinquish the State Plan's 
final approval status under Section 18(e). The Commissioner also agreed 
to the reassertion of concurrent Federal enforcement jurisdiction. On 
behalf of the Governor, the Commissioner pledged to accomplish the 
necessary corrective action to regain final approval status by 
December, 1995. Subsequently, as a result of the intervening 
devastation inflicted by Hurricane Marilyn on September 15, 1995, the 
Virgin Islands, by letter dated September 22, 1995, requested Federal 
technical assistance and indicated that the necessary corrective action 
of the State Plan may now be somewhat delayed.
    Pursuant to the procedures set forth in 29 CFR 1902.47 et seq., 
OSHA published notice of its reconsideration of the Virgin Islands' 
18(e) determination; proposed reassumption of concurrent Federal 
enforcement authority; and a request for written comments and 
opportunity to request an informal hearing on September 11, 1995 (60 FR 
47131). That notice also contains a more detailed description of the 
Virgin Islands' State plan and the identified deficiencies. Similar 
notice was published in two newspapers in the Virgin Islands on 
September 25, 1995. The 35 day comment period closed on October 16, 
1995, and OSHA received no written comments or requests for a hearing.

B. 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 suspend the 18(e) final approval status of the Virgin 
Islands' State Plan and to reinstate concurrent Federal enforcement 
authority over occupational safety issues in the U.S. Virgin Islands 
pending the necessary corrective action by the State Plan to again meet 
the criteria for an 18(e) final approval determination. Concurrent 
Federal enforcement authority will be exercised in the U.S. Virgin 
Islands effective November 13, 1995.
    The Assistant Secretary's decision is based upon the facts 
determined by OSHA in the monitoring of the State Plan and after 
opportunity for public comment. OSHA did not receive any written 
comments. 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 [Docket #T030]; 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; or at the Virgin Islands Department of Labor, 
Occupational Safety and Health Division, 3012 Golden Rock, 
Christiansted, St. Croix, Virgin Islands 00820.

C. Effect of the Decision

    The Assistant Secretary's decision to suspend the State Plan's 
final approval under section 18(e) restores the state

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Plan to ``initial'' approval status and permits the resumption of 
concurrent Federal enforcement activity. The Assistant Secretary's 
decision does not terminate Federal approval of the State Plan and does 
not affect the legal authority of the Virgin Islands to carry on 
enforcement activities under the State Plan. Federal OSHA 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). In addition to enforcement 
actions, Federal and State OSHA will provide as much technical 
assistance and voluntary compliance assistance as possible to assure 
worker protection during the extensive cleanup and rebuilding effort 
that is occurring on the Virgin Islands as a result of Hurricane 
Marilyn. (The Virgin Islands suffered significant property damage with 
most businesses requiring substantial or complete reconstruction.) 
Joint Federal/State seminars and other training and outreach activities 
have been and will continue to be conducted to assist employers and 
employees in understanding their compliance obligations.
    Reverting the State Plan's Federal approval status from ``final'' 
to ``initial'' allows Federal OSHA to exercise discretionary concurrent 
enforcement authority to compensate for the current deficiencies in the 
State Plan's enforcement, while allowing the Virgin Islands sufficient 
time and assistance to improve its performance. Federal OSHA will 
provide technical assistance to the Virgin Islands in the form of staff 
training for compliance officers and administrative, legal, and 
operational guidance.
    Immediate Effective Date: November 13, 1995.
    OSHA finds that good cause exists for making this rule effective 
immediately upon publication in the Federal Register. Monitoring of the 
State plan indicates the immediate need for supplementary Federal 
enforcement of safety requirements for the protection of workers in the 
Virgin Islands. In addition, today's action essentially imposes no new 
compliance obligations on affected employers since standards enforced 
under the Virgin Islands State plan are for the most part identical to 
Federal standards.

List of Subjects in 29 CFR Part 1952

    Intergovernmental relations, Law enforcement, Occupational safety 
and health.

    Accordingly, 29 CFR Part 1952 is amended as set forth below.

    Signed in Washington, D.C. this 6th day of November, 1995.
Joseph A. Dear,
Assistant Secretary.

PART 1952--[AMENDED]

    1. The authority citation for 29 CFR Part 1952 continues 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. 1-90 (55 FR 9033).

Subpart S--Virgin Islands

    2. Section 1952.253 is amended by adding the following sentence to 
the end of paragraph (a) to read as follows:


Sec. 1952.253  Final approval determination.

    (a) * * *. Note: The Virgin Islands final approval status under 
Section 18(e) of the Act was suspended and Federal concurrent 
enforcement authority reinstated on November 13, 1995.
* * * * *
    3. Section 1952.253 is amended by adding the following sentence to 
the end of paragraph (b) to read as follows:


Sec. 1952.253  Final approval determination.

* * * * *
    (b) * * *. Note: The Virgin Islands final approval status under 
Section 18(e) of the Act was suspended and Federal concurrent 
enforcement authority reinstated on November 13, 1995.
* * * * *
    4. Section 1952.253 is amended by adding paragraph (d) to read as 
follows:


Sec. 1952.253  Final approval determination.

* * * * *
    (d) As a result of Federal monitoring of the U.S. Virgin Islands 
State Plan and after opportunity for public comment, the Assistant 
Secretary for Occupational Safety and Health has determined that the 
State Plan no longer meets the criteria for final approval under 
Section 18(e). As a result the final approval status has been suspended 
and the State Plan reverts to ``initial approval'' status effective 
November 13, 1995. Concurrent Federal enforcement authority over 
occupational safety issues in the U.S. Virgin Islands has been 
reinstituted pending the necessary corrective action by the State Plan 
to again meet the criteria for an 18(e) final approval determination. 
Concurrent Federal enforcement authority will be exercised in the U.S. 
Virgin Islands effective November 13, 1995, and will continue until 
further notice.
    5. Section 1952.254 is revised to read as follows:


Sec. 1952.254  Level of Federal enforcement.

    (a) As a result of the Assistant Secretary's determination to 
suspend the final approval determination under section 18(e) for the 
Virgin Islands state plan, effective November 13, 1995, Federal 
occupational safety standards which have been promulgated under section 
6 of the Act now apply to all covered employers in the Virgin Islands. 
Until subsequent determinations are made by Federal OSHA affecting the 
level of Federal enforcement in the Virgin Islands, discretionary 
Federal concurrent enforcement authority will be exercised in the 
following manner. Federal OSHA will exercise the full range of 
enforcement authority available under the Act, including but not 
limited to, issuance of citations under section 9 for violations of any 
requirement of section 5, of any standard, rule or order promulgated 
pursuant to section 6, or of any regulation prescribed pursuant to the 
Act; conduct of inspections and investigations under section 8; conduct 
of enforcement proceedings in contested cases under section 10; 
institution of proceedings to correct imminent dangers under section 
13; and proposal of civil penalties or initiation of criminal 
proceedings for violations of the Act under section 17 with regard to 
occupational safety issues in the private sector. The Virgin Islands 
retains full authority under its approved State plan to continue to 
adopt and enforce occupational safety standards including issuing 
citations for violations thereof, proposing penalties and adjudicating 
contested cases under State law. Where State and Federal compliance 
officers conduct joint inspections, enforcement actions may be either 
Federal or State.
    (b) Federal OSHA also continues to retain full authority over 
issues which have not been subject to State enforcement under the 
Virgin Islands plan. Thus, OSHA retains authority to enforce all 
provisions of the Act, Federal standards, rules or orders which relate 
to occupational health in private sector employment in the Virgin 
Islands. OSHA also retains its authority relative to safety and health 
in private sector maritime activities and will continue to enforce all 
provisions of the Act, rules or orders and all Federal standards, 
current or future, specifically directed to maritime employment (e.g., 
29 CFR part 1915, shipyard employment; 29 CFR part 1917, marine 
terminals; 29 CFR part 1918, longshoring; 29 CFR part 1919, gear 

[[Page 56952]]
certification), as well as provisions of general industry (29 CFR part 
1910) standards appropriate to hazards found in these employments. 
Federal jurisdiction also remains in effect with respect to Federal 
government employers and employees.
    (c) The Assistant Secretary retains his authority under section 
11(c) of the Act with regard to complaints alleging discrimination 
against employees because of the exercise of any right afforded to the 
employee by the Act. The Assistant Secretary also retains his authority 
under section 6 of the Act to promulgate, modify or revoke occupational 
safety and health standards which address the working conditions of all 
employees. Any Federal standards, including any standards promulgated 
or modified during the period of the Virgin Islands final approval 
under section 18(e), are now enforceable by Federal OSHA.
    (d) The Assistant Secretary also retains authority to continue to 
conduct investigations and inspections for the purpose of the 
evaluation of the Virgin Islands State plan under section 18 (e) and 
(f) of the Act. The Regional Administrator will closely monitor State 
performance and corrective action and make prompt recommendation to the 
Assistant Secretary for either reinstatement of the Virgin Islands 
final approval status or initiation of plan withdrawal action. Federal 
enforcement authority will continue to be exercised to the extent 
necessary to assure occupational safety and health protection to 
employees in the Virgin Islands until further notice.

[FR Doc. 95-27915 Filed 11-9-95; 8:45 am]
BILLING CODE 4510-26-M