[Federal Register Volume 68, Number 141 (Wednesday, July 23, 2003)]
[Rules and Regulations]
[Pages 43457-43461]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-18719]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Parts 1952 and 1956


Partial Withdrawal of Approval of the Virgin Islands State Plan; 
Resumption of Exclusive Federal Enforcement Authority in the Private 
Sector; and Conversion and Approval of the Virgin Islands State Plan to 
a State Plan for Public Employees Only

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

ACTION: Final rule.

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SUMMARY: This action amends the Code of Federal Regulations (CFR) to 
reflect the withdrawal of approval by the Occupational Safety and 
Health Administration (OSHA) of the United States Virgin Islands' (the 
``Virgin Islands'') comprehensive State plan covering both private and 
public sector employers and employees, and the conversion and approval 
of a public employee State plan, covering employers and employees of 
the Territory and its political subdivisions only. This action is taken 
as the result of unique structural and performance issues in the Virgin 
Islands and with mutual agreement. Federal OSHA will now exercise 
exclusive jurisdiction over all private sector employers and employees 
in the Virgin Islands. In addition to public employee coverage, the 
Territory will provide expanded on-site consultation services to the 
private sector in the U.S. Virgin Islands pursuant to a new cooperative 
agreement with OSHA as authorized by Section 21(d) of the Occupational 
Safety and Health Act.

EFFECTIVE DATE: July 23, 2003.

FOR FURTHER INFORMATION CONTACT: Barbara Bryant, Director, Office of 
State Programs, Directorate of Cooperative and State Programs, 
Occupational Safety and Health Administration, U.S. Department of 
Labor, Room N-3700, 200 Constitution Avenue, NW., Washington, DC 20210. 
Telephone (202) 693-2200, Fax (202) 693-1671, E-mail: 
[email protected].

SUPPLEMENTARY INFORMATION: 

A. Background

    Section 18 of the Occupational Safety and Health Act of 1970 (the 
OSH Act), 29 U.S.C. 667, provides the basis for States to assume 
responsibility for the development and enforcement of occupational 
safety and health standards by submitting to the Assistant Secretary of 
Labor for Occupational Safety and Health (``Assistant Secretary''), and 
obtaining Federal approval of, a State plan. Under regulations at 29 
CFR part 1902 and 1956 respectively, there are two types of State plans 
which a State may operate: a comprehensive ``State plan'' covering both 
private and public (State, or Territory, and its political 
subdivisions) employees; or a ``State plan for public employees only.''

[[Page 43458]]

    Section 3(7) of the OSH Act makes several U.S. Territories and 
possessions including the U.S. Virgin Islands eligible to submit State 
plans under Section 18. The United States Virgin Islands (``Virgin 
Islands'') State plan received initial approval for its comprehensive 
State plan on September 11, 1973 (38 FR 24896). A description of the 
plan and Federal OSHA approval was 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 covered all issues of occupational safety in private and public 
sector workplaces located within the Virgin Islands. Although in the 
public sector the State plan covered occupational health as well as 
safety, in the private sector the State plan did not exercise 
enforcement authority over occupational health issues; enforcement of 
health standards and other health-related requirements in the Virgin 
Islands with regard to private sector employment remained a Federal 
OSHA responsibility.
    The Virgin Islands State plan successfully completed all of its 
State plan developmental steps and was certified as structurally 
complete on September 22, 1981. Pursuant to Section 18(e) of the OSH 
Act and procedures at 29 CFR 1902, OSHA determined that the Virgin 
Islands program met all requirements and, in actual operation, was ``at 
least as effective'' as the Federal program, granted the Virgin Islands 
State plan final approval, and relinquished Federal enforcement 
authority effective April 17, 1984 (49 FR 16766). However, on November 
13, 1995, OSHA announced that, as a result of its monitoring, it had 
found that the Virgin Islands State plan, was no longer ``at least as 
effective as'' Federal OSHA and that other 18(e) requirements were no 
longer being met. In response to this finding, the Virgin Islands 
Commissioner of Labor agreed to voluntarily relinquish the State plan's 
final approval status under Section 18(e), to the reassertion of 
concurrent Federal OSHA enforcement authority and jurisdiction, and to 
undertake necessary corrective action to regain final approval status 
(60 FR 56950).
    The decision to reinstate concurrent jurisdiction in 1995 allowed 
Federal OSHA to exercise full discretionary concurrent enforcement 
authority to assure worker protection, while allowing the Virgin 
Islands time and assistance to improve its performance. However, since 
the agreement in 1995 the Virgin Islands has been unable to institute 
significant improvements to its staffing and operational performance. 
Federal OSHA monitoring of the State plan has not indicated sufficient 
improvements in the Territory's performance to alleviate the 
deficiencies identified at that time. This has made it necessary for 
OSHA to continue to provide Federal staffing and resources in recent 
years to assure an appropriate level of worker safety and health 
protection in workplaces in the Virgin Islands.

B. Partial Withdrawal of the Virgin Islands State Plan; Resumption of 
Exclusive Federal Enforcement Authority in the Private Sector

    In a letter dated May 12, 2003, Governor Charles Turnbull of the 
United States Virgin Islands notified the Assistant Secretary of the 
decision of the Territory to formally withdraw that portion of its 
federally-approved occupational safety and health State plan which 
provides for occupational safety coverage of private sector employment, 
pursuant to 29 CFR 1955.3(b). This letter also notified the Assistant 
Secretary of the Virgin Islands' request that the OSHA-approved State 
plan be converted from a comprehensive State plan covering both private 
and public sector employees, as currently reflected in 29 CFR 1952, 
subpart S, to a public employee only State plan, as authorized by 29 
CFR part 1956, covering employees of the Territory and its political 
subdivisions only. In addition, the Governor expressed the Territory's 
agreement to provide on-site consultation services to the private 
sector in the Virgin Islands pursuant to a cooperative agreement under 
section 21(d) of the OSH Act. (The Virgin Islands, up-to-now, has 
provided private sector consultation services under the auspices and 
funding of its State plan.) The Virgin Islands indicated such 
conversion would allow it to focus resources on increasing the 
protection provided to public sector employees, while at the same time 
providing increased safety and health assistance for small business 
employers and employees in the Territory with the additional Federal 
funding and assistance available through a Section 21(d) consultation 
agreement.
    OSHA has conveyed to the Virgin Islands its agreement with the 
resolution set forth in the Governor's May 12 letter. This agreement 
resolves unique and long-standing issues regarding the status and 
funding of the Virgin Islands State plan, in a manner which recognizes 
Federal OSHA's ongoing responsibility to provide staffing and resources 
for private sector enforcement in the Virgin Islands, while assuring 
continued recognition and funding for the valuable public sector 
compliance and consultation activity provided by the Territory. The 
agreement makes it possible for OSHA to devote its resources to 
providing safety and health protection in Virgin Islands workplaces, 
rather than expending its resources in a possibly lengthy and complex 
proceeding under 29 CFR part 1955 to formally withdraw State plan 
approval. The agreement also allows the Virgin Islands to qualify for 
enhanced funding under a provision of the Omnibus Insular Areas Act of 
1977 (48 U.S.C. Section 1469 (d)), which authorizes OSHA to waive the 
requirement for Territorial matching funds for grant amounts under 
$200,000.
    Accordingly, OSHA is revising 29 CFR 1952 and 29 CFR part 1956 to 
reflect the Virgin Islands' decision to exclude private sector 
employment from coverage under the plan while retaining coverage of 
public sector employment, and to reflect the new status of the plan as 
one that applies to the public sector only. Pursuant to the Governor's 
May 12 letter, State plan coverage of all private sector employers and 
employees is terminated effective July 1, 2003; exclusive Federal OSHA 
jurisdiction over private sector employment in the Virgin Islands is 
resumed on the same date. In accordance with Section 18(f) of the OSH 
Act and 29 CFR part 1955.4, the Territory may retain jurisdiction in 
any case commenced prior to the July 1 voluntary termination of its 
private sector program in order to enforce standards under the plan. 29 
CFR 1952, subpart S, which reflects the prior status of the Virgin 
Islands program as a comprehensive State plan, is being rescinded and 
reserved.
    The Virgin Islands' decision to retain its existing State plan in 
the public sector is being implemented by adding a new subpart H to 29 
CFR part 1956, which reflects the new status of the Virgin Islands plan 
as a public sector only plan. The new subpart codifies the Virgin 
Islands plan as a developmental plan under 29 CFR part 1956, as it will 
be necessary for the Territory to make certain adjustments to its 
public employee program structure and to revise its State plan document 
to reflect its new, more limited scope. The State plan already meets 
the majority of the criteria for public sector State plans in 29 CFR 
1956.10 and the indices of effectiveness in 29 CFR part 1956.11.

[[Page 43459]]

However, to provide a procedure for documenting how it meets those 
requirements, the Virgin Islands has submitted a developmental schedule 
for making the necessary adjustments to the State plan to reflect its 
change in scope, including the amendment and/or revision of Territorial 
legislation to provide more explicit authority for the public employee 
program, State plan narrative, implementing regulations and 
administrative procedures including revisions to its standards adoption 
procedures, and the development of a public employee only consultation 
program, strategic plan, and poster.
    The State plan action and associated reconfiguration of the Virgin 
Islands workplace safety and health program will also result in changes 
in the Federal funding arrangements. As the reduction in the size and 
administrative cost of its State plan will reduce its funding 
requirements, OSHA has determined that the provisions of the Omnibus 
Insular Areas Act of 1977 (48 U.S.C. Section 1469(d)) can now apply. 
This authorizes OSHA to waive the Territory's matching share 
requirement for Federal funding under $200,000. The Virgin Islands is 
appropriately amending its grant documents to reflect these changes in 
status and funding.

C. Waiver of Comment Period; Immediate Effective Date

    OSHA finds that good cause exists for amending 29 CFR parts 1952 
and 1956 to reflect the modification in coverage of the Virgin Islands 
State plan without an opportunity for public comment, and for making 
this rule effective immediately upon publication in the Federal 
Register. Today's action imposes no new rights or obligations on 
affected parties, since as discussed above, private sector workplaces 
in the Virgin Islands have been subject to enforcement of Federal OSHA 
safety requirements since 1995, and subject to Federal OSHA health 
requirements since the inception of the Virgin Islands State plan. 
(Federal OSHA and Virgin Islands safety and health standards and 
regulations are identical.) Public sector employers in the Virgin 
Islands are likewise unaffected, as they remain subject to the same 
requirements approved as part of the Territory's existing plan, which 
was approved after public notice and comment (38 FR 24896). Today's 
revisions to the 29 CFR parts 1952 and 1956 have no substantial effect 
on the rights or obligations of any member of the public, and are made 
only to update these basic public references to reflect the current 
coverage of the Virgin Islands State plan. Accordingly, OSHA finds that 
good cause exists for making these revisions without an opportunity for 
public comment, and for making them effective immediately upon 
publication in the Federal Register.

D. Decision

    In accordance with the Governor's request and in order to assure 
the most effective protection possible to both private and public 
sector workers in the U.S. Virgin Islands, the withdrawal of the Virgin 
Islands' State plan in the private sector and its conversion to a 
public employee only State plan under 29 CFR 1956 is hereby approved. 
This decision incorporates the requirements of the OSH Act and of 
regulations applicable to State plans generally.

E. Effective Date of State Plan Conversion

    The Virgin Islands State plan ceased inspections and other 
compliance activity in the private sector, except for previously 
initiated cases, and began operating as a public employee only State 
plan limiting its coverage to employees of the Territory and its 
political subdivisions on July 1, 2003.

F. Paperwork Reduction

    This final rule contains no collections of information other than 
those already imposed by State plan regulations which have been 
previously reviewed and approved by the Office of Management and Budget 
(``OMB''), and assigned OMB control number 1218-0247 under the 
provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13). The 
OMB approval of these collections of information contained in these 
regulations expires November 30, 2005.

G. Regulatory Review

Regulatory Flexibility Act

    OSHA certifies pursuant to the Regulatory Flexibility Act of 1980 
(5 U.S.C. 601 et seq.) that the approval of the withdrawal of the 
complete plan and conversion to a public employee only plan will not 
have a significant economic impact on a substantial number of small 
entities. This final rule applies only to the one Territorial agency 
operating an OSHA-approved State plan, and would not place small units 
of government under any new or different requirements, nor would any 
additional burden be placed upon the Territorial government beyond the 
responsibilities already assumed as part of the approved plan. By its 
own terms, the converted plan will have no effect on private sector 
employment, but is limited to the Territory and its political 
subdivisions. Moreover, a plan has been in effect in the Virgin Islands 
since 1973 and all public sector employers, including small units of 
local government, have been subject to its terms.

Unfunded Mandates Reform Act

    The procedures in 29 CFR parts 1952, 1955 and 1956 for submission, 
initial approval and withdrawal of OSHA-approved State plans apply only 
to States and Territories which have voluntarily submitted a State plan 
for OSHA approval under the OSH Act, and accordingly these procedures 
do not meet the definition of a ``Federal intergovernmental mandate'' 
under section 421(5) of UMRA (2 U.S.C. 658(5)).

Federalism

    Executive Order 13132, ``Federalism,'' (64 FR 43255; Aug. 4, 1999) 
establishes fundamental Federalism criteria to be applied in 
formulating and implementing Federal policies, and requires agencies to 
consult with affected State, Territorial and local officials in the 
development of regulatory policies. Although OSHA has determined that 
the requirements and consultation procedures provided in Executive 
Order 13132 are not applicable to plan approval decisions under the 
Act, which have no effect outside the particular State or Territory 
receiving approval, OSHA has reviewed this action and believes it is 
consistent with the principles and criteria set forth in the Executive 
Order. This rule was developed in coordination with representatives 
from the U.S. Virgin Islands, and opportunities for additional State 
input have been afforded through consultation with the Occupational 
Safety and Health State Plan Association (OSHSPA), the organization of 
State agencies which administer Federally-approved plans.

Executive Order

    This final rule has been deemed not significant under Executive 
Order 12866.

List of Subjects in 29 CFR Parts 1952 and 1956

    Administrative practice and procedure, Intergovernmental relations, 
Law enforcement, Occupational safety and health, Reporting and 
recordkeeping requirements.

Authority

    This document was prepared under the direction of John L. Henshaw, 
Assistant Secretary of Labor for Occupational Safety and Health. It is 
issued under Section 18 of the

[[Page 43460]]

Occupational Safety and Health Act of 1970 (29 U.S.C. 667), 29 CFR 
1902, 1952, 1955, and 1956, and Secretary of Labor's Order 5-2002 (67 
FR 65008, October 22, 2002).

    Signed at Washington, DC this 16th day of July, 2003.
John L. Henshaw,
Assistant Secretary of Labor.


0
Accordingly, the 29 CFR Ch. XVII is amended as set forth below:

PART 1952--APPROVED STATE PLANS FOR ENFORCEMENT OF STATE STANDARDS

0
1. The authority for 29 CFR part 1952 is revised to read as follows:

    Authority: Section 18 of the Occupational Safety and Health Act 
of 1970 (29 U.S.C. 667), 29 CFR part 1902 and 1955, and Secretary of 
Labor's Order 5-2002 (67 FR 65008, October 22, 2002).


0
2. Subpart S of 29 CFR part 1952 is removed and reserved to read as 
follows:

Subpart S--[Removed and Reserved]

PART 1956--STATE PLANS FOR THE DEVELOPMENT AND ENFORCEMENT OF STATE 
STANDARDS APPLICABLE TO STATE AND LOCAL GOVERNMENT EMPLOYEES IN 
STATES WITHOUT APPROVED PRIVATE EMPLOYEE PLANS

0
3. The authority for 29 CFR part 1956 is revised to read as follows:

    Authority: Section 18 of the Occupational Safety and Health Act 
of 1970 (29 U.S.C. 667), 29 CFR 1902, 1952, and 1955, and Secretary 
of Labor's Order 5-2002 (67 FR 65008, October 22, 2002).

0
4. 29 CFR part 1956 is amended by adding a new subpart H to read as 
follows:
Subpart H--The Virgin Islands
Sec.
1956.70 Description of plan as approved.
1956.71 Developmental schedule.
1956.72 Changes to approved plan. [Reserved.]
1956.73 Determination of operational effectiveness. [Reserved.]
1956.74 Location of basic State plan documentation.

Subpart H--The Virgin Islands


Sec.  1956.70  Description of plan as approved.

    (a) The Virgin Islands State plan was converted to a public 
employee only occupational safety and health program on July 1, 2003, 
and received initial approval on July 23, 2003. It is administered and 
enforced by the Virgin Islands Department of Labor, Division of 
Occupational Safety and Health (``the agency,'' or ``VIDOSH'') 
throughout the U.S. Virgin Islands (the ``Virgin Islands''). The Virgin 
Islands public employee program, established by Executive Order 200-76 
on July 11, 1975, extends full authority under Virgin Islands Act No. 
3421, Section 16 (April 27, 1973) and implementing regulations to the 
agency to enforce and administer all laws and rules protecting the 
safety and health of employees of the Government of the Virgin Islands, 
its departments, agencies and instrumentalities, including any 
political subdivisions. It covers all activities of public employers 
and employees and places of public employment. The Territory has 
adopted all Federal standards promulgated as of June 2003, and has 
given assurances that it will continue to adopt and update all Federal 
standards, revisions and amendments. The plan is accompanied by a 
statement of the Governor's support.
    (b) The plan establishes procedures for variances and the 
protection of employees from hazards under a variance; insures 
inspection in response to complaints; provides employer and employee 
representatives an opportunity to accompany inspectors and to call 
attention to possible violations before, during, and after inspections; 
notification to employees or their representatives when no compliance 
action is taken as a result of alleged violations, including informal 
review; notification of employees of their protection; protection of 
employees against discharge or discrimination in terms and conditions 
of employment; includes provision for prompt notices to employers and 
employees of violations of standards and abatement requirements and 
either sanctions or alternative mechanisms to assure abatement; 
employer's right to appeal citations for violations, abatement periods 
and any proposed sanctions and/or compulsory process; employee's right 
to appeal abatement periods; and employee participation in review 
proceedings. Also included are provisions for right of entry for 
inspection, prohibition of advance notice of inspection and the 
requirement for both employers and employees to comply with the 
applicable rules, standards, and orders, and employer obligations to 
maintain records and provide reports as required. Further, the plan 
provides assurances of a fully trained adequate staff and sufficient 
funding, and for voluntary compliance programs, including a public 
sector consultation program.


    Note: The Virgin Islands' received initial approval for a 
comprehensive State plan covering the private (safety only) and 
public sectors on September 11, 1973 (38 FR 24896) and final 
approval under Section 18(e) of the Act on April 17, 1984 (49 FR 
16766). Final approval status for that State plan was suspended and 
full Federal concurrent enforcement authority was reinstated on 
November 13, 1995 (60 FR 56950). Effective July 1, 2003, the Virgin 
Islands withdrew the portion of its State plan which covered private 
sector employment, and exclusive Federal enforcement jurisdiction 
for the private sector resumed.

Sec.  1956.71  Developmental schedule.

    The Virgin Islands State plan for public employees only is 
developmental. The following is a schedule of major developmental steps 
to be completed:
    (a) The Virgin Islands will review and amend its legislation and 
regulations, as appropriate, to assure proper statutory authority for 
``at least as effective'' coverage of all public sector employers and 
employees including Territorial government employers and employees and 
any employers or employees of municipalities or other local 
governmental entities. The plan will be revised to include a legal 
opinion that the converted plan meets the requirements of the 
Occupational Safety and Health Act of 1970 and is consistent with the 
laws of the Virgin Islands. These actions will occur within one year of 
plan conversion approval.
    (b) The Virgin Islands will review and amend its legislation and 
regulations as necessary to reflect its more limited coverage and to be 
consistent with formal withdrawal of Federal approval of the private 
sector portion of the State plan, within one year of plan conversion 
approval.
    (c) The Virgin Islands will review its statutory authority 
regarding standards adoption and take appropriate legislative or 
administrative action to assure that it is consistent with 29 CFR part 
1953 and that all standards applicable to the public sector will be 
promulgated within six months of the promulgation date of new Federal 
OSHA standards, within one year of plan conversion approval.
    (d) The Virgin Islands will take appropriate legislative or 
administrative action to assure effective sanctions, either as monetary 
penalties, or an alternative mechanism for compelling abatement in the 
public sector within one year of plan conversion approval.
    (e) The Virgin Islands will develop a five-year strategic plan and 
corresponding annual performance plan within two years of plan 
conversion approval.
    (f) A new State poster will be developed and distributed to reflect

[[Page 43461]]

coverage of the public sector only within one year of plan conversion 
approval.
    (g) The Virgin Islands will submit a revised State plan, in 
electronic format to the extent possible, reflecting its coverage of 
public employers and employees only in accordance with 29 CFR 1956, 
within one year of plan conversion approval.
    (h) The Virgin Islands will hire and provide appropriate training 
for their public sector compliance and consultation staffs, within one 
year of plan conversion approval.
    (i) The Virgin Islands will develop a public sector consultation 
program within two years of plan conversion approval.


Sec.  1956.72  Changes to approved plan. [Reserved]


Sec.  1956.73  Determination of operational effectiveness. [Reserved]


Sec.  1956.74  Location of basic State plan documentation.

    Copies of basic State plan documentation are maintained at the 
following locations. Specific documents are available upon request, and 
will be provided in electronic format, to the extent possible. Contact 
the: Directorate of Cooperative and State Programs, Office of State 
Programs, U.S. Department of Labor, Occupational Safety and Health 
Administration, 200 Constitution Avenue, NW., Room N-3700, Washington, 
DC 20210; Office of the Regional Administrator, U.S. Department of 
Labor, Occupational Safety and Health Administration, 201 Varick 
Street, Room 670, New York, New York 10014; and the Virgin Islands 
Department of Labor, Division of Occupational Safety and Health, 3021 
Golden Rock, Christiansted, St. Croix, Virgin Islands, 00840. Current 
contact information for these offices (including telephone numbers, 
mailing and e-mail addresses) is available on OSHA's Web site, http://www.osha.gov.

[FR Doc. 03-18719 Filed 7-22-03; 8:45 am]
BILLING CODE 4510-26-P