[Federal Register Volume 69, Number 75 (Monday, April 19, 2004)]
[Rules and Regulations]
[Pages 20826-20828]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-8780]



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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1952


Alaska State Plan; Approval of Plan Supplement; Level of Federal 
Enforcement

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

ACTION: Final rule.

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SUMMARY: This document gives notice of OSHA's approval of a change to 
the Alaska occupational safety and health state plan excluding coverage 
from the plan of Alaska Native health care facilities that are 
federally owned and contractor operated, and of certain military 
installations. The Native health care facilities include those owned by 
the U.S. Department of the Interior, Indian Health Service; the U.S. 
Department of Defense; or the U.S. Department of Commerce, National 
Oceanic and Atmospheric Administration; and operated by Tribal 
organizations under contract with the Indian Health Service. The 
military installations include four missile defense facilities and four 
U.S. Coast Guard facilities. Accordingly, federal OSHA will exercise 
enforcement authority over these facilities in Alaska. The State 
retains jurisdiction over construction and contract maintenance at 
these Native health care facilities. OSHA is amending its description 
of the State plan to reflect this change in the level of Federal 
enforcement in the State.

EFFECTIVE DATE:  April 19, 2004.

FOR FURTHER INFORMATION CONTACT: Paula O. White, Director, Cooperative 
and State Programs, Occupational Safety and Health Administration, U.S. 
Department of Labor, Room N3700, 200 Constitution Avenue NW., 
Washington, DC 20210, Telephone: (202) 693-2200.

SUPPLEMENTARY INFORMATION:

A. Background

    Section 18 of the Occupational Safety and Health Act of 1970 (the 
Act), 29 U.S.C. 667, provides that states which wish to assume 
responsibility for developing and enforcing their own occupational 
safety and health standards may do so by submitting, and obtaining 
federal approval of, a state plan. State plan approval occurs in stages 
which include initial approval under section 18(c) of the Act and, 
ultimately, final approval under section 18(e).
    The Alaska state plan was initially approved on July 31, 1973, with 
notice published August 10, 1973 (38 FR 21630). On September 28, 1984, 
OSHA announced the final approval of the Alaska state plan pursuant to 
section 8(e) and amended Subpart R of 29 CFR Part 1952 to reflect the 
Assistant Secretary's decision (49 FR 38252). As a result, federal OSHA 
relinquished its authority with regard to occupational safety and 
health issues covered by the Alaska plan. Federal OSHA retained its 
authority over safety and health in private sector maritime employment; 
marine-related private sector employment at worksites on the navigable 
waters, such as floating seafood processing plants, marine 
construction, employments on artificial islands and offshore oil 
drilling platforms, and diving operations afloat; private sector 
worksites located within the Annette Islands Reserve of the Metlakatla 
Indian Community and the Denali (Mt. McKinley) National Park; federal 
government agencies; and the U.S. Postal Service.

Alaska Native Health Care Facilities

    In September 2000, Alaska Occupational Safety and Health (AKOSH) 
representatives were denied entry to conduct an inspection of the 
Kanakanak Hospital operated by the Bristol Bay Area Health Corporation 
at Kanakanak, Alaska. The Alaska Attorney General determined that since 
the hospital is owned by the federal government and operated under 
contract with the Indian Health Service, AKOSH would not have 
jurisdictional authority to pursue compulsory process. AKOSH has since 
determined that there are a number of similarly operated health 
facilities owned by the federal government over which AKOSH does not 
have enforcement authority. The OSH Act does not provide specific 
authority for state plans to include within their jurisdiction those 
federal instrumentalities which are government owned but contractor 
operated (GOCO) facilities. (See Goodyear Atomic Corp. v. Miller, 486 
U.S. 174 (1988).) Accordingly, these facilities are deemed to be an 
issue no longer covered by the Alaska state plan. On July 10, 2001, 
AKOSH signed a memorandum of understanding (MOU) with federal OSHA 
agreeing to relinquish jurisdiction over Native health care facilities 
in Alaska that are federally owned and contractor operated. These 
include all Native health care facilities owned by the U.S. Department 
of the Interior, Indian Health Service; the U.S. Department of Defense; 
or the U.S. Department of Commerce, National Oceanic and Atmospheric 
Administration; and operated by Tribal organizations under contract 
with the Indian Health Service. Federal OSHA is assuming jurisdiction 
and enforcement responsibility for these facilities.
    Construction and contract maintenance activities at these 
facilities will remain under the jurisdiction of the State of Alaska, 
AKOSH, in accordance with a determination by the Alaska Attorney 
General that jurisdiction over such activities is permissible under 
state law. However, the Metlakatla Indian Community, Annette Island 
(Health) Service Unit, remains entirely under federal OSHA jurisdiction 
pursuant to an earlier modification to the state plan. (See 49 FR 
4469.)
    AKOSH retains jurisdiction over other Native health care facilities 
that are leased or owned by Tribal organizations, or city, county and 
state municipalities, again with the exception of the Metlakatla Indian 
Community. AKOSH will also provide consultation and training services 
at all Native health care facilities, upon request.

Military Installations

    On February 11, 2004, the Alaska Commissioner of Labor requested 
that federal OSHA assume jurisdictional responsibilities for private 
contractors at certain military installations. Alaska noted that it was 
infeasible to obtain the security clearances necessary for highly 
classified and/or restricted areas at these military bases, and that 
private contractor compliance ultimately required negotiation with 
controlling federal agencies on hazard abatement and other compliance 
issues. Alaska requested that OSHA assume responsibility for conducting 
safety and health inspections of the operations of private contractors 
within the borders and confines of four missile defense facilities and 
four U.S. Coast Guard facilities: Cape Lisburne Long Range Missile Base 
(U.S. Air Force), Point Lay Short Range Missile Base (U.S. Air Force), 
Eareckson Air Station (Shemya Island--Department of Defense), Fort 
Greeley Missile Defense (Delta Junction--U.S. Army), the U.S. Coast 
Guard's Integrated Support Commands in Kodiak and Ketchikan, the U.S. 
Coast Guard Air Station in Sitka, and the U.S. Coast Guard 17th 
District Command in Juneau.
    Accordingly, these establishments are deemed to be issues no longer 
covered by the Alaska state plan. Federal OSHA is assuming jurisdiction 
and enforcement responsibility for these facilities. AKOSH retains 
jurisdiction over all other military installations and will conduct 
safety and health

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inspections of private contractors operating on military bases not 
listed above.

Changes to Description of State Plan

    OSHA is amending its description of the state plan to reflect this 
change in the level of federal enforcement. In addition, 29 CFR 
1952.243 and 1952.244 are reorganized into subparagraphs for 
readability.

B. Location of Supplement for Inspection and Copying

    A copy of the Memorandum of Understanding referenced in this notice 
and related correspondence may be obtained from: Office of State 
Programs, Directorate of Cooperative and State Programs, Occupational 
Safety and Health Administration, Room N3700, 200 Constitution Avenue, 
NW, Washington, DC 20210, (202) 693-2244, fax (202) 693-1671; Office of 
the Regional Administrator, Occupational Safety and Health 
Administration, 1111 Third Avenue, Suite 715, Seattle, Washington, 
98101-3212, (206) 553-5930, fax (206) 553-6499; and the State of 
Alaska, Department of Labor and Workforce Development, 1111 W. 8th 
Street, Room 306, Juneau, Alaska 99802-1149, (907) 465-4855, fax (907) 
465-6012. Other information about the Alaska state plan is posted on 
the State's Web site at http://www.labor.state.ak.us/lss/. For an 
electronic copy of this notice, see OSHA's Web site at http://www.osha.gov.

C. Public Participation

    Under 29 CFR 1953.3(e), the Assistant Secretary may prescribe 
alternative procedures to expedite the review process or for other good 
cause which may be consistent with applicable laws. Alaska's 
determination that certain Native health care operations and certain 
military installations are no longer issues covered under the State's 
plan is already in effect per agreement with OSHA as a result of the 
State's inability to exercise legal authority. Additionally, under the 
terms of Alaska's Final Approval determination, which was issued in 
1984 after an opportunity for public comment, federal standards and 
enforcement apply to safety or health issues that the State is unable 
to cover under its state plan. Accordingly, OSHA finds that further 
public participation is unnecessary, and this notice of approval is 
effective upon publication in the Federal Register.

List of Subjects in 29 CFR Part 1952

    Indians, Intergovernmental relations, Law enforcement, Military 
installations, Occupational safety and health.

    Signed at Washington, DC, this 6th day of April, 2004.
John L. Henshaw,
Assistant Secretary.


0
For the reasons set out in the preamble, 29 CFR Part 1952 is amended as 
set forth below:

PART 1952--[AMENDED]

0
1. Revise the authority citation for Part 1952 to read as follows:

    Authority: Sec. 18 of the Occupational Safety and Health Act of 
1970, 84 Stat. 1608 (29 U.S.C. 667); 29 CFR part 1902; Secretary of 
Labor's Order No. 5-2002 (67 FR 65007, October 22, 2002).


0
2. Amend Sec.  1952.243 by revising paragraph (b) to read as follows:


Sec.  1952.243  Final approval determination.

* * * * *
    (b) Except as otherwise noted, the plan which has received final 
approval covers all activities of employers and all places of 
employment in Alaska. The plan does not cover:
    (1) Private sector maritime employment;
    (2) Worksites located on the navigable waters, including artificial 
islands;
    (3) Native health care facilities that are Federally owned and 
contractor operated, including those owned by the U.S. Department of 
the Interior--Indian Health Service, the U.S. Department of Defense, or 
the U.S. Department of Commerce--National Oceanic and Atmospheric 
Administration, and operated by Tribal organizations under contract 
with the Indian Health Service;
    (4) Operations of private sector employers within the Metlakatla 
Indian Community on the Annette Islands;
    (5) Operations of private sector employers within Denali (Mount 
McKinley) National Park;
    (6) Operations of private contractors at Cape Lisburne Long Range 
Missile Base, Point Lay Short Range Missile Base, Eareckson Air Station 
on Shemya Island, Fort Greeley Missile Defense in Delta Junction, the 
U.S. Coast Guard Integrated Support Commands in Kodiak and Ketchikan, 
the U.S. Coast Guard Air Station in Sitka, and the U.S. Coast Guard 
17th District Command in Juneau;
    (7) Federal government employers and employees;
    (8) The U.S. Postal Service (USPS), including USPS employees, and 
contract employees and contractor-operated facilities engaged in USPS 
mail operations; or
    (9) The enforcement of the field sanitation standard, 29 CFR 
1928.110, and the enforcement of the temporary labor camps standard, 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 Alaska retains enforcement responsibility over 
agricultural temporary labor camps for employees engaged in egg, 
poultry, or red meat production, or the post-harvest processing of 
agricultural or horticultural commodities.
* * * * *
0
3. Amend Sec.  1952.244 by revising paragraph (b) to read as follows:


Sec.  1952.244  Level of Federal enforcement.

* * * * *
    (b) In accordance with section 18(e), final approval relinquishes 
Federal OSHA authority only with regard to occupational safety and 
health issues covered by the Alaska plan. OSHA retains full authority 
over issues which are not subject to State enforcement under the plan.
    (1) Federal OSHA 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 (29 CFR Part 1915, shipyard employment; Part 1917, marine 
terminals; Part 1918, longshoring; Part 1919, gear certification) as 
well as provisions of general industry and construction standards (29 
CFR Parts 1910 and 1926) appropriate to hazards found in these 
employments.
    (2) Federal jurisdiction will be retained over marine-related 
private sector employment at worksites on the navigable waters, such as 
floating seafood processing plants, marine construction, employments on 
artificial islands, and diving operations in accordance with section 
4(b)(1) of the Act.
    (3) Federal jurisdiction is also retained and exercised by the 
Employment Standards Administration, U.S. Department of Labor 
(Secretary's Order 5-96, December 27, 1996) with respect to the field 
sanitation standard, 29 CFR 1928.110, and the enforcement

[[Page 20828]]

of the temporary labor camps standard, 29 CFR 1910.142, in agriculture, 
as described in Sec.  1952.243(b).
    (4) Federal jurisdiction is also retained for Native health care 
facilities that are Federally owned and contractor operated, including 
those owned by the U.S. Department of the Interior, Indian Health 
Service; the U.S. Department of Defense; or the U.S. Department of 
Commerce, National Oceanic and Atmospheric Administration; and operated 
by Tribal organizations under contract with the Indian Health Service. 
However, the State retains jurisdiction over construction and contract 
maintenance activities at these facilities with the exception of the 
Metlakatla Indian Community, Annette Island Service Unit, which is 
entirely under Federal jurisdiction. (The State also retains 
jurisdiction over Native health care facilities that are leased or 
owned by Tribal organizations, except for the Metlakatla Indian 
Community.)
    (5) Federal jurisdiction is also retained with regard to the 
operations of private contractors at Cape Lisburne Long Range Missile 
Base, Point Lay Short Range Missile Base, Eareckson Air Station on 
Shemya Island, Fort Greeley Missile Defense in Delta Junction, the U.S. 
Coast Guard Integrated Support Commands in Kodiak and Ketchikan, the 
U.S. Coast Guard Air Station in Sitka, and the U.S. Coast Guard 17th 
District Command in Juneau.
    (6) Federal jurisdiction is also retained for private sector 
worksites located within the Annette Islands Reserve of the Metlakatla 
Indian Community, for private sector worksites located within the 
Denali (Mount McKinley) National Park, for Federal government 
employers, and for the U.S. Portal Service (USPS), including USPS 
employees, and contract employees and contractor-operated facilities 
engaged in USPS mail operations.
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[FR Doc. 04-8780 Filed 4-16-04; 8:45 am]
BILLING CODE 4510-26-P