[Federal Register Volume 77, Number 184 (Friday, September 21, 2012)]
[Rules and Regulations]
[Pages 58488-58491]
From the Federal Register Online via the Government Publishing 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: 
[email protected].
    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: 
[email protected].

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

[[Page 58489]]

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

[[Page 58490]]

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]

0
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

0
2. Remove and reserve Sec.  1952.313, to read as follows:


Sec.  1952.313  [Reserved]

0
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.

[[Page 58491]]

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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