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• Publication Date: 07/19/2012
• Publication Type: Proposed Rules
• Fed Register #: 77: 42462-42464
• Standard Number: 1952; 1905; 1902; 1902.47; 1954.3
• Title: Hawaii State Plan for Occupational Safety and Health; Proposed Modification of 18(e) Plan Approval

[Federal Register Volume 77, Number 139 (Thursday, July 19, 2012)]
[Proposed Rules]
[Pages 42462-42464]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-17363]


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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; Proposed
Modification of 18(e) Plan Approval

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

ACTION: Notice of opportunity to request informal public hearing;
request for written comments.

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SUMMARY: Hawaii administers an occupational safety and health state
plan approved by federal OSHA. During the past three years, the state
plan has faced significant budgetary constraints and staffing
challenges, and has requested federal OSHA assistance to ensure that
workers are afforded adequate worker protection during this period. 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 and to allow Hawaii sufficient time and assistance
to strengthen and improve its state plan performance. Hawaii has
pledged to accomplish the necessary corrective action to regain final
approval status in a timely manner. OSHA is soliciting written comments
to ensure that all relevant information, views and data are available
to the Assistant Secretary during this proceeding. Members of the
public may also submit requests for an informal hearing, which will be
scheduled if the Assistant Secretary finds that substantial issues are
raised that necessitate a hearing.

DATES: Comments and requests for an informal hearing must be received
by August 23, 2012.

ADDRESSES: Written comments: You may submit comments, identified by
docket number OSHA-2012-0029, or regulatory information number (RIN)
1218-AC78, by any of the following methods:
    Electronically: You may submit comments and attachments
electronically at http://www.regulations.gov, which is the Federal
eRulemaking Portal. Follow the instructions on-line for making
electronic submissions; Fax: If your submission, including attachments,
does not exceed 10 pages, you may fax them to the OSHA Docket
 Office at (202) 693-1648; or
    U.S. mail, hand delivery, express mail, messenger or courier
service: You must submit your comments and attachments to the OSHA
Office, Docket Number OSHA-2012-0029, U.S. Department of Labor, Room N-
2625, 200 Constitution Avenue NW., Washington, DC 20210; telephone
(202) 693-2350 (OSHA's TTY number is (877) 889-5627). Deliveries (hand,
express mail, messenger and courier service) are accepted during the
Department of Labor's and Docket Office's normal business hours, 8:15
a.m.-4:45 p.m., EDT.
    Instructions for submitting comments: All submissions must include
the docket number (Docket No. OSHA-2012-0029) or the RIN number (RIN
1218-AC78) for this rulemaking. Because of security-related procedures,
submission by regular mail may result in significant delay. Please
contact the OSHA Docket Office for information about security
procedures for making submissions by hand delivery, express delivery
and messenger or courier service.
    All comments, including any personal information you provide, are
placed in the public docket without change and may be made available
online at http://www.regulations.gov. Therefore, OSHA cautions you
about submitting personal information such as social security numbers
and birthdates.
    Docket: To read or download submissions in response to this Federal
Register notice, go to docket number OSHA-2012-0029, at http://www.regulations.gov.
All submissions are listed in the http://www.regulations.gov index,
however some information (e.g., copyrighted material) is not
publicly available to read or download through that Web page.
 All submissions, including copyrighted material, are
available for inspection and copying at the OSHA Docket Office.
    Electronic copies of this Federal Register document are available
at http://www.regulations.gov. This document as well as news releases
and other relevant information, is available at OSHA's Web page at
http://www.osha.gov. A copy of the documents referenced in this notice
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, San
Francisco Federal Building, 90 7th Street, Suite 18-100, San Francisco,
California 94103, (415) 625-2546, fax (415) 625-2526; and the Hawaii
Department of Labor and Industrial Relations, HIOSH, 830 Punchbowl
Street, Suite 425, Honolulu, Hawaii 96813, (808) 586-9100, fax (808)
586-9104. Other information about the Hawaii State Plan is posted on
the state's Web site at http://hawaii.gov/labor/hiosh.

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:
meilinger.francis2@dol.gov.
    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: kalinowski.doug@dol.gov.

SUPPLEMENTARY INFORMATION:

Background

    Section 18 of the Occupational Safety and Health Act of 1970 (the
Act, 29 U.S.C. 667) provides that states that 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. Procedures for state plan approval
are set forth in the regulations at 29 CFR part 1902. If the Assistant
Secretary, applying the criteria set forth in section 18(c) of the Act
and OSHA regulations, finds that the plan provides or will provide for
state standards and enforcement that are "at least as effective as"
federal standards and enforcement, initial approval is granted pursuant
to section 18(b) of the Act (29 U.S.C. 667(b)). A state may commence
operations under its plan after this determination is made, but the
Assistant Secretary retains enforcement authority during the initial-
approval period, as provided by section 18(e) of the Act, which states,
"[a]fter the Secretary approves a State plan submitted under
subsection (b), he may, but shall not be required to, exercise his
authority under sections 8, 9, 10, 13, and 17 with respect to
comparable standards promulgated under section 6," for the specified
period. The Hawaii State Plan received initial federal OSHA plan
approval on December 28, 1973 (39 FR 1010). The Hawaii Occupational
Safety and Health Division (HIOSH) of the Hawaii Department of Labor
and Industrial Relations is designated as the state agency with
responsibility for administering the state plan.
    Hawaii proceeded to the next phase of federal plan approval in
1984, when the state plan received "final approval" under section
18(e) of the Act. 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). Hawaii was granted final
approval effective April 30, 1984 (49 FR 19182).

Current Situation in Hawaii

    During the past three years, the Hawaii State Plan has faced major
budgetary and hiring restraints that have significantly affected its
program. Impacts on the state plan are clearly reflected in the
deficiencies identified throughout recent OSHA monitoring reports.
Joint efforts were made by federal OSHA and Hawaii to address these
issues, yet Hawaii continues to face severe programmatic, staffing and
training issues. As of March 1, 2012, the HIOSH program employed five
safety inspectors and five health inspectors, which falls short of the
required nine (9) safety inspectors and nine (9) health inspectors as
determined by benchmarks established pursuant to a federal court order
entered in AFL-CIO v. Marshall, C.A. No. 74-406 (D.D.C. 1978)(order
implementing AFL-CIO v. Marshall, 570 F.2d 1030 (D.C. Cir. 1978).) This
reduced staffing level has resulted in a significant decrease in
enforcement activities. Added to the state's economic situation is the
loss of institutional knowledge with the recent retirement of the
program administrator. With the ongoing task of training a new program
administrator, as well as hiring and training new enforcement and
administrative staff, Hawaii has requested assistance from federal
OSHA. Hawaii's proactive efforts demonstrate a commitment to ensuring
that workers are afforded adequate protection during this period of
program strengthening and improvement.
    Joint efforts by federal OSHA and HIOSH to address Hawaii's worker
protection needs during this period, necessitate a greater enforcement
presence by OSHA in the state. In order for federal OSHA to be able to
provide this assistance, Hawaii's plan approval status must be modified from
final approval to initial approval. During the phase of initial state
plan approval status, federal OSHA regains authority to enforce federal
OSHA requirements as a supplement to state plan enforcement.
    Dwight Takamine, Hawaii's Director of Labor and Industrial
Relations, has committed the state to making Hawaii's workplaces safe
and healthful and to working "diligently toward restoring [the
state's] 18(e) status as soon as possible." OSHA notes that the 3-year
evaluation requirement for final approval following initial approval
(see section 18(e), second sentence) does not apply in this instance.
Hawaii received initial approval in 1974, and the structural features
of the state plan remain completely intact.

Procedures for OSHA's Proposed Modification to Hawaii Plan Approval

    Today's notice proposes a modification to the Hawaii State Plan's
status from final approval to initial approval in order to allow for
federal OSHA to provide inspection and enforcement assistance to
Hawaii. OSHA intends to make this modification in keeping with
procedures at 29 CFR 1902.47 et seq. Relevant materials, including all
public comments, relevant federal monitoring reports, a copy of the
federal court's order under which state staffing benchmarks are
established, and other pertinent documentation will be publically
available in OSHA's docket office, as well as through various federal
OSHA and state offices as described above. At the close of the public
comment period initiated today, OSHA will review all comments
submitted; will review any hearing requests; and will schedule an
informal hearing if required to resolve substantial issues raised in
any such requests. The Assistant Secretary's final decision will
thereafter be published in the Federal Register and will include the
appropriate revisions to 29 CFR 1952 if the Hawaii State Plan's status
is changed.

Effect of Modifying Hawaii's Status

    As discussed above, modifying 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.
    Pending a final decision in the proceeding instituted today, 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.

Operational Status Agreement

    OSHA regulations provide that in states with initially-approved
plans, OSHA and the state may enter into an agreement describing the
division of responsibilities between them (29 CFR 1954.3). OSHA and
HIOSH are developing such an agreement, which in this case would also
include a timetable for remedial action to make state operations "as
least as effective" and to ensure state compliance with applicable
personnel staffing benchmarks. Notice will be provided in the Federal
Register of this agreement, which OSHA intends will be effective on the
date of a final decision in the modification proceeding initiated
today.

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 (76 FR 3912), and 29
CFR part 1905.

    Signed at Washington, DC, on July 11, 2012.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2012-17363 Filed 7-18-12; 8:45 am]
BILLING CODE 4510-26-P

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