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• Publication Date: 02/14/2014
• Publication Type: Final Rule
• Fed Register #: 79: 8855-8857
• Standard Number: 1910; 1910.119; 1926; 1952
• Title: Hawaii State Plan for Occupational Safety and Health; Operational Status Agreement Revisions

[Federal Register Volume 79, Number 31 (Friday, February 14, 2014)]
[Rules and Regulations]
[Pages 8855-8857]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-03286]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1952

[Docket No. OSHA 2012-0029]
RIN 1218-AC89


Hawaii State Plan for Occupational Safety and Health; Operational 
Status Agreement Revisions

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

ACTION: Final rule.

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SUMMARY: This document announces revisions to the Operational Status 
Agreement between the Occupational Safety and Health Administration 
(OSHA) and the Hawaii State Plan, which specifies the respective areas 
of federal and state authority, and under which Hawaii will reassume 
additional coverage.

DATES: Effective February 14, 2014.

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

    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 
Occupational Safety and Health Act (the Act). Pursuant to Section 18(e) 
of the Act, OSHA granted Hawaii "final approval" effective April 30, 
1984 (49 FR 19182). 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).
    From 2009-2012, the Hawaii State Plan faced major budgetary and 
staffing restraints that significantly affected its program. Therefore, 
the Hawaii Director of Labor and Industrial Relations 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. On June 22, 2012, a Notice of 
Proposed Rulemaking was published and on September 21, 2012, OSHA 
published a Final Rule in the Federal Register (77 FR 58488) that 
modified the Hawaii State Plan's "final approval" determination under 
Section 18(e) of the Act, transitioned the Plan to "initial approval" 
status under Section 18(b) of the Act, and reinstated concurrent 
federal enforcement authority over occupational safety and health 
issues in the private sector. That
Federal Register notice also provided notice of the Operational Status 
Agreement (OSA) between OSHA and the Hawaii Occupational Safety and 
Health Division (HIOSH), which specified the respective areas of 
federal and state authority.
    After the first year of the planned three-year developmental 
period, Hawaii's Department of Labor and Industrial Relations has taken 
the initial steps in rebuilding the capacity of HIOSH. Hawaii is 
committed to redeveloping its State Plan, and has increased its staff 
recruitment to reach its staffing benchmark, and has increased its 
inspection activity by 148% over the prior fiscal year. HIOSH and OSHA 
have worked together to strengthen the State Plan. A meeting between 
federal and state representatives on September 11-13, 2013 discussed 
the successes and challenges of the first year under the OSA and worked 
to clarify the next steps needed to be taken as the state agency 
further develops. OSHA and HIOSH agreed to amend the OSA to return 
greater responsibility to HIOSH for Fiscal Year 2014. Accordingly, this 
final rule amends OSHA regulations to reflect this change in the OSA 
between the parties by removing the reference to the specific 2012 OSA.

Notice of Revisions to the Operational Status Agreement

    Federal OSHA and HIOSH will exercise their respective enforcement 
authority according to the terms of the 2012 OSA between OSHA and 
HIOSH, which specifies the respective areas of federal and state 
authority, with revisions agreed to in September 2013. Under the 2012 
OSA, Federal OSHA retained coverage over all Federal employees and 
sites, private sector maritime activities, private sector employees 
within the secured borders of all military installations where access 
is controlled, and United States Postal Service including contract 
workers and contractor operated facilities, and assumed coverage over 
agriculture and most of general industry including facilities that 
include processes covered by the Process Safety Management standard (29 
CFR 1910.119) as well as provisions of general industry and 
construction standards (29 CFR 1910 and 1926) appropriate to hazards 
found in that employment. Hawaii retained coverage over the 
construction industry, transportation and warehousing, and state and 
local government as an employer. All terms of the 2012 OSA remain in 
effect, except that Hawaii will resume responsibility over 
Manufacturing (NAICS 31 through 33) except Refineries (NAICS 324) and 
any other private sector facilities that include processes covered by 
the Process Safety Management standard (29 CFR 1910.119). Federal OSHA 
will also enforce provisions of the Act and of the general industry and 
construction standards appropriate to hazards found in facilities with 
processes that are covered by the Process Safety Management standard. 
Further, the revised OSA provides a mechanism for the most-available 
agency to respond to life-threatening situations on neighbor islands.

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 the Operational Status Agreement. 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.

Administrative Procedures

    This Federal Register document is designated a "final rule." That 
designation is necessary because OSHA publishes a general description 
of every state plan in 29 CFR part 1952. Because they are set forth in 
the Code of Federal Regulation, these descriptions can be updated only 
by publishing a "final rule" document in the final rules section of 
the Federal Register. Such rules do not contain any new federal 
regulatory requirements, but merely provide public information about 
the state plan.
    OSHA finds that good cause exists for making this rule effective 
immediately upon publication in the Federal Register. Today's action is 
solely a change in Federal OSHA's procedures. It does not impose any 
new compliance obligations on affected employers, since Hawaii's safety 
and health standards and regulations are virtually all identical to 
OSHA's regulations. There are a very few instances in which Hawaii has 
more stringent requirements; however these state standards remain in 
effect and OSHA will make referrals to the state when needed. 
Therefore, employers' compliance obligations are not legally affected 
by the amendment to the OSA announced in this notice. For these 
reasons, public notice and comment are unnecessary, and good cause 
exists for making this final rule effective upon publication in the 
Federal Register. Accordingly, OSHA finds that public participation is 
unnecessary, and this rule is effective upon publication in the Federal 
Register.

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 18 of the Occupational Safety and Health Act of 1970 (29 
U.S.C. 667), Secretary of Labor's Order No. 1-2012 (77 FR 3912), and 29 
CFR part 1902.

    Signed in Washington, DC, on February 10, 2014.
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 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. 1-2012 (77 FR 3912).

Subpart Y--Hawaii

0
2. Amend Sec.  1952.314 by revising paragraph (b) to read as follows:


Sec.  1952.314  Level of Federal enforcement.

* * * * *
    (b) To provide a workable division of enforcement responsibilities, 
Hawaii and Federal OSHA have entered into an operational status 
agreement. Electronic copies of the agreement are available at: 
http://www.osha.gov/dcsp/osp/stateprogs/hawaii.html.

[FR Doc. 2014-03286 Filed 2-13-14; 8:45 am]
BILLING CODE 4510-26-P



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