Hawaii State Plan for Occupational Safety and Health, 58488-58491 [2012-23366]
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58488
Federal Register / Vol. 77, No. 184 / Friday, September 21, 2012 / Rules and Regulations
(1) Game name, rules, and options
such as the purchase or wager amount
stated clearly and unambiguously;
(2) Denomination;
(3) Instructions for play on, and use
of, the player interface, including the
functions of all buttons; and
(4) A prize schedule or other
explanation, sufficient to allow a player
to determine the correctness of all prizes
awarded, including:
(i) The range and values obtainable for
any variable prize;
(ii) Whether the value of a prize
depends on the purchase or wager
amount; and
(iii) The means of division of any
pari-mutuel prizes; but
(iv) For Class II Gaming Systems, the
prize schedule or other explanation
need not state that subsets of winning
patterns are not awarded as additional
prizes (for example, five in a row does
not also pay three in a row or four in
a row), unless there are exceptions,
which must be clearly stated.
(b) Disclaimers. The Player Interface
must continually display:
(1) ‘‘Malfunctions void all prizes and
plays’’ or equivalent; and
(2) ‘‘Actual Prizes Determined by
Bingo (or other applicable Class II game)
Play. Other Displays for Entertainment
Only’’ or equivalent.
(c) Odds notification. If the odds of
winning any advertised top prize
exceeds 100 million to one, the Player
Interface must display: ‘‘Odds of
winning the advertised top prize
exceeds 100 million to one’’ or
equivalent.
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§ 547.17 How does a TGRA apply to
implement an alternate minimum standard
to those required by this part?
(a) TGRA approval. (1) A TGRA may
approve an alternate standard from
those required by this part if it has
determined that the alternate standard
will achieve a level of security and
integrity sufficient to accomplish the
purpose of the standard it is to replace.
A gaming operation may implement an
alternate standard upon TGRA approval
subject to the Chair’s decision pursuant
to paragraph (b) of this section.
(2) For each enumerated standard for
which the TGRA approves an alternate
standard, it must submit to the Chair
within 30 days a detailed report, which
must include the following:
(i) An explanation of how the
alternate standard achieves a level of
security and integrity sufficient to
accomplish the purpose of the standard
it is to replace; and
(ii) The alternate standard as
approved and the record on which the
approval is based.
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(3) In the event that the TGRA or the
tribe’s government chooses to submit an
alternate standard request directly to the
Chair for joint government to
government review, the TGRA or tribal
government may do so without the
approval requirement set forth in
paragraph (a)(1) of this section.
(b) Chair review. (1) The Chair may
approve or object to an alternate
standard approved by a TGRA.
(2) If the Chair approves the alternate
standard, the Tribe may continue to use
it as authorized by the TGRA.
(3) If the Chair objects to the alternate
standard, the operation may no longer
use the alternate standard and must
follow the relevant technical standard
set forth in this part.
(4) Any objection by the Chair must
be in written form with an explanation
why the alternate standard as approved
by the TGRA does not provide a level
of security or integrity sufficient to
accomplish the purpose of the standard
it is to replace.
(5) If the Chair fails to approve or
object in writing within 60 days after
the date of receipt of a complete
submission, the alternate standard is
considered approved by the Chair. The
Chair may, upon notification to the
TGRA, extend this deadline an
additional 60 days.
(c) Appeal of Chair decision. A TGRA
may appeal the Chair’s decision
pursuant to 25 CFR chapter III,
subchapter H.
Dated: September 14, 2012, Washington,
DC.
Tracie L. Stevens,
Chairwoman.
Steffani A. Cochran,
Vice-Chairwoman.
Daniel J. Little,
Commissioner.
[FR Doc. 2012–23161 Filed 9–20–12; 8:45 am]
BILLING CODE 7565–01–P
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
Occupational Safety and Health
Administration, Department of Labor.
ACTION: Final rule.
AGENCY:
This document announces the
Occupational Safety and Health
SUMMARY:
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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: 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 OSHAapproved 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
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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
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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.
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58489
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
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58490
Federal Register / Vol. 77, No. 184 / Friday, September 21, 2012 / Rules and Regulations
all military installations where access is
controlled; and U.S. Postal Service
(USPS), including USPS workers, and
contract workers and contractoroperated 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
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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.
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.
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.
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.
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
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List of Subjects in 29 CFR Part 1952
Intergovernmental relations, Law
enforcement, Occupational safety and
health.
Authority and Signature
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]
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
2. Remove and reserve § 1952.313, to
read as follows:
■
§ 1952.313
[Reserved]
3. Revise § 1952.314 to read as
follows:
■
§ 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.
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Electronic copies of the agreement are
available at: https://www.osha.gov/dcsp/
osp/stateprogs/hawaii.html.
[FR Doc. 2012–23366 Filed 9–20–12; 8:45 am]
BILLING CODE 4510–26–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 117
[Docket No. USCG–2012–0862]
Drawbridge Operation Regulation;
Willamette River, Portland, OR
Coast Guard, DHS.
Notice of temporary deviation
from regulations.
AGENCY:
ACTION:
The Coast Guard has issued a
temporary deviation from the operating
schedule that governs the Broadway
Bridge across the Willamette River, mile
11.7, at Portland, OR. This deviation is
necessary to accommodate the running
of the Portland Marathon. This
deviation allows the bridge to remain in
the down or closed position during the
marathon.
DATES: This deviation is effective from
7:30 a.m. October 7, 2012 through 3
p.m. October 7, 2012.
ADDRESSES: Documents mentioned in
this preamble as being available in the
docket are part of docket USCG–2012–
0862 and are available online by going
to https://www.regulations.gov, inserting
USCG–2012–0862 in the ‘‘Keyword’’
box and then clicking ‘‘Search’’. They
are also available for inspection or
copying at the Docket Management
Facility (M–30), U.S. Department of
Transportation, West Building Ground
Floor, Room W12–140, 1200 New Jersey
Avenue SE., Washington, DC 20590,
between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this rule, call or
email the Bridge Administrator, Coast
Guard Thirteenth District; telephone
206–220–7282, email
randall.d.overton@uscg.mil. If you have
questions on viewing the docket, call
Renee V. Wright, Program Manager,
Docket Operations, telephone 202–366–
9826.
SUPPLEMENTARY INFORMATION:
Multnomah County has requested that
the Broadway Bascule Bridge remain
closed to vessel traffic to facilitate safe,
uninterrupted roadway passage of
participants of the Portland Marathon.
The Broadway Bridge crosses the
Willamette River at mile 11.7 and
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SUMMARY:
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provides 90 feet of vertical clearance
above Columbia River Datum 0.0 while
in the closed position. Vessels which do
not require a bridge opening may
continue to transit beneath the bridge
during this closure period. Under
normal conditions this bridge operates
in accordance with 33 CFR 117.897
which allows for the bridge to remain
closed between 7 a.m. and 9 a.m. and
4 p.m. and 6 p.m. Monday through
Friday and also requires advance
notification when a bridge opening is
needed. This deviation period is from
7:30 a.m. October 7, 2012 through 3
p.m. October 7, 2012. The deviation
allows the bascule span of the Broadway
Bridge across the Willamette River, mile
11.7, to remain in the closed position
and need not open for maritime traffic
from 7:30 a.m. October 7, 2012 through
3 p.m. October 7, 2012. The bridge shall
operate in accordance to 33 CFR
117.897 at all other times. Waterway
usage on this stretch of the Willamette
River includes vessels ranging from
commercial tug and barge to small
pleasure craft. Mariners will be notified
and kept informed of the bridge’s
operational status via the Coast Guard
Notice to Mariners publication and
Broadcast Notice to Mariners as
appropriate. The draw span will be
required to open, if needed, for vessels
engaged in emergency response
operations during this closure period.
In accordance with 33 CFR 117.35(e),
the drawbridge must return to its regular
operating schedule immediately at the
end of the designated time period. This
deviation from the operating regulations
is authorized under 33 CFR 117.35.
Dated: September 7, 2012.
Randall D. Overton,
Bridge Administrator.
[FR Doc. 2012–23291 Filed 9–20–12; 8:45 am]
BILLING CODE 9110–04–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 117
[Docket No. USCG–2012–0808]
Drawbridge Operation Regulation; Old
River, Orwood, CA
Coast Guard, DHS.
Notice of temporary deviation
from regulations.
AGENCY:
ACTION:
The Coast Guard has issued a
temporary deviation from the operating
regulation that governs the Burlington
Northern & Santa Fe Railroad (BNSF)
SUMMARY:
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58491
Drawbridge across Old River, mile 10.4,
at Orwood, CA. The deviation is to
allow the bridge owner to perform
essential mechanical repairs on the
bridge. This deviation allows the bridge
to remain in the closed-to-navigation
position during the event.
This deviation is effective from
8 a.m. October 22, 2012 to 4 p.m. on
October 26, 2012.
DATES:
Documents mentioned in
this preamble as being available in the
docket are part of the docket USCG–
2012–0808 and are available online by
going to https://www.regulations.gov,
inserting USCG–2012–0808 in the
‘‘Keyword’’ box and then clicking
‘‘Search’’. They are also available for
inspection or copying at the Docket
Management Facility (M–30), U.S.
Department of Transportation, West
Building Ground Floor, Room W12–140,
1200 New Jersey Avenue SE.,
Washington, DC 20590, between 9 a.m.
and 5 p.m., Monday through Friday,
except Federal holidays.
ADDRESSES:
If
you have questions on this rule, call or
email David H. Sulouff, Chief, Bridge
Section, Eleventh Coast Guard District;
telephone 510–437–3516, email
David.H.Sulouff@uscg.mil. If you have
questions on viewing the docket, call
Renee V. Wright, Program Manager,
Docket Operations, telephone 202–366–
9826.
FOR FURTHER INFORMATION CONTACT:
BNSF has
requested a temporary change to the
operation of the BNSF Railroad
Drawbridge, mile 10.4, over Old River,
at Orwood, CA. The drawbridge
navigation span provides a vertical
clearance of 11.2 feet above Mean High
Water in the closed-to-navigation
position. The draw opens promptly and
fully when a request to open is given.
Navigation on the waterway is
commercial and recreational.
This temporary deviation has been
coordinated with commercial operators
and various marinas. No objections to
the proposed temporary deviation were
raised. Vessels that can transit the
bridge, while in the closed-to-navigation
position, may continue to do so at any
time. The BNSF drawbridge across
Middle River provides alternative access
for vessel transits.
In accordance with 33 CFR 117.35(e),
the drawbridge must return to its regular
operating schedule immediately at the
end of the designated time period. This
deviation from the operating regulations
is authorized under 33 CFR 117.35.
SUPPLEMENTARY INFORMATION:
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[Federal Register Volume 77, Number 184 (Friday, September 21, 2012)]
[Rules and Regulations]
[Pages 58488-58491]
From the Federal Register Online via the Government Printing 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:
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 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]
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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
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2. Remove and reserve Sec. 1952.313, to read as follows:
Sec. 1952.313 [Reserved]
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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: https://www.osha.gov/dcsp/osp/stateprogs/hawaii.html.
[FR Doc. 2012-23366 Filed 9-20-12; 8:45 am]
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