2011-26263. Hawaii State Plan; Change in Level of Federal Enforcement: Military Installations

AGENCY:

Occupational Safety and Health Administration (OSHA), Labor.

ACTION:

Final rule.

SUMMARY:

This document gives notice of OSHA's approval of a change to the state of Hawaii's occupational safety and health state plan to exclude coverage of private sector employers and employees at all military installations. The state of Hawaii, Department of Labor and Industrial Relations, requested in a November 15, 2010 memorandum which was reiterated in a February 22, 2011, letter from the Governor, that jurisdiction be relinquished to federal OSHA for conducting safety and health inspections of private sector employers within the borders of all military installations in Hawaii. Accordingly, OSHA amends its regulations to reflect this change in the level of federal enforcement.

DATES:

Effective Date: October 12, 2011.

FOR FURTHER INFORMATION CONTACT:

Press inquiries: Frank Meilinger, Office of Communications, OSHA, U.S. Department of Labor, Room N-3647, 200 Constitution Avenue, NW., Washington, DC 20210; telephone: [phone]. General Information and Technical Inquiries: Laura Seeman, Acting Director, Office of State Programs, Directorate of Cooperative and State Programs, Room N-3700, OSHA, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone [phone]. An electronic copy of this Federal Register notice is available on OSHA's Web site at http://www.osha.gov.

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 Hawaii Occupational Safety and Health State Plan was initially approved under Section 18(c) of the Act and 29 CFR Part 1902 on December 28, 1973 (39 FR 1010). The Hawaii program is administered by the Hawaii Occupational Safety and Health (HIOSH) Division of the State Department of Labor and Industrial Relations. On April 30, 1984, OSHA awarded final approval to the Hawaii State Plan pursuant to Section 18(e) and amended Subpart Y of 29 CFR part 1952 to reflect the Assistant Secretary's decision (49 FR 19182). As a result, OSHA relinquished its concurrent standards and enforcement authority with regard to occupational safety and health issues covered by the Hawaii State Plan. Federal OSHA retained its authority over safety and health in maritime employment in the private sector, federal government employers and employees, and enforcement relating to any contractors or subcontractors on any federal establishment where the land is determined to be exclusive federal jurisdiction. (OSHA jurisdiction over the U.S. Postal Service was added on June 9, 2000.)

On November 15, 2010, Pearl Imada Iboshi, former Director of the Hawaii Department of Labor and Industrial Relations, wrote to the federal OSHA Regional Administrator requesting a change in the jurisdictional responsibilities between the Hawaii Occupational Safety and Health Division of the State Department of Labor and Industrial Relations, and federal OSHA regarding military installations in Hawaii. The reasons cited for this change were as follows: (1) to eliminate dual or overlapping state and federal jurisdiction; (2) to ease obtaining security clearances to highly classified and/or restricted areas; (3) to improve coverage of hazardous waterfront working conditions; and (4) to enhance the ability to negotiate with controlling federal agencies on hazard abatement and other compliance issues.

Specifically, HIOSH relinquishes back to federal OSHA the jurisdiction and enforcement authority for conducting safety and health inspections of private sector employers within the borders of all military installations in Hawaii. Hawaii will retain responsibility for coverage of any state and local government employers and employees at these facilities. Accordingly, notice is hereby given of this change in federal enforcement authority over military installations in the state of Hawaii. OSHA is also amending its description of the state plan at 29 CFR part 1952, subpart Y to reflect this change in the level of federal enforcement.

B. Obtaining Copies of Referenced Documents

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, [phone], fax [phone]; Office of the Regional Administrator, Occupational Safety and Health Administration, San Francisco Federal Building, 90 7th Street, Suite 18-100, San Francisco, California 94103, [phone], fax [phone]; and the Hawaii Department of Labor and Industrial Relations, HIOSH, 830 Punchbowl Street, Suite 425, Honolulu, Hawaii 96813, [phone], fax [phone]. Other information about the Hawaii State Plan is posted on the state's Web site at http://hawaii.gov/​labor/​hiosh. Electronic copies of this Federal Register notice are available on OSHA's Web site at http://www.osha.gov.

C. Administrative Procedure

This Federal Register document acknowledges a modification made by the state of Hawaii to its occupational safety and health state plan, and does not involve any regulatory action by federal OSHA. States with approved plans have authority to modify the statutes, regulations, and procedures in their plan, using procedures provided under state law. These state plan modifications have legal effect in the state as soon as they are adopted; pre-enforcement approval by federal OSHA is not required. 29 CFR 1953.3(a); see Florida Citrus Packers v. California, 545 F. Supp. 216, 219 (N.D. Cal. 1982).

The attached Federal Register notice 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 changes already in effect under state law. Hawaii's determination that military installations will not be covered under the state's plan is within the state's discretion under section 18(b) of the Act. The present Federal Register notice simply provides information to the public concerning this action by the state.

For this reason, 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 notice constitutes approval of the change, effective upon publication in the Federal Register.

List of Subjects in 29 CFR Part 1952

• Military installations
• Intergovernmental relations
• Law enforcement
• Occupational safety and health

Signed at Washington, DC, on September 26, 2011.

David Michaels,

Assistant Secretary of Labor for Occupational Safety and Health.

Part 1952 of 29 CFR is hereby amended as follows:

PART 1952—[AMENDED]

1. The authority section for Part 1952 continues to read as follows:

Authority: Section 18 of the OSH Act (29 U.S.C. 667), 29 CFR Part 1902, and Secretary of Labor's Order No. 5-2002 (67 FR 65008).

Subpart Y—Hawaii

2. In § 1952.313 revise the second sentence of paragraph (b) to read as follows:

§ 1952.313

Final approval determination.

* * * * *

(b) * * * The plan does not cover maritime employment in the private sector; Federal government employers and employees; enforcement relating to any contractors or subcontractors on any Federal establishment where the land is determined to be exclusive Federal jurisdiction; the U.S. Postal Service (USPS), including USPS employees, and contract employees and contractor-operated facilities engaged in USPS mail operations; and private sector employers on military installations.

* * * * *

3. In § 1952.314 revise the fourth sentence of paragraph (b) to read as follows:

§ 1952.314

Level of Federal enforcement.

* * * * *

(b) * * * Federal jurisdiction also remains in effect with respect to Federal government employers and employees, enforcement relating to any contractors or subcontractors on any Federal establishment where the land is determined to be exclusive Federal jurisdiction; the U.S. Postal Service (USPS), including USPS employees, and contract employees and contractor-operated facilities engaged in USPS mail operations; and private sector employers on military installations.

* * * * *