DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1952

U.S. Virgin Islands State Plan for Occupational Safety and Health

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

ACTION: U.S. Virgin Islands state plan: Notice of reconsideration of 18(e) determination; proposed reassumption of concurrent Federal enforcement authority; request for written comments; notice of opportunity to request informal public hearing.

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SUMMARY: The U.S. Virgin Islands operates a state occupational safety and health program or "state plan" which is federally approved under section 18 of the Occupational Safety and Health Act. In 1984, the Occupational Safety and Health Administration made a "final approval" determination under section 18(e) of the Act which in effect gave exclusive regulatory authority over all safety and health issues covered by the state plan to the Virgin Islands Department of Labor. (The Virgin Islands State Plan is limited in coverage to safety issues, in the private sector.) The most recent Federal monitoring of the state plan indicates that state plan enforcement has ceased to be "at least as effective as" that provided under OSHA and that other 18(e) requirements are no longer being met. In response to that finding, the Virgin Islands Commissioner of Labor has agreed to voluntarily relinquish the State's final approval status, has requested the reassertion of concurrent Federal enforcement jurisdiction, and has pledged to accomplish the necessary corrective action. As a result, the affirmative 18(e) determination is under reconsideration by the Assistant Secretary of Labor for Occupational Safety and Health, (the "Assistant Secretary") pursuant to procedures set forth in 29 CFR 1902.47 et seq. Reconsideration and subsequent revocation/suspension of the 18(e) determination will result in reinstatement of concurrent enforcement authority by Federal OSHA over occupational safety issues in the U.S. Virgin Islands pending State corrective action. This notice affords an opportunity for the public to submit written information, views and comments on the proposed reconsideration. A similar notice will be published by the Virgin Islands within the next 10 days.

OSHA is soliciting written comment from interested persons in its reconsideration of the U.S. Virgin Islands State Plan's affirmative 18(e) determination to assure that all relevant information, views, data and arguments are available to the Assistant Secretary during this proceeding. Members of the public may also submit requests for an informal hearing; if the Assistant Secretary determines that substantial issues are presented which a hearing would likely resolve, an informal hearing will be scheduled in accordance with 29 CFR 1902.49(c).

DATES: Comments and requests for an informal hearing must be received by October 16, 1995.

ADDRESSES: Written comments and requests for an informal hearing must be submitted in quadruplicate to the Docket Office. Telefaxes will be accepted, however, a hard copy original with three (3) copies must also be submitted. All comments and requests must be submitted to Docket No. T-030, U.S. Department of Labor, room N2625, 200 Constitution Avenue NW., Washington, DC 20210 (202) 219-7894. Written comments, and requests for an informal hearing will be made available for public inspection and copying in the Docket Office, Room n2625 at the previously mentioned address, between the hours of 8:15 a.m. and 4:45 p.m.

Copies of the applicable evaluation reports and the State's letters and Corrective Action Plan may be inspected and copied during normal business hours at the OSHA Technical Data Center (TDC), Room N2625, 200 Constitution Avenue NW., Washington, DC; the approved plan may be inspected and copied during normal business hours at the OSHA Office of State Programs (OSP), Room N3700, 200 Constitution Avenue NW., Washington, DC; copies of the approved plan, the applicable evaluation reports and the State's letters and Corrective Action Plan may be inspected and copied during normal business hours at the Office of the Regional Administrator, Occupational Safety and Health Administration, 201 Varick Street, Room 670, New York, New York 10014; Puerto Rico Area Office, Occupational Safety and Health Administration, U.S. Courthouse & FOB, Carlos Chardon Avenue, Room 555, Hato Rey, Puerto Rico 00918, and the Virgin Islands Department of Labor, Occupational Safety and Health Division, 3012 Golden Rock, Christiansted, St. Croix, Virgin Islands 00820.

FOR FURTHER INFORMATION CONTACT: Anne Cyr, Acting Director, Office of Information and Consumer Affairs, Occupational Safety and Health Administration, U.S. Department of Labor, Room N3637, 200 Constitution Avenue NW., Washington, DC 20210, Telephone (202) 219-8148.

SUPPLEMENTARY INFORMATION:

Background

Section 18 of the Occupational Safety and Health Act of 1970 (the Act) provides that States which 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. Section 3(7) of the Act makes several U.S. territories and possessions including the U.S. Virgin Islands eligible to submit State plans under section 18. Procedures for State plan submission and approval are set forth in regulations at 29 CFR Part 1902. If the Assistant Secretary, applying the criteria set forth in Section 18(c) of the Act and 29 CFR 1902.3 and 1902.4, finds that the plan provides or will provide for State standards and enforcement which are "at least as effective as" Federal standards and enforcement, "initial approval" is granted. A State may commence operations under its plan after this determination is made, but the Assistant Secretary retains discretionary Federal enforcement authority during the initial-approval period as provided by Section 18(e) of the Act.

The Virgin Islands state plan received initial federal OSHA plan approval on September 11, 1973, 38 FR 16775. A description of the plan and a basic chronology of its submission and federal approval is codified in the Code of Federal Regulations at 29 CFR Part 1952, Subpart S. The Virgin Islands Department of Labor, Division of Occupational Safety and Health (VIDOSH) was designated as the state agency with responsibility for administering the state plan, and operations under the plan commenced at the time of initial plan approval in 1973. The Virgin Islands state plan covers all issues of occupational safety in workplaces located within the Virgin Islands. Although in the public sector the state plan covers occupational health as well as safety, in the private sector the state plan does not exercise enforcement authority over occupational health issues; enforcement of health standards and other health-related requirements in the Virgin Islands private sector is provided by the U.S. Department of Labor.

During the 1970's the Virgin Islands plan proceeded through the various stages of federal approval, and after certification of completion of all required developmental steps in 1981 (29 CFR 1952.252; 46 FR 46808, 09-22-81), Federal OSHA began to evaluate the program for final approval under section 18(e) of the Act in accordance with procedures at 29 CFR 1902.30 et seq., to determine, on the basis of actual operations under the plan, whether the criteria for final approval were being satisfied. An 18(e) or "final approval" determination results in the relinquishment of Federal concurrent enforcement authority in the State with respect to occupational safety and/or health issues covered by the plan, 29 U.S.C. 667(e).

Based on OSHA's evaluation of operations under the plan, and after opportunity for public comment the Assistant Secretary determined that in actual operations, the Virgin Islands State plan was "at least as effective as" the Federal program in providing safe and healthful employment and places of employment, and met all other criteria for final State plan approval under Section 18(e) of the Act and implementing regulations at 29 CFR Part 1902 including compliance staffing consistent with benchmarks established pursuant to AFL-CIO v. Marshall 570 F.2d 1030 (D.C. Cir. 1978). Accordingly, the Virgin Islands plan was granted final approval, 29 CFR 1952.253, and concurrent Federal enforcement authority over occupational safety was relinquished under section 18(e) of the Act effective April 17, 1984. 29 CFR 1952.254; 49 FR 16755 (April 20, 1984).

Summary of Current Situation

The U.S. Virgin Islands state program is experiencing significant difficulties, and exhibiting deficiencies in many aspects of its 18(e) program, as documented in the three most recent Evaluation reports covering 1991 through 1994 as prepared by OSHA's Region II in New York. Despite many past assurances to OSHA that the administering agency will correct the deficiencies and satisfactorily address the problems, the deficiencies remain unabated. The most basic activities of the program, including scheduling of inspections, identification and citation of hazards, proposal of penalties, review of contested cases, staff training, and response to new Federal standards and Federal program changes are not being accomplished in an effective manner. Accompanied visits and case file reviews have uncovered significant deficiencies in critical enforcement areas, including inspection preparation, inspection procedures, hazard recognition, abatement assurance, case file documentation, and adjudication of contested cases. Additional deficiencies also exist in fiscal administration and reporting, and maintenance of sufficient, qualified staff. The severity of the program's present deficiencies along with the record of their last five (5) years of somewhat problematic performance has resulted in the mutual conclusion by OSHA's Regional Administrator and the Virgin Islands newly appointed Commissioner of Labor that the VIDOSH program does not currently meet the criteria requisite to retain an affirmative determination under Section 18(e) of the Act, as it is not operating in a manner that can be judged "at least as effective as" the Federal OSHA program.

By letter dated July 19, 1995, Lisa Harris-Moorhead, Virgin Islands' Commissioner of Labor indicated the state's agreement to voluntary relinquishment of the U.S. Virgin Islands State plan's final approval status under Section 18(e) of the Act and to reassertion of concurrent Federal enforcement jurisdiction. On behalf of the Governor and his new administration she committed the state to making the Virgin Islands' workplaces safe and healthful and to "marked improvement" in the state's program by December.

Proposed Reconsideration of 18(e) Determination and Reinstatement of Concurrent Federal Enforcement Authority

Section 18(f) of the Act requires the Assistant Secretary to make a continuing evaluation of the manner in which each state plan is being administered. Under regulations at 29 CFR 1902.32(e), after a State's plan has been given an affirmative 18(e) determination, the State is required to maintain a program which will meet the requirements of section 18(c) and will continue to be "as least as effective as" the Federal program. A failure to comply with this or other 18(e) requirements may result in the reconsideration and revocation or suspension of the affirmative 18(e) determination and the resumption of Federal enforcement authority, or, if circumstances warrant, the commencement of proceedings for the withdrawal of approval of the plan pursuant to 29 CFR Part 1955 and section 18(f) of the Act.

Under the authority of section 18 of the Act and 29 CFR 1902.32(f) and 1902.47 et seq., the Assistant Secretary on his own initiative and in response to the state's request is seeking public comment on his proposal to reconsider the U.S. Virgin Islands State plan's affirmative 18(e) determination and reinstate concurrent Federal enforcement authority in order to assure adequate worker protection and the effective enforcement of safety standards and regulations. A decision revoking or suspending the state's 18(e) status would not terminate federal approval of the state plan and would not affect the legal authority of the Virgin Islands to carry on enforcement activities under the state plan. Instead, revocation/suspension of a state's 18(e) determination restores the state plan to "initial approval" status and permits the resumption of concurrent federal enforcement activity including independent Federal or joint state and Federal inspections resulting in the issuance of appropriate Federal citations and penalties and the review of contested cases by the Occupational Safety and Health Review Commission (OSHRC). Federal enforcement activity will reflect all new OSHA compliance initiatives to promote voluntary compliance through common sense regulation and appropriately rewarding employers who take affirmative steps to assure worker protection. OSHA believes such action is an appropriate response to current circumstances in the Virgin Islands; restoring the state plan to its pre-1984 "initial approval" status acknowledges the deficiencies presently existing in the state program, which, while serious and extensive, do not in the Assistant Secretary's judgement warrant the commencement at this time of proceedings under 29 CFR Part 1955 and section 18(f) of the Act to entirely withdraw state plan approval. At the same time, reverting the state's federal approval status from final to initial approval would allow OSHA to exercise discretionary concurrent enforcement authority to compensate for the current deficiencies in state plan enforcement and allow the state sufficient time and assistance to improve its program. Pending a final decision, Federal OSHA compliance officers may accompany State inspectors, effective immediately, but no Federal citations will be issued until a final decision on this action is published.

Final approval status may be renewed or a process to withdraw Federal approval of the State plan may be initiated subsequently, depending on the results of State efforts to address the identified State plan deficiencies.

Signed at Washington, DC this 5th day of September, 1995.

Joseph A. Dear,
Assistant Secretary of Labor.

[FR Doc. 95-22446 Filed 9-8-95; 8:45 am]

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