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



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.


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; or

[[Page 42463]]

    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 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: 
    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.



    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 

[[Page 42464]]

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 

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]