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

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.

[[Page 47132]]

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.

[[Page 47133]]

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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