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), Labor.

ACTION: Final rule.

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SUMMARY: This document announces the Occupational Safety and Health

Administration's (OSHA) decision to suspend the U.S. Virgin Islands

State Plan ``final approval'' determination under Section 18(e) of the

Occupational Safety and Health Act. OSHA is reinstating concurrent

Federal enforcement authority over occupational safety issues in the

private sector which issues have been solely covered by the State Plan

in the U.S. Virgin Islands since 1984. (OSHA currently exercises

authority over occupational health issues in the private sector, which

issues are excluded from the State plan.) The scope of the exercise of

this concurrent Federal enforcement authority is further defined in

this document under ``Level of Federal Enforcement.''

EFFECTIVE DATE: November 13, 1995.

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:

A. Background

The Virgin Islands operates a State Plan to develop and enforce

occupational safety standards for private sector employers and

occupational safety and health standards for public sector (State and

local government) employers, pursuant to the provisions of Section 18

of the Occupational Safety and Health Act of 1970 (the Act). Pursuant

to Section 18(e) of the Act, OSHA granted the Virgin Islands ``final

approval'' (which is also referred to as an 18(e) determination) and

relinquished concurrent Federal enforcement jurisdiction effective

April 17, 1984. As a result of more recent Federal monitoring of the

U.S. Virgin Islands State Plan, OSHA has now found that the State plan,

in actual operation, is no longer ``at least as effective as'' Federal

OSHA and that other 18(e) requirements are no longer being met. In

response to this finding, in August 1995, Lisa Harris-Moorehead, the

newly appointed Virgin Islands' Commissioner of Labor, indicated the

Virgin Islands' agreement to voluntarily relinquish the State Plan's

final approval status under Section 18(e). The Commissioner also agreed

to the reassertion of concurrent Federal enforcement jurisdiction. On

behalf of the Governor, the Commissioner pledged to accomplish the

necessary corrective action to regain final approval status by

December, 1995. Subsequently, as a result of the intervening

devastation inflicted by Hurricane Marilyn on September 15, 1995, the

Virgin Islands, by letter dated September 22, 1995, requested Federal

technical assistance and indicated that the necessary corrective action

of the State Plan may now be somewhat delayed.

Pursuant to the procedures set forth in 29 CFR 1902.47 et seq.,

OSHA published notice of its reconsideration of the Virgin Islands'

18(e) determination; proposed reassumption of concurrent Federal

enforcement authority; and a request for written comments and

opportunity to request an informal hearing on September 11, 1995 (60 FR

47131). That notice also contains a more detailed description of the

Virgin Islands' State plan and the identified deficiencies. Similar

notice was published in two newspapers in the Virgin Islands on

September 25, 1995. The 35 day comment period closed on October 16,

1995, and OSHA received no written comments or requests for a hearing.

B. 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 suspend the 18(e) final approval status of the Virgin

Islands' State Plan and to reinstate concurrent Federal enforcement

authority over occupational safety issues in the U.S. Virgin Islands

pending the necessary corrective action by the State Plan to again meet

the criteria for an 18(e) final approval determination. Concurrent

Federal enforcement authority will be exercised in the U.S. Virgin

Islands effective November 13, 1995.

The Assistant Secretary's decision is based upon the facts

determined by OSHA in the monitoring of the State Plan and after

opportunity for public comment. OSHA did not receive any written

comments. 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 [Docket #T030]; 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; or at the Virgin Islands Department of Labor,

Occupational Safety and Health Division, 3012 Golden Rock,

Christiansted, St. Croix, Virgin Islands 00820.

C. Effect of the Decision

The Assistant Secretary's decision to suspend the State Plan's

final approval under section 18(e) restores the state

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Plan to ``initial'' approval status and permits the resumption of

concurrent Federal enforcement activity. The Assistant Secretary's

decision does not terminate Federal approval of the State Plan and does

not affect the legal authority of the Virgin Islands to carry on

enforcement activities under the State Plan. Federal OSHA 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). In addition to enforcement

actions, Federal and State OSHA will provide as much technical

assistance and voluntary compliance assistance as possible to assure

worker protection during the extensive cleanup and rebuilding effort

that is occurring on the Virgin Islands as a result of Hurricane

Marilyn. (The Virgin Islands suffered significant property damage with

most businesses requiring substantial or complete reconstruction.)

Joint Federal/State seminars and other training and outreach activities

have been and will continue to be conducted to assist employers and

employees in understanding their compliance obligations.

Reverting the State Plan's Federal approval status from ``final''

to ``initial'' allows Federal OSHA to exercise discretionary concurrent

enforcement authority to compensate for the current deficiencies in the

State Plan's enforcement, while allowing the Virgin Islands sufficient

time and assistance to improve its performance. Federal OSHA will

provide technical assistance to the Virgin Islands in the form of staff

training for compliance officers and administrative, legal, and

operational guidance.

Immediate Effective Date: November 13, 1995.

OSHA finds that good cause exists for making this rule effective

immediately upon publication in the Federal Register. Monitoring of the

State plan indicates the immediate need for supplementary Federal

enforcement of safety requirements for the protection of workers in the

Virgin Islands. In addition, today's action essentially imposes no new

compliance obligations on affected employers since standards enforced

under the Virgin Islands State plan are for the most part identical to

Federal standards.

List of Subjects in 29 CFR Part 1952

Intergovernmental relations, Law enforcement, Occupational safety

and health.

Accordingly, 29 CFR Part 1952 is amended as set forth below.

Signed in Washington, D.C. this 6th day of November, 1995.

Joseph A. Dear,

Assistant Secretary.

PART 1952--[AMENDED]

1. The authority citation for 29 CFR Part 1952 continues 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. 1-90 (55 FR 9033).

Subpart S--Virgin Islands

2. Section 1952.253 is amended by adding the following sentence to

the end of paragraph (a) to read as follows:

Sec. 1952.253 Final approval determination.

(a) * * *. Note: The Virgin Islands final approval status under

Section 18(e) of the Act was suspended and Federal concurrent

enforcement authority reinstated on November 13, 1995.

* * * * *

3. Section 1952.253 is amended by adding the following sentence to

the end of paragraph (b) to read as follows:

Sec. 1952.253 Final approval determination.

* * * * *

(b) * * *. Note: The Virgin Islands final approval status under

Section 18(e) of the Act was suspended and Federal concurrent

enforcement authority reinstated on November 13, 1995.

* * * * *

4. Section 1952.253 is amended by adding paragraph (d) to read as

follows:

Sec. 1952.253 Final approval determination.

* * * * *

(d) As a result of Federal monitoring of the U.S. Virgin Islands

State Plan and after opportunity for public comment, the Assistant

Secretary for Occupational Safety and Health has determined that the

State Plan no longer meets the criteria for final approval under

Section 18(e). As a result the final approval status has been suspended

and the State Plan reverts to ``initial approval'' status effective

November 13, 1995. Concurrent Federal enforcement authority over

occupational safety issues in the U.S. Virgin Islands has been

reinstituted pending the necessary corrective action by the State Plan

to again meet the criteria for an 18(e) final approval determination.

Concurrent Federal enforcement authority will be exercised in the U.S.

Virgin Islands effective November 13, 1995, and will continue until

further notice.

5. Section 1952.254 is revised to read as follows:

Sec. 1952.254 Level of Federal enforcement.

(a) As a result of the Assistant Secretary's determination to

suspend the final approval determination under section 18(e) for the

Virgin Islands state plan, effective November 13, 1995, Federal

occupational safety standards which have been promulgated under section

6 of the Act now apply to all covered employers in the Virgin Islands.

Until subsequent determinations are made by Federal OSHA affecting the

level of Federal enforcement in the Virgin Islands, discretionary

Federal concurrent enforcement authority will be exercised in the

following manner. Federal OSHA will exercise the full range of

enforcement authority available under the Act, including but not

limited to, issuance of citations under section 9 for violations of any

requirement of section 5, of any standard, rule or order promulgated

pursuant to section 6, or of any regulation prescribed pursuant to the

Act; conduct of inspections and investigations under section 8; conduct

of enforcement proceedings in contested cases under section 10;

institution of proceedings to correct imminent dangers under section

13; and proposal of civil penalties or initiation of criminal

proceedings for violations of the Act under section 17 with regard to

occupational safety issues in the private sector. The Virgin Islands

retains full authority under its approved State plan to continue to

adopt and enforce occupational safety standards including issuing

citations for violations thereof, proposing penalties and adjudicating

contested cases under State law. Where State and Federal compliance

officers conduct joint inspections, enforcement actions may be either

Federal or State.

(b) Federal OSHA also continues to retain full authority over

issues which have not been subject to State enforcement under the

Virgin Islands plan. Thus, OSHA retains authority to enforce all

provisions of the Act, Federal standards, rules or orders which relate

to occupational health in private sector employment in the Virgin

Islands. OSHA also retains its authority relative to safety and health

in private sector maritime activities and will continue to enforce all

provisions of the Act, rules or orders and all Federal standards,

current or future, specifically directed to maritime employment (e.g.,

29 CFR part 1915, shipyard employment; 29 CFR part 1917, marine

terminals; 29 CFR part 1918, longshoring; 29 CFR part 1919, gear

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certification), as well as provisions of general industry (29 CFR part

1910) standards appropriate to hazards found in these employments.

Federal jurisdiction also remains in effect with respect to Federal

government employers and employees.

(c) The Assistant Secretary retains his authority under section

11(c) of the Act with regard to complaints alleging discrimination

against employees because of the exercise of any right afforded to the

employee by the Act. The Assistant Secretary also retains his authority

under section 6 of the Act to promulgate, modify or revoke occupational

safety and health standards which address the working conditions of all

employees. Any Federal standards, including any standards promulgated

or modified during the period of the Virgin Islands final approval

under section 18(e), are now enforceable by Federal OSHA.

(d) The Assistant Secretary also retains authority to continue to

conduct investigations and inspections for the purpose of the

evaluation of the Virgin Islands State plan under section 18 (e) and

(f) of the Act. The Regional Administrator will closely monitor State

performance and corrective action and make prompt recommendation to the

Assistant Secretary for either reinstatement of the Virgin Islands

final approval status or initiation of plan withdrawal action. Federal

enforcement authority will continue to be exercised to the extent

necessary to assure occupational safety and health protection to

employees in the Virgin Islands until further notice.

[FR Doc. 95-27915 Filed 11-9-95; 8:45 am]

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