OPERATIONAL STATUS AGREEMENT UNDER SECTION 18(e) OF THE

OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970

Draft – as of July 19, 2012

This procedural agreement implements the Federal Register Notice (XXXX)
which will announce the temporary suspension of Hawaii’s 18(e) status,
and is entered into between the Regional Administrator for OSHA, Region
9, and Director of the Department of Labor and Industrial Relations of
the State of Hawaii as the State Designee, in response to a request for
assistance from Department of Labor and Industrial Relations of the
State of Hawaii (DLIR) to assure occupational safety and health
protection to workers due to an insufficient number of trained safety
and health personnel employed.  This agreement does not terminate
Federal approval of the Hawaii State Plan and does not affect the legal
authority of Hawaii to carry on enforcement activities under the State
Plan.  The Hawaii State Plan, Chapter 396 Hawaii Revised Statutes, and
all its regulations remain in effect.

 

This agreement delineates continuing and new Federal enforcement
authority in the State of Hawaii and specifies areas of State authority
during the period of temporary suspension.

Federal responsibility under the Act will continue to be exercised with
regard to enforcement of Federal OSHA requirements:

Federal OSHA 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 (29 CFR
Part 1915, shipyard employment; Part 1917, marine terminals; Part 1918,
longshoring; Part 1919, gear certification) as well as provisions of
general industry and construction standards (29 CFR Parts 1910 and 1926)
appropriate to hazards found in these employments;

Promulgated under the Act subsequent to the agreement where necessary to
protect employers as in the case of emergency temporary standards
promulgated under section 6(c) of the Act (29 U.S.C. 655(c), until such
time as Hawaii shall have promulgated comparable standards in accordance
with Subpart C of 29 CFR Part 1953;

Over Federal government employers and workers and contractors or
subcontractors on any Federal establishment where the land is determined
to be exclusive Federal jurisdiction;

Over private sector employers within the secured borders of all military
installations in where access is controlled; and

Over the U.S. Postal Service (USPS), including USPS workers, and
contract workers and contractor-operated facilities engaged in USPS mail
operations.

Federal enforcement authority under Section 18 of the Act may be
exercised with regard to Federal occupational safety and health
requirements over Agriculture and General Industries, excluding
Transportation (NAICS 48) and Warehousing (NAICS 49). Potential
violations where the employer is in compliance with Federal regulations,
but not with more stringent HIOSH regulations, may be referred to the
Hawaii Occupational Safety and Health division (HIOSH).

HIOSH will retain enforcement authority in any case commenced before the
date of the Final Rule published in the Federal Register modifying the
status of the Hawaii State Plan to 18(b) in order to enforce standards
under the Plan.  Additionally, it will exercise inspection and
enforcement authority over:

Construction industry, Transportation (NAICS 48) and Warehousing (NAICS
49) under its Plan;

State and Local government as an employer;

Complaints of alleged violations of Section 396-8(e) of the Hawaii
Revised Statutes (employment discrimination); and

Referrals from Federal OSHA to HIOSH.

If there arises any case or circumstance in which authority is not
clearly defined in this agreement, the Director of the Department of
Labor and Industrial Relations of the State of Hawaii as the State
Designee and the Regional Administrator, or their designated
representatives, will resolve the issue.  While the issue is being
resolved about who has authority (e.g., where quick response is required
such as a Fatality, Catastrophe or Significant Event) OSHA shall respond
to the situation.

In addition to monitoring visits provided for under 18(f) of the OSH
Act, Federal OSHA may accompany HIOSH on enforcement activities for
purposes of technical assistance and training.  Additionally, HIOSH may
accompany Federal OSHA on enforcement activities for training purposes.

The attached addendum specifies responsibilities of each party in
support of the implementation of this agreement.

This agreement is subject to revision or termination by mutual agreement
between the Director of the Hawaii Department of Labor and Industrial
Relations and the Regional Administrator for OSHA, Region 9; or by
either party upon 30 days written notice to the other party; or when
either the results of evaluation or monitoring reveal that State
operations are at least as effective as the Federal program and
responsibilities shall be returned to the State.

__________________________________ 			_____________

Dwight Takamine, Director					Date

Department of Labor and Industrial Relations

__________________________________			_____________

Ken Nishiyama Atha, Regional Administrator		Date

Occupational Safety and Health Administration

Region 9

