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the Assistant Secretary may from time to time require. (Approved by the Office of Management and Budget under control number 12180004) (36 FR 20751, Oct. 29, 1971, as amended at 54 FR 24333, June 7, 1989)

such standards, will be deemed to meet this requirement.

(1) Resources. The State plan shall contain satisfactory assurances through the use of budget, organizational description, and any other appropriate means that the State will devote adequate funds to the administration and enforcement of the program. The Assistant Secretary will make periodic evaluations of the adequacy of the State resources devoted to the plan.

(j) State and local government employees. The State plan shall include, to the extent permitted by State law, an effective and comprehensive occupational safety and health program covering all employees of public agencies of the State and its political subdivisions. Such program shall be as effective as the programs contained in the plan which are applicable to employees covered by the plan.

(k) Employer records and reports. The State plan shall provide assurances that employers covered by the plan will maintain records and make reports to the Assistant Secretary in the same manner and to the same extent as if the plan were not in effect.

(1) State agency reports to the Assistant Secretary. The State plan shall provide assurances that the designated agency or agencies shall make such reasonable reports to the Assistant Secretary in such form and containing such information as he may from time to time require. The agency or agencies shall establish specific goals, consistent with the goals of the Act, including measures of performance, output and results which will determine the efficiency and effectiveness of the State program, and shall make periodic reports to the Assistant Secretary on the extent to which the State, in implementation of its plan, has attained these goals. Reports will also include data and information on the implementation of the specific inspection and voluntary compliance activi. ties included within the State plan. Further, these reports shall contain such statistical information pertaining to work-related deaths, injuries, and illnesses in employments and places of employment covered by the plan as

8 1902.4 Indices of effectiveness.

(a) General. In order to satisfy the requirements of effectiveness under $ 1902.3 (c)(1) and (d)(1), the State plan shall:

(1) Establish the same standards, procedures, criteria and rules as have been established by the Assistant Secretary under the Act, or;

(2) Establish alternative standards, procedures, criteria, and rules which will be measured against each of the indices of effectiveness in paragraphs (b) and (c) of this section to determine whether the alternatives are at least as effective as the Federal program with respect to the subject of each index. For each index the State must demonstrate by the presentation of factual or other appropriate information that its plan is or will be at least as effective as the Federal program.

(b) Standards. (1) The indices for measurement of a State plan with regard to standards follow in paragraph (b)(2) of this section. The Assistant Secretary will determine whether the State plan satisfies the requirements of effectiveness with regard to each index as provided in paragraph (a) of this section.

(2) The Assistant Secretary will determine whether the State plan:

(i) Provides for State standards with respect to specific issues which are or will be at least as effective as the standards promulgated under section 6 of the Act relating to the same issues. In the case of any State standards dealing with toxic materials or harmful physical agents, they should adequately assure, to the extent feasible, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life, by such means as, in the development and promulgation of standards, obtaining the best available evidence through research, demonstrations, experiments, and experience under this and other safety and health laws.

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(ii) Provides an adequate method to assure that its standards will continue to be at least as effective as Federal standards, including Federal standards relating to issues covered by the plan, which become effective subsequent to any approval of the plan.

(iii) Provides a procedure for the development and promulgation of standards which allows for the consideration of pertinent factual information and affords interested persons, including employees, employers and the public, an opportunity to participate in such processes, by such means as establishing procedures for consider. ation of expert technical knowledge, and providing interested persons, including employers, employees, recognized standards-producing organizations, and the public an opportunity to submit information requesting the development or promulgation of new standards or the modification or revocation of existing standards and to participate in any hearings. This index may also be satisfied by such means as the adoption of Federal standards, in which case the procedures at the Federal level before adoption of a standard under section 6 may be considered to meet the conditions of this index.

(iv) Provides authority for the granting of variances from State standards, upon application of an employer or employers which correspond to variances authorized under the Act, and for consideration of the views of interested parties, by such means as giving affected employees notice of each application and an opportunity to request and participate in hearings or other appropriate proceedings relating to applications for variances.

(v) Provides for prompt and effective standards setting actions for the protection of employees against new and unforseen hazards, by such means as the authority to promulgate emergency temporary standards.

(vi) Provides that State standards contain appropriate provision for the furnishing to employees of information regarding hazards in the workplace, including information about

suitable precautions, relevant symptoms, and emergency treatment in case of exposure, by such means as labeling, posting, and, where appropriate, medical examination at no cost to employees, with the results of such examinations being furnished only to appropriate State officials and, if the employee so requests, to his physician.

(vii) Provides that State standards, where appropriate, contain specific provision for the protection of employees from exposure to hazards, by such means as containing appropriate provision for use of suitable protective equipment and for control or technological procedures with respect to such hazards, including monitoring or measuring such exposure.

(c) Enforcement. (1) The indices for measurement of a State plan with regard to enforcement follow in paragraph (c)(2) of this section. The Assistant Secretary will determine whether the State plan satisfies the requirements of effectiveness with regard to each index as provided in paragraph (a) of this section.

(2) The Assistant Secretary will determine whether the State plan:

(i) Provides for inspection of covered workplaces in the State, including inspections in response to complaints, where there are reasonable grounds to believe a hazard exists, in order to assure, so far as possible, safe and healthful working conditions for covered employees, by such means as providing for inspections under conditions such as those provided in section 8 of the Act.

(ii) Provides an opportunity for employees and their representatives, before, during, and after inspections, to bring possible violations to the attention of the State agency with enforcement responsibility in order to aid inspections, by such means as affording a representative of the employer and a representative authorized by employees an opportunity to accompany the State representative during the physical inspection of the workplace, or where there is no authorized representative, by providing for consultation by the State representative with a reasonable number of employees.

(iii) Provides for the notification of employees, or their representatives, when the State decides not to take compliance action as a result of violations alleged by such employees or their representatives and further provides for informal review of such deci. sions, by such means as written notification of decisions not to take compliance action and the reasons therefor, and procedures for informal review of such decisions and written statements of the disposition of such review.

(iv) Provides that employees be informed of their protections and obligations under the Act, including the provisions of applicable standards, by such means as the posting of notices or other appropriate sources of information.

(v) Provides necessary and appropriate protection to an employee against discharge or discrimination in terms and conditions of employment because he has filed a complaint, testified, or otherwise acted to exercise rights under the Act for himself or others, by such means as providing for appropriate sanctions against the employer for such actions and by providing for the withholding, upon request, of the names of complainants from the employer.

(vi) Provides that employees have access to information on their exposure to toxic materials or harmful physical agents and receive prompt information when they have been or are being exposed to such materials or agents in concentrations or at levels in excess of those prescribed by the applicable safety and health standards, by such means as the observation by employees of the monitoring or measuring of such materials or agents, employee access to the records of such monitoring or measuring, prompt notification by an employer to any employee who has been or is being exposed to such agents or materials in excess of the applicable standards, and information to such employee of corrective action being taken.

(vii) Provides procedures for the prompt restraint or elimination of any conditions or practices in covered places of employment which could reasonably be expected to cause death or serious physical harm immediately or

before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided for in the plan, by such means as immediately informing employees and employers of such hazards, taking steps to obtain immediate abatement of the hazard by the employer, and where appropriate, authority to initiate necessary legal proceedings to require such abatement.

(viii) Provides adequate safeguards to protect trade secrets, by such means as limiting access to such trade secrets to authorized State officers or employees concerned with carrying out the plan and by providing for the issuance of appropriate orders to protect the confidentiality of trade secrets.

(ix) Provides that the State agency (or agencies) will have the necessary legal authority for the enforcement of standards, by such means as provisions for appropriate compulsory process to obtain necessary evidence or testimony in connection with inspection and enforcement proceedings.

(x) Provides for prompt notice to employers and employees when an alleged violation of standards has occurred, including the proposed abatement requirements, by such means as the issuance of a written citation to the employer and posting of the citation at or near the site of the violation; further provides for advising the employer of any proposed sanctions, by such means as a notice to the employer by certified mail within a reasonable time of any proposed sanctions.

(xi) Provides effective sanctions against employers who violate State standards and orders, such as those prescribed in the Act.

(xii) Provides for an employer to have the right of review of violations alleged by the State, abatement periods, and proposed penalties and for employees or their representatives to have an opportunity to participate in review proceedings, by such means as providing for administrative or judicial review, with an opportunity for a full hearing on the issues.

(xiii) Provides that the State will undertake programs to encourage voluntary compliance by employers and employees by such means as conducting training and consultation with employers and employees.

(d) Additional indices. Upon his own motion or after consideration of data, views and arguments received in any proceeding held under subpart C of this part, the Assistant Secretary may prescribe additional indices for any State plan which shall be in furtherance of the purpose of this part, as expressed in $ 1902.1.

8 1902.5 Intergovernmental Cooperation

Act of 1968. This part shall be construed in a manner consistent with the Intergovernmental Cooperation Act of 1968 (42 U.S.C. 4201-4233), and any regulations pursuant thereto.

the text of any pertinent administrative decisions.

(b) Upon receipt of the State plan the Assistant Regional Director shall make a preliminary examination of the plan. If his examination reveals any defect in the plan, the Assistant Regional Director shall offer assistance to the State agency and shall provide the agency an opportunity to cure such defect. After his preliminary examination, and after affording the State agency such opportunity to cure defects, the Assistant Regional Director shall submit the plan to the Assistant Secretary.

(c) Upon receipt of the plan from the Assistant Regional Director, the Assistant Secretary shall examine the plan and supporting materials. If the examination discloses no cause for rejecting the plan, the Assistant Secretary shall follow the procedure prescribed in $ 1902.11. If the examination discloses cause for rejection of the plan, the Assistant Secretary shall follow the procedure prescribed in $ 1902.17.

8 1902.6 Consultation with the National

Institute for Occupational Safety and

Health. The Assistant Secretary will consult, as appropriate, with the Director of the National Institute for Occupational Safety and Health with regard to plans submitted by the States under this part.

PROCEDURE FOR PROPOSED OR POSSIBLE

APPROVAL OF PLAN

Subpart C-Procedures for Submis

sion, Approval and Rejection of State Plans

8 1902.10 Submission.

(a) An authorized representative of the State agency or agencies responsible for administering the plan shall submit the plan with 10 copies to the appropriate Assistant Regional Director of the Occupational Safety and Health Administration, U.S. Department of Labor. The State plan shall include (1) Supporting papers conforming to the requirements specified in subpart B of this part, and (2) the State occupational safety and health standards to be included in the plan, including copies of any specific or enabling State laws and regulations relating to such standards. If any of the representations concerning the quirements of subpart B of this part are dependent upon any judicial or administrative interpretations of the State standards or enforcement provisions, the State shall furnish citations to any pertinent judicial decisions and

8 1902.11 General notice.

(a) Upon receipt of a State plan submitted by an Assistant Regional Director under $ 1902.10 whenever the Assistant Secretary proposes to approve the plan, or to give notice that such approval is an issue before him, he shall publish in the FEDERAL REGISTER a notice meeting the requirements of the remaining paragraphs of this section. No later than 5 days following the publication of the notice in the FEDERAL REGISTER, the applying State agency shall publish, or cause to be published, within the State reasonable notice containing the same information.

(b) The notice shall indicate the submission of the plan and its contents, and any proposals, subjects, or issues involved.

(c) The notice shall provide that the plan, or copies thereof, shall be available for inspection and copying at the office of the Director, Office of State Programs, Occupational Safety and Health Administration, 1726 M Street

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NW., Washington, DC 20210, office of tional opportunity for public comthe Assistant Regional Director in ment, particularly when such an opwhose region the State is located, and portunity would not unduly delay an office of the State which shall be

final action on the plan and when the designated by the State for this pur- comments could be expected to elicit pose.

new relevant matter. (d) The notice shall afford interest

(38 FR 12605, May 14, 1973) ed persons an opportunity to submit in writing, data, views, and arguments on

8 1902.13 Informal hearing. the proposal, subjects, or issues involved within 30 days after publication Any informal hearing shall be legisof the notice in the FEDERAL REGISTER. lative in type. The procedures for inThereafter the written comments re- formal hearings may take a variety of ceived or copies thereof shall be avail- forms. The appropriateness of any able for public inspection and copying particular form will turn largely upon at the office of the Director, Office of the proposals, subjects, or issues inState Programs, Occupational Safety volved. The rules of procedure for and Health Administration, 1726 M each hearing shall be published with Street NW., Washington, DC 20210, the notice thereof. office of the Assistant Regional Director in whose region the State is locat- 8 1902.14 Formal hearing. ed, and an office of the State which

Any formal hearing provided for shall be designated by the State for

under $ 1902.11 (e) and (f) shall be this purpose.

commenced upon the publication of (e) Upon his own initiative, the As

reasonable notice in the FEDERAL REGsistant Secretary may give notice of an

ISTER and similar notice by the State. informal or formal hearing affording

The hearing shall conform with the an opportunity for oral comments con

requirements of 5 U.S.C. 556 and 557. cerning the plan.

The terms for filing proposed findings (f) In the event no notice of hearing

and conclusions and exceptions to any is provided under paragraph (e) of this section it shall be provided that any

tentative decision, or objections to a

tentative decision, shall be set forth in interested person may request an in

the notice. formal hearing concerning the proposed plan, or any part thereof, when

8 1902.15 Certification of the record of a ever particularized written objections

hearing. thereto are filed within 30 days following publication of the notice in the Upon completion of any formal or FEDERAL REGISTER. If the Assistant informal hearing, the transcript thereSecretary finds that substantial objec

of, together with written submissions, tions have been filed, he shall afford a exhibits filed during the hearing, and formal or informal hearing on the sub- any post-hearing presentations shall jects and issues involved under be certified by the officer presiding at $ 1902.13 or $ 1902.14, or shall com- the hearing to the Assistant Secretary. mence a proceeding under $ 1902.17.

PROCEDURE FOR PROPOSED OR POSSIBLE 8 1902.12 Opportunity for modifications

REJECTION OF PLAN and clarifications. The Assistant Secretary may afford

8 1902.17 The proceeding. the State an opportunity to modify or Whenever as a result of (a) an initial clarify its plan on the basis of any examination of a plan, or (b) written comments received under $ 1902.11 or or oral comments concerning a plan $ 1902.13, before commencing a pro

submitted in an informal rulemaking ceeding to reject the plan. In this con- proceeding concerning a proposed apnection, the State may informally dis- proval of a plan or any subject or issue cuss any issues raised by such com- concerning the plan, the Assistant Secments with the staff of the Office of retary proposes to reject a plan or reFederal and State Operations. The As- jection remains in issue for any sistant Secretary may afford an addi- reason, he shall follow the procedures

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