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contained in section 18(c)(2) of the Act, to the effect that plans will not be approved concerning standards which unduly burden interstate commerce when applied to products which are distributed or used in interstate commerce.

8 1901.7 Delegation of authority.

The powers of the Secretary under this part shall be exercised by the Assistant Secretary of Labor for Occupational Safety and Health who is empowered to subdelegate such powers. The Assistant Secretary may, at any time, upon his own motion or upon petition by any interested persons, amend any of the rules in this part.

8 1901.4 Action upon requests for agree

ments. The State shall be notified within a reasonable time of any decision concerning a request for agreement. If a request is denied, the State shall be informed in writing of the reasons therefor. If a request is granted or an agreement is otherwise made, notification to that effect shall be published in the FEDERAL REGISTER.

PART 1902-STATE PLANS FOR THE DEVELOPMENT AND ENFORCEMENT OF STATE STANDARDS

Subpart A-General

Sec. 1902.1 Purpose and scope. 1902.2 General policies.

Subpart Criteria for State Plans 1902.3 Specific criteria. 1902.4 Indices of effectiveness. 1902.5 Intergovernmental Cooperation Act

of 1968. 1902.6 Consultation with the National In

stitute for Occupational Safety and Health.

Subpart C-Procedures for Submission, Approval and Rejection of State Plans

1902.10 Submission.

8 1901.5 Termination of agreements.

(a) Either the Secretary or the State agency which is a party to the agreement may terminate the agreement upon the delivery of written notification to that effect not later than 10 days before the date of termination. Any termination under this paragraph shall not affect the disposition of any pending State cases.

(b) In no event shall an agreement under this part continue in effect beyond the time when final action is taken by the Secretary with respect to a plan submitted by a State under section 18(b) of the Act or December 28, 1972, whichever is earlier. However, the termination of agreement inder this paragraph is not considered to affect any proceeding already commenced under the State law.

(c) The Secretary may terminate any agreement where a State fails to comply with the requirements of paragraph (c)(5) of $ 1901.3. (36 FR 7006, Apr. 13, 1971, as amended at 37 FR 26008, Dec. 7, 1972)

PROCEDURE POR PROPOSED OR POSSIBLE

APPROVAL OF PLAN

an

1902.11 General notice. 1902.12 Opportunity for modifications and

clarifications. 1902.13 Informal hearing. 1902.14 Formal hearing. 1902.15 Certification of the record of a

hearing.

PROCEDURE FOR PROPOSED OR POSSIBLE

REJECTION OF PLAN 1902.17 The proceeding. 1902.18 Previous hearing or other opportu

nity for comment on plan. 1902.19 Notice of hearing.

$ 1901.6 Exclusion.

This agreement does not restrict in any way the authority and responsibility of the Secretary under sections 8, 9, 10, 13, and 17 of the Act with respect to the Federal standards referred to in any agreement.

DECISIONS 1902.20 Decision following informal pro

ceeding. 1902.21 Tentative decision following

formal proceeding. 1902.22 Final decision following formal

proceeding. 1902.23 Publication of decisions.

Sec.
Subpart D-Procedures for Determinations

Under Section 18(.) of the Act

GENERAL 1902.30 Purpose and scope. 1902.31 Definitions. 1902.32 General policies. COMPLETION OF DEVELOPMENTAL STEPS

CERTIFICATION 1902.33 Developmental period. 1902.34 Certification of completion of de

velopmental steps. 1902.35 Effect of certification.

BASIS FOR 18(E) DETERMINATIONS 1902.36 General provisions. 1902.37 Factors for determination.

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PROCEDURES POR 18(e) DETERMINATION 1902.38 Evaluation of plan following certi

fication. 1902.39 Completion of evaluation. 1902.40 Informal hearing. 1902.41 Decision. 1902.42 Effect of affirmative 18(e) determi.

nation. 1902.43 Affirmative 18(e) decision. 1902.44 Requirements applicable to State

plans granted affirmative 18(e) determi

nations. 1902.45 (Reserved) 1902.46 Negative 18(e) determination. PROCEDURE FOR RECONSIDERATION AND REVO

CATION OF AN AFFIRMATIVE 18(e) DETER

MINATION 1902.47 Reconsideration of an affirmative

18(e) determination. 1902.48 The proceeding. 1902.49 General notice. 1902.50 Informal hearing. 1902.51 Certification of the records of a

hearing. 1902.52 Decision. 1902.53 Publication of decisions.

AUTHORITY: Secs. 8, 18, Occupational Safety and Health Act of 1970 (29 U.S.C. 657, 667).

SOURCE: 36 FR 20751, Oct. 29, 1971, unless otherwise noted.

ards. The provisions of this part set forth the procedures by which the Assistant Secretary for Occupational Safety and Health (hereinafter referred to as the Assistant Secretary) under a delegation of authority from the Secretary of Labor (Secretary's Order No. 12–71, 36 FR 8754, May 12, 1971) will approve or reject State plans submitted to the Secretary. In the Act, Congress declared it to be its purpose and policy

• to assure so far as possible every workingman and woman in the Nation safe and healthful working conditions and to preserve our human resources" by, among other actions and programs,

encouraging the States to assume the fullest responsibility for the administration and enforcement of their occupational and health laws .." Section 18(b) provides that any State which desires to assume responsibility for the development and enforcement therein of occupational safety and health standards relating to issues covered by corresponding standards promulgated under section 6 of the Act shall submit a plan for doing so to the Assistant Secretary.

(b) Section 18(c) of the Act sets out certain criteria that a plan which is submitted under section 18(b) of the Act must meet, either initially or upon modification, if it is to be approved. Foremost among these criteria is the requirement that the plan must provide for the development of State standards and the enforcement of such standards which are or will be at least as effective in providing safe and healthful employment and places of employment as the standards promulgated under section 6 of the Act which relate to the same issues.

(c)(1) If the Assistant Secretary approves a State plan submitted under section 18(b), he may, but is not required to, exercise his enforcement authority with respect to Federal standards corresponding to standards approved under the plan until he determines, in accordance with section 18(e) of the Act, on the basis of actual operations under the plan, that the State is applying the criteria of section 18(c) of the Act. The Assistant Secretary shall not make this determination (1) for at least 3 years after initial approv

Subpart A-General

8 1902.1 Purpose and scope.

(a) This part applies the provisions of section 18 of the Williams-Steiger Occupational Safety and Health Act of 1970 (hereinafter referred to as the Act) relating to State plans for the development and enforcement of State occupational safety and health stand

al of the plan, and (ii) in the case of a developmental plan approved under $ 1902.2(b), until the State has completed all the steps specified in its plan which are designed to make it at least as effective as the Federal program and the Assistant Secretary has had at least 1 year in which to evaluate the program on the basis of actual operations. After the determination that the State is applying the criteria of section 18(c) of the Act, the Assistant Secretary's enforcement authority shall not apply with respect to any occupational safety or health issue covered by the plan. Notwithstanding plan approval and a determination under section 18(e) that the section 18(c) criteria are being followed, the Assistant Secretary shall make a continuing evaluation, as provided in section 18(f) of the Act, of the manner in which the State is carrying out the plan.

(2) Federal enforcement authority which must be retained by the Assistant Secretary until actual operations prove the State plan to be at least as effective as the Federal program, will be exercised to the degree necessary to assure occupational safety and health. Factors to be considered in determining the level of Federal effort during this period include:

(i) Whether the plan is developmental (i.e., approved under $ 1902.2(b)) or complete (i.e., approved under $ 1902.2 (a)).

(ii) Results of evaluations conducted by the Assistant Secretary.

(3) Whenever the Assistant Secretary determines, after giving notice and affording the State an opportunity for a hearing, that in the administration of the State plan there is a failure to comply substantially with any provision of the plan or any assurance contained therein, he shall withdraw approval of such plan in whole or in part, and upon notice the State shall cease operations under any disapproved plan or part thereof, except that it will be permitted to retain jurisdiction as to any case commenced before withdrawal of approval whenever the issues involved do not relate to the reasons for the withdrawal of the plan.

(4) A determination of approval of a State plan under section 18(e) does not affect the authority and responsibility of the Assistant Secretary to enforce Federal standards covering issues not included under the State plan.

(d) The policy of the Act is to encourage the assumption by the States of the fullest responsibility for the development and enforcement of their own occupational safety and health standards. This assumption of responsibility is considered to include State development and enforcement of standards on as many occupational safety and health issues as possible. To these ends, the Assistant Secretary intends to cooperate with the States so that they can obtain approval of plans for the development and enforcement of State standards which are or will be at least as effective as the Federal standards and enforcement.

(e) After the Assistant Secretary has approved a plan, he may approve one or more grants under section 23(g) of the Act to assist the State in administering and enforcing its program for occupational safety and health in accordance with appropriate instructions or procedures to be promulgated by the Assistant Secretary.

8 1902.2 General policies.

(a) Policy. The Assistant Secretary will approve a State plan which provides for an occupational safety and health program with respect to covered issues that in his judgment meets or will meet the criteria set forth in $ 1902.3. Included among these criteria is the requirement that the State plan provide for the development and enforcement of standards relating to issues covered by the plan which are or will be at least as effective in providing safe and healthful employment and places of employment as standards promulgated and enforced under section 6 of the Act on the same issues. In determining whether a State plan satisfies the requirement of effectiveness, the Assistant Secretary will measure the plan against the indices of effectiveness set forth in $ 1902.4.

(b) Developmental plan. A State plan for an occupational safety and

or

health program may be approved although, upon submission it does not fully meet the criteria set forth in $ 1902.3, if it includes satisfactory assurances by the State that it will take the necessary steps to bring the State program into conformity with these criteria within the 3-year period immediately following the commencement of the plan's operation. In such case, the State plan shall include the specific actions it proposes to take and a time schedule for their accomplishment not to exceed 3 years, at the end of which the State plan will meet the criteria in § 1902.3. A developmental plan shall include the date or dates within which intermediate and final action will be accomplished. If necessary program changes require legislative action by a State, a copy of a bill or a draft of legislation that will be or has been proposed for enactment shall be submitted, accompanied by (1) a statement of the Governor's support of the legislation and (2) a statement of legal opinion that the proposed leg. islation will meet the requirements of the Act and this part in a manner consistent with the State's constitution and laws. On the basis of the State's submission the Assistant Secretary will approve the plan if he finds that there is a reasonable expectation that the State plan will meet the criteria in $ 1902.3 within the indicated 3-year period. In such case, the Assistant Secretary shall not make a determination under section 18(e) of the Act that a State is fully applying the criteria in $ 1902.3 until the State has completed all the developmental steps specified in its plan which are designed to make it at least as effective as the Federal program, and the Assistant Secretary has had at least 1 year to evaluate the plan on the basis of actual operations. If at the end of 3 years from the date of commencement of the plan's development, the State is found by the Assistant Secretary, after affording the State notice and opportunity for a hearing, not to have substantially completed the developmental steps of the plan, the Assistant Secretary shall withdraw the approval of the plan.

(c) Scope of State plan. (1) A State plan may cover any occupational safety and health issue with respect to

which a Federal standard has been promulgated under section 6 of the Act. An “issue" is considered to be an industrial, occupational hazard grouping which is at least as comprehensive as a corresponding grouping contained in (i) one or more sections in subpart B or R of part 1910 of this chapter, or (ii) one or more of the remaining subparts of part 1910. However, for cause shown the Assistant Sec. retary may approve a plan relating to other industrial, occupational or hazard groupings if he determines that the plan is administratively practicable and that such groupings would not conflict with the purposes of the Act.

(2) Each State plan shall describe the occupational safety and health issue or issues and the State standard or standards applicable to each such issue or issues over which it desires to assume enforcement responsibility in terms of the corresponding Federal industrial, occupational or hazard groupings and set forth the reasons, supported with appropriate data, for any variations the State proposes from the coverage of Federal standards.

(3) The State plan shall apply to all employers and employees within the affected industry, occupational or hazard grouping unless the Assistant Secretary finds that the State has shown good cause why any group or groups of employers or employees should be excluded. Any employers or employees so excluded shall be covered by applicable Federal standards and enforcement provisions in the Act.

Subpart B-Criteria for State Plans

8 1902.3 Specific criteria.

(a) General. A State plan must meet the specific criteria set forth in this section.

(b) Designation of State agency. (1) The State plan shall designate a State agency or agencies as the agency or agencies responsible for administering the plan throughout the State.

(2) The plan shall also describe the authority and responsibilities vested in such agency or agencies. The plan shall contain assurances that any other responsibilities of the designated agency shall not detract significantly from the resources and priorities assigned to administration of the plan.

(3) A State agency or agencies must be designated with overall responsibility for administering the plan throughout the State. However, political subdivisions of the State may have the responsibility and authority for the development and enforcement of standards, provided that the State agency or agencies are given adequate authority by statute, regulation, or agreement, to insure that the commitments of the State under the plan will be fulfilled.

(c) Standards. (1) The State plan shall include or provide for the development or adoption of, and contain assurances that the State will continue to develop or adopt, standards which are or will be at least as effective as those promulgated under section 6 of the Act. Indices of the effectiveness of standards and procedures for the development or adoption of standards against which the Assistant Secretary will measure the State plan in determining whether it is approvable are set forth in § 1902.4(b).

(2) The State plan shall not include standards for products distributed or used in interstate commerce which are different from Federal standards for such products unless such standards are required by compelling local conditions and do not unduly burden interstate commerce. This provision, reflecting section 18(c)(2) of the Act, is interpreted as not being applicable to customized products or parts not normally available on the open market, or to the optional parts or additions to products which are ordinarily available with such optional parts or additions.

(d) Enforcement. (1) The State plan shall provide a program for the enforcement of the State standards which is, or will be, at least as effective as that provided in the Act, and provide assurances that the State's enforcement program will continue to be at least as effective as the Federal program. Indices of the effectiveness of a State's enforcement plan against which the Assistant Secretary will measure the State plan in determining

whether it is approvable are set forth in $ 1902.4(c).

(2) The State plan shall require employers to comply with all applicable State occupational safety and health standards covered by the plan and all applicable rules issued thereunder, and employees to comply with all standards, rules, and orders applicable to their conduct.

(e) Right of entry and inspection. The State plan shall contain adequate assurance that inspectors will have a right to enter and inspect covered workplaces which is, or will be, at least as effective as that provided in section 8 of the Act. Where such entry or inspection is refused, the State agency or agencies shall have the authority, through appropriate legal process, to compel such entry and inspection.

(f) Prohibition against advance notice. The State plan shall contain a prohibition against advance notice of inspections. Any exceptions must be expressly authorized by the head of the designated agency or agencies or his representative and such exceptions may be no broader than those authorized under the Act and the rules published in part 1903 of this chapter relating to advance notice.

(g) Legal authority. The State plan shall contain satisfactory assurances that the designated agency or agencies have, or will have, the legal authority necessary for the enforcement of its standards.

(h) Personnel. The State plan shall provide assurance that the designated agency or agencies have, or will have, a sufficient number of adequately trained and qualified personnel necessary for the enforcement of the standards. For this purpose qualified personnel means persons employed on a merit basis, including all persons engaged in the development of standards and the administration of the State plan. Conformity with the Standards for a Merit System of Personnel Administration, 45 CFR part 70, issued by the Secretary of Labor, including any amendments thereto, and any standards prescribed by the U.S. Civil Service Commission pursuant to section 208 of the Intergovernmental Personnel Act of 1970 (Pub. L. 91-648; 84 Stat. 1915) modifying or superseding

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