                           SUPPORTING STATEMENT FOR 
                 THE COLLECTION OF INFORMATION REQUIREMENTS OF
                  OCCUPATIONAL SAFETY AND HEALTH STATE PLANS
                     (29 CFR Parts 1902, 1953, 1954, 1956)
                    OMB CONTROL No. 1218-0247 (April 2022)
                                       
This is a request to extend a currently approved data collection.

A. JUSTIFICATION

1. Explain the circumstances that make the collection of information necessary. Identify any legal or administrative requirements that necessitate the collection. Attach a copy of the appropriate section of each statute and regulation mandating or authorizing the collection of information.

Section 18 of the Occupational Safety and Health Act of 1970 (the Act) encourages the states to assume responsibility for the development and enforcement of state occupational safety and health standards through the mechanism of an approved State Plan. Absent a plan approved by the Occupational Safety and Health Administration (OSHA), states are preempted from asserting authority over any occupational safety and health issue with respect to which a federal standard has been promulgated. Section 18 of the Act establishes the basic criteria for State Plan approval; provides for the discretionary exercise of concurrent Federal enforcement jurisdiction for a period of time following initial approval; provides that state standards and enforcement must be, and continue to be, "at least as effective" as the federal program, including any changes thereto; and requires OSHA to make a continuing evaluation of the State Plan to take action to withdraw plan approval should there be a failure to substantially comply with any provision of the State Plan.

Section 18(b) provides that any state that desires to assume responsibility for the development and enforcement of occupational safety and health standards relating to issues covered by corresponding standards promulgated by OSHA under Section 6 of the Act shall submit a plan for doing so to the Secretary, who has delegated authority under the OSH Act to the Assistant Secretary for Occupational Safety and Health. 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. 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.

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 procedures to be promulgated by the Assistant Secretary. 

OSHA promulgated a series of regulations, primarily in the 1970s, implementing the provisions of Section 18 of the Act. These regulations are:

      29 CFR Part 1902, State Plans for the Development and Enforcement of State Standards
      29 CFR Part 1952, Approved State Plans for the Enforcement of State Standards
      29 CFR Part 1953, Changes to State Plans
      29 CFR Part 1954, Procedures for the Evaluation and Monitoring of Approved State Plans
      29 CFR Part 1955, Procedures for Withdrawal of Approval of State Plans
      29 CFR Part 1956, State Plans for the Development and Enforcement of State Standards Applicable to State and Local Government Employees in States Without Approved Private Employee Plans

29 CFR Part 1953 was revised in 2002. In 2015, a Direct Final Rule (DFR) revising 29 CFR Part 1956 was published, along with minor cross-reference revisions throughout Parts 1902, 1953, 1954, and other parts associated with the OSHA-approved State Plans (29 CFR 1903, 1952, and 29 CFR 1955).  The references to the State Plan regulations in this Information Collection Request (ICR) reflect these revisions. 

Pursuant to the Act and regulations, the states with OSHA-approved State Plans operate programs that are parallel to OSHA; they operate under the authority of state law, not under a delegation of federal authority. In other words, the state's implementation of its occupational safety and health law is an exercise of its own sovereignty. They are carrying out their historic police powers over safety and health. The approval of a State Plan only means that the bar of pre-emption is lifted, and that OSHA provides partial funding for the State Plan.

The states have primary responsibility for occupational safety and health standards and enforcement with regard to all private-sector employees and employers in the state, except as limited by the State Plan.  They also must extend coverage to state and local government employees - workers not otherwise covered by OSHA.  States may also obtain OSHA approval for State Plans limited in scope to state and local government employees only. 

In carrying out their State Plans, states conduct workplace inspections, issue citations, propose penalties, adjudicate contested cases, and maintain records on these activities in much the same manner and through the same data systems as OSHA. The documentation and activity data collected are the "usual and customary" information that any state agency would collect as part of its routine operation, management, and accountability for any state regulatory activity. The state agencies conduct these activities under state law. Thus, there is no OSHA-imposed paperwork burden associated with the day-to-day promulgation of standards and regulations and the enforcement of the state occupational safety and health law.  (The state programs operate in much the same manner as OSHA and their enforcement paperwork and data collection activities parallel those conducted by OSHA.)

However, in order to fulfill its responsibilities under the Act - to grant initial, final, and continued approval and ensure program effectiveness - OSHA, through its State Plan regulations, requires the states to provide specific documentation describing how their programs are and continue to be "at least as effective" as the federal program in structure and in operation. It is these State Plan document development and maintenance requirements, including the negotiations between OSHA and the state as to content and requirements, which constitute information collections for which approval of the associated paperwork burdens is sought. 
   
2. Indicate how, by whom, and for what purpose the information is to be used. Except for a new collection, indicate the actual use the agency has made of the information received from the current collection.

The State Plan regulations (29 CFR Parts 1902, 1953, 1954, and 1956) contain a number of collections of information requirements. The collection of information requirements is used by OSHA and the states with or seeking OSHA-approved State Plans. The following sections describe the information collected under each requirement, as well as how the information is used.

A.	Establishment of a State Plan (29 CFR Part 1902, Subparts A-D; 29 CFR Part 1956, Subparts A-D):  

 29 CFR 1902, Subpart A -- General

   General Policies (§1902.2)  
   
   29 CFR 1902.2(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 meet or will meet the criteria set forth in 1902.3. Included among these criteria is the requirement that the State Plan provides 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.
   
   29 CFR 1902.2(b) - Developmental plan. A State Plan for an occupational safety and 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 three-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 three 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 legislation 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 three-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 one year to evaluate the plan on the basis of actual operations. If at the end of three 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.
   
   29 CFR 1902.2(c)(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.
   
   29 CFR 1902.2(c)(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.
   
 29 CFR 1902, Subpart B -- Criteria for State Plans
 
   Specific Criteria for State Plans (§1902.3)   
   
   29 CFR 1902.3(a) - General. A State Plan must meet the specific criteria set forth in this section.
   
   29 CFR 1902.3(b)(1) - Designation of state agency. The State Plan shall designate a state agency or agencies as the agency or agencies responsible for administering the plan throughout the state.
   
   29 CFR 1902.3(b)(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.
   
   29 CFR 1902.3(b)(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 ensure that the commitments of the state under the plan will be fulfilled.
   
   29 CFR 1902.3(c)(1) - Standards. 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).
   
   29 CFR 1902.3 (d)(1) - Enforcement. 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).
   
   29 CFR 1902.3 (d)(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.
   
   29 CFR 1902.3(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.
   
   29 CFR 1902.3(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.
   
   29 CFR 1902.3(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.
   
   29 CFR 1902.3(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 such standards, will be deemed to meet this requirement.
   
   29 CFR 1902.3(i) - 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.
   
   29 CFR 1902.3(j) - 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.
   
   29 CFR 1902.3(k) - 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 activities 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 the Assistant Secretary may from time to time require. 
   
   Indices of Effectiveness (§1902.4)   

   29 CFR 1902.4(a) - General. In order to satisfy the requirements of effectiveness under §1902.3 (c)(1) and (d)(1), the State Plan shall:
   
   29 CFR 1902.4(a)(1) - Establish the same standards, procedures, criteria and rules as have been established by the Assistant Secretary under the Act, or;
   
   29 CFR 1902.4(a)(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.
   
   29 CFR 1902.4(b)(1) - Standards. 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.
   
   29 CFR 1902.4(b)(2) - The Assistant Secretary will determine whether the State Plan:
   
   29 CFR 1902.4(b)(2)(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.
   
   29 CFR 1902.4(b)(2)(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.
   
   29 CFR 1902.4(b)(2)(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 consideration 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.
   
   29 CFR 1902.4(b)(2)(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.
   
   29 CFR 1902.4(b)(2)(v) - Provides for prompt and effective standards setting actions for the protection of employees against new and unforeseen hazards, by such means as the authority to promulgate emergency temporary standards.
   
   29 CFR 1902.4(b)(2)(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.
   
   29 CFR 1902.4(b)(2)(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.
   
   29 CFR 1902.4(c)(1) - Enforcement. 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.
   
   29 CFR 1902.4(c)(2) - The Assistant Secretary will determine whether the State Plan:
   
   29 CFR 1902.4(c)(2)(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.
   
   29 CFR 1902.4(c)(2)(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.
   
   29 CFR 1902.4(c)(2)(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 decisions, 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.
   
   29 CFR 1902.4(c)(2)(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.
   
   29 CFR 1902.4(c)(2)(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.
   
   29 CFR 1902.4 (c)(2)(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.
   
   29 CFR 1902.4 (c)(2)(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.
   
   29 CFR 1902.4(c)(2)(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.
   
   29 CFR 1902.4(c)(2)(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.
   
   29 CFR 1902.4(c)(2)(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.
   
   29 CFR 1902.4(c)(2)(xi) - Provides effective sanctions against employers who violate state standards and orders, such as those prescribed in the Act.
   
   29 CFR 1902.4(c)(2)(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.
   
   29 CFR 1902.4(c)(2)(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.
   
   29 CFR 1902.4(d)(1) - State and local government employee programs. Each approved State Plan must contain satisfactory assurances that the state will, to the extent permitted by its law, establish and maintain an effective and comprehensive occupational safety and health program applicable to all employees of public agencies of the state and its political subdivisions which program is as effective as the standards contained in an approved plan. 
   
   29 CFR 1902.4(d)(2) - This criterion for approved State Plans is interpreted to require the following elements with regard to coverage, standards, and enforcement:
   
   29 CFR 1902.4(d)(2)(i) - Coverage. The program must cover all public employees over which the state has legislative authority under its constitution. The language in Section 18(c)(6) which only requires such coverage to the extent permitted by the state's law specifically recognizes the situation where local governments exclusively control their own employees, such as under certain home rule charters.
   
   29 CFR 1902.4(d)(2)(ii) - Standards. The program must be as effective as the standards contained in the approved plan applicable to private employers. Thus, the same criteria and indices of standards effectiveness contained in §1902.3(c) and §1902.4 (a) and (b) of this chapter would apply to the public employee program. Where hazards are unique to public employment, all appropriate indices of effectiveness, such as those dealing with temporary emergency standards, development of standards, employee information, variances, and protective equipment, would be applicable to standards for such hazards.
   
   29 CFR 1902.4(d)(2)(iii) - Enforcement. Although Section 18(c)(6) of the Act requires state public employee programs to be as effective as standards contained in the State Plan, minimum enforcement elements are required to ensure an effective and comprehensive public employee program as follows: (See notice of approval of the North Carolina Plan, 38 FR 3041).
   
   29 CFR 1902.4(d)(2)(iii)(a) - Regular inspections of workplaces, including inspections in response to valid employee complaints;
   
   29 CFR 1902.4(d)(2)(iii)(b) - A means for employees to bring possible violations to the attention of inspectors;
   
   29 CFR 1902.4(d)(2)(iii)(c) - Notification to employees, or their representatives, of decisions that no violations are found as a result of complaints by such employees or their representatives, and informal review of such decisions;
   
   29 CFR 1902.4(d)(2)(iii)(d) - A means of informing employees of their protections and obligations under the Act;
   
   29 CFR 1902.4(d)(2)(iii)(e) - Protection for employees against discharge of discrimination because of the exercise of rights under the Act;
   
   29 CFR 1902.4(d)(2)(iii)(f) - Employee access to information on their exposure to toxic materials or harmful physical agents and prompt notification to employees when they have been or are being exposed to such materials or agents at concentrations or levels above those specified by the applicable standards;
   
   29 CFR 1902.4(d)(2)(iii)(g) - Procedures for the prompt restraint or elimination of imminent danger situations;
   
   29 CFR 1902.4(d)(2)(iii)(h) - A means of promptly notifying employers and employees when an alleged violation has occurred, including the proposed abatement requirements;
   
   29 CFR 1902.4(d)(2)(iii)(i) - A means of establishing timetables for the correction of violations;
   
   29 CFR 1902.4(d)(2)(iii)(j) - A program for encouraging voluntary compliance; and
   
   29 CFR 1902.4(d)(2)(iii)(k) - Such other additional enforcement provisions under state law as may have been included in the State Plan.
   
   29 CFR 1902.4 (e) - 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.
   
   Injury and Illness Recording and Reporting Requirements (§1902.7)
   
   29 CFR 1902.7(a) - Injury and illness recording and reporting requirements promulgated by State Plan states must be substantially identical to those in 29 CFR Part 1904 on recording and reporting occupational injuries and illnesses. State Plan states must promulgate recording and reporting requirements that are the same as the federal requirements for determining which injuries and illnesses will be entered into the records and how they are entered. All other injury and illness recording and reporting requirements that are promulgated by State Plan states may be more stringent than, or supplemental to, the federal requirements, but, because of the unique nature of the national recordkeeping program, states must consult with OSHA and obtain approval of such additional or more stringent reporting and recording requirements to ensure that they will not interfere with uniform reporting objectives. State Plan states must extend the scope of their regulation to state and local government employers.
   29 CFR 1902.7(d) - A state may, but is not required, to participate in the Annual OSHA Injury and Illness Survey as authorized by 29 CFR 1904.41. A participating state may either adopt requirements identical to §1904.41 in its recording and reporting regulation as an enforceable state requirement, or may defer to the federal regulation for enforcement. Nothing in any State Plan shall affect the duties of employers to comply with §1904.41, when surveyed, as provided by Section 18(c)(7) of the Act. 
   
   Requirements for Approval of State Posters (§1902.9)
   
   29 CFR 1902.9(a)(1) - In order to inform employees of their protections and obligations under applicable state law, of the issues not covered by state law, and of the continuing availability of federal monitoring under Section 18(f) of the Act, states with approved plans shall develop and require employers to post a state poster meeting the requirements set out in Paragraph (a)(5) of this section.
   
   29 CFR 1902.9(a)(5) - In developing the poster, the state shall address but not be limited to the following items:
   
   29 CFR 1902.9(a)(5)(i) - Responsibilities of the state, employers and employees;
   
   29 CFR 1902.9(a)(5)(ii) - The right of employees or their representatives to request workplace inspections;
   
   29 CFR 1902.9(a)(5)(iii) - The right of employees making such requests to remain anonymous;
   
   29 CFR 1902.9(a)(5)(iv)  - The right of employees to participate in inspections;
   
   29 CFR 1902.9(a)(5)(v) - Provisions for prompt notice to employers and employees when alleged violations occur;
   
   29 CFR 1902.9(a)(5)(vi) - Protection for employees against discharge or discrimination for the exercise of their rights under federal and state law;
   
   29 CFR 1902.9(a)(5)(vii) - Sanctions;
   
   29 CFR 1902.9(a)(5)(viii) - A means of obtaining further information on state law and standards and the address of the state agency;
   
   29 CFR 1902.9(a)(5)(ix) - The right to file complaints with the Occupational Safety and Health Administration about state program administration;
   
   29 CFR 1902.9(a)(5)(x) - A list of the issues as defined in §1902.2(c) of this chapter which will not be covered by State Plan;
   
   29 CFR 1902.9(a)(5)(xi) - The address of the Regional Office of the Occupational Safety and Health Administration; and
   
   29 CFR 1902.9(a)(5)(xii) - Such additional employee protection provisions and obligations under state law as may have been included in the approved State Plan.
   
 29 CFR 1902, Subpart C -- Procedures for Submission, Approval, and Rejection of State Plans Submission 
   
   §1902.10 - Submission
   
   29 CFR 1902.10(a) - An authorized representative of the state agency or agencies responsible for administering the plan shall submit one copy of the plan 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 the Subpart B of this part, and (2) the state occupational safety and health standards to be included in the plan, including a copy of any specific or enabling state laws and regulations relating to such standards. If any of the representations concerning the requirements 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 the text of any pertinent administrative decisions.
   
   29 CFR 1902.10(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.
   
 29 CFR 1902, Subpart D -- Procedures for Determinations Under Section 18(e) of the Act
   
   Definitions (§1902.31) 
   
   Development step includes, but is not limited to, those items listed in the published developmental schedule, or any revisions thereof, for each plan. A developmental step also includes those items specified in the plan as approved under Section 18(c) of the Act for completion by the state, as well as those items which under the approval decision were subject to evaluations. (See e.g., approval of Colorado and Michigan plans, 38 FR 25172, 38 FR 27388, respectively), and changes deemed necessary as a result thereof to make the state program at least as effective as the federal program within the three years developmental period. (See 29 CFR 1953.4(a)).
   
   General Policies (§1902.32)
   
   29 CFR 1902.32(e)- Once a State Plan, or any modification thereof, 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 "at least as effective as" the federal program operations in the issues covered by the determination. As the federal program changes and thereby becomes more effective, the state is correspondingly required to adjust its program at a level which would provide a program for workplace safety and health which would be "at least as effective as" the improvements in the federal program.
    
   Completion of Developmental Steps  -  Certification (§1902.33)
   	
   29 CFR 1902.33  -  Developmental Period. Upon the commencement of plan operations after the initial approval of a State Plan by the Assistant Secretary, a state has three years in which to complete all of the developmental steps specified in the plan as approved. Section 1953.4 of this chapter sets forth the procedures for the submission and consideration of developmental changes by OSHA. Generally, whenever a state completes a developmental step, it must submit the resulting plan change as a supplement to its plan to OSHA for approval. OSHA's approval of such changes is then published in the Federal Register.
   
   Evaluation of Plan Following Certification (§1902.38)   
   
   29 CFR 1902.38(b) - The Assistant Regional Director shall prepare a semi-annual report of his evaluation of the actual operations under the State Plan or any portion thereof in narrative form. The Assistant Regional Director's evaluation report will be transmitted to the Assistant Secretary who will then transmit the report to the state. The state shall be afforded an opportunity to respond to each evaluation report. 
   
   Completion of Evaluation (§1902.39)   
   
   29 CFR 1902.39(a) - After evaluating the actual operations of the State Plan, or any portion thereof, for at least one year following publication of the certification in the Federal Register under §1902.34, the Assistant Secretary shall notify the state whenever he determines that the state will be eligible for an 18(e) determination. In addition, a state may request an 18(e) determination following the evaluation period noted above. 
   
   29 CFR 1902.39(b) - After it has been determined that a state will be eligible for an 18(e) determination, the Assistant Regional Director shall prepare a final report of his evaluation of the actual operations under a State Plan or portion thereof which may be subject to the 18(e) determination. The Assistant Regional Director's report shall be transmitted to the Assistant Secretary. The Assistant Secretary shall transmit such report to the state and the state shall have an opportunity to respond to the report.
   
   
   
   Requirements Applicable to State Plans Granted Affirmative 18(e) Determinations (§1902.44)   
   
   29 CFR 1902.44(a) - A state whose plan, or modification thereof, has been granted an affirmative 18(e) determination will be required to maintain a program within the scope of such determination which will be "at least as effective as" operations under the federal program in providing employee safety and health protection at covered workplaces within the comparable scope of the federal program. This requirement includes submitting all required reports to the Assistant Secretary, as well as submitting supplements to the Assistant Secretary for his approval whenever there is a change in the state's program, whenever the results of evaluations conducted under Section 18(f) show that some portion of a State Plan has an adverse impact on the operations of the State Plan or whenever the Assistant Secretary determines that any alteration in the federal program could have an adverse impact on the "at least as effective as" status of the state program. See Part 1953 of this chapter.
   
   §1902.46
   
   29 CFR 1902.46(d) - Where the Assistant Secretary determines that operations under a State Plan or any separable portion thereof have not met the criteria for an affirmative 18(e) determination, but are not of such a nature as to warrant the initiation of withdrawal proceedings, the Assistant Secretary may, at his discretion, afford the state a reasonable time to meet the criteria for an affirmative 18(e) determination after which time he may initiate proceedings for withdrawal of plan approval. This discretionary authority will be applied in the following manner:
   
   29 CFR 1902.46(d)(1) -  Upon determining that a state shall be subject to a final 18(e) determination, the Assistant Secretary shall notify the agency designated by the state to administer its program, within the state of his decision that the state's program, or a separable portion thereof, shall be subject to a final 18(e) determination. The Assistant Secretary shall give the state a reasonable time, generally not less than one year, in which to meet the criteria for an affirmative 18(e) determination.

   29 CFR 1956 - State Plans for the Development and Enforcement of State Standards Applicable to State and Local Government Employees in States without Approved Private Employee Plans, 29 CFR Part 1956, Subparts A-D 

 29 CFR 1956, Subpart A  -  General
   
   General Policies (§1956.2)  
   
   29 CFR 1956.2(b)(1) - Developmental plan. A State Plan for an occupational safety and health program for public employees may be approved although, upon submission, it does to fully meet the criteria set forth in §1956.10, if it includes satisfactory assurances by the state that it will take the necessary steps to bring the program into conformity with these criteria within the 3-year period immediately following the commencement of the plan's operation. In such a case, the plan shall include the specific actions the state proposes to take, and a time schedule for their accomplishment which is not to exceed three years, at the end of which the plan will meet the criteria in §1956.10. A developmental plan shall include the dates within which intermediate and final action will be accomplished. Although administrative actions, such as stages for application of standards and enforcement, related staffing, development of regulations may be developmental, to be considered for approval, a State Plan for public employees must contain at time of plan approval basic state legislative and/or executive authority under which these actions will be taken. If necessary program changes require further implementing executive action by the governor or supplementary legislative action by the state, a copy of the appropriate order, or the bill or a draft of legislation that will be or has been proposed for enactment shall be submitted, accompanied by:
      
   29 CFR 1956.2(b)(1)(i) - A statement of the governor's support of the legislation or order and 
            
   29 CFR 1956.2(b)(1)(ii) - A statement of legal opinion that the proposed legislation or executive action will meet the requirements of the Act and this part in a manner consistent with the state's constitution and laws.
   
   29 CFR 1956.2(b)(2) - 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 plan for public employees will meet the criteria in §1956.10 within the indicated three-year period. In such a case, the Assistant Secretary shall not make a determination that a state is fully applying the criteria in §1956.10 until the state has completed all the developmental steps specified in the plan which are designed to make it at least as effective as the federal program for the private sector, and the Assistant Secretary has had at least one year to evaluate the plan on the basis of actual operations following the completion of all developmental steps. If at the end of three years from the date of commencement of the plan's operation, the state is found by the Assistant Secretary, after affording the state notice and an opportunity for a hearing, not to have substantially completed the developmental steps of the plan, he shall withdraw the approval of the plan. 
   
   29 CFR 1956.2(b)(3) - Where a State Plan approved under Part 1902 of this chapter is discontinued, except for its public employee component, or becomes approved after approval of a plan under this part, the developmental period applicable to the public employee component of the earlier plan will be controlling with regard to any such public employee coverage. For good cause, a state may demonstrate that an additional period of time is required to make adjustments on account of the transfer from one type of plan to another. 
            
   29 CFR 1956.2(c) - Scope of a State Plan for public employees. (1) A State Plan for public employees must provide for the coverage of both state and local government employees to the full extent permitted by the state laws and constitution. The qualification "to the extent permitted by its law" means only that where a state may not constitutionally regulate occupational safety and health conditions in certain political subdivisions, the plan may exclude such political subdivision employees from coverage. 
   
   29 CFR 1956.2(c)(2) - The state shall not exclude any occupational, industrial, or hazard grouping from coverage under its plan unless the Assistant Secretary finds that the state has shown there is no necessity for such coverage.

 29 CFR 1956, Subpart B -- Criteria
   
   Specific Criteria (§1956.10) 
     
   29 CFR 1956.10(a) - General. A State Plan for public employees must meet the specific criteria set forth in this section. 
   
   29 CFR 1956.10(b)(1) - Designation of state agency. The plan shall designate a state agency or agencies which will be responsible for administering the plan throughout the state. 
   
   29 CFR 1956.10(b)(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 the administration of the plan. 
   
   29 CFR 1956.10(b)(3) - A state agency or agencies must be designated with overall responsibility for administering the plan throughout the state. Subject to this overall responsibility, enforcement of standards may be delegated to an appropriate agency having occupational safety and health responsibilities or expertise throughout the state. Included in this overall responsibility are the requirements that the designated agency have, or assure the provision of necessary qualified personnel, legal authority necessary for the enforcement of the standards and make reports as required by the Assistant Secretary. 
            
   29 CFR 1956.10(c) - Standards. The State Plan for public employees shall include, or provide for the development or adoption of, standards which are or will be at least as effective as those promulgated under Section 6 of the Act. The plan shall also contain assurances that the state will continue to develop or adopt such standards. Indices of the effectiveness of standards and procedures for the development or adoption of standards against which the Assistant Secretary will measure the plan in determining whether it is approvable are set forth in §1956.11(b). 
   
   29 CFR 1956.10(d)(1) - Enforcement. The State Plan for public employees shall provide a program for the enforcement of the state standards which is, or will be, at least as effective in assuring safe and healthful employment and places of employment as the standards promulgated by Section 6 of the Act; and provide assurances that the state's enforcement program for public employees will continue to be at least as effective in this regard as the federal program in the private sector. Indices of the effectiveness of a state's enforcement plan against which the Assistant Secretary will measure the plan in determining whether it is approvable are set forth in §1956.11(c). 
   
   29 CFR 1956.10(d)(2) - The plan shall require state and local government agencies to comply with all applicable state occupational safety and health standards included in the plan and all applicable rules issued thereunder, and employees to comply with all standards, rules, and orders applicable to their conduct. 
   
   29 CFR 1956.10(e) - Right of entry and inspection. The plan shall contain adequate assurances that inspectors will have a right to enter covered workplaces which is at least as effective as that provided in Section 8 of the Act for the purpose of inspection or monitoring. Where such entry is refused, the state agency or agencies shall have the authority through appropriate legal process to compel such entry. 
            
   29 CFR 1956.10(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. 
   
   29 CFR 1956.10(g) - Personnel. The plan shall provide assurances that the designated agency or agencies and all government agencies to which authority has been delegated, have, or will have, a sufficient number of adequately trained and qualified personnel necessary for the enforcement of 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 plan. Subject to the results of evaluations, 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, modifying or superseding such standards, and guidelines on "at least as effective as" staffing derived from the federal private employee program will be deemed to meet this requirement. 
            
   29 CFR 1956.10(h) - Resources. The 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 public employee program. The Assistant Secretary will make the periodic evaluations of the adequacy of the resources the state has devoted to the plan.
   
   29 CFR 1956.10(i) - Employer records and reports. The plan shall provide assurances that public employers covered by the plan will maintain records and make reports on occupational injuries and illnesses in a manner similar to that required of private employers under the Act. 
   
   29 CFR 1956.10(j) - State agency reports to the Assistant Secretary. The 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 for public employees, 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 activities included within the 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 the Assistant Secretary may from time to time require. 

   Indices of Effectiveness (§1956.11)
   
   29 CFR 1956.11(a) - General. In order to satisfy the requirements of effectiveness under §1956.10 (c)(1) and (d)(1), the State Plan for public employees shall: 
   
   29 CFR 1956.11(a)(1) - Establish the same standards, procedures, criteria, and rules as have been established by the Assistant Secretary under the act; or 
   
   29 CFR 1956.11(a)(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 for private employees, where applicable, 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 for public employees will, to the extent practicable, be at least as effective as the federal program for private employees. 
            
   29 CFR 1956.11(d) - Additional indices. Upon his own motion, or after consideration of data, views, and arguments received in any proceedings held under Subpart C of this part, the Assistant Secretary may prescribe additional indices for any State Plan for public employees which shall be in furtherance of the purpose of this section. 

 29 CFR 1956, Subpart C -- Approval, Change, Evaluation and Withdrawal of Approval Procedures
   
   Procedures for Submission, Approval, and Rejection (§1956.20) 
  
   29 CFR 1956.20 - The procedures contained in Subpart C of Part 1902 of this chapter shall be applicable to submission, approval, and rejection of State Plans submitted under this part, except that the information required in §1902.20(b)(1)(iii) would not be included in decisions of approval. 

   Procedures for Certification of Completion of Development and Determination on Application of Criteria (§1956.23)   

   29 CFR 1956.23 - The procedures contained in §§1902.33 and 1902.34 of this chapter shall be applicable to certification of completion of developmental steps under plans approved in accordance with this part. Such certification shall initiate intensive monitoring of actual operations of the developed plan, which shall continue for at least a year after certification, at which time a determination shall be made under the procedures and criteria of §§1902.38, 1902.39, 1902.40 and 1902.41, that on the basis of actual operations, the criteria set forth in §§1956.10 and 1956.11 of this part are being applied under the plan. The factors listed in §1902.37(b) of this chapter, except those specified in §1902.37(b)(11) and (12) which would be adapted to the state's compliance program provide the basis for making the determination of operational effectiveness. 

      Purpose (Establishment of a State Plan; 29 CFR Part 1902, Subparts A-D; 29 CFR Part 1956, Subparts A-D):  The State Plan document as approved provides information to the public, to affected employers and employees, and to OSHA on the structural components of the OSHA-approved State Plan. The State Plan document contains copies of state enabling legislation, as well as all standards, regulations, policies, and procedures - either in final adopted form or as a proposal with a future commitment to implement within a three-year developmental period. As regularly updated through State Plan changes (see the following category), it has become a voluminous collection of documents, the most current components of which are now readily accessible through electronic means, primarily posting on state websites. It is used primarily for technical research and reference when questions of state authority or performance arise. 

      These regulations establish the conditions that must be met by any state seeking OSHA approval either of a complete State Plan, covering both the private sector and state and local government employer (Part 1902), or a State Plan limited in scope to state and local government employers only (Part 1956). The State Plan is a one-time submission which begins with the governor's letter designating a state agency responsible for the plan and indicating the state's intent to seek federal approval to assume state responsibility for occupational safety and health enforcement in that state. The regulations establish the criteria for State Plans, the procedures for initial State Plan approval or rejection, and the procedures for final State Plan approval, in the case of a complete State Plan, and in Part 1956 document the submission and approval process for State and Local Government Employee Only State Plans.
      
B. 	State Plan Changes (29 CFR Part 1953)
      
   Purpose and Scope (§1953.1)
      
   29 CFR 1953.1(a) -  This part implements the provisions of Section 18 of the Occupational Safety and Health Act of 1970 ("OSH Act" or the "Act") which provides for State Plans for the development and enforcement of state occupational safety and health standards. These plans must meet the criteria in Section 18(c) of the Act, and Part 1902 of this chapter (for plans covering both private sector and state and local government employers) or Part 1956 of this chapter (for plans covering only state and local government employers), either at the time of submission or -- where the plan is developmental -- within the three year period immediately following commencement of the plan's operation. Approval of a State Plan is based on a finding that the state has, or will have, a program, pursuant to appropriate state law, for the adoption and enforcement of state standards that is "at least as effective" as the federal program.
            
   29 CFR 1953.1(b) - When submitting plans, the states provide assurances that they will continue to meet the requirements in Section 18(c) of the Act and Part 1902 or Part 1956 of this chapter for a program that is "at least as effective" as the federal. Such assurances are a fundamental basis for approval of plans. (See §1902.3 and §1956.2 of this chapter.) From time to time after initial plan approval, states will need to make changes to their plans. This part establishes procedures for submission and review of State Plan supplements documenting those changes that are necessary to fulfill the state's assurances, the requirements of the Act, and Part 1902 or Part 1956 of this chapter.
   
   29 CFR 1953.1(c) - Changes to a plan may be initiated in several ways. In the case of a developmental plan, changes are required to document establishment of those necessary structural program components that were not in place at the time of plan approval. These commitments are included in a developmental schedule approved as part of the initial plan. These "developmental changes" must be completed within the three year period immediately following the commencement of operations under the plan. Another circumstance requiring subsequent changes to a State Plan would be the need to keep pace with changes to the federal program, or "federal program changes." A third situation would be when changes are required as a result of the continuing evaluation of the state program. Such changes are called "evaluation changes." Finally, changes to a state program's safety and health requirements or procedures initiated by the state without a federal parallel could have an impact on the effectiveness of the state program. Such changes are called "state-initiated changes." While requirements for submission of a plan supplement to OSHA differ depending on the type of change, all supplements are processed in accordance with the procedures in §1953.6.

   Definitions (§1953.2)
      
   29 CFR 1953.2(c) - Plan change means any modification made by a state to its approved occupational safety and health State Plan which has an impact on the plan's effectiveness.
   
   29 CFR 1953.2(d) - Plan supplement means all documents necessary to accomplish, implement, describe and evaluate the effectiveness of a change to a State Plan which differs from the parallel federal legislation, regulation, policy, or procedure. (This would include a copy of the complete legislation, regulation, policy, or procedure adopted; an identification of each of the differences; and an explanation of how each provision is at least as effective as the comparable federal provision.)
   
   29 CFR 1953.2(e) - Identical plan change means one in which the state adopts the same program provisions and documentation as the federal program with the only differences being those modifications necessary to reflect a state's unique structure (e.g., organizational responsibility within a state and corresponding titles or internal state numbering system). 
   
   29 CFR 1953.2(f) - Different plan change means one in which the state adopts program provisions and documentation that are not identical as defined in this paragraph.
   
   29 CFR 1953.2(g) - Developmental change is a change made to a State Plan which documents the completion of a program component which was not fully developed at the time of initial plan approval.
   
   29 CFR 1953.2(h) - Federal program change is a change made to a State Plan when OSHA determines that an alteration in the federal program could render a state program less effective than OSHA's if it is not similarly modified.
   
   29 CFR 1953.2(i) - Evaluation change is a change made to a State Plan when evaluations of a state program show that some substantive aspect of a State Plan has an adverse impact on the implementation of the state's program and needs revision.
   
   29 CFR 1953.2(j) - State-initiated change is a change made to a State Plan which is undertaken at a state's option and is not necessitated by federal requirements.
   
   General Policies and Procedures (§1953.3)
   
   29 CFR 1953.3(a) - Effectiveness of State Plan changes under state law. Federal OSHA approval of a State Plan under Section 18(b) of the OSH Act in effect removes the barrier of federal preemption, and permits the state to adopt and enforce state standards and other requirements regarding occupational safety or health issues regulated by OSHA. A state with an approved plan may modify or supplement the requirements contained in its plan, and may implement such requirements under state law, without prior approval of the plan change by federal OSHA. Changes to approved State Plans are subject to subsequent OSHA review. If OSHA finds reason to reject a State Plan change, and this determination is upheld after an adjudicatory proceeding, the plan change would then be excluded from the state's federally-approved plan.
   
   (b) - Required State Plan notifications and supplements. Whenever a state makes a change to its legislation, regulations, standards, or major changes to policies or procedures, which affect the operation of the State Plan, the state shall provide written notification to OSHA. When the change differs from a corresponding federal program component, the state shall submit a formal, written plan supplement. When the state adopts a provision which is identical to a corresponding federal provision, written notification, but no formal plan supplement, is required. However, the state is expected to maintain the necessary underlying state document (e.g., legislation or standard) and to make it available for review upon request. All plan change supplements or required documentation must be submitted within 60 days of adoption of the change. Submission of all notifications and supplements may be in electronic format.
    		
   29 CFR 1953.3(c) - Plan supplement availability. The underlying documentation for identical plan shall be maintained by the state. Annually, states shall submit updated copies of the principal documents comprising the plan, or appropriate page changes, to the extent that these documents have been revised. To the extent possible, plan documents will be maintained and submitted by the state in electronic format and also made available in such manner.
   
   29 CFR 1953.3(d) - Advisory opinions. Upon state request, OSHA may issue an advisory opinion on the approvability of a proposed change which differs from the federal program prior to promulgation or adoption by the state and submission as a formal supplement.
   
   29 CFR 1953.3(e) - Alternative procedures. Upon reasonable notice to interested persons, the Assistant Secretary may prescribe additional or alternative procedures in order to expedite the review process or for any other good cause which may be consistent with the applicable laws. 

   Submission of Plan Supplements (§1953.4)
      
   29 CFR 1953.4(a)(1) - Developmental changes. Sections 1902.2(b) and 1956.2(b) of this chapter require that each state with a developmental plan must set forth in its plan, as developmental steps, those changes which must be made to its initially-approved plan for its program to be at least as effective as the federal program and a timetable for making these changes. The state must notify OSHA of a developmental change when it completes a developmental step or fails to meet any developmental step. 
   
   29 CFR 1953.4(a)(2) - If the completion of a developmental step is the adoption of a program component which is identical to the federal program component, the state need only submit documentation, such as the cover page of an implementing directive or a notice of promulgation, that it has adopted the program component, within 60 days of adoption of the change, but must make the underlying documentation available for federal and public review upon request. 
   
   29 CFR 1953.4(a)(3) - If the completion of a developmental step involves the adoption of policies or procedures which differ from the federal program, the state must submit one copy of the required plan supplement within 60 days of adoption of the change. 
   
   29 CFR 1953.4(a)(4) - When a developmental step is missed, the state must submit a supplement which documents the impact on the program of the failure to complete the developmental step, an explanation of why the step was not completed on time and a revised timetable with a new completion date (generally not to exceed 90 days) and any other actions necessary to ensure completion. Where the state has an operational status agreement with OSHA under §1954.3 of this chapter, the state must provide an assurance that the missed step will not affect the effectiveness of state enforcement in any issues for which the state program has been deemed to be operational. 
   
   29 CFR 1953.4(a)(5) - If the state fails to submit the required documentation or supplement, as provided in §1953.4(a)(2), (3) or (4), when the developmental step is scheduled for completion, OSHA shall notify the state that documentation or a supplement is required and set a timetable for submission of any required documentation or supplement, generally not to exceed 60 days. 
   
   29 CFR 1953.4(b)(1) - Federal program changes. When a significant change in the federal program would have an adverse impact on the "at least as effective" status of the state program if a parallel state program modification were not made, state adoption of a change in response to the federal program change shall be required. A federal program change that would not result in any diminution of the effectiveness of a State Plan compared to federal OSHA generally would not require adoption by the state. 
   
   29 CFR 1953.4(b)(2) - Examples of significant changes to the federal program that would normally require a state response would include a change in the Act, promulgation or revision of OSHA standards or regulations, or changes in policy or procedure of national importance. A federal program change that only establishes procedures necessary to implement a new or established policy, standard or regulation does not require a state response, although the state would be expected to establish policies and procedures which are "at least as effective," which must be available for review on request. 
   
   29 CFR 1953.4(b)(3) - When there is a change in the federal program which requires state action, OSHA shall advise the states. This notification shall also contain a date by which states must adopt a corresponding change or submit a statement why a program change is not necessary. This date will generally be six months from the date of notification, except where the Assistant Secretary determines that the nature or scope of the change requires a different time frame, for example, a change requiring legislative action where a state has a biennial legislature or a policy of major national implications requiring a shorter implementing time frame. State notification of intent may be required prior to adoption. 
   
   29 CFR 1953.4(b)(4) - If the state change is different from the federal program change, the state shall submit one copy of the required supplement within 60 days of state adoption. The supplement shall contain a copy of the relevant legislation, regulation, policy, or procedure and documentation on how the change maintains the "at least as effective as" status of the plan. 
            
   29 CFR 1953.4(b)(5) - If the state adopts a change identical to the federal program change, the state is not required to submit a supplement. However, the state shall provide documentation that it has adopted the change, such as the cover page of an implementing directive or a notice of promulgation, within 60 days of state adoption. 
   
   29 CFR 1953.4(b)(6) - The state may demonstrate why a program change is not necessary because the state program is already the same as or at least as effective as the federal program change. Such submissions will require review and approval as set forth in §1953.6. 
   
   29 CFR 1953.4(b)(7) - Where there is a change in the federal program which does not require state action but is of sufficient national interest to warrant indication of state intent, the state may be required to provide such notification within a specified time frame. 
   
   29 CFR 1953.4((c)(1) - Evaluation changes. Special and periodic evaluations of a state program by OSHA in cooperation with the state may show that some portion of a State Plan has an adverse impact on the effectiveness of the state program and accordingly requires modification to the state's underlying legislation, regulations, policy, or procedures as an evaluation change. For example, OSHA could find that additional legislative or regulatory authority may be necessary to effectively pursue the state's right of entry into workplaces or to assure various employer rights. 
   
   29 CFR 1953.4(c)(2) - OSHA shall advise the state of any evaluation findings that require a change to the State Plan and the reasons supporting this decision. This notification shall also contain a date by which the state must accomplish this change and submit either the change supplement or a timetable for its accomplishment and interim steps to assure continued program effectiveness, documentation of adoption of a program component identical to the federal program component, or, as explained in Paragraph (c)(5) of this section, a statement demonstrating why a program change is not necessary. 
   
   29 CFR 1953.4(c)(3) - If the state adopts a program component which differs from a corresponding federal program component, the state shall submit one copy of a required supplement within 60 days of adoption of the change. The supplement shall contain a copy of the relevant legislation, regulation, policy, or procedure and documentation on how the change maintains the "at least as effective as" status of the plan. 
   
   29 CFR 1953.4(c)(4) - If the state adopts a program component identical to a federal program component, submission of a supplement is not required. However, the state shall provide documentation that it has adopted the change, such as the cover page of an implementing directive or a notice of promulgation, within 60 days of adoption of the change and shall retain all other documentation within the state available for review upon request. 
   
   29 CFR 1953.4(c)(5) - The state may demonstrate why a program change is not necessary because the state program is meeting the requirements for an "at least as effective" program. Such submission will require review and approval as set forth in §1953.6. 
   
   29 CFR 1953.4(d)(1) -  State-initiated changes. A state-initiated change is any change to the State Plan which is undertaken at a state's option and is not necessitated by federal requirements. State-initiated changes may include legislative, regulatory, administrative, policy, or procedural changes which impact on the effectiveness of the state program. 
   
   29 CFR 1953.5(d)(2) - A state-initiated change supplement is required whenever the state takes an action not otherwise covered by this part that would impact on the effectiveness of the state program. The state shall notify OSHA as soon as it becomes aware of any change which could affect the state's ability to meet the approval criteria in Parts 1902 and 1956 of this chapter, e.g., changes to the state's legislation, and submit a supplement within 60 days. Other state-initiated supplements must be submitted within 60 days after the change occurred. The state supplement shall contain a copy of the relevant legislation, regulation, policy or procedure and documentation on how the change maintains the "at least as effective as" status of the plan. If the state fails to notify OSHA of the change or fails to submit the required supplement within the specified time period, OSHA shall notify the state that a supplement is required and set a time period for submission of the supplement, generally not to exceed 30 days. 

   Special Provisions for Standards Changes (§1953.5)
   
   29 CFR 1953.5(a)(1) - Permanent standards. Where a federal program change is a new permanent standard, or a more stringent amendment to an existing permanent standard, the state shall promulgate a state standard adopting such new federal standard, or more stringent amendment to an existing federal standard, or an at least as effective equivalent thereof, within six months of the date of promulgation of the new federal standard or more stringent amendment. The state may demonstrate that a standard change is not necessary because the state standard is already the same as or at least as effective as the federal standard change. In order to avoid delays in worker protection, the effective date of the state standard and any of its delayed provisions must be the date of state promulgation or the federal effective date whichever is later. The Assistant Secretary may permit a longer time period if the state makes a timely demonstration that good cause exists for extending the time limitation. State permanent standards adopted in response to a new or revised federal standard shall be submitted as a State Plan supplement within 60 days of state promulgation in accordance with §1953.4(b), federal program changes. 
   
   29 CFR 1953.5(a)(2) - Because a state may include standards and standards provisions in addition to federal standards within an issue covered by an approved plan, it would generally be unnecessary for a state to revoke a standard when the comparable federal standard is revoked or made less stringent. If the state does not adopt the federal action, it need only provide notification of its intent to retain the existing state standard to OSHA within six months of the federal promulgation date. If the state adopts a change to its standard parallel to the federal action, it shall submit the appropriate documentation as provided in §§1953.4(b)(3) or (4) -- federal program changes. However, in the case of standards applicable to products used or distributed in interstate commerce where Section 18(c)(2) of the Act imposes certain restrictions on State Plan authority, the modification, revision, or revocation of the federal standard may necessitate the modification, revision, or revocation of the comparable state standard unless the state standard is required by compelling local conditions and does not unduly burden interstate commerce. 
   
   29 CFR 1953.5(a)(3) - Where a state on its own initiative adopts a permanent state standard for which there is no federal parallel, the state shall submit it within 60 days of state promulgation in accordance with §1953.4(d) -- state-initiated changes, 
   
   29 CFR 1953.5(b)(1) - Emergency temporary standards. Immediately upon publication of an emergency temporary standard in the Federal Register, OSHA shall advise the states of the standard and that a federal program change supplement shall be required. This notification must also provide that the state has 30 days after the date of promulgation of the federal standard to adopt a state emergency temporary standard if the State Plan covers that issue. The state may demonstrate that promulgation of an emergency temporary standard is not necessary because the state standard is already the same as or at least as effective as the federal standard change. The state standard must remain in effect for the duration of the federal emergency temporary standard which may not exceed six (6) months. 
   
   29 CFR 1953.5(b)(2) - Within 15 days after receipt of the notice of a federal emergency temporary standard, the state shall advise OSHA of the action it will take. State standards shall be submitted in accordance with the applicable procedures in §1953.4(b) -- federal program changes, except that the required documentation or plan supplement must be submitted within five days of state promulgation. 
   
   29 CFR 1953.5(b)(3) - If for any reason, a state on its own initiative adopts a state emergency temporary standard, it shall be submitted as a plan supplement in accordance with §1953.4(c), but within ten days of promulgation. 
   Review and Approval of Plan Supplements (§1953.6)
   
   29 CFR1953.6(a) - OSHA shall review a supplement to determine whether it is at least as effective as the federal program and meets the criteria in the Act and implementing regulations and the assurances in the State Plan. If the review reveals any defect in the supplement, or if more information is needed, OSHA shall offer assistance to the state and shall provide the state an opportunity to clarify or correct the change. 
   
   29 CFR 1953.6(e) - If a state fails to submit a required supplement or if examination discloses cause for rejecting a submitted supplement, OSHA shall provide the state a reasonable time, generally not to exceed 30 days, to submit a revised supplement or to show cause why a proceeding should not be commenced either for rejection of the supplement or for failure to adopt the change in accordance with the procedures in §1902.17 or Part 1955 of this chapter.
   
   Procedures for Submitting Changes (§1956.21)   
   
   29 CFR 1956.21 - The procedures contained in Part 1953 of this chapter shall be applicable to submission and consideration of developmental, federal program, evaluation, and state-initiated change supplements to plans approved under this part. 
   
      Purpose (State Plan Changes, 29 CFR Part 1953, Procedures for Submitting Changes, 29 CFR 1956.21):  OSHA collects specified information from the State Plan regarding formal changes to the State Plan's standards or policy documents in order to ensure continued program effectiveness. State Plans must also have operating procedures equivalent to those in the federal program and must respond to all changes in the federal program by submitting parallel state policies and procedures through web-links or electronic copies if state procedures differ from the federal. The information is used for comparison to the federal program; to determine equivalent effectiveness and continued plan approvability; and to respond to questions from the public, employers, and employees, the Congress, and other oversight agencies with regard to one or multiple states' authority, procedures, and practices. Summary information is posted on OSHA's website. States are also periodically asked to respond to requests, both formally and informally, for information on the structural components or operational practices of their programs. The information is used to verify that the State Plan is providing worker protections that are "at least as effective as" those provided by OSHA.

      State Plans are initially approved if they contain sufficient documentation, in the form of statutes, regulations, standards, policies, and procedures, to demonstrate that the State Plan meets certain structural criteria and has the institutional capacity to run a program that is "at least as effective as" the federal program. The State Plan may be incomplete at the time of initial approval, but must adopt and submit all necessary structural components within three years of plan approval (developmental plan changes). Any subsequent changes that are made to the state's program or practice by legislation, regulation, administrative or budgetary action, or on its own initiative, must also be documented (state initiated change). When changes are made to the federal program which would render the state program no longer "at least as effective as" OSHA, the State Plan must adopt and submit appropriate documentation of a parallel state change for review and approval (federal program change). Where federal monitoring and evaluation of a State Plan results in a determination that state legislation, regulation, policy, procedure, practice, or administrative or budgetary action renders the program not "at least as effective" as the federal program in structure or performance, documentation of appropriate corrective action must be submitted for approval (evaluation plan change). State occupational safety and health standards constitute a subset of state initiated changes and federal program changes and must be submitted for approval with appropriate documentation.
            
      State Plan change documents are submitted for review and approval where significant and serve to modify the approved State Plan. Formal federal approval of the most significant changes may be communicated to the state. Since OSHA-approved State Plans operate under authority of state law, all program modifications take effect upon state adoption and remain in effect unless rejected by OSHA through a formal adjudicatory process. On September 15, 2002, OSHA promulgated amendments to these regulations that sought to reduce the number of submissions requiring formal approval, as long as the state maintains appropriate policy documentation which is available to OSHA and the regulated public for review. State Plans are now required to document all changes to their program, including any response to a program change that adopts policy or procedures parallel to the federal, through electronic means, by either posting the change on their state website or submitting an electronic copy to OSHA. In addition, a web-based data system of automated state responses and tracking of plan changes, together with web posting/electronic submission of plan changes, contribute to a reduction from the original burden hours. As part of an effort to make information on State Plan standards and policies/directives more readily accessible, OSHA and the Occupational Safety and Health State Plan Association (OSHSPA) have developed a system for displaying a summary of the State Plans' responses to new federal standards and directives as obtained through the data system on OSHA's website. 
   
	As part of its effort to be responsive to issues and events, OSHA periodically seeks up-to-date summary information from the states by e-mail, phone, or memorandum on specific provisions of their programs and/or activities. States usually respond by e-mail with the requested information, providing either web links to, or electronic copies of, relevant documents. This information is consolidated for all State Plans into a reference document. The information sought relates either to specific aspects of the states' operations that is already reflected in State Plan documentation or to specific ongoing activities, e.g., an inspection. States are not asked to create new information in this process or to query outside entities. For example, OSHA may need to display which of the approved State Plans have a state standard that differs from the federal and what those differences are. In the interest of accuracy and timeliness, the states are asked to provide summary information.
   
   
   
   
   
   
   
C.	Monitoring and Evaluation (29 CFR 1954 and 1956)

 29 CFR 1954, Subpart A -- General
   
   Monitoring System (§1954.2)   
   
   29 CFR 1954.2(a) - To carry out the responsibilities for continuing evaluation of State Plans under Section 18(f) of the Act, the Assistant Secretary has established a State Program Performance Monitoring System. Evaluation under this monitoring system encompasses both the period before and after a determination has been made under Section 18(e) of the Act. The monitoring system is a three phased system designed to assure not only that developmental steps are completed and that the operational plan is, in fact, at least as effective as the federal program with respect to standards and enforcement, but also to provide a method for continuing review of the implementation of the plan and any modifications thereto to assure compliance with the provisions of the plan during the time the state participates in the cooperative federal-state program. 
            
   29 CFR 1954.2(b) - Phase I of the system begins with the initial approval of a State Plan and continues until the determination required by Section 18(e) of the Act is made. During Phase I, the Assistant Secretary will secure monitoring data to make the following key decisions: 
   
   29 CFR 1954.2(b)(1) - What should be the level of federal enforcement; 
   
   29 CFR 1954.2(b)(2) - Should plan approval be continued; and 
   
   29 CFR 1954.2(b)(3) - What level of technical assistance is needed by the state to enable it to have an effective program. 
   
   29 CFR 1954.2(c) - Phase II of the system relates to the determination required by Section 18(e) of the Act. The Assistant Secretary must decide, after no less than three years following approval of the plan, whether or not to relinquish federal authority to the state for issues covered by the occupational safety and health program in the State Plan. Phase II will be a comprehensive evaluation of the total state program, drawing upon all information collected during Phase I. 
   
   29 CFR 1954.2(d) - Phase III of the system begins after an affirmative determination has been made under Section 18(e) of the Act. The continuing evaluation responsibility will be exercised under Phase III, and will provide data concerning the total operations of a state program to enable the Assistant Secretary to determine whether or not the plan approval should be continued or withdrawn. 
   
   29 CFR 1954.2(e) - The State Program Performance Monitoring System provides for, but is not limited to, the following major data inputs: 
   
   29 CFR 1954.2(e)(1) - Quarterly and annual reports of state program activity; 
   
   29 CFR 1954.2(e)(2) - Visits to state agencies; 
   
   29 CFR 1954.2(e)(3) - On-the-job evaluation of state compliance officers; and 
   
   29 CFR 1954.2(e)(4) - Investigation of Complaints About State Program Administration. 
   
   Exercise of Federal Discretionary Authority (§1954.3) 
      
   29 CFR 1954.3(f)(1) - Procedural agreements. A determination as to the operational status of a State Plan shall be accompanied by an agreement with the state setting forth the federal-state responsibilities as follows:
   
   29 CFR 1954.3(f)(1)(i) - Scope of the state's operational status including the issues excluded from the plan, the issues where state enforcement will not be operational at the time of the agreement and the dates for commencement of operations;
   
   29 CFR 1954.3(f)(1)(ii) - Procedures for referral, investigation and enforcement of employee requests for inspections;
   
   29 CFR 1954.3(f)(1)(iii) - Procedures for reporting fatalities and catastrophes by the agency which has received the report to the responsible enforcing authority both where the state has and has not adopted the requirement that employers report as provided in 29 CFR 1904.8;
   
   29 CFR 1954.3(f)(1)(iv) - Specifications as to when and by what means the operational guidelines of this section were met; and
   
   29 CFR 1954.3(f)(1)(v) - Provision for resumption of federal enforcement activity for failure to substantially comply with this agreement, or as a result of evaluation or other relevant factors. 
   
 29 CFR 1954.10, Subpart B -- State Monitoring Reports and Visits to State Agencies
   
   Reports from the States (§1954.10)
   
   29 CFR 1954.10(a) - In addition to any other reports required by the Assistant Secretary under Sections 18(c)(8) and 18(f) of the Act and §1902.3(1) of this chapter, the state shall submit quarterly and annual reports as part of the evaluation and monitoring of state programs.[1]
   
   [___________________________]
   [1]Such quarterly and annual reports forms may be obtained from the Office of the Assistant Regional Director in whose region the state is located.
   
   29 CFR 1954.10(b) - Each state with an approved State Plan shall submit to the appropriate Regional Office an annual occupational safety and health report in the form and detail provided for in the report and the instructions contained therein. 
   
   29 CFR 1954.10(c) - Each state with an approved State Plan shall submit to the appropriate Regional Office a quarterly occupational safety and health compliance and standards activity report in the form and detail provided for in the report and the instructions contained therein. 
   
   Visits to State Agencies (§1954.11)  
 
   29 CFR 1954.11 - As a part of the continuing monitoring and evaluation process, the Assistant Secretary or his representative shall conduct visits to the designated agency or agencies of state with approved plans at least every six months. An opportunity may also be provided for discussion and comments on the effectiveness of the State Plan from other interested persons. These visits will be scheduled as needed. Periodic audits will be conducted to assess the progress of the overall state program in meeting the goal of becoming at least as effective as the federal program. These audits will include case file review and follow-up inspections of workplaces. 
   
 29 CFR 1954, Subpart C -- Complaints About State Program Administration (CASPA)
   
   Complaints About State Program Administration (§1954.20)
   
   29 CFR 1954.20(a) - Any interested person or representative of such person or groups of persons may submit a complaint concerning the operation or administration of any aspect of a State Plan. The complaint may be submitted orally or in writing to the Assistant Regional Director for Occupational Safety and Health (hereinafter referred to as the Assistant Regional Director) or his representative in the region where the state is located. 
   
   29 CFR 1954.20(b) - Any such complaint should describe the grounds for the complaint and specify the aspect or aspects of the administration or operation of the plan which is believed to be inadequate. A pattern of delays in processing cases, of inadequate workplace inspections, or the granting of variances without regard to the specifications in the State Plans, are examples. 
            
   29 CFR 1954.20(c)(1) - If upon receipt of the complaint, the Assistant Regional Director determines that there are reasonable grounds to believe that an investigation should be made, he shall cause such investigation, including any workplace inspection, to be made as soon as practicable. 
   
   29 CFR 1954.20(c)(2) - In determining whether an investigation shall be conducted and in determining the timing of such investigation, the Assistant Regional Director shall consider such factors as: 
   
   29 CFR 1954.20(c)(2)(i) - The extent to which the complaint affects any substantial number of persons; 
   
   29 CFR 1954.20(c)(2)(ii) - The number of complaints received on the same or similar issues and whether the complaints relate to safety and health conditions at a particular establishment; 
   
   29 CFR 1954.20(c)(2)(iii) - Whether the complainant has exhausted applicable state remedies; and 
   
   29 CFR 1954.20(c)(2)(iv) - The extent to which the subject matter of the complaint is pertinent to the effectuation of federal policy. 

   Processing and Investigating a Complaint (§1954.21)
   
   29 CFR 1954.21(a) - Upon receipt of a complaint about state program administration, the Assistant Regional Director will acknowledge its receipt and may forward a copy of the complaint to the designee under the State Plan and to such other person as may be necessary to complete the investigation. The complainant's name and the names of other complainants mentioned therein will be deleted from the complaint and the names shall not appear in any record published, released or made available. 
   
   29 CFR 1954.21(b) - In conducting the investigation, the Assistant Regional Director may obtain such supporting information as is appropriate to the complaint. Sources for this additional information may include "spot-check" follow-up inspections of workplaces, review of the relevant state files, and discussion with members of the public, employers, employees and the state. 
            
   29 CFR 1954.21(c) - On the basis of the information obtained through the investigation, the Assistant Regional Director shall advise the complainant of the investigation findings and in general terms, any corrective action that may result. A copy of such notification shall be sent to the state and it shall be considered part of the evaluation of the State Plan. 
   
   29 CFR 1954.21(d) - If the Assistant Regional Director determines that there are no reasonable grounds for an investigation to be made with respect to a complaint under this subpart, he shall notify the complaining party in writing of such determination. Upon request of the complainant, or the state, the Assistant Regional Director, at his discretion, may hold an informal conference. After considering all written and oral views presented the Assistant Regional Director shall affirm, modify, or reverse his original determination and furnish the complainant with written notification of his decision and the reasons therefore. Where appropriate, the state may also receive such notification. 

   Notice Provided by State (§1954.22)
   
   29 CFR 1954.22(a)(1) - In order to assure that employees, employers, and members of the public are informed of the procedures for Complaints About State Program Administration, each state with an approved State Plan shall adopt not later than July 1, 1974, a procedure not inconsistent with these regulations or the Act, for notifying employees, employers and the public of their right to complain to the Occupational Safety and Health Administration about state program administration. 
   
   29 CFR 1954.22(a)(2) - Such notification may be by posting of notices in the workplace as part of the requirement in §1902.4(c)(2)(iv) of this chapter and other appropriate sources of information calculated to reach the public. 
   
   Procedures for Evaluation and Monitoring of State Plans for State and Local Government Employees Only (§1956.22)   
   
   29 CFR 1956.22 - The procedures contained in Part 1954 of this chapter shall be applicable to evaluation and monitoring of State Plans approved under this part, except that the decision to relinquish federal enforcement authority under Section 18(e) of the Act is not relevant to Phase II and III monitoring under §1954.2 and the guidelines of exercise of federal discretionary enforcement authority provided in §1954.3 are not applicable to plans approved under this part. The factors listed in §1902.37(b) of this chapter, except those specified in §1902.37(b)(11) and (12), which would be adapted to the state compliance program, provide the basis for monitoring. 

      Purpose (Monitoring and Evaluation, 29 CFR Part 1954, Procedures for Evaluation and Monitoring, 29 CFR 1956.22):  Most information and data collected for monitoring and evaluation is developed federally or as a part of the states' routine program operation, including data entry into the consolidated federal-state data system. Where information is not captured electronically, the State Plans are required to submit copies of relevant actions for monitoring oversight, including strategic and annual performance plans, which also serve grant funding application purposes. State Plans must provide formal responses to program performance complaint investigations, evaluation reports, and special monitoring studies, including development of corrective action plans, as appropriate. This information is used by OSHA to establish whether there are program deficiencies and, if so, to ensure their correction. This information is also of interest to the public, the Congress, and employers and employees as a means of external assessment of satisfactory program operation. Beginning in 2013, OSHA instituted a biennial Federal Annual Monitoring Evaluation (FAME) cycle with a comprehensive FAME every other year and a follow-up FAME in the off years.  Comprehensive FAMEs require an onsite review of State Plan case files and both FAME processes include stakeholder interviews.   The State Plans are required to develop detailed corrective action plans in response to these reports with appropriate follow-up documentation. This is included in the paperwork burden hours for the State Plans.
   
      OSHA's monitoring obligation and implementation procedures for evaluating State Plan effectiveness remain essentially the same throughout the life of a state's program (initial approval and developmental period, final approval, continued approval) and are primarily a federal responsibility. The monitoring procedures are conducted on a fiscal year basis with regular quarterly review of state-supplied and computer-generated information, and result in the issuance of annual federal evaluation reports on each state's effectiveness. The focus of OSHA's monitoring is on state progress in achieving approved performance goals, on meeting mandated requirements of the OSH Act and regulations, and assessing whether State Plan performance regarding standards and enforcement is "at least as effective" as federal performance. States establish and document their goals in periodically updated five-year strategic plans and annual performance plans which are included in the narrative portion of the State Plan's annual grant submission. Data on state and federal performance are available through the consolidated federal-state data system which is maintained and operated by federal OSHA.
   
      On a quarterly basis, OSHA regional staff have discussions with state officials on their progress in meeting goals and their performance on mandated program activities. States have primary responsibility for providing information on performance goal progress through state tracking systems. States participate in OSHA's consolidated federal-state data system (the Integrated Management Information System (IMIS) and its successor, the OSHA Information System (OIS)), providing data on program activities in the same manner as a federal office. Thus, complete data on the usual and customary activities of the states' enforcement, compliance assistance, and whistleblower programs are available to OSHA. Data needed to evaluate state performance are produced through federally developed and generated reports using agreed upon measures. Federal officials conduct performance analysis and prepare annual evaluation reports. States participate to varying degrees in assessing information and prepare formal annual self-evaluation reports on their performance. In addition, states respond to federal reports, including commitments for any needed corrective action. 
      
      For information and/or data not part of a currently established electronic data system, the states on occasion may be asked to provide copies of specific action items, such as variances granted or significant review board decisions for review and monitoring.
   
3. Describe whether, and to what extent, the collection of information involves the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses, and the basis for the decision for adopting this means of collection. Also, describe any consideration of using information technology to reduce the burden.

Data on State Plan day-to-day activity is collected electronically through a unified federal-state data system called OSHA Information System (OIS). OSHA has developed the data system and provided access to the states without cost. The necessary computer and network equipment is purchased by the State Plans using available grant funding, and the State Plans are charged monthly for their proportionate share of telecommunication and data processing costs. State Plans actively participate in the design and modification of new and improved systems, and OSHA regularly negotiates with the State Plans to ensure that computer services meet state needs. 

Plan changes are submitted electronically through email and the State Plan Application (SPA), which is an automated system for tracking the State Plan adoption of new standards and directives.  SPA also tracks State Plan intent to adopt new federal rules and policies. The first iteration of SPA was deployed in 2003, and the entire system was updated and improved in 2018.  One of these improvements was the ability for State Plans to enter their responses directly into SPA, instead of emailing to OSHA for entry.  This process does not impact burden hours on State Plans but does make the overall process more efficient and reduces OSHA's workload.  Summary reports of state responses are posted for public information on OSHA's website. Activities associated with monitoring are arranged and negotiated through electronic means. 

Annual State Plan grant applications submitted under Section 23(g) of the Act are now submitted electronically through http://www.grants.gov/ .  Although electronic submission of the grant forms is mandatory, only two forms (SF 424 or 424A) are actually completed online. OSHA clears unique requirements under the Departmental generic clearance for Funding Opportunity Announcements (control number 1225-0086). All other documents are submitted as scanned or original electronic documents resulting in minimal to no change in preparation time and burden hours for grant submissions. However, most State Plans have been in operation for over 30 years and have established internal electronic templates for their grant submissions, requiring only annual updates. 

4. Describe efforts to identify duplication. Show specifically why any similar information already available cannot be used or modified for use of the purposes described in Item 2 above.

The submission of multiple copies of documents has been eliminated through electronic submission. State Plans are no longer required to submit multiple copies of documents to multiple offices but may provide the information once through email to the various offices that require the information or by posting the documents on the State Plan's website and providing the URL to OSHA. All information developed is specific to the OSHA program and there is no similar information available.

5. If the collection of information impacts small businesses or other small entities, describe any methods used to minimize burden.

These information collections relate solely to participating state agencies. There is no impact on small businesses or other small entities.

6. Describe the consequences to federal program or policy activities if the collection is not conducted or is conducted less frequently, as well as any technical or legal obstacles to reducing burden.

The information must be collected to fulfill OSHA's statutory responsibility to ensure that state programs are "at least as effective" as the federal program in structure and performance and continue to be so as the federal program changes. Procedural changes have been made to allow state certification of various actions with documentation retained and available within the state if identical to the federal; if actions differ from the federal actions, web posting or electronic submission has replaced formal hard copy submissions. It is essential to the process that states be afforded the opportunity to provide input, explanations, and comment on monitoring findings or other critiques of their structure and/or performance as they impact on continued authority and funding to operate a State Plan. 
      
7. Explain any special circumstances that would cause a collection of information to be conducted in a manner:

  ·  Requiring respondents to report information to the agency more often than quarterly;

  ·  Requiring respondents to prepare a written response to a collection of information in fewer than 30 days after receipt of it;
  
  ·  Requiring respondents to submit more than an original and two copies of any document;

  ·  Requiring respondents to retain records, other than health, medical, government contract, grant-in-aid, or tax records, for more than three years;

  ·  In connection with a statistical survey that is not designed to produce valid and reliable results that can be generalized to the universe of study;
      
  ·  Requiring the use of a statistical data classification that has not been reviewed and approved by OMB;
   
  ·  That includes a pledge of confidentiality that is not supported by authority established in statute or regulation, that is not supported by disclosure and data security policies that are consistent with the pledge, or which unnecessarily impedes sharing of data with other agencies for compatible confidential use; or

  ·  Requiring respondents to submit proprietary trade secret, or other confidential information unless the agency can demonstrate that it has instituted procedures to protect the information's confidentiality to the extent permitted by law.

There are no special circumstances for this information collection.

8. If applicable, provide a copy and identify the data and page number of publication in the Federal Register of the agency's notice, required by 5 CFR 1320.8(d), soliciting comments on the collection of information prior to submission to OMB. Summarize public comments received in response to that notice and describe actions taken by the agency in response to these comments. Specifically address comments received on cost and hour burden.

Describe efforts to consult with persons outside the agency to obtain their views on the availability of data, frequency of collection, the clarity of instructions and recordkeeping, disclosure, or reporting format (if any), and on the data elements to be recorded, disclosed, or reported.

Consultation with representatives of those from whom information is to be obtained or those who must compile records should occur at least once every three years -- even if the collection of information activity is the same as in prior periods. There may be circumstances that may preclude consultation in a specific situation. These circumstances should be explained.

As required by the Paperwork Reduction Act of 1995 (44 U.S.C.3506 (c)(2)(A)), OSHA published a notice in the Federal Register on (April 19, 2022) (87 FR 23268) soliciting public comments on its proposed extension of the collections of information associated with federal regulations governing OSHA-approved State Plans (29 CFR Parts 1902, 1953, 1954, and 1956) (Docket No. OSHA-2011-0197).  This notice was part of a preclearance consultation program that provided the general public and government agencies the opportunity to comment. The Agency received no comments in response to this notice.   
The Agency generally conducts formal meetings with OSHSPA (the state plan association) three times a year, and with the OSHSPA Board three more times each year where the various policies related to the collections of information are discussed.  
9. Explain any decision to provide any payment or gift to respondents, other than remuneration of contractors or grantees.

OSHA will not provide payments or gifts to the respondents. 

10. Describe any assurance of confidentiality provided to respondents and the basis for the assurance in statute, regulation, or agency policy.

The respondents to these collections of information are state government agencies which do not require an assurance of confidentiality.

11. Provide additional justification for any questions of a sensitive nature, such as sexual behavior and attitudes, religious beliefs, and other matters that are commonly considered private. This justification should include the reasons why the agency considers the questions necessary, the specific uses to be made of the information, the explanation to be given to persons from whom the information is requested, and any steps to be taken to obtain their consent.

No information of a sensitive nature or other matters that are commonly considered private is associated with these information collections. (As a condition of funding, states are required to provide assurances of nondiscrimination in their operation and with regard to their employees.)

12. Provide estimates of the hour burden of the collection of information. The statement should:

  ·  Indicate the number of respondents, frequency of response, annual hour burden, and an explanation of how the burden was estimated. Unless directed to do so, agencies should not conduct special surveys to obtain information on which to base hour burden estimates. Consultation with a sample (fewer than 10) of potential respondents is desirable. If the hour burden on respondents is expected to vary widely because of differences in activity, size, or complexity, show the range of estimated hour burden, and explain the reasons for the variance. Generally, estimates should not include burden hours for customary and usual business practices.

  ·  If this request for approval covers more than one form, provide separate hour burden estimates for each form and aggregate the hour burdens.

  ·  Provide estimates of annualized costs to respondents for the hour burdens for collections of information, identifying and using appropriate wage rate categories.

Wage Rate Determinations

The cost estimate is based on the average salary of a State Plan administrative professional at a $41.84 hourly rate, and the average salary of a state clerical employee at a $21.78 hourly rate. (Source: Bureau of Labor Statistics News Release, September 2021, Employer Costs for Employee Compensation  - September 2021; Table 3: state and local government employer costs per hour worked. (https://www.bls.gov/news.release/ecec.t03.htm. ).)  It is assumed that 75% of the information collection is performed by professional staff and 25% by clerical staff with a combined rate of $36.825.  



Burden Hour and Cost Determinations

 State Plan Development

      There are currently 28 OSHA-approved State Plans. All except five were approved during the 1970s. The New York State and Local Government Employers Only State Plan was approved in June 1984; the New Jersey State and Local Government Employers Only State Plan was approved in January 2001; the Virgin Islands State and Local Government Employers Only State Plan was approved in July 2003; the Illinois State and Local Government Employers Only State Plan was approved in September 2009; and the Maine State and Local Government Only State Plan was approved in August 2015.
      
      While at various times states/territories such as Washington, D.C., and Pennsylvania have also expressed interest in the development of a State Plan, none of these states have completed the submission of material required for approval of a State Plan. Massachusetts is currently developing a State Plan that may be active in late 2022 or 2023. Questions regarding the requirements for submission of a State Plan periodically arise during state legislative sessions. The submission of a new State Plan other than Massachusetts is not considered imminent. 

 State Plan Changes   

      Plan change estimates are based on the type of submission and the burden that is associated solely with the preparation of the documentation necessary for submission to OSHA. The effort required to accomplish the action - promulgate a standard, adopt a regulation policy - are all a necessary part of the routine operation of the program. The only burden is the submission.

      Developmental changes:  The Illinois State and Local Government State Plan, the Virgin Island State, and Local Government State Plan, and the Maine State and Local Government State Plan are all expected to submit the developmental plan changes necessary to document the structural completeness of their programs, as pledged at the time of plan approval. Each State Plan is expected to submit up to 3 developmental plan changes during each year of its continued developmental period. It is estimated that each change requires five hours of staff effort to prepare for submission or 45 hours. 
       
      State-initiated changes: Using the 2021 calendar year as a guideline, it is estimated that four of the approved State Plans submit an average of 9 plan modifications on their own initiative each year. It is estimated that each change requires five hours of staff effort to prepare for submission or 180 hours.

      Federal program changes: All 28 states are required to respond to an average of eight changes in the federal program each year. Documentation of the changes is submitted by weblink or electronic copy if the policy adopted differs from the federal program. It is estimated that each change requires one hour of staff effort to prepare for submission or 224 hours. 

      Evaluation changes: It is estimated that as many as 15 State Plans may have to make as many as three changes to their plans per year based on issues discovered during monitoring and evaluation. Each change requires up to six hours of staff effort to prepare for submission, or 270 hours.
      
      Different State Standards: A State Plan may adopt a state standard different from the federal standard either on its own initiative or in response to a federal standard. Such standards require submission of a detailed comparison to the federal and justification of the differences. (Again, the time spent developing and promulgating the standard is not part of the federal burden.)  It is estimated that on average, four states per year develops four different state standards which require ten hours per submission or 160 hours.

      Requests for Summary Information: Periodically OSHA needs to assemble information on how specific issues are dealt with in each of the 28 states. This information is gathered almost exclusively through informal electronic (e-mail) means, although phone calls and memoranda (transmitted electronically) are sometimes necessary. States are not asked to create new information in this process or to query outside entities. It is estimated that there are twenty such requests each year which require up to one-half (.5) hours per response, or 280 hours. Information on State Plan change submissions is collected in an electronic data system with the implementation of an automated log tracking system, and summary information is posted on OSHA's website for public use. 
      
 Monitoring and Evaluation Activities 

      On a five-year cycle, all 28 states establish long-range strategic goals (120 hours) for a total of 3,360 hours/5 years or 672 hours per year. On an annual basis, the 28 State Plans must prepare performance plans with annualized goals (80 hours each or 2,240 hours) and submit year-end State Plan self-evaluation reports on goal progress (65 hours each or 1,820). The performance plans also serve a dual purpose as the narratives for the annual state funding/grant applications and are now scanned and submitted electronically through www.Grants.gov. 
      
      On a quarterly basis, 28 states provide interim reports on their goal progress during discussions/meetings with regional staff (8 hours per meeting or 896 total hours). On a quarterly basis, the 28 states provide other information and/or data that are not part of a currently established electronic data system, including copies of specific action items, such as variances granted or significant review board decisions (2 hours each or 224 total hours). All 28 states provide responses and corrective action plans, where necessary, in response to the annual federal evaluation report (65 hours each or 1,820 total hours). In addition, State Plans must respond to other federal reports and special assessments including responses to Complaints about State Program Administration (CASPAs). It is estimated that on average each state must respond to one CASPA a year (8 hours of effort or 224 total hours) since some states may have more and some may have none in any given year. 

      
Table 1 - Estimated Annualized State Plan Respondent Hour and Cost Burden Table
      
Collection of Information Requirement
                      Number of State Plan[1] Respondents
                      Number of Responses per Respondent
                           Total Number of Responses
                          Average Burden per Response
                                  (in hours)
                              Total Burden Hours
                           Average Hourly Wage Rate
                               Total Burden Cost
A. State Plan Development[2]
                                       1
                                       1
                                       1
                                     2,000
                                     2,000
                                    $36.825
                                    $73,650
Subtotal
                                      --
                                      --
                                       1
                                      --
                                     2,000
                                      --
                                    $73,650

                                       
                                       
                                       
                                       
                                       
                                       
                                       
B. State Plan Changes
                                       
                                       
                                       
                                       
                                       
                                       
                                       
Developmental
                                       3
                                       3
                                       9
                                       5
                                      45
                                    $36.825
                                    $1,657
State Initiated
                                       4
                                       9
                                      36
                                       5
                                      180
                                    $36.825
                                    $6,629
Federal Program
                                      28
                                       8
                                      224
                                       1
                                      224
                                    $36.825
                                    $8,249
Evaluation
                                      15
                                       3
                                      45
                                       6
                                      270
                                    $36.825
                                    $9,943
Different Standards
                                       4
                                       4
                                      16
                                      10
                                      160
                                    $36.825
                                    $5,892
Requests for Summary Info
                                      28
                                      20
                                      560
                                     30/60
                                      280
                                    $36.825
                                    $10,311
Subtotal
                                      --
                                      --
                                      890
                                      --
                                     1,159
                                      --
                                    $42,681
 
                                       
                                       
                                       
                                       
                                       
                                       
                                       
C. Monitoring & Evaluation Activities
                                       
                                       
                                       
                                       
                                       
                                       
                                       
Quarterly Mtgs.
                                      28
                                       4
                                      112
                                       8
                                      896
                                    $36.825
                                    $32,995
Strategic Plan
                                      28
                                       1
                                      28
                                      24
                                      672
                                    $36.825
                                    $24,746
Performance Plan/Grant
                                      28
                                       1
                                      28
                                      80
                                     2,240
                                    $36.825
                                   $82,488 
State Annual Report
                                      28
                                       1
                                      28
                                      65
                                     1,820
                                    $36.825
                                    $67,022
State activities reviews/updates
                                      28
                                       4
                                      112
                                       2
                                      224
                                    $36.825
                                    $8,249
Response to FAME
                                      28
                                       1
                                      28
                                      65
                                     1,820
                                    $36.825
                                    $67,022
Response to CASPAs
                                      28
                                       1
                                      28
                                       8
                                      224
                                    $36.825
                                    $8,249
Subtotal
                                     -- 
                                      --
                                      364
                                      --
                                     7,896
                                      --
                                   $290,771
Total
                                      28
                                       
                                     1,255
                                      --
                                    11,055
                                      --
                                   $407,102

 As of the date of this ICR, there are 28 States and territories operating OSHA-approved State Plans. 

13. Provide an estimate of the total annual cost burden to respondents or recordkeepers resulting from the collection of information. (Do not include the cost of any hour burden shown in Items 12 and 14.)

  ·  The cost estimate should be split into two components:  (a) a total capital and start-up cost component (annualized over its expected useful life) and (b) a total operation and maintenance and purchase of services component. The estimates should take into account costs associated with generating, maintaining, and disclosing or providing the information. Include descriptions of methods used to estimate major cost factors including system and technology acquisition, expected useful life on capital equipment, the discount rate(s), and the time period over which costs will be incurred. Capital and start-up costs include, among other items, preparations for collecting information such as purchasing computers and software; monitoring, sampling, drilling and testing equipment; and record storage facilities.
      
  ·  If cost estimates are expected to vary widely, agencies should present ranges of cost burdens and explain the reasons for the variance. The cost of purchasing or contracting out information collections services should be part of this cost burden estimate. In developing cost burden estimates, agencies may consult with a sample of respondents (fewer than 10), utilize the 60-day pre-OMB submission public comment process and use existing economic or regulatory impact analysis associated with the rulemaking containing the information collection, as appropriate.
      
  ·  Generally, estimates should not include purchases of equipment or services, or portions thereof, made:  (1) prior to October 1, 1995, (2) to achieve regulatory compliance with requirements not associated with the information collection, (3) for reasons other than to provide information or keep records for the government, or (4) as part of customary and usual business or private practices.

There are no additional costs to the respondents other than their time.  

14. Provide estimates of annualized cost to the federal government. Also, provide a description of the method used to estimate cost, which should include quantification of hours, operational expenses (such as equipment, overhead, printing, and support staff), and any other expense that would not have been incurred without this collection of information. Agencies may also aggregate cost estimates from Items 12, 13, and 14 in a single table.

The cost to the federal government is for the review and analysis of the various plan documents and monitoring information (e.g., as provided by 29 CFR 1902.4(b) and (c), 29 CFR 1953.6, and 1954.1(c)) submitted by the State Plans. A professional staff of up to seven Program Analysts in the Directorate of Cooperative and State Programs, Office of State Programs, in Washington, D.C. (average grade GS-13, Step 6 with a salary of $94,751 or $45.40 hourly rate) spends 30% of its time tracking and reviewing the subject collection of information at a cost of $106,668 per year. Each of the ten regions has an average of two full-time equivalents (average grade GS-13, Step 6, with a salary of $94,751 or $45.40 hourly rate[5]) who devote 25% of their time to these functions ($88,890). Therefore, the total federal review cost is $195,558 (=88,890+106,668). 

15. Explain the reasons for any program changes or adjustments.

The agency is requesting an adjustment decrease to adjust the number of burden hours associated with the developmental steps necessary for certain states in the developmental process, including Maine, Illinois, and the Virgin Islands. In addition, the number of CASPAs and State Plan Changes was modified to depict more realistically the current trends in these numbers. As a result, the total burden hours have decreased from 11,369 to 11,055 (a decrease of 314 burden hours). 

16. For collection of information whose results will be published, outline plans for tabulation and publication. Address any complex analytical techniques that will be used. Provide the time schedule for the entire project, including beginning and ending dates of the collection of information, completion of report, publication dates, and other actions.

OSHA will not generally publish this information. However, summary information on State Plan responses to changes in the federal program is posted on OSHA's website, as are major federal monitoring reports and the States Plans' responses. Most states make detailed information on their statutes, rules, regulations, standards, and policies as submitted to OSHA available on their public websites, and OSHA provides summary information, including links to the state information, on a webpage devoted to each State Plan. All other information is publicly available upon request. 

17. If seeking approval to not display the expiration date for OMB approval of the information collection, explain the reasons that display would be inappropriate.

There are no forms on which to display the expiration date. 

18. Explain each exception to the certification statement.

OSHA is not seeking an exception to the certification statement.

B. COLLECTION OF INFORMATION EMPLOYING STATISTICAL METHODS
	
This collection of information does not employ statistical methods.

As of 4-4-22
PART 1902 - STATE PLANS FOR THE DEVELOPMENT AND ENFORCEMENT OF STATE STANDARDS 
Authority: Sec. 18, 84 Stat. 1608 (29 U.S.C. 667); Secretary of Labor's Order No. 1-2012 (77 FR 3912, Jan. 25, 2012). 
Source: 36 FR 20751, Oct. 29, 1971, unless otherwise noted. 
Subpart A - General
§ 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 standards. The provisions of the 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 working man and woman in the Nation safe and healthful working conditions and to preserve our human resources" by, among other actions and programs, "* * * encouraging the State to assume the fullest responsibility for the administration and enforcement of their occupational safety and health laws. Section 18(a) of the Act is read as preventing any State agency or court from asserting jurisdiction under State law over any occupational safety or health issue with respect to which a Federal standard has been issued under section 6 of the Act. However, section 18(b) provides that any State that 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 
     (i) for at least 3 years after initial approval 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. 
[36 FR 20751, Oct. 29, 1971, as amended at 61 FR 9230, Mar. 7, 1996] 
§ 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 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 legislation 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 or 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 Secretary 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
§ 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. In situations where section 18(c)(2) is considered applicable, and provision is made for the adoption of product standards, the requirements of section 18(c)(2), as they relate to undue burden on interstate commerce, shall be treated as a condition subsequent in light of the facts and circumstances which may be involved. 
  (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 such standards, will be deemed to meet this requirement. 
  (i) 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) 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. 
  (k) 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 activities 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 the Assistant Secretary may from time to time require. 
(Approved by the Office of Management and Budget under control number 1218-0004) 
[36 FR 20751, Oct. 29, 1971, as amended at 54 FR 24333, June 7, 1989; 80 FR 49901, Aug. 18, 2015] 
§ 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. 
     (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 consideration 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 decisions, 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 set forth in the Act, and in 29 CFR 1903.15(d). 
     (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) State and local government employee programs. 
   (1) Each approved State plan must contain satisfactory assurances that the State will, to the extent permitted by its law, establish and maintain an effective and comprehensive occupational safety and health program applicable to all employees of public agencies of the State and its political subdivisions which program is as effective as the standards contained in an approved plan. 
   (2) This criterion for approved State plans is interpreted to require the following elements with regard to coverage, standards, and enforcement: 
     (i) Coverage. The program must cover all public employees over which the State has legislative authority under its constitution. The language in section 18(c)(6) which only requires such coverage to the extent permitted by the State's law specifically recognizes the situation where local governments exclusively control their own employees, such as under certain home rule charters. 
     (ii) Standards. The program must be as effective as the standards contained in the approved plan applicable to private employers. Thus, the same criteria and indices of standards effectiveness contained in §§ 1902.3(c) and 1902.4(a) and (b) would apply to the public employee program. Where hazards are unique to public employment, all appropriate indices of effectiveness, such as those dealing with temporary emergency standards, development of standards, employee information, variances, and protective equipment, would be applicable to standards for such hazards. 
     (iii) Enforcement. Although section 18(c)(6) of the Act requires State public employee programs to be as effective as standards contained in the State plan, minimum enforcement elements are required to ensure an effective and comprehensive public employee program as follows: 
      (A) Regular inspections of workplaces, including inspections in response to valid employee complaints; 
      (B) A means for employees to bring possible violations to the attention of inspectors; 
      (C) Notification to employees, or their representatives, of decisions that no violations are found as a result of complaints by such employees or their representatives, and informal review of such decisions; 
      (D) A means of informing employees of their protections and obligations under the Act; 
      (E) Protection for employees against discharge of discrimination because of the exercise of rights under the Act; 
      (F) Employee access to information on their exposure to toxic materials or harmful physical agents and prompt notification to employees when they have been or are being exposed to such materials or agents at concentrations or levels above those specified by the applicable standards; 
      (G) Procedures for the prompt restraint or elimination of imminent danger situations; 
      (H) A means of promptly notifying employers and employees when an alleged violation has occurred, including the proposed abatement requirements; 
      (I) A means of establishing timetables for the correction of violations; 
      (J) A program for encouraging voluntary compliance; and 
      (K) Such other additional enforcement provisions under State law as may have been included in the State plan. 
   (3) In accordance with § 1902.3(b)(3), the State agency or agencies designated to administer the plan throughout the State must retain overall responsibility for the entire plan. Political subdivisions may have the responsibility and authority for the development and enforcement of standards: Provided, that the designated State agency or agencies have adequate authority by statute, regulation, or agreement to insure that the commitments of the State under the plan will be fulfilled. 
  (e) 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. 
[36 FR 20751, Oct. 29, 1971, as amended at 80 FR 49901, Aug. 18, 2015; 81 FR 43452, July 1, 2016] 
§ 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. 
§ 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. 
§ 1902.7 Injury and illness recording and reporting requirements.
  (a) Injury and illness recording and reporting requirements promulgated by State-Plan States must be substantially identical to those in 29 CFR part 1904 on recording and reporting occupational injuries and illnesses. State-Plan States must promulgate recording and reporting requirements that are the same as the Federal requirements for determining which injuries and illnesses will be entered into the records and how they are entered. All other injury and illness recording and reporting requirements that are promulgated by State-Plan States may be more stringent than, or supplemental to, the Federal requirements, but, because of the unique nature of the national recordkeeping program, States must consult with OSHA and obtain approval of such additional or more stringent reporting and recording requirements to ensure that they will not interfere with uniform reporting objectives. State-Plan States must extend the scope of their regulation to State and local government employers. 
  (b) A State may not grant a variance to the injury and illness recording and reporting requirements for private sector employers. Such variances may only be granted by Federal OSHA to assure nationally consistent workplace injury and illness statistics. A State may only grant a variance to the injury and illness recording and reporting requirements for State or local government entities in that State after obtaining approval from Federal OSHA. 
  (c) A State must recognize any variance issued by Federal OSHA. 
  (d) As provided in section 18(c)(7) of the Act, State Plan States must adopt requirements identical to those in 29 CFR 1904.41 in their recordkeeping and reporting regulations as enforceable State requirements. The data collected by OSHA as authorized by § 1904.41 will be made available to the State Plan States. Nothing in any State plan shall affect the duties of employers to comply with § 1904.41. 
[80 FR 49902, Aug. 18, 2015, as amended at 81 FR 29694, May 12, 2016] 
§ 1902.8 Variations and variances.
  (a) The power of the Secretary of Labor under section 16 of the Act to provide reasonable limitations and variations, tolerances, and exemptions to and from any or all provisions of the Act as he may find necessary and proper to avoid serious impairment of the national defense is reserved. 
  (b) No action by a State under a plan shall be inconsistent with action by the Secretary under this section of the Act. 
  (c) Where a State standard is identical to a Federal standard addressed to the same hazard, an employer or group of employers seeking a temporary or permanent variance from such standard, or portion thereof, to be applicable to employment or places of employment in more than one State, including at least one State with an approved plan, may elect to apply to the Assistant Secretary for such variance under the provisions of 29 CFR part 1905. 
  (d) Actions taken by the Assistant Secretary with respect to such application for a variance, such as interim orders, with respect thereto, the granting, denying, or issuing any modification or extension thereof, will be deemed prospectively an authoritative interpretation of the employer or employers' compliance obligations with regard to the State standard, or portion thereof, identical to the Federal standard, or portion thereof, affected by the action in the employment or places of employment covered by the application. 
  (e) Nothing herein shall affect the option of an employer or employers seeking a temporary or permanent variance with applicability to employment or places of employment in more than one State to apply for such variance either to the Assistant Secretary or the individual State agencies involved. However, the filing with, as well as granting, denial, modification, or revocation of a variance request or interim order by, either authority (Federal or State) shall preclude any further substantive consideration of such application on the same material facts for the same employment or place of employment by the other authority. 
  (f) Nothing herein shall affect either Federal or State authority and obligations to cite for noncompliance with standards in employment or places of employment where no interim order, variance, or modification or extension thereof, granted under State or Federal law applies, or to cite for noncompliance with such Federal or State variance action. 
[80 FR 49902, Aug. 18, 2015] 
§ 1902.9 Requirements for approval of State posters.
  (a) 
   (1) In order to inform employees of their protections and obligations under applicable State law, of the issues not covered by State law, and of the continuing availability of Federal monitoring under section 18(f) of the Act, States with approved plans shall develop and require employers to post a State poster meeting the requirements set out in paragraph (a)(5) of this section. 
   (2) Such poster shall be substituted for the Federal poster under section 8(c)(1) of the Act and § 1903.2 of this chapter where the State attains operational status for the enforcement of State standards as defined in § 1954.3(b) of this chapter. 
   (3) Where a State has distributed its poster and has enabling legislation as defined in § 1954.3(b)(1) of this chapter but becomes nonoperational under the provisions of § 1954.3(f)(1) of this chapter because of failure to be at least as effective as the Federal program, the approved State poster may, at the discretion of the Assistant Secretary, continue to be substituted for the Federal poster in accordance with paragraph (a)(2) of this section. 
   (4) A State may, for good cause shown, request, under 29 CFR part 1953, approval of an alternative to a State poster for informing employees of their protections and obligations under the State plans, provided such alternative is consistent with the Act, § 1902.4(c)(2)(iv) and applicable State law. In order to qualify as a substitute for the Federal poster under this paragraph (a), such alternative must be shown to be at least as effective as the Federal poster requirements in informing employees of their protections and obligations and address the items listed in paragraph (a)(5) of this section. 
   (5) In developing the poster, the State shall address but not be limited to the following items: 
     (i) Responsibilities of the State, employers and employees; 
     (ii) The right of employees or their representatives to request workplace inspections; 
     (iii) The right of employees making such requests to remain anonymous; 
     (iv) The right of employees to participate in inspections; 
     (v) Provisions for prompt notice to employers and employees when alleged violations occur; 
     (vi) Protection for employees against discharge or discrimination for the exercise of their rights under Federal and State law; 
     (vii) Sanctions; 
     (viii) A means of obtaining further information on State law and standards and the address of the State agency; 
     (ix) The right to file complaints with the Occupational Safety and Health Administration about State program administration; 
     (x) A list of the issues as defined in § 1902.2(c) which will not be covered by State plan; 
     (xi) The address of the Regional Office of the Occupational Safety and Health Administration; and 
     (xii) Such additional employee protection provisions and obligations under State law as may have been included in the approved State plan. 
  (b) Posting of the State poster shall be recognized as compliance with the posting requirements in section 8(c)(1) of the Act and § 1903.2 of this chapter, provided that the poster has been approved in accordance with subpart B of part 1953 of this chapter. Continued Federal recognition of the State poster is also subject to pertinent findings of effectiveness with regard to the State program under 29 CFR part 1954. 
[80 FR 49902, Aug. 18, 2015] 
Subpart C - Procedures for Submission, Approval and Rejection of State Plans
§ 1902.10 Submission.
  (a) An authorized representative of the State agency or agencies responsible for administering the plan shall submit one copy of the plan to the appropriate Assistant Regional Director of the Occupational Safety and Health Administration, U.S. Department of Labor. The State plan shall include supporting papers conforming to the requirements specified in the subpart B of this part, and the State occupational safety and health standards to be included in the plan, including a copy of any specific or enabling State laws and regulations relating to such standards. If any of the representations concerning the requirements 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 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. 
[36 FR 20751, Oct. 29, 1971, as amended at 80 FR 49903, Aug. 18, 2015] 
Procedure for Proposed or Possible Approval of Plan
§ 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, office of the Assistant Regional Director in whose region the State is located, and an office of the State which shall be designated by the State for this purpose. 
  (d) The notice shall afford interested persons an opportunity to submit in writing, data, views, and arguments on the proposal, subjects, or issues involved within 30 days after publication of the notice in the Federal Register. Thereafter the written comments received or copies thereof shall be available for public inspection and copying at the office of the Director, Office of State Programs, Occupational Safety and Health Administration, office of the Assistant Regional Director in whose region the State is located, and an office of the State which shall be designated by the State for this purpose. 
  (e) Upon his own initiative, the Assistant Secretary may give notice of an informal or formal hearing affording an opportunity for oral comments concerning the plan. 
  (f) In the event no notice of hearing is provided under paragraph (e) of this section it shall be provided that any interested person may request an informal hearing concerning the proposed plan, or any part thereof, whenever particularized written objections thereto are filed within 30 days following publication of the notice in the Federal Register. If the Assistant Secretary finds that substantial objections have been filed, he shall afford a formal or informal hearing on the subjects and issues involved under § 1902.13 or § 1902.14, or shall commence a proceeding under § 1902.17. 
[36 FR 20751, Oct. 29, 1971, as amended at 80 FR 49903, Aug. 18, 2015] 
§ 1902.12 Opportunity for modifications and clarifications.
The Assistant Secretary may afford the State an opportunity to modify or clarify its plan on the basis of any comments received under § 1902.11 or § 1902.13, before commencing a proceeding to reject the plan. In this connection, the State may informally discuss any issues raised by such comments with the staff of the Office of Federal and State Operations. The Assistant Secretary may afford an additional opportunity for public comment, particularly when such an opportunity would not unduly delay final action on the plan and when the comments could be expected to elicit new relevant matter. 
[38 FR 12605, May 14, 1973] 
§ 1902.13 Informal hearing.
Any informal hearing shall be legislative in type. The procedures for informal hearings may take a variety of forms. The appropriateness of any particular form will turn largely upon the proposals, subjects, or issues involved. The rules of procedure for each hearing shall be published with the notice thereof. 
§ 1902.14 Formal hearing.
Any formal hearing provided for under § 1902.11 (e) and (f) shall be commenced upon the publication of reasonable notice in the Federal Register and similar notice by the State. The hearing shall conform with the requirements of 5 U.S.C. 556 and 557. The terms for filing proposed findings and conclusions and exceptions to any tentative decision, or objections to a tentative decision, shall be set forth in the notice. 
§ 1902.15 Certification of the record of a hearing.
Upon completion of any formal or informal hearing, the transcript thereof, together with written submissions, exhibits filed during the hearing, and any post-hearing presentations shall be certified by the officer presiding at the hearing to the Assistant Secretary. 
§ 1902.16 Partial approval of State plans.
  (a) The Assistant Secretary may partially approve a plan under this part whenever: 
   (1) The portion to be approved meets the requirements of this part; 
   (2) The plan covers more than one occupational safety and health issue; and 
   (3) Portions of the plan to be approved are reasonably separable from the remainder of the plan. 
  (b) Whenever the Assistant Secretary approves only a portion of a State plan, he may give notice to the State of an opportunity to show cause why a proceeding should not be commenced for disapproval of the remainder of the plan under subpart C of this part before commencing such a proceeding. 
[80 FR 49903, Aug. 18, 2015] 
Procedure for Proposed or Possible Rejection of Plan
§ 1902.17 The proceeding.
Whenever as a result of (a) an initial examination of a plan, or (b) written or oral comments concerning a plan submitted in an informal rulemaking proceeding concerning a proposed approval of a plan or any subject or issue concerning the plan, the Assistant Secretary proposes to reject a plan or rejection remains in issue for any reason, he shall follow the procedures prescribed in the remaining sections of this subpart. 
§ 1902.18 Previous hearing or other opportunity for comment on plan.
  (a) Whenever an informal hearing has been held under §§ 1902.11 and 1902.13, any evidence submitted in such a hearing shall be considered and may be relied upon whenever it is found that no party will be prejudiced thereby because 
   (1) Of a lack of an opportunity for cross-examination afforded in the informal hearing on the issues involved, or 
   (2) The veracity and demeanor of witnesses are not important with respect to the type of evidence involved (e.g., extensive technical or statistical data), or 
   (3) For any other reason. 
  (b) Any written comments received in response to a notice issued under § 1902.11 shall be a part of the record of the proceeding. 
  (c) Whenever a formal hearing has been held under § 1902.14 the Assistant Secretary shall hold no additional hearing, and shall proceed to issue a tentative decision under § 1902.21. 
§ 1902.19 Notice of hearing.
  (a) Whenever the Assistant Secretary has issued no previous notice concerning the plan, or only informal rule making proceedings have been conducted concerning the plan, the Assistant Secretary shall publish in the Federal Register an appropriate notice concerning the plan and provide an opportunity for formal hearing and decision on the possible rejection of the plan and on any subsidiary issues. The notice also shall set forth such rules as may be necessary so as to assure compliance with 5 U.S.C. 556 and 557 in the conduct of the proceeding. The time for filing proposed findings and conclusions and exceptions to any tentative decision shall be set forth in the notice. 
  (b) Not later than 5 days following the publication of the notice in the Federal Register, required by paragraph (a) of this section, the applying State agency shall publish, or cause to be published, within the State reasonable notice containing the same information. 
Decisions
§ 1902.20 Decision following informal proceeding.
  (a) This section deals with a situation where the Assistant Secretary has 
   (1) Afforded interested persons an opportunity to submit written data, views, or arguments concerning a proposal, subject, or issue concerning a plan; or 
   (2) Has in addition provided an informal hearing concerning a proposal, subject, or issue concerning a plan. 
  (b) 
   (1) 
     (i) After consideration of all relevant information which has been presented, if the Assistant Secretary approves a plan he shall issue a decision to that effect. 
     (ii) In the event the plan is approved under § 1902.2(b), the decision shall state that the plan does not fully meet the criteria set forth in § 1902.3, and shall summarize the schedule and any other measures for bringing the plan up to the level of such criteria. 
     (iii) The decision shall also reflect the Assistant Secretary's intention as to continued Federal enforcement of Federal standards in areas covered by the plan. Provisions for continued Federal enforcement shall take into consideration: 
      (a) Whether the plan is approved under § 1902.2(a) or § 1902.2(b); 
      (b) The schedule for coming up to Federal standards in any § 1902.2(b) plan; and 
      (c) Any other relevant matters. 
   (2) After consideration of all relevant information contained in any written or oral comments received in any informal proceeding, if the Assistant Secretary proposes to disapprove a plan, or the disposition of a subject or issue permits the possible disapproval of a plan, he shall publish a notice to that effect, and commence a proceeding meeting the requirements of § 1902.19. 
§ 1902.21 Tentative decision following formal proceeding.
  (a) On the basis of the whole record of any hearing held under § 1902.14 or § 1902.19, the Assistant Secretary shall issue a tentative decision either approving or disapproving the plan. The tentative decision shall include a statement of the findings and conclusions and reasons or bases therefor on all material issues of fact, law, or discretion which have been presented. The tentative decision shall be published in the Federal Register. 
  (b) The State agency and other interested persons participating in the hearing may waive the tentative decision. In such event the Assistant Secretary shall issue a final decision under § 1902.22. 
§ 1902.22 Final decision following formal proceeding.
  (a) Except when interested persons participating in the hearing have waived the tentative decision under § 1902.21(b) interested persons participating in the hearing shall have an opportunity to file exceptions to a tentative decision and objections to such exceptions within periods of time to be specified in the tentative decision. An original and four copies of any exception or objections shall be filed. 
  (b) 
   (1) Thereafter the Assistant Secretary shall issue a final decision ruling upon each exception and objection filed. The final decision shall be published in the Federal Register. 
   (2) Any final decision approving a plan shall contain the provisions prescribed in § 1902.20(b)(1)(iii) concerning Federal enforcement in areas covered by the plan. 
§ 1902.23 Publication of decisions.
All decisions approving or disapproving a plan shall be published in the Federal Register. 
Subpart D - Procedures for Determinations Under section 18(e) of the Act
Source: 40 FR 54782, Nov. 26, 1975, unless otherwise noted. 
General
§ 1902.30 Purpose and scope.
This subpart contains procedures and criteria under which the Assistant Secretary of Labor 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 12-71, 36 FR 8754) will make his determination on whether to grant final approval to State plans in accordance with the provisions of section 18(e) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 667) (hereinafter referred to as the Act). 
§ 1902.31 Definitions.
As used in this subpart, unless the context clearly indicates otherwise: 
  Act means the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.) 
  Affirmative 18(e) determination means an affirmative determination under section 18(e) of the Act that the State plan or any modification thereof, is in actual operation meeting the criteria and indices of section 18(c) of the Act and subpart B of this part so as to warrant the withdrawal of the application of discretionary Federal enforcement and standards authority from issues covered by the plan, or by any modification thereof. 
  Assistant Regional Director means the Assistant Regional Director for Occupational Safety and Health for the region in which a State is located. 
  Assistant Secretary means the Assistant Secretary of Labor for Occupational Safety and Health. 
  Commencement of a case under section 18(e) of the Act means, for the purpose of retaining Federal jurisdiction despite an affirmative 18(e) determination, the issuance of a citation, and in the case of an imminent danger, the initiation of enforcement proceedings under section 13 of the Act. 
  Commencement of plan operations means the beginning of operations under a plan following the approval of the plan by the Assistant Secretary and in no case may be later than the effective date of the initial funding grant provided under section 23(g) of the Act. 
  Development step includes, but is not limited to, those items listed in the published developmental schedule, or any revisions thereof, for each plan. A developmental step also includes those items specified in the plan as approved under section 18(c) of the Act for completion by the State, as well as those items which under the approval decision were subject to evaluations and changes deemed necessary as a result thereof to make the State program at least as effective as the Federal program within the 3 years developmental period. (See 29 CFR 1953.4(a)). 
  Initial approval means approval of a State plan, or any modification thereof, under section 18(c) of the Act and subpart C of this part. 
  Person means any individual, partnership, association, corporation, business trust, legal representative, organized group of individuals, or any agency, authority or instrumentality of the United States or of a State. 
  Separable portion of a plan for purposes of an 18(e) determination generally means more than one industrial, occupational or hazard grouping as defined in § 1902.2(c)(1) which is administratively practicable and reasonably separable from the remainder of the plan. (See 29 CFR 1952.6(a).) 
[40 FR 54782, Nov. 26, 1975, as amended at 67 FR 60128, Sept. 25, 2002; 80 FR 49903, Aug. 18, 2015] 
§ 1902.32 General policies.
  (a) Sections 18 (e) and (f) of the Act provide for the continuing evaluation and monitoring of State plans approved under section 18(c) of the Act. The Assistant Secretary's decision whether to grant an affirmative 18(e) determination will be based, in part, on the results of these evaluations. Section 18(e) provides that a period of not less than 3 years shall have passed before the Assistant Secretary may make a determination that the State program in actual operations is applying the criteria of section 18(c) of the Act. In the case of a developmental plan, § 1902.2(b) of this part requires that the Assistant Secretary must have at least one year in which to evaluate the plan's actual operations following the completion of all developmental steps specified in the plan. Thus, to be considered for an 18(e) determination, at least three years shall have passed following commencement of operations after the initial approval of a State's occupational safety and health plan by the Assistant Secretary. In the case of a developmental plan, at least one year shall have passed following the completion of all developmental steps, but, in any event, at least three years must have passed following initial approval of the plan before discretionary Federal enforcement authority and standards may be withdrawn from issues covered by an approved plan. 
  (b) In making an 18(e) determination, the Assistant Secretary will determine if actual operations under a State's plan, or under a separable portion of the plan, indicate that the State is applying the criteria of section 18(c) of the Act and the indices of effectiveness of subpart B of this part in a manner which renders operations under the plan "at least as effective as" operations under the Federal program in providing safe and healthful employment and places of employment within the State. In making this determination, the Assistant Secretary may consider such information which he deems appropriate for an informed decision. 
  (c) If the Assistant Secretary makes an affirmative 18(e) determination, the Federal enforcement provisions of sections 5(a) (2), 8 (except for the purposes of continuing evaluations under section 18(f) of the Act), 9, 10, 13 and 17 and standards promulgated under section 6 of the Act shall not apply with respect to those occupational safety and health issues covered under the plan which have been given an affirmative 18(e) determination. However, the Assistant Secretary may retain jurisdiction over proceedings commenced under sections 9, 10 and 13 of the Act before the date of his determination. In addition, the Assistant Secretary shall retain his jurisdiction under the anti-discrimination provisions of section 11(c) of the Act. 
  (d) If the Assistant Secretary determines that a State plan, or any portion thereof, has not met the criteria for an 18(e) determination, he shall retain his authority under the enforcement provisions of sections 5(a) (2), 8, 9, 10, 13, and 17 and his standards authority under section 6 of the Act in the issues found ineligible for an 18(e) determination. In addition, his decision may result in the commencement of proceedings for withdrawal of approval of the plan, or any separable portion thereof, under 29 CFR part 1955. 
  (e) Once a State's plan, or any modification thereof, 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 "at least as effective as" the Federal program operations in the issues covered by the determination. As the Federal program changes and thereby becomes more effective, the State is correspondingly required to adjust its program at a level which would provide a program for workplace safety and health which would be "at least as effective as" the improvements in the Federal program. A failure to comply with this requirement may result in the revocation of the affirmative 18(e) determination and the resumption of Federal enforcement and standards authority and/or in the commencement of proceedings for the withdrawal of approval of the plan, or any portion thereof, pursuant to 29 CFR part 1955. 
  (f) The Assistant Secretary may reconsider and, if necessary, rescind or revoke all or a separable portion of an affirmative 18(e) determination and reinstate concurrent Federal enforcement authority if he finds that a State does not maintain its commitment to provide a program for employee safety and health protection meeting the requirements of section 18(c) of the Act. This authority is designed to be used in instances where operations under a State program are found to be less effective than under the Federal program because of unusual circumstances which are temporary in nature. The Assistant Secretary may also use this procedure to reinstate Federal enforcement authority in conjunction with plan withdrawal proceedings in order to ensure that there is no serious gap in his commitment to assure safe and healthful working conditions so far as possible for every employee. 
Completion of Developmental Steps - Certification
§ 1902.33 Developmental period.
Upon the commencement of plan operations after the initial approval of a State's plan by the Assistant Secretary, a State has three years in which to complete all of the developmental steps specified in the plan as approved. Section 1953.4 of this chapter sets forth the procedures for the submission and consideration of developmental changes by OSHA. Generally, whenever a State completes a developmental step, it must submit the resulting plan change as a supplement to its plan to OSHA for approval. OSHA's approval of such changes is then published in the Federal Register. 
[80 FR 49904, Aug. 18, 2015] 
§ 1902.34 Certification of completion of developmental steps.
  (a) Upon the completion of all of the developmental steps in a State's plan, which is to be accomplished not later than three years following commencement of plan operations after approval of the plan by the Assistant Secretary under section 18(c), the Assistant Regional Director shall certify, as provided in paragraph (b) of this section, that all developmental steps in the plan have been met and that the State's program is to be evaluated on the basis of its eligibility for an 18(e) determination after at least one year of evaluations of the plan. 
  (b) Upon determining that a State has completed all of its developmental steps, the Assistant Regional Director shall prepare a certification which he shall promptly forward to the Assistant Secretary. The certification shall include, but shall not be limited to, the following; 
   (1) A list of all developmental steps or revisions thereof, plan amendments or changes which result in the completion of the steps or revisions thereof, and the dates the Assistant Secretary's or the Assistant Regional Director's approval of each change was published in the Federal Register; 
   (2) Substantive changes, if any, in the State program which were approved by the Assistant Secretary and their dates of publication in the Federal Register; 
   (3) Documentation that the legal basis for the applicable State merit system has been approved by the U.S. Civil Service Commission and that the actual operations of the State merit system has been found acceptable by the Occupational Safety and Health Administration with the advice of the U.S. Civil Service Commission; and 
   (4) A description of the issues which are covered by the State plan. Where applicable, the certification shall include a description of those separable portions of the plan which have been certified for 18(e) evaluation purposes as well as those portions of the plan which were not certified by the Assistant Regional Director. 
  (c) After a review of the certification and the State's plan, if the Assistant Secretary finds that the State has completed all the developmental steps specified in the plan, he shall publish the certification in the Federal Register. 
[40 FR 54782, Nov. 26, 1975, as amended at 80 FR 49904, Aug. 18, 2015] 
§ 1902.35 Effect of certification.
Publication of the certification acknowledging the completion of all of the developmental steps in a State's plan will automatically initiate the evaluation of a State's plan for the purposes of an 18(e) determination. Evaluation for the purposes of an 18(e) determination will continue for at least one year after the publication of the certification in the Federal Register. Federal enforcement authority under sections 5(a)(2), 8, 9, 10, 11(c), 13, and 17 of the Act and Federal standards authority under section 6 of the Act will not be relinquished during the evaluation period. Evaluation conducted for 18(e) determination purposes will be based on the criteria set forth in §§ 1902.37 and 1902.38. 
Basis for 18(e) Determinations
§ 1902.36 General provisions.
  (a) In making his evaluation of the actual operations of a State's plan for the purposes of an 18(e) determination, the Assistant Secretary shall consider all relevant data which will aid him in making an effective determination. In his evaluation he shall consider whether the requirements of section 18(c) of the Act and the criteria for State plans outlined in subpart B of this part as well as those in § 1902.37 are being applied in actual operations for a reasonable period of time in a manner which warrants the termination of concurrent Federal enforcement authority and standards in issues covered under the plan. 
  (b) The Assistant Secretary's evaluation for an 18(e) determination will be addressed to consideration of whether the criteria and indices in § 1902.37(a) are being applied by the State in such a manner as to render its program in operation at least as effective as operations under the Federal program. In considering the question of such application, the Assistant Secretary shall also consider the factors provided under § 1902.37(b). The Assistant Secretary's evaluation may include such other information on the application of the criteria and indices in § 1902.37 such as information developed from comments received from the public and the results of any hearings which may have been held under § 1902.40 concerning the proposed 18(e) determination. 
§ 1902.37 Factors for determination.
  (a) The Assistant Secretary shall determine if the State has applied and implemented all the specific criteria and indices of effectiveness of §§ 1902.3 and 1902.4 of this part. 
  (b) In determining whether a State has applied the criteria and indices of effectiveness in paragraph (a) of this section in actual operations, the Assistant Secretary will, among other things related to the application of the criteria and indices, consider whether: 
   (1) The State has a sufficient number of adequately trained and competent personnel to discharge its responsibilities under the plan. 
   (2) The State has adhered to the procedures which it has adopted and which have been approved either under the State plan or in State plan changes or under any other procedures for approval authorized by the Assistant Secretary. 
   (3) The State has timely adopted all Federal standards, and amendments thereto, for issues covered under the plan or has timely developed and promulgated standards which are at least as effective as the comparable Federal standards and amendments thereto. 
   (4) If the State has adopted Federal standards, the State's interpretation and application of such standards have been consistent with the applicable Federal interpretation and application. Where the State has developed and promulgated its own standards, such standards have been interpreted and applied in a manner which is at least as effective as the interpretation and application of comparable Federal standards. This requirement acknowledges that State standards may have been approved by the Assistant Regional Director, but emphasizes the requirement that the standards are to be at least as effective as the comparable Federal standards in actual operations. 
   (5) If any State standard, whether it is an adopted Federal standard or a standard developed by a State, has been subject to administrative or judicial challenge, the State has taken the necessary administrative, judicial or legislative action to correct any deficiencies in its program resulting from such challenge. 
   (6) In granting permanent variances from a standard the State has assured that the employer provides conditions of employment which are as safe and healthful as those which would prevail if he complied with the standard. 
   (7) In granting temporary variances from a standard, the State has ensured that the recipient of the variance has come into compliance with the standard as early as possible. 
   (8) The State inspection program is being implemented in a manner which allows a sufficient allocation of resources to be directed toward target industries and target health hazards as designated by the State while providing adequate attention to all other workplaces covered under the plan, or any modification thereof. 
   (9) The State exercises the authority through appropriate means, to enforce its right of entry and inspection wherever such right of entry or inspection is refused. 
   (10) Inspections of workplaces are conducted by State inspectors in a competent manner, following approved enforcement procedures. This includes a requirement that the inspectors obtain adequate information to support any citations which may be issued. 
   (11) The State issues citations, proposed penalties and notices for failure to abate in a timely manner. 
   (12) The State proposes penalties in a manner at least as effective as under the Federal program, including the proposing of penalties for first instance violations and the consideration of factors comparable to those required to be considered under the Federal program. 
   (13) The State ensures the abatement of hazards for which a citation has been issued, including the issuance of notices of failure to abate and appropriate penalties. 
   (14) Wherever appropriate, the State agency has sought administrative and judicial review of adverse adjudications. This factor also addresses whether the State has taken the appropriate and necessary administrative, legislative or judicial action to correct any deficiencies in its enforcement program resulting from an adverse administrative or judicial determination. 
   (15) Insofar as it is available, analysis of the annual occupational safety and health survey by the Bureau of Labor Statistics, as well as of other available Federal and State measurements of program impact on worker safety and health, which analysis also takes into consideration various local factors, indicates that trends in worker safety and health injury and illness rates under the State program compare favorably to those under the Federal program. 
[40 FR 54782, Nov. 26, 1975; 40 FR 58143, Dec. 15, 1975] 
Procedures for 18(e) Determination
§ 1902.38 Evaluation of plan following certification.
  (a) Following the publication in the Federal Register under § 1902.34 of the certification acknowledging the completion of all developmental steps specified in the plan, or any portion thereof, the Assistant Secretary will evaluate and monitor the actual operations under the State plan for at least 1 year before determining whether the State is eligible for an 18(e) determination. The evaluation will assess the actual operation of the State's fully implemented program in accordance with the criteria in § 1902.37 and take into account any information available to the Assistant Secretary affecting the State's program. 
  (b) The Assistant Regional Director shall prepare a semi-annual report of his evaluation of the actual operations under the State plan or any portion thereof in narrative form. The Assistant Regional Director's evaluation report will be transmitted to the Assistant Secretary who will then transmit the report to the State. The State shall be afforded an opportunity to respond to each evaluation report. 
[40 FR 54782, Nov. 26, 1975, as amended at 42 FR 58746, Nov. 11, 1977] 
§ 1902.39 Completion of evaluation.
  (a) After evaluating the actual operations of the State plan, or any portion thereof, for at least 1 year following publication of the certification in the Federal Register under § 1902.34, the Assistant Secretary shall notify the State whenever he determines that the State will be eligible for an 18(e) determination. In addition, a State may request an 18(e) determination following the evaluation period noted above. In no case shall this determination of eligibility be later than 2 years following the publication of the certification of the completion of developmental steps in the Federal Register under § 1902.34. In the case of a plan which was not developmental, the determination of eligibility shall not be sooner than 3 years following the date of commencement of operations under the plan. 
  (b) After it has been determined that a State will be eligible for an 18(e) determination, the Assistant Regional Director shall prepare a final report of his evaluation of the actual operations under a State's plan or portion thereof which may be subject to the 18(e) determination. The Assistant Regional Director's report shall be transmitted to the Assistant Secretary. The Assistant Secretary shall transmit such report to the State and the State shall have an opportunity to respond to the report. 
  (c) Whenever it has been determined that a State's plan, or separable portion thereof, is eligible for an 18(e) determination, the Assistant Secretary shall publish a notice in the Federal Register. The notice shall meet the requirements of the remaining paragraphs of this section. No later than 10 days following the publication of the notice in the Federal Register, the affected State agency shall publish, or cause to be published, within the State, reasonable notice containing the same information. 
  (d) The notice shall indicate that the plan, or any separable portion thereof, is in issue before the Assistant Secretary for a determination as to whether the criteria in section 18(c) of the Act are being applied in actual operation, and indicate the particular substantive issues, if any, for consideration in making such determination. Where a portion of a plan is in issue for such a determination, the notice shall specify such portions of the plan as well as those portions of the plan which are not in issue for the determination. 
  (e) The notice shall afford interested persons an opportunity to submit in writing, data, views, and arguments on the proposed 18(e) determination, and the affected State an opportunity to respond to such submissions. 
  (f) The notice shall also state that any interested person or the affected State may request an informal hearing concerning the proposed 18(e) determination whenever particularized written objections thereto are filed within 35 days following publication of the notice in the Federal Register. 
  (g) If the Assistant Secretary finds that substantial objections are filed which relate to the proposed 18(e) determination, the Assistant Secretary shall, and in any other case may, publish a notice of informal hearing in the Federal Register not later than 30 days after the last day for filing written views or comments. The notice shall include: 
   (1) A statement of the time, place and nature of the proceeding; 
   (2) A specification of the substantial issues which have been raised and on which an informal hearing has been requested; 
   (3) The requirement for the filing of an intention to appear at the hearing, together with a statement of the position to be taken with regard to the issues specified, and of the evidence to be adduced in support of the position; 
   (4) The designation of a presiding officer to conduct the hearing; and 
   (5) Any other appropriate provisions with regard to the proceeding. 
  (h) Not later than 10 days following the publication of the notice in the Federal Register, required by paragraph (g) of this section, the affected agency shall publish, or cause to be published, within the State reasonable notice containing the same information. 
Effective Date Note
Effective Date Note: At 43 FR 11196, Mar. 17, 1978, § 1902.39(a) was suspended indefinitely, effective Jan. 20, 1978. 
§ 1902.40 Informal hearing.
  (a) Any hearing conducted under this section shall be legislative in type. However, fairness may require an opportunity for cross-examination on pertinent issues. The presiding officer is empowered to permit cross-examination under such circumstances. The essential intent is to provide an opportunity for participation and comment by interested persons which can be carried out expeditiously and without rigid procedures which might unduly impede or protract the 18(e) determination process. 
  (b) Although the hearing shall be informal and legislative in type, this section is intended to provide more than the bare essentials of informal proceedings under 5 U.S.C. 553. The additional requirements are the following: 
   (1) The presiding officer shall be a hearing examiner appointed under 5 U.S.C. 3105. 
   (2) The presiding officer shall provide an opportunity for cross-examination on pertinent issues. 
   (3) The hearing shall be reported verbatim, and a transcript shall be available to any interested person on such terms as the presiding officer may provide. 
  (c) The officer presiding at a hearing shall have all the power necessary or appropriate to conduct a fair and full hearing, including the powers: 
   (1) To regulate the course of the proceedings; 
   (2) To dispose of procedural requests, objections, and comparable matters; 
   (3) To confine the presentation to the issues specified in the notice of hearing, or, where appropriate, to matters pertinent to the issue before the Assistant Secretary; 
   (4) To regulate the conduct of those present at the hearing by appropriate means; 
   (5) To take official notice of material facts not appearing in the evidence in the record, as long as the parties are afforded an opportunity to show evidence to the contrary; 
   (6) In his discretion, to keep the record open for a reasonable and specified time to receive additional written recommendations with supporting reasons and any additional data, views, and arguments from any person who has participated in the oral proceeding. 
  (d) Upon the completion of the oral presentations, the transcripts thereof, together with written submissions on the proceedings, exhibits filed during the hearing, and all posthearing comments, recommendations, and supporting reasons shall be certified by the officer presiding at the hearing to the Assistant Secretary. 
§ 1902.41 Decision.
  (a) Within a reasonable time generally within 120 days after the expiration of the period provided for the submission of written data, views, and arguments on the issues on which no hearing is held, or within a reasonable time, generally not to exceed 120 days after the certification of the record of a hearing, the Assistant Secretary shall publish his decision in the Federal Register. His decision shall state whether or not an affirmative 18(e) determination has been made for the State plan or any separable portion thereof, or whether he intends to withdraw approval of the plan or any portion thereof pursuant to part 1955 of this chapter. The action of the Assistant Secretary shall be taken after consideration of all information, including his evaluations of the actual operations of the plan, and information presented in written submissions and in any hearings held under this subpart. 
  (b) Any decision under this section shall incorporate a concise statement of its grounds and purpose and shall respond to any substantial issues which may have been raised in written submissions or at the hearing. 
  (c) All decisions concerning the Assistant Secretary's determination under section 18(e) of the Act shall be published in the Federal Register. 
[40 FR 54782, Nov. 26, 1975, as amended at 80 FR 49904, Aug. 18, 2015] 
§ 1902.42 Effect of affirmative 18(e) determination.
  (a) In making an affirmative 18(e) determination, the Assistant Secretary determines that a State has applied the provisions of its plan, or any modification thereof, in accordance with the criteria of section 18(c) of the Act and that the State has applied the provisions of this part in a manner which renders the actual operations of the State program "at least as effective as" operations under the Federal program. 
  (b) In the case of an affirmative 18(e) determination of a separable portion(s) of a plan, the Assistant Secretary determines that the State has applied the separable portion(s) of the plan in accordance with the criteria of section 18(c) of the Act in a manner comparable to Federal operations covering such portions and that the criteria of this part are being applied in a manner which renders the actual operations of such separable portion(s) of the State program "at least as effective as" operations of such portions under the Federal program. 
  (c) Upon making an affirmative 18(e) determination, the standards promulgated under section 6 of the Act and the enforcement provisions of section 5(a)(2), 8 (except for the purpose of continuing evaluations under section 18(f) of the Act), 9, 10, 13 and 17 of the Act shall not apply with respect to those occupational safety and health issues covered under the plan for which an affirmative 18(e) determination has been granted. The Assistant Secretary shall retain his authority under the above sections for those issues covered in the plan which have not been granted an affirmative 18(e) determination. 
  (d) The Assistant Secretary will retain jurisdiction under the citation and contest provisions of sections 9 and 10 of the Act and the imminent-danger provisions of section 13 where such proceedings have been commenced prior to the date of his determination. 
§ 1902.43 Affirmative 18(e) decision.
  (a) In publishing his affirmative 18(e) decision in the Federal Register the Assistant Secretary's notice shall include, but shall not be limited to the following: 
   (1) Those issues under the plan over which the Assistant Secretary is withdrawing his standards and enforcement authority; 
   (2) A statement that 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; 
   (3) An amendment to the appropriate section of part 1952 of this chapter; 
   (4) A statement that the Assistant Secretary is not precluded from revoking his determination and reinstating his standards and enforcement authority under § 1902.47 et seq., if his continuing evaluations under section 18(f) of the Act show that the State has substantially failed to maintain a program which is at least as effective as operations under the Federal program, or if the State does not submit program change supplements to its plan to the Assistant Secretary as required by 29 CFR part 1953. 
[40 FR 54782, Nov. 26, 1975, as amended at 80 FR 49904, Aug. 18, 2015] 
§ 1902.44 Requirements applicable to State plans granted affirmative 18(e) determinations.
  (a) A State whose plan, or modification thereof, has been granted an affirmative 18(e) determination will be required to maintain a program within the scope of such determination which will be "at least as effective as" operations under the Federal program in providing employee safety and health protection at covered workplaces within the comparable scope of the Federal program. This requirement includes submitting all required reports to the Assistant Secretary, as well as submitting supplements to the Assistant Secretary for his approval whenever there is a change in the State's program, whenever the results of evaluations conducted under section 18(f) show that some portion of a State plan has an adverse impact on the operations of the State plan or whenever the Assistant Secretary determines that any alteration in the Federal program could have an adverse impact on the "at least as effective as" status of the State program. See part 1953 of this chapter. 
  (b) A substantial failure to comply with the requirements of this section may result in the revocation of the affirmative 18(e) determination and the resumption of Federal enforcement authority, and may also result in proceedings for the withdrawal of approval of the plan or any portion thereof pursuant to part 1955 of this chapter. 
§ 1902.45 [Reserved]
§ 1902.46 Negative 18(e) determination.
  (a) This section sets out the procedures which shall be followed whenever the Assistant Secretary determines that a State's plan, or any separate portion thereof, has not met the criteria for an affirmative 18(e) determination. 
  (b) If the Assistant Secretary determines that a State plan, or a separable portion thereof, has not met the criteria of section 18(c) of the Act and that actual operations under the plan, or portion thereof, have not met the criteria for an affirmative determination set forth in § 1902.37, he shall retain his standards authority under section 6 of the Act and his enforcement authority under sections 5(a)(2), 8, 9, 10, 13, and 17 of the Act for those issues covered under the plan or such portions of the plan which were subject to his negative determination. 
  (c) A decision under this section may result in the commencement of proceedings for withdrawal of approval of the plan or any separable portion thereof pursuant to part 1955 of this chapter. 
  (d) Where the Assistant Secretary determines that operations under a State plan or any separable portion thereof have not met the criteria for an affirmative 18(e) determination, but are not of such a nature as to warrant the initiation of withdrawal proceedings, the Assistant Secretary may, at his discretion, afford the State a reasonable time to meet the criteria for an affirmative 18(e) determination after which time he may initiate proceedings for withdrawal of plan approval. This discretionary authority will be applied in the following manner: 
   (1) Upon determining that a State shall be subject to a final 18(e) determination, the Assistant Secretary shall notify the agency designated by the State to administer its program, within the State of his decision that the State's program, or a separable portion thereof, shall be subject to a final 18(e) determination. The Assistant Secretary shall give the State a reasonable time, generally not less than 1 year, in which to meet the criteria for an affirmative 18(e) determination. 
   (2) The Assistant Secretary shall also publish a notice in the Federal Register outlining his reasons for not making an affirmative 18(e) determination at the time. The notice will also set forth the reasonable time the State was granted to meet the criteria for an affirmative 18(e) determination and set forth such conditions as the Assistant Secretary deems proper for the continuation of the State's plan or such portions subject to this action. 
   (3) The State shall be afforded an opportunity to agree to the conditions of the Assistant Secretary's decision. 
   (4) Upon the expiration of the time granted to a State to meet the criteria for an affirmative 18(e) determination under paragraph (d)(2) of this section, the Assistant Secretary may initiate proceedings to determine whether a State shall be granted an affirmative 18(e) determination. The procedures outlined in this subpart shall be applicable to any proceedings initiated under this paragraph. 
Procedure for Reconsideration and Revocation of an Affirmative 18(e) Determination
§ 1902.47 Reconsideration of an affirmative 18(e) determination.
  (a) The Assistant Secretary may at any time reconsider on his own initiative or on petition of an interested person his decision granting an affirmative 18(e) determination. 
  (b) Such reconsideration shall be based on results of his continuing evaluation of a State plan after it has been granted an affirmative 18(e) determination. 
§ 1902.48 The proceeding.
Whenever, as a result of his reconsideration, the Assistant Secretary proposes to revoke his affirmative 18(e) determination, he shall follow the procedures in the remaining sections of this subpart. 
§ 1902.49 General notice.
  (a) Whenever the Assistant Secretary proposes to revoke an affirmative 18(e) determination, he shall publish a notice in the Federal Register meeting the requirements of the remaining paragraphs of this section. No later than 10 days following the publication of the notice in the Federal Register, the affected State agency shall publish, or cause to be published, reasonable notice within the State containing the same information. 
  (b) The notice shall indicate the reasons for the proposed action. 
  (c) The notice shall afford interested persons including the affected State, an opportunity to submit in writing, data, views, and arguments on the proposal within 35 days after publication of the notice in the Federal Register. The notice shall also provide that any interested person may request an informal hearing concerning the proposed revocation whenever particularized written objections thereto are filed within 35 days following publication of the notice in the Federal Register. If the Assistant Secretary finds that substantial objections have been filed, he shall afford an informal hearing on the proposed revocation under § 1902.50. 
  (d) The Assistant Secretary may, upon his own initiative, give notice of an informal hearing affording an opportunity for oral comments concerning the proposed revocation. 
§ 1902.50 Informal hearing.
Any informal hearing shall be legislative in type. The rules of procedure for each hearing shall be those contained in § 1902.40 and will be published with the notice thereof. 
§ 1902.51 Certification of the records of a hearing.
Upon completion of an informal hearing, the transcript thereof, together with written submissions, exhibits filed during the hearing, and any post-hearing presentations shall be certified by the officer presiding at the hearing to the Assistant Secretary. 
§ 1902.52 Decision.
  (a) After consideration of all relevant information which has been presented, the Assistant Secretary shall issue a decision on the continuation or revocation of the affirmative 18(e) determination. 
  (b) The decision revoking the determination shall also reflect the Assistant Secretary's determination that concurrent Federal enforcement and standards authority will be reinstated within the State for a reasonable time until he has withdrawn his approval of the plan, or any separable portion thereof, pursuant to part 1955 of this chapter or he has determined that the State has met the criteria for an 18(e) determination pursuant to the applicable procedures of this subpart. 
§ 1902.53 Publication of decisions.
All decisions on the reconsideration of an affirmative 18(e) determination shall be published in the Federal Register.

As of 4-4-22

PART 1953 - CHANGES TO STATE PLANS 
Authority: Sec. 18, 84 Stat. 1608 (29 U.S.C. 667); Secretary of Labor's Order No. 1-2012 (77 FR 3912, Jan. 25, 2012). 
Source: 67 FR 60125, Sept. 25, 2002, unless otherwise noted. 
§ 1953.1 Purpose and scope.
  (a) This part implements the provisions of section 18 of the Occupational Safety and Health Act of 1970 ("OSH Act" or the "Act") which provides for State plans for the development and enforcement of State occupational safety and health standards. These plans must meet the criteria in section 18(c) of the Act, and part 1902 of this chapter (for plans covering both private sector and State and local government employers) or part 1956 of this chapter (for plans covering only State and local government employers), either at the time of submission or - where the plan is developmental - within the three year period immediately following commencement of the plan's operation. Approval of a State plan is based on a finding that the State has, or will have, a program, pursuant to appropriate State law, for the adoption and enforcement of State standards that is "at least as effective" as the Federal program. 
  (b) When submitting plans, the States provide assurances that they will continue to meet the requirements in section 18(c) of the Act and part 1902 or part 1956 of this chapter for a program that is "at least as effective" as the Federal. Such assurances are a fundamental basis for approval of plans. (See §§ 1902.3 and 1956.2 of this chapter.) From time to time after initial plan approval, States will need to make changes to their plans. This part establishes procedures for submission and review of State plan supplements documenting those changes that are necessary to fulfill the State's assurances, the requirements of the Act, and part 1902 or part 1956 of this chapter. 
  (c) Changes to a plan may be initiated in several ways. In the case of a developmental plan, changes are required to document establishment of those necessary structural program components that were not in place at the time of plan approval. These commitments are included in a developmental schedule approved as part of the initial plan. These "developmental changes" must be completed within the three year period immediately following the commencement of operations under the plan. Another circumstance requiring subsequent changes to a State plan would be the need to keep pace with changes to the Federal program, or "Federal Program Changes." A third situation would be when changes are required as a result of the continuing evaluation of the State program. Such changes are called "evaluation changes." Finally, changes to a State program's safety and health requirements or procedures initiated by the State without a Federal parallel could have an impact on the effectiveness of the State program. Such changes are called "State-initiated changes." While requirements for submission of a plan supplement to OSHA differ depending on the type of change, all supplements are processed in accordance with the procedures in § 1953.6. 
§ 1953.2 Definitions.
  (a) OSHA means the Assistant Secretary of Labor for Occupational Safety and Health, or any representative authorized to perform any of the functions discussed in this part, as set out in implementing Instructions. 
  (b) State means an authorized representative of the agency designated to administer a State plan under § 1902.3(b) of this chapter. 
  (c) Plan change means any modification made by a State to its approved occupational safety and health State plan which has an impact on the plan's effectiveness. 
  (d) Plan supplement means all documents necessary to accomplish, implement, describe and evaluate the effectiveness of a change to a State plan which differs from the parallel Federal legislation, regulation, policy or procedure. (This would include a copy of the complete legislation, regulation, policy or procedure adopted; an identification of each of the differences; and an explanation of how each provision is at least as effective as the comparable Federal provision.) 
  (e) Identical plan change means one in which the State adopts the same program provisions and documentation as the Federal program with the only differences being those modifications necessary to reflect a State's unique structure (e.g., organizational responsibility within a State and corresponding titles or internal State numbering system). Different plan change means one in which the State adopts program provisions and documentation that are not identical as defined in this paragraph. 
  (g) Developmental change is a change made to a State plan which documents the completion of a program component which was not fully developed at the time of initial plan approval. 
  (h) Federal program change is a change made to a State plan when OSHA determines that an alteration in the Federal program could render a State program less effective than OSHA's if it is not similarly modified. 
  (i) Evaluation change is a change made to a State plan when evaluations of a State program show that some substantive aspect of a State plan has an adverse impact on the implementation of the State's program and needs revision. 
  (j) State-initiated change is a change made to a State plan which is undertaken at a State's option and is not necessitated by Federal requirements. 
§ 1953.3 General policies and procedures.
  (a) Effectiveness of State plan changes under State law. Federal OSHA approval of a State plan under section 18(b) of the OSH Act in effect removes the barrier of Federal preemption, and permits the State to adopt and enforce State standards and other requirements regarding occupational safety or health issues regulated by OSHA. A State with an approved plan may modify or supplement the requirements contained in its plan, and may implement such requirements under State law, without prior approval of the plan change by Federal OSHA. Changes to approved State plans are subject to subsequent OSHA review. If OSHA finds reason to reject a State plan change, and this determination is upheld after an adjudicatory proceeding, the plan change would then be excluded from the State's Federally-approved plan. 
  (b) Required State plan notifications and supplements. Whenever a State makes a change to its legislation, regulations, standards, or major changes to policies or procedures, which affect the operation of the State plan, the State shall provide written notification to OSHA. When the change differs from a corresponding Federal program component, the State shall submit a formal, written plan supplement. When the State adopts a provision which is identical to a corresponding Federal provision, written notification, but no formal plan supplement, is required. However, the State is expected to maintain the necessary underlying State document (e.g., legislation or standard) and to make it available for review upon request. All plan change supplements or required documentation must be submitted within 60 days of adoption of the change. Submission of all notifications and supplements may be in electronic format. 
  (c) Plan supplement availability. The underlying documentation for identical plan changes shall be maintained by the State. Annually, States shall submit updated copies of the principal documents comprising the plan, or appropriate page changes, to the extent that these documents have been revised. To the extent possible, plan documents will be maintained and submitted by the State in electronic format and also made available in such manner. 
  (d) Advisory opinions. Upon State request, OSHA may issue an advisory opinion on the approvability of a proposed change which differs from the Federal program prior to promulgation or adoption by the State and submission as a formal supplement. 
  (e) Alternative procedures. Upon reasonable notice to interested persons, the Assistant Secretary may prescribe additional or alternative procedures in order to expedite the review process or for any other good cause which may be consistent with the applicable laws. 
[67 FR 60125, Sept. 25, 2002, as amended at 80 FR 49908, Aug. 18, 2015] 
§ 1953.4 Submission of plan supplements.
  (a) Developmental changes. 
   (1) Sections 1902.2(b) and 1956.2(b) of this chapter require that each State with a developmental plan must set forth in its plan, as developmental steps, those changes which must be made to its initially-approved plan for its program to be at least as effective as the Federal program and a timetable for making these changes. The State must notify OSHA of a developmental change when it completes a developmental step or fails to meet any developmental step. 
   (2) If the completion of a developmental step is the adoption of a program component which is identical to the Federal program component, the State need only submit documentation, such as the cover page of an implementing directive or a notice of promulgation, that it has adopted the program component, within 60 days of adoption of the change, but must make the underlying documentation available for Federal and public review upon request. 
   (3) If the completion of a developmental step involves the adoption of policies or procedures which differ from the Federal program, the State must submit one copy of the required plan supplement within 60 days of adoption of the change. 
   (4) When a developmental step is missed, the State must submit a supplement which documents the impact on the program of the failure to complete the developmental step, an explanation of why the step was not completed on time and a revised timetable with a new completion date (generally not to exceed 90 days) and any other actions necessary to ensure completion. Where the State has an operational status agreement with OSHA under § 1954.3 of this Chapter, the State must provide an assurance that the missed step will not affect the effectiveness of State enforcement in any issues for which the State program has been deemed to be operational. 
   (5) If the State fails to submit the required documentation or supplement, as provided in § 1953.4(a)(2), (3) or (4), when the developmental step is scheduled for completion, OSHA shall notify the State that documentation or a supplement is required and set a timetable for submission of any required documentation or supplement, generally not to exceed 60 days. 
  (b) Federal Program changes. 
   (1) When a significant change in the Federal program would have an adverse impact on the "at least as effective" status of the State program if a parallel State program modification were not made, State adoption of a change in response to the Federal program change shall be required. A Federal program change that would not result in any diminution of the effectiveness of a State plan compared to Federal OSHA generally would not require adoption by the State. 
   (2) Examples of significant changes to the Federal program that would normally require a State response would include a change in the Act, promulgation or revision of OSHA standards or regulations, or changes in policy or procedure of national importance. A Federal program change that only establishes procedures necessary to implement a new or established policy, standard or regulation does not require a State response, although the State would be expected to establish policies and procedures which are "at least as effective," which must be available for review on request. 
   (3) When there is a change in the Federal program which requires State action, OSHA shall advise the States. This notification shall also contain a date by which States must adopt a corresponding change or submit a statement why a program change is not necessary. This date will generally be six months from the date of notification, except where the Assistant Secretary determines that the nature or scope of the change requires a different time frame, for example, a change requiring legislative action where a State has a biennial legislature or a policy of major national implications requiring a shorter implementing time frame. State notification of intent may be required prior to adoption. 
   (4) If the State change is different from the Federal program change, the State shall submit one copy of the required supplement within 60 days of State adoption. The supplement shall contain a copy of the relevant legislation, regulation, policy or procedure and documentation on how the change maintains the "at least as effective as" status of the plan. 
   (5) If the State adopts a change identical to the Federal program change, the State is not required to submit a supplement. However, the State shall provide documentation that it has adopted the change, such as the cover page of an implementing directive or a notice of promulgation, within 60 days of State adoption. 
   (6) The State may demonstrate why a program change is not necessary because the State program is already the same as or at least as effective as the Federal program change. Such submissions will require review and approval as set forth in § 1953.6. 
   (7) Where there is a change in the Federal program which does not require State action but is of sufficient national interest to warrant indication of State intent, the State may be required to provide such notification within a specified time frame. 
  (c) Evaluation changes. 
   (1) Special and periodic evaluations of a State program by OSHA in cooperation with the State may show that some portion of a State plan has an adverse impact on the effectiveness of the State program and accordingly requires modification to the State's underlying legislation, regulations, policy or procedures as an evaluation change. For example, OSHA could find that additional legislative or regulatory authority may be necessary to effectively pursue the State's right of entry into workplaces, or to assure various employer rights. 
   (2) OSHA shall advise the State of any evaluation findings that require a change to the State plan and the reasons supporting this decision. This notification shall also contain a date by which the State must accomplish this change and submit either the change supplement or a timetable for its accomplishment and interim steps to assure continued program effectiveness, documentation of adoption of a program component identical to the Federal program component, or, as explained in paragraph (c)(5) of this section, a statement demonstrating why a program change is not necessary. 
   (3) If the State adopts a program component which differs from a corresponding Federal program component, the State shall submit one copy of a required supplement within 60 days of adoption of the change. The supplement shall contain a copy of the relevant legislation, regulation, policy or procedure and documentation on how the change maintains the "at least as effective as" status of the plan. 
   (4) If the State adopts a program component identical to a Federal program component, submission of a supplement is not required. However, the State shall provide documentation that it has adopted the change, such as the cover page of an implementing directive or a notice of promulgation, within 60 days of adoption of the change and shall retain all other documentation within the State available for review upon request. 
   (5) The State may demonstrate why a program change is not necessary because the State program is meeting the requirements for an "at least as effective" program. Such submission will require review and approval as set forth in § 1953.6. 
  (d) State-initiated changes. 
   (1) A State-initiated change is any change to the State plan which is undertaken at a State's option and is not necessitated by Federal requirements. State-initiated changes may include legislative, regulatory, administrative, policy or procedural changes which impact on the effectiveness of the State program. 
   (2) A State-initiated change supplement is required whenever the State takes an action not otherwise covered by this part that would impact on the effectiveness of the State program. The State shall notify OSHA as soon as it becomes aware of any change which could affect the State's ability to meet the approval criteria in parts 1902 and 1956 of this chapter, e.g., changes to the State's legislation, and submit a supplement within 60 days. Other State initiated supplements must be submitted within 60 days after the change occurred. The State supplement shall contain a copy of the relevant legislation, regulation, policy or procedure and documentation on how the change maintains the "at least as effective as" status of the plan. If the State fails to notify OSHA of the change or fails to submit the required supplement within the specified time period, OSHA shall notify the State that a supplement is required and set a time period for submission of the supplement, generally not to exceed 30 days. 
§ 1953.5 Special provisions for standards changes.
  (a) Permanent standards. 
   (1) Where a Federal program change is a new permanent standard, or a more stringent amendment to an existing permanent standard, the State shall promulgate a State standard adopting such new Federal standard, or more stringent amendment to an existing Federal standard, or an at least as effective equivalent thereof, within six months of the date of promulgation of the new Federal standard or more stringent amendment. The State may demonstrate that a standard change is not necessary because the State standard is already the same as or at least as effective as the Federal standard change. In order to avoid delays in worker protection, the effective date of the State standard and any of its delayed provisions must be the date of State promulgation or the Federal effective date whichever is later. The Assistant Secretary may permit a longer time period if the State makes a timely demonstration that good cause exists for extending the time limitation. State permanent standards adopted in response to a new or revised Federal standard shall be submitted as a State plan supplement within 60 days of State promulgation in accordance with § 1953.4(b), Federal Program changes. 
   (2) Because a State may include standards and standards provisions in addition to Federal standards within an issue covered by an approved plan, it would generally be unnecessary for a State to revoke a standard when the comparable Federal standard is revoked or made less stringent. If the State does not adopt the Federal action, it need only provide notification of its intent to retain the existing State standard to OSHA within 6 months of the Federal promulgation date. If the State adopts a change to its standard parallel to the Federal action, it shall submit the appropriate documentation as provided in §§ 1953.4(b)(3) or (4) - Federal program changes. However, in the case of standards applicable to products used or distributed in interstate commerce where section 18(c)(2) of the Act imposes certain restrictions on State plan authority, the modification, revision, or revocation of the Federal standard may necessitate the modification, revision, or revocation of the comparable State standard unless the State standard is required by compelling local conditions and does not unduly burden interstate commerce. 
   (3) Where a State on its own initiative adopts a permanent State standard for which there is no Federal parallel, the State shall submit it within 60 days of State promulgation in accordance with § 1953.4(d) - State-initiated changes, 
  (b) Emergency temporary standards. 
   (1) Immediately upon publication of an emergency temporary standard in the Federal Register, OSHA shall advise the States of the standard and that a Federal program change supplement shall be required. This notification must also provide that the State has 30 days after the date of promulgation of the Federal standard to adopt a State emergency temporary standard if the State plan covers that issue. The State may demonstrate that promulgation of an emergency temporary standard is not necessary because the State standard is already the same as or at least as effective as the Federal standard change. The State standard must remain in effect for the duration of the Federal emergency temporary standard which may not exceed six (6) months. 
   (2) Within 15 days after receipt of the notice of a Federal emergency temporary standard, the State shall advise OSHA of the action it will take. State standards shall be submitted in accordance with the applicable procedures in § 1953.4(b) - Federal Program Changes, except that the required documentation or plan supplement must be submitted within 5 days of State promulgation. 
   (3) If for any reason, a State on its own initiative adopts a State emergency temporary standard, it shall be submitted as a plan supplement in accordance with § 1953.4(c), but within 10 days of promulgation. 
§ 1953.6 Review and approval of plan supplements.
  (a) OSHA shall review a supplement to determine whether it is at least as effective as the Federal program and meets the criteria in the Act and implementing regulations and the assurances in the State plan. If the review reveals any defect in the supplement, or if more information is needed, OSHA shall offer assistance to the State and shall provide the State an opportunity to clarify or correct the change. 
  (b) If upon review, OSHA determines that the differences from a corresponding Federal component are purely editorial and do not change the substance of the policy or requirements on employers, it shall deem the change identical. This includes "plain language" rewrites of new Federal standards or previously approved State standards which do not change the meaning or requirements of the standard. OSHA will inform the State of this determination. No further review or Federal Register publication is required. 
  (c) Federal OSHA may seek public comment during its review of plan supplements. Generally, OSHA will seek public comment if a State program component differs significantly from the comparable Federal program component and OSHA needs additional information on its compliance with the criteria in section 18(c) of the Act, including whether it is at least as effective as the Federal program and in the case of a standard applicable to products used or distributed in interstate commerce, whether it is required by compelling local conditions or unduly burdens interstate commerce under section 18(c)(2) of the Act. 
  (d) If the plan change meets the approval criteria, OSHA shall approve it and shall thereafter publish a Federal Register notice announcing the approval. OSHA reserves the right to reconsider its decision should subsequent information be brought to its attention. 
  (e) If a State fails to submit a required supplement or if examination discloses cause for rejecting a submitted supplement, OSHA shall provide the State a reasonable time, generally not to exceed 30 days, to submit a revised supplement or to show cause why a proceeding should not be commenced either for rejection of the supplement or for failure to adopt the change in accordance with the procedures in § 1902.17 or Part 1955 of this chapter.
As of 4-4-22

PART 1954 - PROCEDURES FOR THE EVALUATION AND MONITORING OF APPROVED STATE PLANS 
Authority: Sec. 18, 84 Stat. 1608 (29 U.S.C. 667); Secretary of Labor's Order No. 1-2012 (77 FR 3912, Jan. 25, 2012). 
Source: 39 FR 1838, Jan. 15, 1974, unless otherwise noted. 
Subpart A - General
§ 1954.1 Purpose and scope.
  (a) Section 18(f) of the Williams-Steiger Occupational Safety and Health Act of 1970 (hereinafter referred to as the Act) provides that "the Secretary shall, on the basis of reports submitted by the State agency and his own inspections make a continuing evaluation of the manner in which each State having a plan approved * * * is carrying out such plan." 
  (b) This part 1954 applies to the provisions of section 18(f) of the Act relating to the evaluation of approved plans for the development and enforcement of State occupational safety and health standards. The provisions of this part 1954 set forth the policies and 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 12-71, 36 FR 8754, May 12, 1971) will continually monitor and evaluate the operation and administration of approved State plans. 
  (c) Following approval of a State plan under section 18(c) of the Act, workplaces in the State are subject to a period of concurrent Federal and State authority. The period of concurrent enforcement authority must last for at least three years. Before ending Federal enforcement authority, the Assistant Secretary is required to make a determination as to whether the State plan, in actual operation, is meeting the criteria in section 18(c) of the Act including the requirements in part 1902 of this chapter and the assurances in the approval plan itself. After an affirmative determination has been made, the provisions of sections 5(a)(2), 8 (except for the purpose of carrying out section 18(f) of the Act), 9, 10, 13, and 17 of the Act shall not apply with respect to any occupational safety or health issues covered under the plan. The Assistant Secretary may, however, retain jurisdiction under the above provisions in any proceeding commenced under section 9 or 10 of the Act before the date of the determination under section 18(e) of the Act. 
  (d) During this period of concurrent Federal and State authority, the operation and administration of the plan will be continually evaluated under section 18(f) of the Act. This evaluation will continue even after an affirmative determination has been made under section 18(e) of the Act. 
§ 1954.2 Monitoring system.
  (a) To carry out the responsibilities for continuing evaluation of State plans under section 18(f) of the Act, the Assistant Secretary has established a State Program Performance Monitoring System. Evaluation under this monitoring system encompasses both the period before and after a determination has been made under section 18(e) of the Act. The monitoring system is a three phased system designed to assure not only that developmental steps are completed and that the operational plan is, in fact, at least as effective as the Federal program with respect to standards and enforcement, but also to provide a method for continuing review of the implementation of the plan and any modifications thereto to assure compliance with the provisions of the plan during the time the State participates in the cooperative Federal-State program. 
  (b) Phase I of the system begins with the initial approval of a State plan and continues until the determination required by section 18(e) of the Act is made. During Phase I, the Assistant Secretary will secure monitoring data to make the following key decisions: 
   (1) What should be the level of Federal enforcement; 
   (2) Should plan approval be continued; and 
   (3) What level of technical assistance is needed by the State to enable it to have an effective program. 
  (c) Phase II of the system relates to the determination required by section 18(e) of the Act. The Assistant Secretary must decide, after no less than three years following approval of the plan, whether or not to relinquish Federal authority to the State for issues covered by the occupational safety and health program in the State plan. Phase II will be a comprehensive evaluation of the total State program, drawing upon all information collected during Phase I. 
  (d) Phase III of the system begins after an affirmative determination has been made under section 18(e) of the Act. The continuing evaluation responsibility will be exercised under Phase III, and will provide data concerning the total operations of a State program to enable the Assistant Secretary to determine whether or not the plan approval should be continued or withdrawn. 
  (e) The State program performance monitoring system provides for, but is not limited to, the following major data inputs: 
   (1) Quarterly and annual reports of State program activity; 
   (2) Visits to State agencies; 
   (3) On-the-job evaluation of State compliance officers; and 
   (4) Investigation of complaints about State program administration. 
§ 1954.3 Exercise of Federal discretionary authority.
  (a) 
   (1) When a State plan is approved under section 18(c) of the Act, Federal authority for enforcement of standards continues in accordance with section 18(e) of the Act. That section prescribes a period of concurrent Federal-State enforcement authority which must last for at least three years, after which time the Assistant Secretary shall make a determination whether, based on actual operations, the State plan meets all the criteria set forth in section 18(c) of the Act and the implementing regulations in 29 CFR part 1902 and subpart A of 29 CFR part 1952. During this period of concurrent authority, the Assistant Secretary may, but shall not be required to, exercise his authority under sections 5(a)(2), 8, 9, 10, 13 and 17 of the Act with respect to standards promulgated under section 6 of the Act where the State has comparable standards. Accordingly, section 18(e) authorizes, but does not require, the Assistant Secretary to exercise his discretionary enforcement authority over all the issues covered by a State plan for the entire 18(e) period. 
   (2) Existing regulations at 29 CFR part 1902 set forth factors to be considered in determining how Federal enforcement authority should be exercised. These factors include: 
     (i) Whether the plan is developmental or complete; 
     (ii) Results of evaluations conducted by the Assistant Secretary; 
     (iii) The State's schedule for meeting Federal standards; and 
     (iv) Any other relevant matters. 
     (29 CFR 1902.1(c)(2) and 1902.20(b)(1)(iii). 
   (3) Other relevant matters requiring consideration in the decision as to the level of Federal enforcement include: 
     (i) Coordinated utilization of Federal and State resources to provide effective worker protection throughout the Nation; 
     (ii) Necessity for clarifying the rights and responsibilities of employers and employees with respect to Federal and State authority; 
     (iii) Increasing responsibility for administration and enforcement by States under an approved plan for evaluation of their effectiveness; and 
     (iv) The need to react promptly to any failure of the States in providing effective enforcement of standards. 
  (b) Guidelines for determining the appropriate level of Federal enforcement. In light of the requirements of 29 CFR part 1902 as well as the factors mentioned in paragraph (a)(3) of this section, the following guidelines for the extent of the exercise of discretionary Federal authority have been determined to be reasonable and appropriate. When a State plan meets all of these guidelines it will be considered operational, and the State will conduct all enforcement activity including inspections in response to employee complaints, in all issues where the State is operational. Federal enforcement activity will be reduced accordingly and the emphasis will be placed on monitoring State activity in accordance with the provisions of this part. 
   (1) Enabling legislation. A State with an approved plan must have enacted enabling legislation substantially in conformance with the requirements of section 18(c) and 29 CFR part 1902 in order to be considered operational. This legislation must have been reviewed and approved under 29 CFR part 1902. States without such legislation, or where State legislation as enacted requires substantial amendments to meet the requirements of 29 CFR part 1902, will not be considered operational. 
   (2) Approved State standards. The State must have standards promulgated under State law which are identical to Federal standards; or have been found to be at least as effective as the comparable Federal standards; or have been reviewed by OSHA and found to provide overall protection equal to comparable Federal standards. Review of the effectiveness of State standards and their enforcement will be a continuing function of the evaluation process. Where State standards in an issue have not been promulgated by the State or have been promulgated and found not to provide overall protection equal to comparable Federal standards, the State will not be considered operational as to those issues. 
   (3) Personnel. The State must have a sufficient number of qualified personnel who are enforcing the standards in accordance with the State's enabling legislation. Where a State lacks the qualified personnel to enforce in a particular issue; e.g., Occupational Health, the State will not be considered operational as to that issue even though it has enabling legislation and standards. 
   (4) Review of enforcement actions. Provisions for review of State citations and penalties, including the appointment of the reviewing authority and the promulgation of implementing regulations, must be in effect. 
  (c) 
   (1) Evaluation reports. One of the factors to consider in determining the level of Federal enforcement is the result of evaluations conducted under the monitoring system described in this part. While completion of an initial comprehensive evaluation of State operations is not generally a prerequisite for a determination that a State is operational under paragraph (b) of this section, such evaluations will be used in determining the Federal enforcement responsibility in certain circumstances. 
   (2) Where evaluations have been completed prior to the time a determination as to the operational status of a State plan is made, the results of those evaluations will be included in the determination. 
   (3) Where the results of one or more evaluations conducted during the operation of a State plan and prior to an 18(e) determination reveal that actual operations as to one or more aspects of the plan fail in a substantial manner to be at least as effective as the Federal program, and the State does not adequately resolve the deficiencies in accordance with subpart C of part 1953, the appropriate level of Federal enforcement activity shall be reinstated. An example of such deficiency would be a finding that State standards and their enforcement in an issue are not at least as effective as comparable Federal standards and their enforcement. Federal enforcement activity may also be reinstated where the Assistant Secretary determines that such action is necessary to assure occupational safety and health protection to employees. 
  (d) 
   (1) Recognition of State procedures. In order to resolve potential conflicting responsibilities of employers and employees, Federal authority will be exercised in a manner designed to recognize the implementation of State procedures in accordance with approved plans in areas such as variances, informing employees of their rights and obligations, and recordkeeping and reporting requirements. 
     (i) Subject to pertinent findings of effectiveness under this part, Federal enforcement proceedings will not be initiated where an employer is in compliance with a State standard which has been found to be at least as effective as the comparable Federal standard, or with any temporary or permanent variance granted to such employer with regard to the employment or place of employment from such State standard, or any order or interim order in connection therewith, or any modification or extension thereof: Provided such variance action was taken under the terms and procedures required under § 1902.4(b)(2)(iv) of this chapter, and the employer has certified that he has not filed for such variance on the same set of facts with the Assistant Secretary. 
     (ii) Subject to pertinent findings of effectiveness under this part, and approval under part 1953 of this chapter, Federal enforcement proceedings will not be initiated where an employer has posted the approved State poster in accordance with the applicable provisions of an approved State plan and § 1902.9 of this chapter. 
     (iii) Subject to pertinent findings of effectiveness under this part, and approval under part 1953 of this chapter, Federal enforcement proceedings will not be initiated where an employer is in compliance with the recordkeeping and reporting requirements of an approved State plan as provided in § 1902.7 of this chapter. 
   (2) [Reserved] 
  (e) Discrimination complaints. State plan provisions on employee discrimination do not divest the Secretary of Labor of any authority under section 11(c) of the Act. The Federal authority to investigate discrimination complaints exists even after an affirmative 18(e) determination. (See South Carolina decision 37 FR 25932, December 6, 1972). Employee complaints alleging discrimination under section 11(c) of the Act will be subject to Federal jurisdiction. 
  (f) 
   (1) Procedural agreements. A determination as to the operational status of a State plan shall be accompanied by an agreement with the State setting forth the Federal-State responsibilities as follows: 
     (i) Scope of the State's operational status including the issues excluded from the plan, the issues where State enforcement will not be operational at the time of the agreement and the dates for commencement of operations; 
     (ii) Procedures for referral, investigation and enforcement of employee requests for inspections; 
     (iii) Procedures for reporting fatalities and catastrophes by the agency which has received the report to the responsible enforcing authority both where the State has and has not adopted the requirement that employers report as provided in 29 CFR 1904.8; 
     (iv) Specifications as to when and by what means the operational guidelines of this section were met; and 
     (v) Provision for resumption of Federal enforcement activity for failure to substantially comply with this agreement, or as a result of evaluation or other relevant factors. 
   (2) Upon approval of these agreements, the Assistant Secretary shall cause to be published in the Federal Register, notice of the operational status of each approved State plan. 
   (3) Where subsequent changes in the level of Federal enforcement are made, similar Federal Register notices shall be published. 
[39 FR 22126, June 20, 1974, as amended at 39 FR 29182, Aug. 14, 1974; 39 FR 39036, Nov. 5, 1974; 40 FR 25450, June 16, 1975; 67 FR 60129, Sept. 25, 2002; 80 FR 49908, Aug. 18, 2015] 
Subpart B - State Monitoring Reports and Visits to State Agencies
§ 1954.10 Reports from the States.
  (a) In addition to any other reports required by the Assistant Secretary under sections 18(c)(8) and 18(f) of the Act and § 1902.3(1) of this chapter, the State shall submit quarterly and annual reports as part of the evaluation and monitoring of State programs.[[][1]] 
  (b) Each State with an approved State plan shall submit to the appropriate Regional Office an annual occupational safety and health report in the form and detail provided for in the report and the instructions contained therein. 
  (c) Each State with an approved State plan shall submit to the appropriate Regional Office a quarterly occupational safety and health compliance and standards activity report in the form and detail provided for in the report and the instructions contained therein. 
Footnotes - 1954.10
[[][1][]] Such quarterly and annual reports forms may be obtained from the Office of the Assistant Regional Director in whose Region the State is located.
§ 1954.11 Visits to State agencies.
As a part of the continuing monitoring and evaluation process, the Assistant Secretary or his representative shall conduct visits to the designated agency or agencies of State with approved plans at least every 6 months. An opportunity may also be provided for discussion and comments on the effectiveness of the State plan from other interested persons. These visits will be scheduled as needed. Periodic audits will be conducted to assess the progress of the overall State program in meeting the goal of becoming at least as effective as the Federal program. These audits will include case file review and follow-up inspections of workplaces. 
Subpart C - Complaints About State Program Administration (CASPA)
§ 1954.20 Complaints about State program administration.
  (a) Any interested person or representative of such person or groups of persons may submit a complaint concerning the operation or administration of any aspect of a State plan. The complaint may be submitted orally or in writing to the Assistant Regional Director for Occupational Safety and Health (hereinafter referred to as the Assistant Regional Director) or his representative in the Region where the State is located. 
  (b) Any such complaint should describe the grounds for the complaint and specify the aspect or aspects of the administration or operation of the plan which is believed to be inadequate. A pattern of delays in processing cases, of inadequate workplace inspections, or the granting of variances without regard to the specifications in the State plans, are examples. 
  (c) 
   (1) If upon receipt of the complaint, the Assistant Regional Director determines that there are reasonable grounds to believe that an investigation should be made, he shall cause such investigation, including any workplace inspection, to be made as soon as practicable. 
   (2) In determining whether an investigation shall be conducted and in determining the timing of such investigation, the Assistant Regional Director shall consider such factors as: 
     (i) The extent to which the complaint affects any substantial number of persons; 
     (ii) The number of complaints received on the same or similar issues and whether the complaints relate to safety and health conditions at a particular establishment; 
     (iii) Whether the complainant has exhausted applicable State remedies; and 
     (iv) The extent to which the subject matter of the complaint is pertinent to the effectuation of Federal policy. 
§ 1954.21 Processing and investigating a complaint.
  (a) Upon receipt of a complaint about State program administration, the Assistant Regional Director will acknowledge its receipt and may forward a copy of the complaint to the designee under the State plan and to such other person as may be necessary to complete the investigation. The complainant's name and the names of other complainants mentioned therein will be deleted from the complaint and the names shall not appear in any record published, released or made available. 
  (b) In conducting the investigation, the Assistant Regional Director may obtain such supporting information as is appropriate to the complaint. Sources for this additional information may include "spot-check" follow-up inspections of workplaces, review of the relevant State files, and discussion with members of the public, employers, employees and the State. 
  (c) On the basis of the information obtained through the investigation, the Assistant Regional Director shall advise the complainant of the investigation findings and in general terms, any corrective action that may result. A copy of such notification shall be sent to the State and it shall be considered part of the evaluation of the State plan. 
  (d) If the Assistant Regional Director determines that there are no reasonable grounds for an investigation to be made with respect to a complaint under this Subpart, he shall notify the complaining party in writing of such determination. Upon request of the complainant, or the State, the Assistant Regional Director, at his discretion, may hold an informal conference. After considering all written and oral views presented the Assistant Regional Director shall affirm, modify, or reverse his original determination and furnish the complainant with written notification of his decision and the reasons therefore. Where appropriate the State may also receive such notification. 
§ 1954.22 Notice provided by State.
  (a) 
   (1) In order to assure that employees, employers, and members of the public are informed of the procedures for complaints about State program administration, each State with an approved State plan shall adopt not later than July 1, 1974, a procedure not inconsistent with these regulations or the Act, for notifying employees, employers and the public of their right to complain to the Occupational Safety and Health Administration about State program administration. 
   (2) Such notification may be by posting of notices in the workplace as part of the requirement in § 1902.4(c)(2)(iv) of this chapter and other appropriate sources of information calculated to reach the public. 
  (b) [Reserved]

As of 4-4-22

PART 1956 - STATE PLANS FOR THE DEVELOPMENT AND ENFORCEMENT OF STATE STANDARDS APPLICABLE TO STATE AND LOCAL GOVERNMENT EMPLOYEES IN STATES WITHOUT APPROVED PRIVATE EMPLOYEE PLANS 
Authority: Section 18 (29 U.S.C. 667), 29 CFR parts 1902 and 1955, and Secretary of Labor's Order No. 1-2012 (77 FR 3912, Jan. 25, 2012). 
Source: 41 FR 12429, Mar. 4, 1977, unless otherwise noted. 
Subpart A - General
§ 1956.1 Purpose and scope.
  (a) This part sets forth procedures and requirements for approval, continued evaluation, and operation of State plans submitted under section 18 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 667) (hereinafter called the Act) for the development and enforcement of State standards applicable to State and local government employees in States without approved private employee plans. Although section 2(b) of the Act sets forth the policy of assuring every working man and woman safe and healthful working conditions, State and local government agencies are excluded from the definition of "employer" in section 3(5). Only under section 18 of the Act are such public employees ensured protection under the provisions of an approved State plan. Where no such plan is in effect with regard to private employees, State and local government employees have not heretofore been assured any protections under the Act. Section 18(b), however, permits States to submit plans with respect to any occupational safety and health issue with respect to which a Federal standard has been promulgated under section 6 of the Act. Under § 1902.2(c) of this chapter, an issue is defined as "any * * * industrial, occupational, or hazard grouping that is found to be administratively practicable and * * * not in conflict with the purposes of the Act." Since Federal standards are in effect with regard to hazards found in public employment, a State plan covering this occupational category meets the definition of section 18 and the regulations. It is the purpose of this part to assure the availability of the protections of the Act to public employees, where no State plan covering private employees is in effect, by adapting the requirements and procedures applicable to State plans covering private employees to the situation where State coverage under section 18(b) is proposed for public employees only. 
  (b) In adopting these requirements and procedures, consideration should be given to differences between public and private employment. For instance, a system of monetary penalties applicable to violations of public employers may not in all cases be necessarily the most appropriate method of achieving compliance. Further, the impact of the lack of Federal enforcement authority application to public employers requires certain adjustments of private employer plan procedures in adapting them to plans covering only public employees in a State. 
§ 1956.2 General policies.
  (a) Policy. The Assistant Secretary of Labor for Occupational Safety and Health (hereinafter referred to as the Assistant Secretary) will approve a State plan which provides an occupational safety and health program for the protection of State and local government employees (hereinafter State and local government employees are referred to as public employees) that in his judgment meets or will meet the criteria set forth in § 1956.10. Included among these criteria is the requirement that the State plan for public employees (hereinafter such a plan will be referred to as the plan) provides for the development and enforcement of standards relating to hazards in employment covered by the plan which are or will be at least as effective in providing safe and healthful employment and places of employment for public employees as standards promulgated and enforced under section 6 of the Act. In determining whether a plan satisfies the requirement of effectiveness, the Assistant Secretary will measure the plan against the indices of effectiveness, set forth in § 1956.11. 
  (b) Developmental plan. 
   (1) A State plan for an occupational safety and health program for public employees may be approved although, upon submission, it does ot fully meet the criteria set forth in § 1956.10, if it includes satisfactory assurances by the State that it will take the necessary steps to bring the program into conformity with these criteria within the 3-year period immediately following the commencement of the plan's operation. In such a case, the plan shall include the specific actions the State proposes to take, and a time schedule for their accomplishment which is not to exceed 3 years, at the end of which the plan will meet the criteria in § 1956.10. A developmental plan shall include the dates within which intermediate and final action will be accomplished. Although administrative actions, such as stages for application of standards and enforcement, related staffing, development of regulations may be developmental, to be considered for approval, a State plan for public employees must contain at time of plan approval basic State legislative and/or executive authority under which these actions will be taken. If necessary program changes require further implementing executive action by the Governor or supplementary legislative action by the State, a copy of the appropriate order, or the bill or a draft of legislation that will be or has been proposed for enactment shall be submitted, accompanied by: 
     (i) A statement of the Governor's support of the legislation or order and 
     (ii) A statement of legal opinion that the proposed legislation or executive action will meet the requirements of the Act and this part in a manner consistent with the State's constitution and laws. 
   (2) 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 plan for public employees will meet the criteria in § 1956.10 within the indicated 3 year period. In such a case, the Assistant Secretary shall not make a determination that a State is fully applying the criteria in § 1956.10 until the State has completed all the developmental steps specified in the plan which are designed to make it at least as effective as the Federal program for the private sector, and the Assistant Secretary has had at least 1 year to evaluate the plan on the basis of actual operations following the completion of all developmental steps. If at the end of 3 years from the date of commencement of the plan's operation, the State is found by the Assistant Secretary, after affording the State notice and an opportunity for a hearing, not to have substantially completed the developmental steps of the plan, he shall withdraw the approval of the plan. 
   (3) Where a State plan approved under part 1902 of this chapter is discontinued, except for its public employee component, or becomes approved after approval of a plan under this part, the developmental period applicable to the public employee component of the earlier plan will be controlling with regard to any such public employee coverage. For good cause, a State may demonstrate that an additional period of time is required to make adjustments on account of the transfer from one type of plan to another. 
  (c) Scope of a State plan for public employees. 
   (1) A State plan for public employees must provide for the coverage of both State and local government employees to the full extent permitted by the State laws and constitution. The qualification "to the extent permitted by its law" means only that where a State may not constitutionally regulate occupational safety and health conditions in certain political subdivisions, the plan may exclude such political subdivision employees from coverage. 
   (2) The State shall not exclude any occupational, industrial, or hazard grouping from coverage under its plan unless the Assistant Secretary finds that the State has shown there is no necessity for such coverage. 
Subpart B - Criteria
§ 1956.10 Specific criteria.
  (a) General. A State plan for public employees must meet the specific criteria set forth in this section. 
  (b) Designation of State agency. 
   (1) The plan shall designate a State agency or agencies which will be 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 the administration of the plan. 
   (3) A State agency or agencies must be designated with overall responsibility for administering the plan throughout the State. Subject to this overall responsibility, enforcement of standards may be delegated to an appropriate agency having occupational safety and health responsibilities or expertise throughout the State. Included in this overall responsibility are the requirements that the designated agency have, or assure the provision of necessary qualified personnel, legal authority necessary for the enforcement of the standards and make reports as required by the Assistant Secretary. 
  (c) Standards. The State plan for public employees shall include, or provide for the development or adoption of, standards which are or will be at least as effective as those promulgated under section 6 of the Act. The plan shall also contain assurances that the State will continue to develop or adopt such standards. Indices of the effectiveness of standards and procedures for the development or adoption of standards against which the Assistant Secretary will measure the plan in determining whether it is approvable are set forth in § 1956.11(b). 
  (d) Enforcement. 
   (1) The State plan for public employees shall provide a program for the enforcement of the State standards which is, or will be, at least as effective in assuring safe and healthful employment and places of employment as the standards promulgated by section 6 of the Act; and provide assurances that the State's enforcement program for public employees will continue to be at least as effective in this regard as the Federal program in the private sector. Indices of the effectiveness of a State's enforcement plan against which the Assistant Secretary will measure the plan in determining whether it is approvable are set forth in § 1956.11(c). 
   (2) The plan shall require State and local government agencies to comply with all applicable State occupational safety and health standards included in 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 plan shall contain adequate assurances that inspectors will have a right to enter covered workplaces which is at least as effective as that provided in section 8 of the Act for the purpose of inspection or monitoring. Where such entry is refused, the State agency or agencies shall have the authority through appropriate legal process to compel such entry. 
  (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) Personnel. The plan shall provide assurances that the designated agency or agencies and all government agencies to which authority has been delegated, have, or will have, a sufficient number of adequately trained and qualified personnel necessary for the enforcement of 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 plan. Subject to the results of evaluations, 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, modifying or superseding such standards, and guidelines on "at least as effective as" staffing derived from the Federal private employee program will be deemed to meet this requirement. 
  (h) Resources. The 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 public employee program. The Assistant Secretary will make the periodic evaluations of the adequacy of the resources the State has devoted to the plan. 
  (i) Employer records and reports. The plan shall provide assurances that public employers covered by the plan will maintain records and make reports on occupational injuries and illnesses in a manner similar to that required of private employers under the Act. 
  (j) State agency reports to the Assistant Secretary. The 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 for public employees, 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 activities included within the 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 the Assistant Secretary may from time to time require. 
§ 1956.11 Indices of effectiveness.
  (a) General. In order to satisfy the requirements of effectiveness under § 1956.10 (c)(1) and (d)(1), the State plan for public employees 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 for private employees, where applicable, 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 for public employees will, to the extent practicable, be at least as effective as the Federal program for private employees. 
  (b) Standards. 
   (1) The indices for measurement of a State plan for public employees with regard to standards follow in paragraph (b)(2) of this section. The Assistant Secretary will determine whether the State plan for public employees 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 for public employees: 
     (i) Provides for State standards which are or will be at least as effective as the standards promulgated under section 6 of the Act. 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, demonstration, experiments, and experience under this and any other safety and health laws. 
     (ii) Provides an adequate method to assure that its standards will continue to be at least as effective as Federal standards, including Federal standards 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 consideration 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 a public 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 unforeseen hazards, by such means as the authority to promulgate emergency temporary standards. Such authority is particularly appropriate for those situations where public employees are exposed to unique hazards for which existing standards do not provide adequate protection. 
     (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 labelling, posting, and, where appropriate, results of medical 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 the 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 for public employees with regard to enforcement follow in paragraph (c)(2) of this section. The Assistant Secretary will determine whether the 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 for public employees: 
     (i) Provides for inspection of covered workplaces in the State by the designated agency or agencies or any other agency which is duly delegated authority, 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 representative, before, during, and after inspections, to bring possible violations to the attention of the State or local 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 inspector during the physical inspection of the workplace, or where there is no authorized representative, provide for consultation by the inspector with a reasonable number of employees. 
     (iii) Provides for 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 representative, and further provides for informal review of such decisions, 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 public 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 State program for public employees for himself or others, by such means as providing for appropriate sanctions against the State or local agency for such actions, and by providing for the withholding, upon request, of the names of complainants from the employer. 
     (vi) Provides that public 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 a public 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 that the designated agency (or agencies) and any agency to which it has duly delegated authority, 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. 
     (ix) Provides for prompt notice to public 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 public employer and posting of the citation at or near the site of the violation; further provides for advising the public employer of any proposed sanctions, wherever appropriate, by such means as a notice to the employer by certified mail within a reasonable time of any proposed sanctions. 
     (x) Provides effective sanctions against public employers who violate State standards and orders, or applicable public agency standards, such as those prescribed in the Act. In lieu of monetary penalties a complex of enforcement tools and rights, such as various forms of equitable remedies available to the designee including administrative orders; availability of employee rights such as right to contest citations, and provisions for strengthened employee participation in enforcement may be demonstrated to be as effective as monetary penalties in achieving complianace in public employment. In evaluating the effectiveness of an alternate system for compelling compliance, elements of the enforcement educational program such as a system of agency self inspection procedures, and in-house training programs, and employee complaint procedures may be taken into consideration. 
     (xi) Provides for an employer to have the right of review of violations alleged by the State or any agency to which it has duly delegated authority, abatement periods and proposed penalties, where appropriate, for employees or their representatives to challenge the reasonableness of the period of time fixed in the citation for the abatement of the hazard, and for employees or their representatives to have an opportunity to participate in review, proceedings, by such means as providing for admininistrative review, with an opportunity for a full hearing on the issues. 
     (xii) Provides that the State will undertake programs to encourage voluntary compliance by public employers and employees by such means as conducting training and consultation with such employers and employees, and encouraging agency self-inspection programs. 
  (d) Additional indices. Upon his own motion, or after consideration of data, views, and arguments received in any proceedings held under subpart C of this part, the Assistant Secretary may prescribe additional indices for any State plan for public employees which shall be in furtherance of the purpose of this section. 
Subpart C - Approval, Change, Evaluation and Withdrawal of Approval Procedures
§ 1956.20 Procedures for submission, approval and rejection.
The procedures contained in subpart C of part 1902 of this chapter shall be applicable to submission, approval, and rejection of State plans submitted under this part, except that the information required in § 1902.20(b)(1)(iii) would not be included in decisions of approval. 
§ 1956.21 Procedures for submitting changes.
The procedures contained in part 1953 of this chapter shall be applicable to submission and consideration of developmental, Federal program, evaluation, and State-initiated change supplements to plans approved under this part. 
§ 1956.22 Procedures for evaluation and monitoring.
The procedures contained in part 1954 of this chapter shall be applicable to evaluation and monitoring of State plans approved under this part, except that the decision to relinquish Federal enforcement authority under section 18(e) of the Act is not relevant to Phase II and III monitoring under § 1954.2 and the guidelines of exercise of Federal discretionary enforcement authority provided in § 1954.3 are not applicable to plans approved under this part. The factors listed in § 1902.37(b) of this chapter, except those specified in § 1902.37(b)(11) and (12), which would be adapted to the State compliance program, provide the basis for monitoring. 
§ 1956.23 Procedures for certification of completion of development and determination on application of criteria.
The procedures contained in §§ 1902.33 and 1902.34 of this chapter shall be applicable to certification of completion of developmental steps under plans approved in accordance with this part. Such certification shall initiate intensive monitoring of actual operations of the developed plan, which shall continue for at least a year after certification, at which time a determination shall be made under the procedures and criteria of §§ 1902.38, 1902.39, 1902.40 and 1902.41, that on the basis of actual operations, the criteria set forth in §§ 1956.10 and 1956.11 of this part are being applied under the plan. The factors listed in § 1902.37(b) of this chapter, except those specified in § 1902.37(b)(11) and (12) which would be adapted to the State's compliance program provide the basis for making the determination of operational effectiveness. 
§ 1956.24 Procedures for withdrawal of approval.
The procedures and standards contained in part 1955 of this chapter shall be applicable to the withdrawal of approval of plans approved under this part 1956, except that (because these plans, as do public employee programs aproved and financed in connection with a State plan covering private employees, must cover all employees of State and local agencies in a State whenever a State is constitutionally able to do so, at least developmentally), no industrial or occupational issues may be considered a separable portion of a plan under § 1955.2(a)(10); and, as Federal standards and enforcement do not apply to State and local government employers, withdrawal of approval of a plan approved under this part 1956 could not bring about application of the provisions of the Federal Act to such employers as set out in § 1955.4 of this chapter. 
Subpart D - General Provisions and Conditions [Reserved]



