[Code of Federal Regulations]
[Title 29, Volume 5]
[Revised as of July 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1902.37]

[Page 21-22]
 
                             TITLE 29--LABOR
 
CHAPTER XVII--OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, DEPARTMENT 
                                OF LABOR
 
PART 1902_STATE PLANS FOR THE DEVELOPMENT AND ENFORCEMENT OF STATE 
STANDARDS--Table of Contents
 
 Subpart D_Procedures for Determinations Under Section 18(e) of the Act
 
Sec. 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 Sec. Sec. 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

[[Page 22]]

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