[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: 29CFR1902.39]

[Page 22-23]
 
                             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. 1902.39  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 Sec. 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 Sec. 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.

[[Page 23]]

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: At 43 FR 11196, Mar. 17, 1978, Sec. 1902.39(a) 
was suspended indefinitely, effective January 20, 1978.