[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: 29CFR1902.46]

[Page 25-26]
 
                             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. 1902.46  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 
Sec. 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

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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