Subpart D
OSHA will evaluate and monitor the State plan for at least one year after publication of the certification. The regulation requires the Assistant Secretary to "evaluate and monitor the actual operations under the State plan for at least 1 year" before deciding on an 18(e) determination, as stated in 1902.38(a).
The Assistant Secretary is responsible for evaluating and monitoring the State's operations. The regulation specifies that "the Assistant Secretary will evaluate and monitor the actual operations under the State plan" in accordance with the criteria in 1902.37 and this evaluation period is described in 1902.38(a).
The Assistant Regional Director must prepare semi-annual narrative evaluation reports during the evaluation period. The regulation directs that "The Assistant Regional Director shall prepare a semi-annual report of his evaluation of the actual operations under the State plan ... in narrative form," as described in 1902.38(b).
The Assistant Regional Director's report is sent to the Assistant Secretary, who then transmits it to the State and gives the State an opportunity to respond. The regulation states the report "will be transmitted to the Assistant Secretary who will then transmit the report to the State" and that "The State shall be afforded an opportunity to respond," as required by 1902.38(b).
The evaluation must assess the actual operation of the State's fully implemented program in accordance with the criteria in 1902.37. The regulation requires that the Assistant Secretary "will evaluate and monitor the actual operations under the State plan" and that the evaluation "will assess the actual operation of the State's fully implemented program in accordance with the criteria in 1902.37."
Yes, the Assistant Secretary may take into account any information available that affects the State's program. The regulation explicitly provides that the evaluation will "take into account any information available to the Assistant Secretary affecting the State's program," as stated in 1902.38(a).
The evaluation requirement applies to both full plan certifications and any portion thereof that has been certified. The regulation states the evaluation occurs "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," and then requires monitoring for at least one year, as described in 1902.38(a).
The one-year evaluation period begins after the publication in the Federal Register of the certification under 1902.34. The regulation ties the evaluation start point to "the publication in the FEDERAL REGISTER under [1902.34] of the certification acknowledging the completion" and then requires the Assistant Secretary to evaluate for at least one year, as set out in 1902.38(a).
The Assistant Regional Director's evaluation reports must be prepared in narrative form. The regulation specifies that "The Assistant Regional Director shall prepare a semi-annual report of his evaluation ... in narrative form," as required by 1902.38(b).
Yes, the State is afforded an opportunity to respond to each semi-annual evaluation report. The regulation states that the Assistant Regional Director's report "will be transmitted to the Assistant Secretary who will then transmit the report to the State" and that "The State shall be afforded an opportunity to respond," as required by 1902.38(b).
The regulation states the Assistant Secretary will evaluate for "at least 1 year" before determining eligibility for an 18(e) determination, which means the evaluation period can extend beyond one year if warranted. This is reflected in the language of 1902.38(a).
No, 1902.38(b) requires semi-annual narrative reports but does not prescribe exact report content; it simply requires that the Assistant Regional Director prepare a narrative evaluation and transmit it as specified. The requirement is described in 1902.38(b). For the substantive criteria that evaluations should address, see 1902.37.
The regulation requires examining how the State's program is functioning in practice—its implemented activities and enforcement—when it refers to "actual operations." The Assistant Secretary "will evaluate and monitor the actual operations under the State plan" and must assess the State's program implementation against the criteria in 1902.37.
The certification is published in the Federal Register under 1902.34. The regulation starts the evaluation process "Following the publication in the FEDERAL REGISTER under [1902.34] of the certification acknowledging the completion of all developmental steps specified in the plan," as stated in 1902.38(a). For the publication step, see 1902.34.
The Assistant Regional Director must produce evaluation reports every six months (semi-annually) during the monitoring period. The regulation requires that "The Assistant Regional Director shall prepare a semi-annual report of his evaluation" as described in 1902.38(b).
The purpose is to determine whether the State is eligible for an 18(e) determination by assessing the State's fully implemented program in actual operation against established criteria. The regulation explains that after certification the Assistant Secretary "will evaluate and monitor the actual operations ... for at least 1 year before determining whether the State is eligible for an 18(e) determination," per 1902.38(a).
Yes, the semi-annual evaluation reports and any information considered in the evaluation inform the Assistant Secretary's decision on 18(e) eligibility. The process requires monitoring and reporting to assess the State's actual operations "before determining whether the State is eligible for an 18(e) determination," as stated in 1902.38(a) and 1902.38(b).
Yes, the State is entitled to respond to each semi-annual report; the regulation requires that "The State shall be afforded an opportunity to respond" to the reports transmitted by the Assistant Secretary. The regulation does not prescribe the exact format or deadline for the State's response, but it does require the opportunity, as set out in 1902.38(b).
Yes, 1902.38 requires evaluation and monitoring of any portion of the plan that has been certified. The regulation explicitly covers both full certifications and certifications of "any portion thereof," and requires evaluation for at least one year following the Federal Register publication under 1902.34.