State plan evaluation completion

OSHA will notify a State after evaluating the State plan's actual operations for at least one year following publication of the certification of completion of developmental steps, and the eligibility determination must occur no later than two years after that publication. For plans that were not developmental, the regulation says an eligibility determination must not be made sooner than three years after the plan began operations. See 1902.39(a) and the related 1902.34 requirement about the publication of the certification.

The Assistant Regional Director must prepare a final report of the evaluation of the State plan operations and transmit that report to the Assistant Secretary, who will then send it to the State and give the State an opportunity to respond. See 1902.39(b).

The Assistant Secretary must publish a notice in the FEDERAL REGISTER that a State plan (or portion) is eligible for an 18(e) determination, and the affected State agency must publish a reasonable notice containing the same information within the State no later than 10 days after the Federal Register publication. See 1902.39(c).

The notice must state that the plan (or separable portion) is in issue before the Assistant Secretary for a determination of whether the criteria in section 18(c) are being applied in actual operation and must identify any particular substantive issues to be considered. See 1902.39(d).

Yes; the notice must provide interested persons an opportunity to submit written data, views, and arguments on the proposed 18(e) determination, and the affected State is afforded an opportunity to respond to those submissions. See 1902.39(e).

Any interested person or the affected State may request an informal hearing if they file particularized written objections within 35 days after the notice is published in the FEDERAL REGISTER. See 1902.39(f).

If the Assistant Secretary finds that substantial objections relating to the proposed 18(e) determination were filed, the Assistant Secretary must publish a notice of informal hearing; the Assistant Secretary may also publish such a notice in other cases. The hearing notice must be published in the FEDERAL REGISTER no later than 30 days after the last day for filing written views or comments. See 1902.39(g).

The hearing notice must include the time, place, and nature of the proceeding; the substantial issues raised and requested for hearing; the requirement to file an intention to appear with a statement of position and the evidence to be offered; the designation of a presiding officer to conduct the hearing; and any other appropriate provisions regarding the proceeding. See 1902.39(g)(1), 1902.39(g)(2), 1902.39(g)(3), 1902.39(g)(4), and 1902.39(g)(5).

The affected State agency must publish, or cause to be published within the State, reasonable notice containing the same information as the FEDERAL REGISTER hearing notice no later than 10 days after that Federal Register publication. See 1902.39(h).

When only a portion of a plan is in issue for the 18(e) determination, the notice must explicitly specify which portions are in issue and which are not. See the provision addressing partial-plan notice requirements in 1902.39.

The regulation requires that particularized written objections be filed within 35 days but does not define the precise meaning of 'particularized.' Practically, objections should be written, specific, and factual—identifying the exact plan provisions or practices objected to, why they are inadequate or inconsistent with section 18(c), and any supporting facts or documents—to give the Assistant Secretary and other parties a clear basis to evaluate the request for an informal hearing. See 1902.39(f).

The regulation requires that the Assistant Secretary transmit the Assistant Regional Director's report to the State and that the State have an opportunity to respond, but it does not set a specific deadline for that response in 1902.39(b); timelines for public submissions and objections are set elsewhere in the section (for example, the 35-day period for filing objections after the FEDERAL REGISTER notice under 1902.39(f)). See 1902.39(b) and 1902.39(e).

A party filing an intention to appear must state the position they will take on the specified issues and describe the evidence they intend to present in support of that position. See 1902.39(g)(3).

The hearing notice will designate the presiding officer who will conduct the informal hearing; the selection and designation are set out in the hearing notice itself. See 1902.39(g)(4).