Tenn. Comp. R. & Regs. 0800-01-05-.18 - ACTION ON PROGRAMS DETERMINED TO BE LESS EFFECTIVE THAN AS REQUIRED BY THE ACT

(1) Whenever the Commissioner, as a result of inspections or other activity conducted under the provisions of any rule of this chapter, determines that an employer's occupational safety and health program is less effective than as required by T.C.A. § 50-3-906 in the case of state agencies, or T.C.A. § 50-3-910 in the case of local governments electing to develop their own program of compliance he shall:
(a) In the case of state agencies:
1. Issue the chief executive officer of the agency a written notification stating in what respects the agency has not adequately met its responsibilities, and provide a period of twenty (20) days for the agency to respond by establishing procedures to attain an "at least as effective as" status or contesting the notification.
2. When an agency responds to the Commissioner's notification by establishing procedures to attain an "at least as effective as" status, such procedures shall be in detail and include dates for accomplishment of each item required.
3. If an agency does not advise the Commissioner within twenty (20) days of its intention to contest such notification, the Commissioner shall submit a copy of such notification to the governor, together with a request that such action be taken as will bring such agency into compliance with the provisions of the Act.
4. If, within twenty (20) days of receipt of notification, the agency advises the Commissioner of its intention to contest the notification, the Commissioner shall promptly notify the commission, which shall afford opportunity for a hearing and shall thereafter issue to the governor its findings of fact and recommendations for action.
(b) In the case of local governments:
1. Issue the chief executive officer of the local government written notification by certified mail stating in what respects the local government has not met its duty to provide its employees with conditions of employment consistent with the objectives of the Act, and request a response within twenty (20) days of receipt of the notification which states procedures and dates to attain an "at least as effective as" status.
2. Should the local government not respond to the Commissioner's letter of notification within the twenty (20) day period prescribed, the Manager of Public Sector Operations, Administrator, or the Commissioner shall contact the chief executive officer of the local government by telephone or in person in an attempt to ascertain what the local government's response will be. Such contact shall be made within twenty (20) to thirty (30) days following receipt of the Commissioner's letter of notification. An additional ten (10) days may be granted for the response by the local government. If no response is received within forty-five (45) days, the local government shall be considered as not having responded.
3. If the local government's response is not considered satisfactory toward achieving an "as least as effective as" status, the Commissioner shall negotiate with the local government in an effort to obtain a satisfactory response. Such negotiation, however, will not extend beyond one hundred twenty (120) days following the date of the Commissioner's original letter of notification.
4. Whenever a local government is considered as not having responded or whenever negotiations have not resulted in a satisfactory response, the Commissioner shall, within twenty (20) days following a time period specified for response or negotiation, submit a copy of all written communications and a written summary of all verbal communications of his efforts to have the local government attain an "at least as effective as" status to the Governor. The Commissioner shall request that the Governor issue an executive order declaring the local government's program under T.C.A. § 50-3-910 null and void, thereby allowing such local government to be treated as a private employer for the purpose of enforcing all provisions of the Act.
(c) The Commissioner shall include a summary of any action taken under the provisions of this rule in his annual report to the governor and the general assembly, together with the reasons therefor, and may recommend legislation as appropriate to insure that employers meet the objectives of the Act.

Notes

Tenn. Comp. R. & Regs. 0800-01-05-.18
Original rule filed August 14, 1977; effective September 13, 1977. Amendment filed November 25, 1983; effective February 13, 1984. Repeal and new rule filed September 13, 2002; effective January 28, 2003.

Authority: T.C.A. §§ 4-3-1411, 50-3-102, 50-3-201, 50-3-906 through 50-3-908, 50-3-910, and 50-3-912.

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