When a State plan is approved under section 18(c) of the Act, Federal authority for enforcement of
standards continues in accordance with section 18(e) of the Act. That section prescribes a period of concurrent Federal-State enforcement authority
which must last for at least three years, after which time the Assistant Secretary shall make a determination whether, based on actual operations, the
State plan meets all the criteria set forth in section 18(c) of the Act and the implementing regulations in 29 CFR Part 1902 and Subpart A of 29 CFR
Part 1952. During this period of concurrent authority, the Assistant Secretary may, but shall not be required to, exercise his authority under
sections 5(a)(2), 8, 9, 10, 13 and 17 of the Act with respect to standards promulgated under section 6 of the Act where the State has comparable
standards. Accordingly, section 18(e) authorizes, but does not require, the Assistant Secretary to exercise his discretionary enforcement authority
over all the issues covered by a State plan for the entire 18(e) period.
Existing regulations at 29 CFR, Part 1902 set forth factors to be considered in determining how
Federal enforcement authority should be exercised. These factors include:
Whether the plan is developmental or complete;
results of evaluations conducted by the Assistant Secretary;
the State's schedule for meeting Federal standards; and
any other relevant matters. (29 CFR 1902.1(c)(2) and 1902.20(b)(1)(iii).
Other relevant matters requiring consideration in the decision as to the level of Federal
Coordinated utilization of Federal and State resources to provide effective worker protection
throughout the Nation;
necessity for clarifying the rights and responsibilities of employers and employees with respect
to Federal and State authority;
increasing responsibility for administration and enforcement by States under an approved plan
for evaluation of their effectiveness; and
the need to react promptly to any failure of the States in providing effective enforcement of
Guidelines for determining the appropriate level of Federal enforcement. In light of the requirements
of 29 CFR Part 1902 as well as the factors mentioned in paragraph (a)(3) of this section, the following guidelines for the extent of the exercise of
discretionary Federal authority have been determined to be reasonable and appropriate. When a State plan meets all of these guidelines it will be
considered operational, and the State will conduct all enforcement activity including inspections in response to employee complaints, in all issues
where the State is operational. Federal enforcement activity will be reduced accordingly and the emphasis will be placed on monitoring State activity
in accordance with the provisions of this part.
Enabling legislation. A State with an approved plan must have enacted enabling legislation
substantially in conformance with the requirements of section 18(c) and 29 CFR Part 1902 in order to be considered operational. This legislation must
have been reviewed and approved under 29 CFR Part 1902. States without such legislation, or where State legislation as enacted requires substantial
amendments to meet the requirements of 29 CFR Part 1902, will not be considered operational.
Approved State standards. The State must have standards promulgated under State law which standards
are the same as Federal standards; have been found to be at least as effective as the comparable Federal standards; or have been reviewed by the
Assistant Regional Director under the delegation of authority in 29 CFR 1953.4 and found to provide overall protection equal to comparable Federal
standards. Review of the effectiveness of State standards and their enforcement will be a continuing function of the evaluation process. Where State
standards in an issue have not been promulgated by the State or have been promulgated and found not to provide overall protection equal to comparable
Federal standards, the State will not be considered operational as to those issues.
Personnel. The State must have a sufficient number of qualified personnel who are enforcing the
standards in accordance with the State's enabling legislation. Where a State lacks the qualified personnel to enforce in a particular issue; e.g.,
Occupational Health, the State will not be considered operational as to that issue even though it has enabling legislation and standards.
Review of enforcement actions. Provisions for review of State citations and penalties, including the
appointment of the reviewing authority and the promulgation of implementing regulations, must be in effect.
Evaluation reports. One of the factors to consider in determining the level of Federal enforcement
is the result of evaluations conducted under the monitoring system described in this part. While completion of an initial comprehensive evaluation of
State operations is not generally a prerequisite for a determination that a State is operational under paragraph (b) of this section, such evaluations
will be used in determining the Federal enforcement responsibility in certain circumstances.
Where evaluations have been completed prior to the time a determination as to the operational status
of a State plan is made, the results of those evaluations will be included in the determination.
Where the results of one or more evaluations conducted during the operation of a State plan and
prior to an 18(e) determination reveal that actual operations as to one or more aspects of the plan fail in a substantial manner to be at least as
effective as the Federal program, and the State does not adequately resolve the deficiencies in accordance with Subpart C of Part 1953, the
appropriate level of Federal enforcement activity shall be reinstated. An example of such deficiency would be a finding that State standards and their
enforcement in an issue are not at least as effective as comparable Federal standards and their enforcement. Federal enforcement activity may also be
reinstated where the Assistant Secretary determines that such action is necessary to assure occupational safety and health protection to
Recognition of State procedures. In order to resolve potential conflicting responsibilities of
employers and employees, Federal authority will be exercised in a manner designed to recognize the implementation of State procedures in accordance
with approved plans in areas such as variances, informing employees of their rights and obligations, and record-keeping and reporting
Subject to pertinent findings of effectiveness under this part, Federal enforcement proceedings
will not be initiated where an employer is in compliance with a State standard which has been found to be at least as effective as the comparable
Federal standard, or with any temporary or permanent variance granted to such employer with regard to the employment or place of employment from such
State standard, or any order or interim order in connection therewith, or any modification or extension thereof: Provided such variance action was
taken under the terms and procedures required under 1902.4(b)(2)(iv) of this chapter, and the employer has certified that he has not filed for such
variance on the same set of facts with the Assistant Secretary.
Subject to pertinent findings of effectiveness under this part, and approval under Subpart B and
F of Part 1953, Federal enforcement proceedings will not be initiated where an employer has posted the approved State poster in accordance with the
applicable provisions of an approved State plan and 1952.10 of this chapter.
Subject to pertinent findings of effectiveness under this part, and approval under Subparts B
and F of Part 1953, Federal enforcement proceedings will not be initiated where an employer is in compliance with the record-keeping and reporting
requirements of an approved State plan as provided in 1952.4 of this chapter.
Discrimination complaints. State plan provisions on employee discrimination do not divest the Secretary
of Labor of any authority under section 11(c) of the Act. The Federal authority to investigate discrimination complaints exists even after an
affirmative 18(e) determination. (See South Carolina decision 37 FR 25932, December 6, 1972). Employee complaints alleging discrimination under
section 11(c) of the Act will be subject to Federal jurisdiction.
Procedural agreements. A determination as to the operational status of a State plan shall be
accompanied by an agreement with the State setting forth the Federal-State responsibilities as follows:
Scope of the State's operational status including the issues excluded from the plan, the issues
where State enforcement will not be operational at the time of the agreement and the dates for commencement of operations;
procedures for referral, investigation and enforcement of employee requests for
procedures for reporting fatalities and catastrophes by the agency which has received the
report to the responsible enforcing authority both where the State has and has not adopted the requirement that employers report as provided in 29 CFR
specifications as to when and by what means the operational guidelines of this section were met;
provision for resumption of Federal enforcement activity for failure to substantially comply with
this agreement, or as a result of evaluation or other relevant factors.
Upon approval of these agreements, the Assistant Secretary shall cause to be published in the
FEDERAL REGISTER, notice of the operational status of each approved State plan.
Where subsequent changes in the level of Federal enforcement are made, similar FEDERAL REGISTER
notices shall be published.
[39 FR 22126, June 20, 1974, as amended at 39 FR 29182. Aug. 14, 1974; 39 FR 39036, Nov. 5, 1974; 40 FR 25450, June 16, 1975]