[Code of Federal Regulations]
[Title 29, Volume 9]
[Revised as of July 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1954.3]

[Page 127-130]
 
                             TITLE 29--LABOR
 
CHAPTER XVII--OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, DEPARTMENT 
                          OF LABOR (CONTINUED)
 
PART 1954_PROCEDURES FOR THE EVALUATION AND MONITORING OF APPROVED STATE 
PLANS--Table of Contents
 
                            Subpart A_General
 
Sec. 1954.3  Exercise of Federal discretionary authority.

    (a)(1) 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

[[Page 128]]

authority over all the issues covered by a State plan for the entire 
18(e) period.
    (2) 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:
    (i) Whether the plan is developmental or complete;
    (ii) Results of evaluations conducted by the Assistant Secretary;
    (iii) The State's schedule for meeting Federal standards; and
    (iv) Any other relevant matters.

(29 CFR 1902.1(c)(2) and 1902.20(b)(1)(iii).
    (3) Other relevant matters requiring consideration in the decision 
as to the level of Federal enforcement include:
    (i) Coordinated utilization of Federal and State resources to 
provide effective worker protection throughout the Nation;
    (ii) Necessity for clarifying the rights and responsibilities of 
employers and employees with respect to Federal and State authority;
    (iii) Increasing responsibility for administration and enforcement 
by States under an approved plan for evaluation of their effectiveness; 
and
    (iv) The need to react promptly to any failure of the States in 
providing effective enforcement of standards.
    (b) 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.
    (1) 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.
    (2) Approved State standards. The State must have standards 
promulgated under State law which are identical to Federal standards; or 
have been found to be at least as effective as the comparable Federal 
standards; or have been reviewed by OSHA 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.
    (3) 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.
    (4) 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.
    (c)(1) 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.
    (2) Where evaluations have been completed prior to the time a 
determination as to the operational status of a

[[Page 129]]

State plan is made, the results of those evaluations will be included in 
the determination.
    (3) 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 employees.
    (d)(1) 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 recordkeeping and reporting requirements.
    (i) 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 Sec. 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.
    (ii) Subject to pertinent findings of effectiveness under this part, 
and approval under Part 1953 of this chapter, 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 Sec. 1952.10.
    (iii) Subject to pertinent findings of effectiveness under this 
part, and approval under part 1953 of this chapter, Federal enforcement 
proceedings will not be initiated where an employer is in compliance 
with the recordkeeping and reporting requirements of an approved State 
plan as provided in Sec. 1952.4.
    (2) [Reserved]
    (e) 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.
    (f)(1) 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:
    (i) 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;
    (ii) Procedures for referral, investigation and enforcement of 
employee requests for inspections;
    (iii) 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 1904.8;
    (iv) Specifications as to when and by what means the operational 
guidelines of this section were met; and
    (v) 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.

[[Page 130]]

    (2) 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.
    (3) 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; 67 FR 60129, 
Sept. 25, 2002]