[Code of Federal Regulations]
[Title 29, Volume 5]
[Revised as of July 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1902.32]

[Page 18-19]
 
                             TITLE 29--LABOR
 
CHAPTER XVII--OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, DEPARTMENT 
                                OF LABOR
 
PART 1902_STATE PLANS FOR THE DEVELOPMENT AND ENFORCEMENT OF STATE 
STANDARDS--Table of Contents
 
 Subpart D_Procedures for Determinations Under Section 18(e) of the Act
 
Sec. 1902.32  General policies.

    (a) Sections 18 (e) and (f) of the Act provide for the continuing 
evaluation and monitoring of State plans approved under section 18(c) of 
the Act. The Assistant Secretary's decision whether to grant an 
affirmative 18(e) determination will be based, in part, on the results 
of these evaluations. Section 18(e) provides that a period of not less 
than 3 years shall have passed before the Assistant Secretary may make a 
determination that the State program in actual operations is applying 
the criteria of section 18(c) of the Act. In the case of a developmental 
plan, Sec. 1902.2(b) of this part requires that the Assistant Secretary 
must have at least one year in which to evaluate the plan's actual 
operations following the completion of all developmental steps specified 
in the plan. Thus, to be considered for an 18(e) determination, at least 
three years shall have passed following commencement of operations after 
the initial approval of a State's occupational safety and health plan by 
the Assistant Secretary. In the case of a developmental plan, at least 
one year shall have passed following the completion of all developmental 
steps, but, in any event, at least three years must have passed 
following initial approval of the plan before discretionary Federal 
enforcement authority and standards may be withdrawn from issues covered 
by an approved plan.
    (b) In making an 18(e) determination, the Assistant Secretary will 
determine if actual operations under a State's plan, or under a 
separable portion of the plan, indicate that the State is applying the 
criteria of section 18(c) of the Act and the indices of effectiveness of 
subpart B of this part in a manner which renders operations under the 
plan ``at least as effective as'' operations under the Federal program 
in

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providing safe and healthful employment and places of employment within 
the State. In making this determination, the Assistant Secretary may 
consider such information which he deems appropriate for an informed 
decision.
    (c) If the Assistant Secretary makes an affirmative 18(e) 
determination, the Federal enforcement provisions of sections 5(a) (2), 
8 (except for the purposes of continuing evaluations under section 18(f) 
of the Act), 9, 10, 13 and 17 and standards promulgated under section 6 
of the Act shall not apply with respect to those occupational safety and 
health issues covered under the plan which have been given an 
affirmative 18(e) determination. However, the Assistant Secretary may 
retain jurisdiction over proceedings commenced under sections 9, 10 and 
13 of the Act before the date of his determination. In addition, the 
Assistant Secretary shall retain his jurisdiction under the anti-
discrimination provisions of section 11(c) of the Act.
    (d) If the Assistant Secretary determines that a State plan, or any 
portion thereof, has not met the criteria for an 18(e) determination, he 
shall retain his authority under the enforcement provisions of sections 
5(a) (2), 8, 9, 10, 13, and 17 and his standards authority under section 
6 of the Act in the issues found ineligible for an 18(e) determination. 
In addition, his decision may result in the commencement of proceedings 
for withdrawal of approval of the plan, or any separable portion 
thereof, under 29 CFR part 1955.
    (e) Once a State's plan, or any modification thereof, has been given 
an affirmative 18(e) determination, the State is required to maintain a 
program which will meet the requirements of section 18 (c) and will 
continue to be ``at least as effective as'' the Federal program 
operations in the issues covered by the determination. As the Federal 
program changes and thereby becomes more effective, the State is 
correspondingly required to adjust its program at a level which would 
provide a program for workplace safety and health which would be ``at 
least as effective as'' the improvements in the Federal program. A 
failure to comply with this requirement may result in the revocation of 
the affirmative 18(e) determination and the resumption of Federal 
enforcement and standards authority and/or in the commencement of 
proceedings for the withdrawal of approval of the plan, or any portion 
thereof, pursuant to 29 CFR part 1955.
    (f) The Assistant Secretary may reconsider and, if necessary, 
rescind or revoke all or a separable portion of an affirmative 18(e) 
determination and reinstate concurrent Federal enforcement authority if 
he finds that a State does not maintain its commitment to provide a 
program for employee safety and health protection meeting the 
requirements of section 18(c) of the Act. This authority is designed to 
be used in instances where operations under a State program are found to 
be less effective than under the Federal program because of unusual 
circumstances which are temporary in nature. The Assistant Secretary may 
also use this procedure to reinstate Federal enforcement authority in 
conjunction with plan withdrawal proceedings in order to ensure that 
there is no serious gap in his commitment to assure safe and healthful 
working conditions so far as possible for every employee.

            Completion of Developmental Steps--Certification