State plan evaluation criteria

The Assistant Secretary must consider all relevant data and whether the State is actually applying the statutory and regulatory criteria in practice for a reasonable period of time. This includes checking that the State is applying [section 18(c) of the Act and the criteria in subpart B] and the specific requirements in [1902.37] in its day-to-day operations, as stated in 1902.36(a).

• Useful types of "relevant data" can include enforcement records, inspection activity, standards adoption and application, and any other factual material that shows how the State program actually operates.
• The evaluation focuses on actual operations over a reasonable period, not just written policies.

The Assistant Secretary will judge whether the State is applying the criteria and indices listed in [1902.37(a)] in a way that makes the State program operate at least as effectively as the Federal program. This comparison and the consideration of additional factors are spelled out in 1902.36(b).

• The evaluation ties directly to the indices in 1902.37(a) and also takes into account the factors listed under 1902.37(b).

Yes. The Assistant Secretary may include information developed from public comments and the results of hearings held under [1902.40] when evaluating whether a State meets the criteria for an 18(e) determination, as stated in 1902.36(b).

• This means public input and formal hearing outcomes can help show how the State applies the required criteria in practice.

The Assistant Secretary reviews how State rules are applied in actual operations, not just the written rules. [1902.36(a)] requires consideration of whether the statutory and regulatory requirements are being applied in actual operations for a reasonable period of time (see 1902.36(a)).

• In practice this means enforcement activity, inspections, case outcomes, and program administration are relevant to the evaluation.

Yes; the evaluation seeks to determine whether the State's application of the criteria warrants termination of concurrent Federal enforcement authority and standards for issues covered by the plan. That is a central purpose of the evaluation described in 1902.36(a).

• Termination of Federal authority follows only if the State demonstrates sustained, effective operation comparable to the Federal program.

The Assistant Secretary may include supplemental information such as public comments and hearing results and any other material that shows how the State applies the criteria and indices in [1902.37]. This flexibility is explicitly allowed in 1902.36(b).

• Examples of supplemental information include documented enforcement activity, compliance program descriptions, statistical performance indicators, and stakeholder input, when relevant to applying the 1902.37(a) indices.

The Assistant Secretary uses the criteria and indices in [1902.37(a)] as the primary benchmarks to decide whether the State program operates at least as effectively as the Federal program, as stated in 1902.36(b).

• The evaluation assesses whether those specific indices are being applied by the State in actual operations.

Yes. The Assistant Secretary shall consider the factors provided under [1902.37(b)] in addition to the indices in [1902.37(a)] when evaluating the State program, as required by 1902.36(b).

• These factors supplement the indices to give a fuller picture of the State's program operation.

In this context, "actual operations" means how the State implements and enforces its program in day-to-day practice—beyond written policies—and whether that practical application meets statutory and regulatory criteria over time, as required by 1902.36(a).

• Evidence of actual operations may include enforcement actions, inspections, program administration records, and other operational data showing consistent application of the State plan.

While the evaluation focuses on the criteria and indices in [1902.37(a)], the Assistant Secretary may weigh other kinds of evidence—such as public comments and hearing results—when that evidence helps show how the criteria are applied in practice, per 1902.36(b).

• This approach allows a broad, fact-based assessment of program effectiveness, not a narrow checklist.

Hearings held under [1902.40] can provide results and information that the Assistant Secretary may include when evaluating the State's application of the criteria and indices for an 18(e) determination, as permitted by 1902.36(b).

• Outcomes from these hearings can supply factual records or public testimony relevant to assessing whether the State program operates at least as effectively as the Federal program.

The regulation requires that the State apply the requirements in actual operations for a "reasonable period of time," but it does not state a fixed minimum time; the determination is made case-by-case based on the evidence of sustained application, as described in 1902.36(a).

• The evaluation looks for consistent application over time rather than a single snapshot.