State plan determination factors

The Assistant Secretary must determine whether the State has applied and implemented all specific criteria and indices of effectiveness found in 1902.3 and 1902.4.

• Check that the State used the criteria and indices in actual operations, not just on paper.
• Use 1902.37(a) as the legal basis for the determination and consult the definitions and indices in 1902.3 and 1902.4 when evaluating program effectiveness.

The State must have a sufficient number of adequately trained and competent personnel to carry out its plan responsibilities.

• Verify staffing levels and that staff possess required technical and enforcement skills per 1902.37(b)(1).
• Document training programs, qualification records, and workloads to demonstrate capacity.
• If staffing gaps exist, show a clear remedial plan (hiring, training, or contracting) to meet responsibilities.

A State must adhere to the procedures it adopted that were approved under the State plan or other approval methods authorized by the Assistant Secretary.

• Follow the approved written procedures consistently in inspections, citations, and hearings as required by 1902.37(b)(2).
• Keep records showing adherence (e.g., inspection reports, case files) so reviewers can confirm procedures were followed.
• If procedures change, obtain the necessary approvals before implementation to avoid noncompliance.

Timely adoption means the State either adopts Federal standards and their amendments promptly or develops its own standards that are at least as effective without undue delay.

• Demonstrate a process and schedule that shows prompt adoption or equivalent State standard development under 1902.37(b)(3).
• Keep records of review dates, public notice, and promulgation actions to prove timeliness.
• If a State delays, document justification and corrective steps to bring standards into alignment.

A State must interpret and apply adopted Federal standards consistently with Federal interpretation, and State-developed standards must be interpreted in a manner at least as effective as comparable Federal standards.

• Ensure enforcement guidance and compliance directives align with the Federal approach as required by 1902.37(b)(4).
• Maintain documentation of interpretations (memos, training materials) showing consistency and effectiveness.
• Where State standards differ, show why the State's interpretation provides equal or greater protection.

The State must take the necessary administrative, judicial, or legislative actions to correct any program deficiencies that resulted from the challenge.

• Promptly implement remedies (revisions, appeals, or legislative fixes) as described in 1902.37(b)(5).
• Keep records of actions taken and timelines to demonstrate corrective measures.
• If changes are lengthy, provide interim protective measures for workers while corrections are pending.

When granting a permanent variance, the State must ensure the employer provides working conditions as safe and healthful as those that would result from complying with the standard.

• Require employers receiving permanent variances to demonstrate equal or greater protection, per 1902.37(b)(6).
• Use conditions, monitoring, and documentation in the variance to verify ongoing protection.
• Keep records of evaluations showing the variance’s outcome matches or exceeds standard protection.

A State must ensure that the recipient of a temporary variance comes into compliance with the standard as early as possible.

• Set clear deadlines and milestones for compliance in the temporary variance as required by 1902.37(b)(7).
• Monitor progress actively and require reports from the employer showing movement toward compliance.
• Use enforcement tools if the employer fails to meet agreed milestones to protect workers.

A State must implement its inspection program so that sufficient resources go to target industries and target health hazards while still giving adequate attention to all other covered workplaces.

• Use risk-based targeting and document how inspections focus on high-hazard industries as called for in 1902.37(b)(8).
• Maintain inspection plans, resource allocation records, and statistics showing coverage of both target areas and general workplaces.
• Periodically review targeting priorities to reflect changing hazards or industry trends.

The State must exercise its authority through appropriate means to enforce its right of entry and inspection wherever such right is refused.

• Use legal remedies, warrants, or other enforcement actions to gain entry as allowed under 1902.37(b)(9).
• Document refusals, steps taken to obtain access, and outcomes to show effective enforcement.
• Train inspectors on procedures to follow when access is denied to ensure consistent handling.

State inspectors must conduct workplace inspections competently and follow approved enforcement procedures.

• Ensure inspectors are trained to gather adequate information to support citations, as required by 1902.37(b)(10).
• Maintain inspection checklists, evidence logs, and report templates that demonstrate thoroughness.
• Provide ongoing training and quality reviews to keep inspection competence consistent.

A State must issue citations, proposed penalties, and notices for failure to abate in a timely manner.

• Track statutory or regulatory deadlines and internal timeliness goals to meet 1902.37(b)(11).
• Keep case-processing metrics and remediation timelines to demonstrate timely action.
• If delays occur, document reasons and corrective steps to prevent future untimeliness.

The State must propose penalties in a manner at least as effective as the Federal program, including proposing penalties for first-instance violations and considering factors comparable to Federal requirements.

• Follow penalty-setting criteria comparable to Federal practice as described in 1902.37(b)(12).
• Ensure first-instance violations are considered for penalties and document the factors used (seriousness, history, good faith, size).
• Maintain penalty calculation records to show equivalence to Federal enforcement practices.

The State must ensure hazards cited are abated, including issuing notices of failure to abate and imposing appropriate penalties when necessary.

• Monitor abatement progress, inspect for correction, and issue failure-to-abate notices when employers do not correct hazards as required by 1902.37(b)(13).
• Keep abatement documentation (photos, follow-up inspection reports) to prove hazards were corrected.
• Use escalating enforcement (penalties, injunctions) for persistent noncompliance to protect workers.

Where appropriate, the State agency should seek administrative and judicial review of adverse adjudications and take necessary administrative, legislative, or judicial action to correct program deficiencies resulting from such determinations.

• Pursue appeals or legislative fixes when rulings expose program gaps, as contemplated in 1902.37(b)(14).
• Document the steps taken and the timeline for corrective actions.
• Use lessons learned to update policies, training, and procedures to prevent recurrence.

A State should analyze Bureau of Labor Statistics survey data and other Federal and State measurements, considering local factors, to show that worker injury and illness trends under the State program compare favorably to the Federal program.

• Perform and document regular analyses using the [BLS occupational safety and health survey] and other metrics as recommended in 1902.37(b)(15).
• Present trend comparisons, explanations of local factors, and program changes tied to data.
• Use findings to target improvements and justify resource allocation.

A State should keep training records, qualifications, inspection reports, evidence logs, and quality-review documents to show inspector competence and adequate inspections.

• Maintain personnel files with training completion, certifications, and competency evaluations per 1902.37(b)(1).
• Retain inspection files with clear evidence gathering and justification for citations as required by 1902.37(b)(10).
• Implement periodic peer reviews or audits of inspection quality to document ongoing competence.

Permanent variances must provide conditions at least as safe as the standard on an ongoing basis, while temporary variances must include a plan for the recipient to achieve compliance as soon as possible.

• Require long-term monitoring and safety assurances for permanent variances under 1902.37(b)(6).
• For temporary variances, set clear, enforceable milestones and review dates to reach compliance per 1902.37(b)(7).
• Document distinct conditions, reporting, and enforcement approaches for each type of variance.

A State should allocate inspections toward target industries and hazards while also using injury and illness trend data to measure program impact and adjust targeting accordingly.

• Use targeted inspection plans and resource allocations as described in 1902.37(b)(8).
• Regularly analyze BLS and other metrics per 1902.37(b)(15) to verify that targeting produces improved safety outcomes.
• Adjust targets and resource distributions based on the data review to maximize program effectiveness.

The State should document the refusal, attempt to secure entry using appropriate legal means, and continue to enforce inspection requirements competently.

• Record the refusal and the circumstances in the inspection file as part of good practice under 1902.37(b)(10).
• Pursue warrants or legal remedies to obtain entry consistent with 1902.37(b)(9).
• If entry is obtained later, ensure the inspection collects sufficient information to support any citations.

The State should document the legal basis, calculation method, and the factors considered (seriousness, history, good faith, size) for each proposed penalty to show equivalence to Federal practice.

• Keep penalty worksheets and decision memos tied to 1902.37(b)(12).
• Track timelines to demonstrate timely issuance of citations and penalties under 1902.37(b)(11).
• Use these records in reviews to prove that penalty practices are at least as effective as the Federal program.