Affirmative 18(e) decision

The notice must list the specific items required by the regulation and include the elements described in 1902.43(a). Specifically, the published notice must:

• Identify the issues under the State plan over which the Assistant Secretary is withdrawing Federal standards and enforcement authority (1902.43(a)(1).)
• State that the Assistant Secretary retains authority under section 11(c) of the Act for complaints alleging employee discrimination (1902.43(a)(2).)
• Include an amendment to the appropriate section of part 1952 to reflect the change (1902.43(a)(3).)
• State that the Assistant Secretary may revoke the determination and reinstate Federal standards and enforcement authority under the procedures in 1902.47 et seq. if the State fails to maintain a program at least as effective as the Federal program or fails to submit program change supplements as required by 29 CFR part 1953 (1902.43(a)(4).)

This is the required content for the publication; see 1902.43(a) for the regulatory text.

The Assistant Secretary decides which specific issues under the State plan will have Federal standards and enforcement authority withdrawn.

• The rule requires the Assistant Secretary to identify those issues in the Federal Register notice (1902.43(a)(1).)

This means the Assistant Secretary both determines and publicly announces, by Federal Register notice, the scope of matters transferred to State authority.

No, the Assistant Secretary retains authority over discrimination complaints under section 11(c).

• The Federal Register notice must include a statement that the Assistant Secretary retains authority under section 11(c) of the Act for complaints alleging discrimination against employees for exercising rights under the Act (1902.43(a)(2).)

So even after an affirmative 18(e) decision, employees may still file complaints with the Assistant Secretary about discriminatory actions prohibited by section 11(c).

Yes, the Assistant Secretary must include an amendment to the appropriate section of part 1952 when publishing an affirmative 18(e) decision.

• The regulation explicitly requires that the Federal Register notice contain an amendment to the appropriate section of part 1952 to reflect the change in Federal enforcement authority (1902.43(a)(3).)

This amendment updates the codified list of State-plan-covered and Federally-covered items so the regulatory record matches the published decision.

Yes, the Assistant Secretary may revoke the affirmative 18(e) determination and reinstate Federal standards and enforcement authority under the procedures in 1902.47 et seq.

• The Federal Register notice must state that revocation and reinstatement are possible if continuing evaluations under section 18(f) show the State has substantially failed to maintain a program at least as effective as the Federal program, or if the State fails to submit required program change supplements (1902.43(a)(4).)
• For procedural details on how revocation and reinstatement occur, see 1902.47.

An affirmative 18(e) determination can be revoked if continuing evaluations show the State substantially failed to maintain a program as effective as the Federal program, or if the State fails to submit required program change supplements.

• The regulation identifies two triggers for revocation: failing to maintain an effective program under section 18(f) evaluations, and failing to submit program change supplements as required by 29 CFR part 1953 (1902.43(a)(4).)
• The formal procedures for revocation and reinstatement are set out in 1902.47.

The purpose is to publicly announce the withdrawal of Federal standards and enforcement authority for specified issues and the related administrative actions required by the regulation.

• The Federal Register notice must identify withdrawn issues, state retention of section 11(c) authority, include an amendment to part 1952, and warn that the decision may be revoked under 1902.47 et seq. if the State fails to maintain an effective program (1902.43(a).)

Publishing in the Federal Register ensures transparency and provides the official public record of the change.

No, retaining section 11(c) authority only means the Assistant Secretary keeps authority to address complaints of discrimination under section 11(c); it does not mean the Federal government enforces other Federal standards that have been withdrawn.

• The regulation specifically separates the two: the Assistant Secretary withdraws standards and enforcement authority for specified issues but must state that he retains authority under section 11(c) for discrimination complaints (1902.43(a)(1) and (2)).

For other enforcement matters over those withdrawn issues, the State’s program—not the Federal enforcement program—generally takes the lead unless revocation is later invoked.

The notice must state that the Assistant Secretary is not precluded from revoking his determination and reinstating Federal standards and enforcement authority under 1902.47 et seq. if specified conditions occur.

• The requirement to include this statement is in 1902.43(a)(4).
• The procedural steps for revocation and reinstatement are found in 1902.47, which the notice references as “1902.47 et seq.”

Including this language alerts the public and the State that the affirmative decision is conditional and subject to review and reversal under the cited procedures.

The State must submit program change supplements as required by 29 CFR part 1953, and failure to submit those supplements can lead the Assistant Secretary to revoke the affirmative 18(e) decision and reinstate Federal authority.

• The regulation links failure to submit required program change supplements to the possibility of revocation (1902.43(a)(4).)
• For the specific submission requirements, consult the procedures for program change supplements in part 1953; failure to comply with those submission requirements is a grounds for revocation under the 1902.47 et seq. process.

Yes, an affirmative 18(e) decision transfers Federal standards and enforcement authority for the specified issues to the State, so the State must implement and enforce its program for those issues while continuing to meet State-plan obligations.

• The Federal Register notice will identify which issues are withdrawn from Federal enforcement and transferred to the State (1902.43(a)(1).)
• The State must continue to maintain a program at least as effective as the Federal program and must submit program change supplements as required; failure to do so may lead to revocation under 1902.47 (1902.43(a)(4)).

“1902.47 et seq.” refers to 1902.47 and the following sections in Subpart D that set out the procedures for revoking an affirmative 18(e) decision and reinstating Federal authority.

• The Federal Register notice must tell readers that the Assistant Secretary can revoke the determination under those procedures (1902.43(a)(4).)
• For the detailed procedural steps and criteria for revocation and reinstatement, see 1902.47.

Including this reference ensures stakeholders know where to find the formal process for reversing the affirmative decision.