Subpart A
The period of concurrent Federal-State enforcement must last for at least three years after State plan approval. See 1954.3(a), which describes the Assistant Secretary’s responsibility to evaluate a plan after this minimum concurrent period and may exercise discretionary Federal authority during that time.
OSHA considers a set of practical factors including whether the State plan is developmental or complete, results of OSHA evaluations, the State’s schedule for adopting Federal standards, and any other relevant matters. See 1954.3(a)(2) and the implementing references at 1902.1(c)(2).
OSHA also weighs considerations such as coordinated use of Federal and State resources, clarifying employer and employee rights and responsibilities, increasing State responsibility for enforcement, and the need to respond promptly to State failures. See 1954.3(a)(3).
A State must have enacted enabling legislation substantially in conformance with section 18(c) of the OSH Act and 29 CFR part 1902 for its plan to be operational. See 1954.3(b)(1), which requires OSHA review and approval of that legislation.
A State is operational for an issue only if its standards are identical to, at least as effective as, or OSHA has reviewed them and found them to provide overall protection equal to comparable Federal standards. See 1954.3(b)(2) and the related criteria in 1902.20. If the State lacks standards or they are found not to provide equivalent protection, the State is not operational for that issue.
The State must have a sufficient number of qualified personnel enforcing the standards in accordance with the State’s enabling legislation; lacking qualified staff for a specific issue (for example, Occupational Health) means the State is not operational for that issue. See 1954.3(b)(3).
The State must have in effect provisions for review of State citations and penalties, including appointment of the reviewing authority and implementing regulations, to be considered operational. See 1954.3(b)(4).
If evaluations show that actual State operations in one or more aspects fail substantially to be at least as effective as the Federal program, and the State does not adequately resolve those deficiencies under subpart C of part 1953, Federal enforcement activity will be reinstated for the affected issues. See 1954.3(c)(3).
Generally, Federal enforcement proceedings will not be initiated where an employer is in compliance with a State standard that has been found to be at least as effective as the Federal standard or with a temporary or permanent State variance that was granted under the required State procedures; the variance must comply with 1902.4(b)(2)(iv) and the employer must certify it has not filed for the same variance with the Assistant Secretary. See 1954.3(d)(1)(i).
If the State poster is posted in accordance with the approved State plan and 1902.9, Federal enforcement proceedings will not be initiated for failure to post the Federal poster, subject to pertinent findings of State effectiveness and approval under part 1953. See 1954.3(d)(1)(ii).
Subject to findings that the State’s procedures are effective and approved under part 1953, Federal enforcement will not be initiated where an employer complies with the recordkeeping and reporting requirements of an approved State plan as provided in 1902.7. See 1954.3(d)(1)(iii).
The Secretary of Labor retains authority to investigate discrimination complaints under section 11(c) of the Act even after an affirmative 18(e) determination; Federal jurisdiction over such complaints continues. See 1954.3(e).
Procedural agreements must specify procedures for referral, investigation, and enforcement of employee requests for inspections, so both Federal and State responsibilities are clear. See 1954.3(f)(1)(ii).
The agreement must include procedures for reporting fatalities and catastrophes by the agency that received the report to the responsible enforcing authority in both cases where the State has and has not adopted the employer reporting requirement in 1904.8. See 1954.3(f)(1)(iii).
Agreements must include provisions that allow resumption of Federal enforcement activity if the State fails to substantially comply with the agreement or as a result of evaluations or other relevant factors. See 1954.3(f)(1)(v).
Upon approval of procedural agreements, OSHA will publish notice of a State plan’s operational status in the Federal Register, and if later changes to the level of Federal enforcement are made, similar Federal Register notices will be published. See 1954.3(f)(2) and 1954.3(f)(3).
No—completion of an initial comprehensive evaluation is not generally a prerequisite for determining a State is operational, but any evaluations completed before the operational determination will be included in OSHA’s assessment. See 1954.3(c) and 1954.3(c)(2).
No—the State is not considered operational for any issue where it has not promulgated a standard or where its standard has been found not to provide overall protection equal to the comparable Federal standard. See 1954.3(b)(2).
OSHA will generally forego Federal enforcement when an employer holds a State variance that was granted following the State procedures required by 1902.4(b)(2)(iv), provided the variance has been found effective and the employer has not filed for the same variance with the Assistant Secretary. See 1954.3(d)(1)(i).