in this subpart would be applicable thereto.

(c) Upon receipt of the supplement, the Regional Administrator shall make a preliminary review of the changes. If his examination reveals any defect in the supplement, the Regional Administrator shall offer assistance to the State and shall provide the agency an opportunity, generally not to exceed 30 days, to cure such defect. After the preliminary review and after affording the State such opportunity to cure defects, the Regional Administrator, except as provided in §1953.4 for review of standards supplements, shall promptly submit the supplement to the Assistant Secretary.

(d)(1) Upon receipt of the supplement from the Regional Administrator, the Assistant Secretary shall examine the change and supporting material. If examination discloses no cause for rejecting the change, the procedure provided in §§ 1902.11 and 1902.12 of this chapter for public comment and approval of State plans shall be followed.

(2) If examination discloses cause for rejecting the change, the Assistant Secretary shall provide the State a reasonable time, generally not to exceed 30 days, to submit to the Regional Administrator for review and submission to the Assistant Secretary a revised supplement, or to show cause why a proceeding should not be commenced for rejection of the change or for failure to submit a change, in accordance with the procedures in §1902.17 of this chapter on rejection of State plans.

(e) The Assistant Secretary shall review the supplement in the context of the entire plan to see whether it meets the objections set out in the evaluation report as well as the requirements for an "at least as effective" State program. The decision shall reflect the Assistant Secretary's determination as to whether the supplement meets those requirements.

[38 FR 24361, Sept. 7, 1973, as amended at 39 FR 5629, Feb. 14, 1974; 43 FR 51761, Nov. 7, 1978]

Subpart E-State Initiated Change Supplements

§1953.40 Definitions.

A State initiated change would be any change to the State plan other than those defined in subparts B, C, and D of this part. Examples of State initiated changes include actions which would effect Federal funding under section 23(g) of the Act such as an increase or decrease in personnel, or coverage of additional issues under the plan; and also legislative, regulatory or administrative policy changes which impact on the effectiveness of the State program including a reassignment of enforcement personnel or legislation restricting coverage under the plan. Such policy changes would not ordinarily include court cases or administrative decisions in individual cases except as they are reflected in State legislative, regulatory, or administrative policy changes.

§ 1953.41 Submission and consideration.

(a) A State initiated change supplement is required whenever the State takes with regard to its plan an action not otherwise covered by this part that would impact on the effectiveness of the State program. The State shall notify the Regional Administrator of the change and submit the required supplement within 30 days after notifying the Regional Administrator if the change involves legislative amendments or affects Federal funding under section 23(g) of the Act. Other State initiated changes may be submitted at any time generally not to exceed 6 months after the change occurred. If the State fails to notify the Regional Administrator of the change or fails to submit the required supplement within 30 days after notification, the Regional Administrator shall notify the State that a supplement is required and set a time period for submission of the supplement generally not to exceed 15 days.

(b)(1) An authorized representative of the State agency or agencies designated under section 18(c)(1) to administer the plan shall submit the supplement with 6 copies to the appropriate Regional Administrator. The supplement shall contain the change with related documentation on the impact of the change on the State plan.

(2) The State may also show cause why a supplement should not be required on the grounds that it does not impact on the effectiveness of the State program and that additional Federal funding is not required. The procedures in this subpart would be applicable thereto.

(c) Upon receipt of the supplement, the Regional Administrator shall make a preliminary review of the changes. If his examination reveals any defect in the supplement, the Regional Administrator shall offer assistance to the State and shall provide the agency an opportunity, generally not to exceed 30 days, to cure such defect. After the preliminary review and after affording the State such opportunity to cure defects, the Regional Administrator, except as provided in §1953.4 for review of standards supplements, shall promptly submit the supplement to the Assistant Secretary.

(d)(1) Upon receipt of the supplement from the Regional Administrator, the Assistant Secretary shall examine the change and supporting material. If examination discloses no cause for rejecting the change, the procedures provided in §§ 1902.11 and 1902.12 of this chapter for public comment and approval of State plans shall be followed.

(2) If examination discloses cause for rejecting the change, the Assistant Secretary shall provide the State a reasonable time, generally not to exceed 30 days, to submit to the Regional Administrator for review and submission to the Assistant Secretary a revised supplement, or to show cause why a proceeding should not be commenced either for rejection of the change or for failure to submit the change, in accordance with the procedures in § 1902.17 of this chapter on rejection of state plans.

(e) The Assistant Secretary shall review the supplement in the context of the entire plan to determine its impact on the "at least as effective as" status

of the plan. The decision shall reflect the Assistant Secretary's determination as to whether the change meets that requirement.

[38 FR 24361, Sept. 7, 1973, as amended at 39 FR 5630, Feb. 14, 1974]

Subpart F-Advisory Opinions

§ 1953.50 Definitions.

(a) An authorized representative of a State agency or agencies designated under section 18(c)(1) to administer a plan may request an advisory opinion from the Regional Administrator. These opinions are designed to provide the State with a basis for implementing a change. For example, prior to publication of standards, the State may want a preliminary opinion that the standards are at least as effective as the Federal standards or that a regulation that will be proposed for public comment in the State appears to meet the requirements of section 18 of the Act and Part 1902.

(b) A request for an advisory opinion ordinarily will be considered inappropriate when extensive investigation or evaluation would be necessary. A requesting State will be informed if the same or substantially similar course of action is under review for an advisory opinion in another State or if it has been the subject of a current evaluation, approval, or disapproval proceeding by the Assistant Secretary.

§ 1953.51 Submission ation.

and

consider

(a) The request for advice should be submitted in writing to the Regional Administrator in whose Region the State is located and should include full and complete information regarding the proposed course of action. Conferences with members of the Regional and National office staff may be held before and after submittal of the request and submission of additional information may be required.

(b)(1) On the basis of the facts submitted, as well as other information available to him, including information from interested persons where relevant, the Regional Administrator, after appropriate consultation with the Office of Federal and State Operations

and the Office of the Solicitor will provide an advisory opinion to the State and may take such other action as may be appropriate.

(2) Because of the possibility that the subject matter of an advisory opinion may change during promulgation by the State as a final change, and in order to provide for public comment on the final change, these opinions cannot bind the Assistant Secretary in making his final decision following the procedures specified in the appropriate subparts of this part. If the Assistant Secretary decides to revoke or rescind the advisory opinion, notice of such rescission or revocation will be given to the requesting State so that it may discontinue the course of action taken. The Assistant Secretary will not proceed against the requesting State with respect to any action taken in good faith reliance upon the advice given under this subpart, where all relevant facts are fully, completely, and accurately presented and where such action was promptly discontinued upon notification by the Assistant Secretary.

(c) When a State has obtained an advisory opinion under this part, the formal change supplement submitted under the applicable subpart of this part shall specify in what areas, if any, it differs from the material submitted for an advisory opinion.

(d) No later than 15 days after the State has been sent the requested advice, the advisory opinion, and any supplementary information will be placed with the requesting State's plan at the location specified in the subpart of part 1952 of this chapter relating to the State plan.

1954.11 Visits to State agencies.

Subpart C-Complaints About State
Program Administration (CASPA)

1954.20 Complaints about State program administration.

1954.21 Processing and investigating a complaint.

1954.22 Notice provided by State.

AUTHORITY: Secs. 8, 18, Occupational Safety and Health Act of 1970 (29 U.S.C. 657, 667); Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), or 9-83 (48 FR 35736), as applicable.

SOURCE: 39 FR 1838, Jan. 15, 1974, unless otherwise noted.

Subpart A-General

§ 1954.1 Purpose and scope.

(a) Section 18(f) of the WilliamsSteiger Occupational Safety and Health Act of 1970 (hereinafter referred to as the Act) provides that "the Secretary shall, on the basis of reports submitted by the State agency and his own inspections make a continuing evaluation of the manner in which each

State having a plan approved * * * is

carrying out such plan."

(b) This part 1954 applies to the provisions of section 18(f) of the Act relating to the evaluation of approved plans for the development and enforcement of State occupational safety and health standards. The provisions of this part 1954 set forth the policies and procedures by which the Assistant Secretary for Occupational Safety and Health (hereinafter referred to as the Assistant Secretary) under a delegation of authority from the Secretary of Labor (Secretary's Order 12-71, 36 FR 8754, May 12, 1971) will continually monitor and evaluate the operation and administration of approved State plans.

(c) Following approval of a State plan under section 18(c) of the Act, workplaces in the State are subject to a period of concurrent Federal and State authority. The period of concurrent enforcement authority must last for at least three years. Before ending Federal enforcement authority, the Assistant Secretary is required to make a determination as to whether the State plan, in actual operation, is meeting the criteria in section 18(c) of the Act including the requirements in part 1902

of this chapter and the assurances in the approval plan itself. After an affirmative determination has been made, the provisions of sections 5(a)(2), 8 (except for the purpose of carrying out section 18(f) of the Act), 9, 10, 13, and 17 of the Act shall not apply with respect to any occupational safety or health issues covered under the plan. The Assistant Secretary may, however, retain jurisdiction under the above provisions in any proceeding commenced under sections 9 or 10 of the Act before the date of the determination under section 18(e) of the Act.

(d) During this period of concurrent Federal and State authority, the operation and administration of the plan will be continually evaluated under section 18(f) of the Act. This evaluation will continue even after an affirmative determination has been made under section 18(e) of the Act.

§ 1954.2 Monitoring system.

(a) To carry out the responsibilities for continuing evaluation of State plans under section 18(f) of the Act, the Assistant Secretary has established a State Program Performance Monitoring System. Evaluation under this monitoring system encompasses both the period before and after a determination has been made under section 18(e) of the Act. The monitoring system is a three phased system designed to assure not only that developmental steps are completed and that the operational plan is, in fact, at least as effective as the Federal program with respect to standards and enforcement, but also to provide a method for continuing review of the implementation of the plan and any modifications thereto to assure compliance with the provisions of the plan during the time the State participates in the cooperative Federal-State program.

(b) Phase I of the system begins with the initial approval of a State plan and continues until the determination required by section 18(e) of the Act is made. During Phase I, the Assistant Secretary will secure monitoring data to make the following key decisions:

(1) What should be the level of Federal enforcement;

(2) Should plan approval be continued; and

(3) What level of technical assistance is needed by the State to enable it to have an effective program.

(c) Phase II of the system relates to the determination required by section 18(e) of the Act. The Assistant Secretary must decide, after no less than three years following approval of the plan, whether or not to relinquish Federal authority to the State for issues covered by the occupational safety and health program in the State plan. Phase II will be a comprehensive evaluation of the total State program, drawing upon all information collected during Phase I.

(d) Phase III of the system begins after an affirmative determination has been made under section 18(e) of the Act. The continuing evaluation responsibility will be exercised under Phase III, and will provide data concerning the total operations of a State program to enable the Assistant Secretary to determine whether or not the plan approval should be continued or withdrawn.

(e) The State program performance monitoring system provides for, but is not limited to, the following major data inputs:

(1) Quarterly and annual reports of State program activity;

(2) Visits to State agencies;

(3) On-the-job evaluation of State compliance officers; and

(4) Investigation of complaints about State program administration.

§ 1954.3 Exercise of Federal discretionary authority.

(a)(1) When a State plan is approved under section 18(c) of the Act, Federal authority for enforcement of standards continues in accordance with section 18(e) of the Act. That section prescribes a period of concurrent Federal-State enforcement authority which must last for at least three years, after which time the Assistant Secretary shall make a determination whether, based on actual operations, the State plan meets all the criteria set forth in section 18(c) of the Act and the implementing regulations in 29 CFR part 1902 and Subpart A of 29 CFR part 1952. During this period of concurrent authority, the Assistant Secretary may, but shall not be required to, exercise

his authority under sections 5(a)(2), 8, 9, 10, 13 and 17 of the Act with respect to standards promulgated under section 6 of the Act where the State has comparable standards. Accordingly, section 18(e) authorizes, but does not require, the Assistant Secretary to exercise his discretionary enforcement authority over all the issues covered by a State plan for the entire 18(e) period.

(2) Existing regulations at 29 CFR part 1902 set forth factors to be considered in determining how Federal enforcement authority should be exercised. These factors include: (i) Whether the plan is developmental or complete; (ii) results of evaluations conducted by the Assistant Secretary; (iii) the State's schedule for meeting Federal standards; and (iv) any other relevant matters. (29 CFR 1902.1(c)(2) and 1902.20(b)(1)(iii).

(3) Other relevant matters requiring consideration in the decision as to the level of Federal enforcement include: (i) Coordinated utilization of Federal and State resources to provide effective worker protection throughout the Nation; (ii) necessity for clarifying the rights and responsibilities of employers and employees with respect to Federal and State authority; (iii) increasing responsibility for administration and enforcement by States under an approved plan for evaluation of their effectiveness; and (iv) the need to react promptly to any failure of the States in providing effective enforcement of standards.

(b) Guidelines for determining the appropriate level of Federal enforcement. In light of the requirements of 29 CFR part 1902 as well as the factors mentioned in paragraph (a)(3) of this section, the following guidelines for the extent of the exercise of discretionary Federal authority have been determined to be reasonable and appropriate. When a State plan meets all of these guidelines it will be considered operational, and the State will conduct all enforcement activity including inspections in response to employee complaints, in all issues where the State is operational. Federal enforcement activity will be reduced accordingly and the emphasis will be placed on monitoring State activity in accordance with the provisions of this part.

(1) Enabling legislation. A State with an approved plan must have enacted enabling legislation substantially in conformance with the requirements of section 18(c) and 29 CFR part 1902 in order to be considered operational. This legislation must have been reviewed and approved under 29 CFR part 1902. States without such legislation, or where State legislation as enacted requires substantial amendments to meet the requirements of 29 CFR part 1902, will not be considered operational.

(2) Approved State standards. The State must have standards promulgated under State law which standards are the same as Federal standards; have been found to be at least as effective as the comparable Federal standards; or have been reviewed by the Assistant Regional Director under the delegation of authority in 29 CFR 1953.4 and found to provide overall protection equal to comparable Federal standards. Review of the effectiveness of State standards and their enforcement will be a continuing function of the evaluation process. Where State standards in an issue have not been promulgated by the State or have been promulgated and found not to provide overall protection equal to comparable Federal standards, the State will not be considered operational as to those issues.

(3) Personnel. The State must have a sufficient number of qualified personnel who are enforcing the standards in accordance with the State's enabling legislation. Where a State lacks the qualified personnel to enforce in a particular issue; e.g., Occupational Health, the State will not be considered operational as to that issue even though it has enabling legislation and standards.

(4) Review of enforcement actions. Provisions for review of State citations and penalties, including the appointment of the reviewing authority and the promulgation of implementing regulations, must be in effect.

(c)(1) Evaluation reports. One of the factors to consider in determining the level of Federal enforcement is the result of evaluations conducted under the monitoring system described in this part. While completion of an initial comprehensive evaluation of State operations is not generally a prerequisite for a determination that a State is