29 Cfr 1954

As of 12-10-24

PART 1954 - PROCEDURES FOR THE
EVALUATION AND MONITORING OF
APPROVED STATE PLANS
Authority: Sec. 18, 84 Stat. 1608 (29 U.S.C. 667); Secretary of Labor's Order No. 1-2012 (77
FR 3912, Jan. 25, 2012).
Source: 39 FR 1838, Jan. 15, 1974, unless otherwise noted.

Subpart A - General
§ 1954.1 Purpose and scope.
(a) Section 18(f) of the Williams-Steiger 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 1271, 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 section 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 are identical to Federal standards; or have been found to be at least as effective as the
comparable Federal standards; or have been reviewed by OSHA 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 operational under paragraph (b) of
this section, such evaluations will be used in determining the Federal enforcement
responsibility in certain circumstances.

(2) Where evaluations have been completed prior to the time a determination as to the
operational status of a State plan is made, the results of those evaluations will be included in
the determination.
(3) Where the results of one or more evaluations conducted during the operation of a State
plan and prior to an 18(e) determination reveal that actual operations as to one or more
aspects of the plan fail in a substantial manner to be at least as effective as the Federal
program, and the State does not adequately resolve the deficiencies in accordance with
subpart C of part 1953, the appropriate level of Federal enforcement activity shall be
reinstated. An example of such deficiency would be a finding that State standards and their
enforcement in an issue are not at least as effective as comparable Federal standards and their
enforcement. Federal enforcement activity may also be reinstated where the Assistant
Secretary determines that such action is necessary to assure occupational safety and health
protection to employees.
(d)

(1) Recognition of State procedures. In order to resolve potential conflicting responsibilities
of employers and employees, Federal authority will be exercised in a manner designed to
recognize the implementation of State procedures in accordance with approved plans in areas
such as variances, informing employees of their rights and obligations, and recordkeeping
and reporting requirements.
(i) Subject to pertinent findings of effectiveness under this part, Federal enforcement
proceedings will not be initiated where an employer is in compliance with a State standard
which has been found to be at least as effective as the comparable Federal standard, or with
any temporary or permanent variance granted to such employer with regard to the
employment or place of employment from such State standard, or any order or interim
order in connection therewith, or any modification or extension thereof: Provided such
variance action was taken under the terms and procedures required under § 1902.4(b)(2)(iv)
of this chapter, and the employer has certified that he has not filed for such variance on the
same set of facts with the Assistant Secretary.
(ii) Subject to pertinent findings of effectiveness under this part, and approval under part
1953 of this chapter, Federal enforcement proceedings will not be initiated where an
employer has posted the approved State poster in accordance with the applicable provisions
of an approved State plan and § 1902.9 of this chapter.
(iii) Subject to pertinent findings of effectiveness under this part, and approval under part
1953 of this chapter, Federal enforcement proceedings will not be initiated where an
employer is in compliance with the recordkeeping and reporting requirements of an
approved State plan as provided in § 1902.7 of this chapter.
(2) [Reserved]

(e) Discrimination complaints. State plan provisions on employee discrimination do not divest

the Secretary of Labor of any authority under section 11(c) of the Act. The Federal authority to
investigate discrimination complaints exists even after an affirmative 18(e) determination. (See
South Carolina decision 37 FR 25932, December 6, 1972). Employee complaints alleging
discrimination under section 11(c) of the Act will be subject to Federal jurisdiction.
(f)

(1) Procedural agreements. A determination as to the operational status of a State plan shall
be accompanied by an agreement with the State setting forth the Federal-State
responsibilities as follows:
(i) Scope of the State's operational status including the issues excluded from the plan, the
issues where State enforcement will not be operational at the time of the agreement and the
dates for commencement of operations;
(ii) Procedures for referral, investigation and enforcement of employee requests for
inspections;
(iii) Procedures for reporting fatalities and catastrophes by the agency which has received
the report to the responsible enforcing authority both where the State has and has not
adopted the requirement that employers report as provided in 29 CFR 1904.8;
(iv) Specifications as to when and by what means the operational guidelines of this section
were met; and
(v) Provision for resumption of Federal enforcement activity for failure to substantially
comply with this agreement, or as a result of evaluation or other relevant factors.
(2) Upon approval of these agreements, the Assistant Secretary shall cause to be published in
the Federal Register, notice of the operational status of each approved State plan.
(3) Where subsequent changes in the level of Federal enforcement are made, similar Federal
Register notices shall be published.
[39 FR 22126, June 20, 1974, as amended at 39 FR 29182, Aug. 14, 1974; 39 FR 39036, Nov. 5,
1974; 40 FR 25450, June 16, 1975; 67 FR 60129, Sept. 25, 2002; 80 FR 49908, Aug. 18, 2015]

Subpart B - State Monitoring Reports and Visits to State
Agencies
§ 1954.10 Reports from the States.

(a) In addition to any other reports required by the Assistant Secretary under sections 18(c)(8)
and 18(f) of the Act and § 1902.3(1) of this chapter, the State shall submit quarterly and annual
reports as part of the evaluation and monitoring of State programs.[1]
(b) Each State with an approved State plan shall submit to the appropriate Regional Office an
annual occupational safety and health report in the form and detail provided for in the report
and the instructions contained therein.
(c) Each State with an approved State plan shall submit to the appropriate Regional Office a
quarterly occupational safety and health compliance and standards activity report in the form
and detail provided for in the report and the instructions contained therein.
Footnotes - 1954.10

[1]

Such quarterly and annual reports forms may be obtained from the Office of the Assistant
Regional Director in whose Region the State is located.

§ 1954.11 Visits to State agencies.
As a part of the continuing monitoring and evaluation process, the Assistant Secretary or his
representative shall conduct visits to the designated agency or agencies of State with approved
plans at least every 6 months. An opportunity may also be provided for discussion and comments
on the effectiveness of the State plan from other interested persons. These visits will be
scheduled as needed. Periodic audits will be conducted to assess the progress of the overall State
program in meeting the goal of becoming at least as effective as the Federal program. These
audits will include case file review and follow-up inspections of workplaces.

Subpart C - Complaints About State Program
Administration (CASPA)
§ 1954.20 Complaints about State program administration.
(a) Any interested person or representative of such person or groups of persons may submit a
complaint concerning the operation or administration of any aspect of a State plan. The
complaint may be submitted orally or in writing to the Assistant Regional Director for
Occupational Safety and Health (hereinafter referred to as the Assistant Regional Director) or
his representative in the Region where the State is located.
(b) Any such complaint should describe the grounds for the complaint and specify the aspect or
aspects of the administration or operation of the plan which is believed to be inadequate. A
pattern of delays in processing cases, of inadequate workplace inspections, or the granting of
variances without regard to the specifications in the State plans, are examples.
(c)

(1) If upon receipt of the complaint, the Assistant Regional Director determines that there are
reasonable grounds to believe that an investigation should be made, he shall cause such
investigation, including any workplace inspection, to be made as soon as practicable.
(2) In determining whether an investigation shall be conducted and in determining the timing
of such investigation, the Assistant Regional Director shall consider such factors as:
(i) The extent to which the complaint affects any substantial number of persons;
(ii) The number of complaints received on the same or similar issues and whether the
complaints relate to safety and health conditions at a particular establishment;
(iii) Whether the complainant has exhausted applicable State remedies; and
(iv) The extent to which the subject matter of the complaint is pertinent to the effectuation
of Federal policy.

§ 1954.21 Processing and investigating a complaint.
(a) Upon receipt of a complaint about State program administration, the Assistant Regional
Director will acknowledge its receipt and may forward a copy of the complaint to the designee
under the State plan and to such other person as may be necessary to complete the
investigation. The complainant's name and the names of other complainants mentioned therein
will be deleted from the complaint and the names shall not appear in any record published,
released or made available.
(b) In conducting the investigation, the Assistant Regional Director may obtain such supporting
information as is appropriate to the complaint. Sources for this additional information may
include “spot-check” follow-up inspections of workplaces, review of the relevant State files,
and discussion with members of the public, employers, employees and the State.
(c) On the basis of the information obtained through the investigation, the Assistant Regional
Director shall advise the complainant of the investigation findings and in general terms, any
corrective action that may result. A copy of such notification shall be sent to the State and it
shall be considered part of the evaluation of the State plan.
(d) If the Assistant Regional Director determines that there are no reasonable grounds for an
investigation to be made with respect to a complaint under this Subpart, he shall notify the
complaining party in writing of such determination. Upon request of the complainant, or the
State, the Assistant Regional Director, at his discretion, may hold an informal conference.
After considering all written and oral views presented the Assistant Regional Director shall
affirm, modify, or reverse his original determination and furnish the complainant with written
notification of his decision and the reasons therefore. Where appropriate the State may also
receive such notification.

§ 1954.22 Notice provided by State.
(a)
(1) In order to assure that employees, employers, and members of the public are informed of
the procedures for complaints about State program administration, each State with an
approved State plan shall adopt not later than July 1, 1974, a procedure not inconsistent with
these regulations or the Act, for notifying employees, employers and the public of their right
to complain to the Occupational Safety and Health Administration about State program
administration.
(2) Such notification may be by posting of notices in the workplace as part of the requirement
in § 1902.4(c)(2)(iv) of this chapter and other appropriate sources of information calculated
to reach the public.
(b) [Reserved]