October 13, 1998

The purpose of this memorandum is to advise all OSHA offices on the recent change in enforcement policy regarding compliance with the new revised Respiratory Protection Standard, 29 CFR 1910.134 and 29 CFR 1926.103. OSHA had stated in the Federal Register that it would release a Small Entity Compliance Guide on or before April 8, 1998. However, the guide was not issued until October 2. The National Office has received a considerable number of requests from the small business community to extend the compliance deadlines, stating that small businesses had planned to rely on the guide to prepare for compliance with the new standard. In response, OSHA has decided to modify its enforcement policy for all employers. This policy is immediately effective in Federal enforcement states and will remain in effect until January 5, 1999.

Effectively immediately:

• OSHA will issue unclassified citations with no penalty for violations of any of the provisions of the new respirator standard found during an inspection, provided the employer is in full compliance with the old standard (old 29 CFR 1910.134 and 29 CFR 1926.103).

   

• If the employer is not in compliance with the old respiratory protection standard, citations for violations of corresponding requirements of the new standard, with appropriate penalties and classification, will be issued.

   

• The new standard contains some new requirements -- requirements for which there is no corresponding provision in the old standard. Violations of any of these new provisions will be issued as unclassified citations with no penalty.

   

• Employers who require compliance assistance from OSHA, a State consultation program, or other appropriate source may be given abatement periods of up to six months to enable them to obtain such assistance, if necessary.

This policy will apply to all employers of any size. OSHA will encourage the 25 states with OSHA-approved state plans to consider a similar policy.

The Small Entity Compliance Guide is available on the Internet at OSHA's Homepage (http://www.osha.gov). It will also be printed in hard copy and available from OSHA's Office of Publications.

Implementation Note: When adding an "Unclassified" violation of the revised respiratory protection standard, during the effective period of this interim policy, CSHOs using the CSHO application should select option P (Post Settlement/Section 17) for Citation Type on their 1B's. During the assembly of the OSHA 2, this will unfortunately cause "Post Settlement" to be used as the citation type in the WordPerfect file and will be printed next to each such unclassified citation. These entries will have to be changed in each instance to read "Unclassified". In citation review, these can either be changed manually or by doing a "Global Search and Replace" and change "Post Settlement" to "Unclassified". No other adjustments in normal IMIS processing should be required to implement this new policy.

Classification language shall be added as an abatement note for all citations issued as unclassified under this interim policy which would otherwise have been classified as serious violations. An example of such language is as follows:

This violation is considered serious but has been designated as "Unclassified" during a temporary modification in citation policy for violations of the revised respiratory protection standard and carries no penalty. The abatement period to comply with this citation has been extended to allow for familiarization with the Small Entity Compliance Guide and for seeking consultation assistance. Adequate documentation must be included with your abatement certification.

cc:State Designees
OSHA Consultation Project Managers