May 17, 2007

The Continuing Appropriations Resolution for FY 2007 provides funding "under the authority and conditions provided in the applicable appropriations Act for fiscal year 2006..." As you know, the Consolidated Appropriations Act for fiscal year (FY) 2006 contained an appropriations restriction which provided "[t]hat none of the funds appropriated under this paragraph shall be obligated or expended to administer or enforce the provisions of 29 CFR 1910.134(f)(2)...to the extent that such provisions require the annual fit testing (after the initial fit testing) of respirators for occupational exposure to tuberculosis." OSHA will therefore continue to modify its enforcement in the same manner as FY 2006. The remaining text is unchanged from the FY 2006 memo.

During FY 2007, employers may not be inspected or cited for the requirement to do annual fit testing of respirators for occupational exposure to tuberculosis. This prohibition applies to all OSHA compliance inspections, including programmed inspections, employee complaints, and imminent danger situations. The appropriations restriction also prohibits referrals for potential violations of the annual fit testing requirements for respirators and occupational exposure to tuberculosis that result from Section 11(c) investigations. The appropriations restriction, however, does not prohibit OSHA from conducting Section 11(c) investigations.

Since this restriction was also contained in the FY 2006 appropriation, there should not be any ongoing inspection or pending or recent citations relating to annual fit testing of respirators used for tuberculosis. However, if inspection activity regarding the annual fit testing of respirators for tuberculosis has taken place, the Area Director shall ensure that no citations are issued and no penalties are proposed. If already issued, but not yet contested, any citation or proposed penalty shall be withdrawn. If an employer has already filed a notice of intent to contest, the Area Director shall inform the Regional Solicitor who shall take appropriate action to ensure that the specific citation regarding annual fit testing and tuberculosis is not pursued before the Occupational Safety and Health Review Commission.

No other provisions of the respiratory protection standard are affected by this appropriations restriction. We may continue to cite the remainder (non-annual fit testing requirements) of 29 CFR 1910.134 as it relates to tuberculosis, including the provisions of 29 CFR 1910.134(f)(2) for the lack of initial fit testing or fit testing whenever a different respirator facepiece is used. The appropriations restriction also does not affect 29 CFR 1910.134(f)(3) requiring an additional fit test when facial changes have occurred that could affect the proper fit of the respirator. Examples of conditions which would require additional fit testing of an employee include (but are not limited to) the use of a different size or make of respirator, weight loss, cosmetic surgery, facial scarring, and the installation of dentures or removal of dentures that are normally worn by the individual. Employers must also be following one of the fit testing methods detailed in Appendix A to the standard and maintaining records of each fit test performed.

In addition, the appropriations restriction affects only annual fit testing of respirators used for protection against tuberculosis. All requirements of the respiratory protection standard, including annual fit testing, may continue to be cited for respirator use against other hazards, such as Severe Acute Respiratory Syndrome (SARS) or other bioaerosols.

With respect to outreach and assistance activities (e.g., education and training, and compliance assistance), the appropriations restriction prohibits OSHA from stating that 29 CFR 1910.134(f)(2) requires annual fit testing of respirators for tuberculosis, or recommending to employers that they implement an annual fit testing program for respirators if their only use of respirators is for the protection of employees against tuberculosis. If asked in the course of providing training or compliance assistance what the Agency's position is on the annual fit testing of respirators for tuberculosis, we should explain that our FY 2006 appropriations prevent us from obligating or expending funds "to administer or enforce the provisions of 29 CFR 1910.134(f)(2)," to the extent that they require annual fit testing of respirators for occupational exposure to tuberculosis.

In addition, OSHA may not require annual fit testing of respirators for tuberculosis as a condition for participation in OSHA's recognition programs (i.e., SHARP and VPP) or strategic partnerships. The appropriations restriction does not prohibit employers who participate in those programs from adopting, on their own, annual fit testing of respirators for tuberculosis. OSHA's onsite consultation program must also abide by the applicable appropriations restrictions in the CAA during consultation visits and other compliance assistance activities.

The restrictions above apply to the use of Federal funds appropriated under the CAA. State plan States and Consultation projects may not expend Federal or State matching funds to perform activities prohibited by the appropriations restriction. State plan States may use 100% State-only funds to continue to conduct those prohibited activities discussed in this memorandum (regarding annual fit-testing of respirators for occupational exposure to tuberculosis only) provided they maintain auditable accounting systems to document the separation of funding sources.

If you have any questions, feel free to contact the Office of Health Enforcement at (202) 693-2190.

[Corrected 11/29/2007]