Occupational Safety and Health Administration

29 CFR Parts 1910 and 1926

[Docket No. H-049]

RIN 1218-AA05

Respiratory Protection

AGENCY: Occupational Safety and Health Administration (OSHA), Department of Labor.

ACTION: Final rule; Request for comment on paperwork requirements.

SUMMARY: This final standard, which replaces the respiratory protection standards adopted by OSHA in 1971 (29 CFR 1910.134 and 29 CFR 1926.103), applies to general industry, construction, shipyard, longshoring, and marine terminal workplaces. The standard requires employers to establish or maintain a respiratory protection program to protect their respirator-wearing employees. The standard contains requirements for program administration; worksite-specific procedures; respirator selection; employee training; fit testing; medical evaluation; respirator use; respirator cleaning, maintenance, and repair; and other provisions. The final standard also simplifies respirator requirements for employers by deleting respiratory provisions in other OSHA health standards that duplicate those in the final standard and revising other respirator-related provisions to make them consistent. In addition, the standard addresses the use of respirators in Immediately Dangerous to Life or Health (IDLH) atmospheres, including interior structural firefighting. During interior structural firefighting (an IDLH atmosphere by definition), self-contained breathing apparatus is required, and two firefighters must be on standby to provide assistance or perform rescue when two firefighters are inside the burning building.

Based on the record in this rulemaking and the Agency's own experience in enforcing its prior respiratory protection standards, OSHA has concluded that compliance with the final rule will assist employers in protecting the health of employees exposed in the course of their work to airborne contaminants, physical hazards, and biological agents, and that the standard is therefore necessary and appropriate. The final respiratory protection standard covers an estimated 5 million respirator wearers working in an estimated 1.3 million workplaces in the covered sectors. OSHA's benefits analysis predicts that the standard will prevent many deaths and illnesses among respirator-wearing employees every year by protecting them from exposure to acute and chronic health hazards. OSHA estimates that compliance with this standard will avert hundreds of deaths and thousands of illnesses annually. The annual costs of the standard are estimated to be $111 million, or an average of $22 per covered employee per year.

DATES: The final rule becomes effective Apri, 1998.

Compliance: Start-up dates for specific provisions are set forth in Sec. 1910.134(n) of the regulatory text. However, until the Department of Labor publishes in the Federal Register the control numbers assigned by the Office of Management and Budget (OMB), affected parties are not required to comply with the new or revised information collection requirements contained in the following paragraphs: Sec. 1910.134(c) written procedures for selecting respirators, medical evaluations, fit testing, use of respirators, maintaining respirators, training, and periodically evaluating the effectiveness of the program; (e)(3) - (6) medical questionnaire, examination, and information for the physician or other licensed health care professional (PLHCP); (f)(1) fit testing; (i)(4) tagging sorbent beds and filters; and (m)(1) - (2) and (4) recordkeeping. Publication of the control numbers notifies the public that the OMB has approved these information collection requirements under the Paperwork Reduction Act of 1995. Although affected parties will not have to comply with the revised standard's information collection requirements until these have been approved by OMB, they must comply with those requirements of 29 CFR 1910.134 (OSHA's existing respirator protection standard) that have already been approved by the OMB under the Paperwork Reduction Act. Approved requirements include the written program, emergency-use respirator certification records, and emergency-use respirator compartment marking.

Comments: Interested parties may submit comments on the information collection requirements for this standard until March 9, 1998.

ADDRESSES: In compliance with 28 U.S.C. 2112(a), the Agency designates the Associate Solicitor for Occupational Safety and Health, Office of the Solicitor, Room S-4004, U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington, D.C. 20210, as the recipient of petitions for review of the standard.

Comments on the information collection requirements of this final rule (see SUPPLEMENTARY INFORMATION) are to be submitted to the Docket Office, Docket No. ICR 97-5, U.S. Department of Labor, Room N-2625, 200 Constitution Avenue, N.W., Washington, D.C. 20210, telephone (202) 219-7894. Written comments limited to 10 pages or less in length may also be transmitted by facsimile to (202) 219-5046.

Copies of the referenced information collection request are available for inspection and copying in the Docket Office and will be mailed immediately to persons who request copies by telephoning Adrian Corsey at (202) 219-7075. For electronic copies of the Respiratory Protection Final Standard and the Information Collection Request, contact OSHA's WebPage on the Internet at http://www.osha.gov/.

FOR FURTHER INFORMATION CONTACT: Bonnie Friedman, Director, OSHA Office of Public Affairs, Room N-3647, U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington, D.C. 20210; Telephone (202) 219-8148. For additional copies of this regulation contact: OSHA, Office of Publications, U.S. Department of Labor, Room N-3101, 200 Constitution Avenue, N.W., Washington, D.C. 20210; Telephone (202) 219-4667.

SUPPLEMENTARY INFORMATION:

1. Collection of Information: Request for Comment

This final Respiratory Protection standard contains information collection requirements that are subject to review by OMB under the Paperwork Reduction Act of 1995 (PRA95), 44 U.S.C. 3501 et seq. (see also 5 CFR 1320). PRA95 defines collection of information to mean, "the obtaining, causing to be obtained, soliciting, or requiring the disclosure to third parties or the public of facts or opinions by or for an agency regardless of form or format." [44 U.S.C. Sec. 3502(3)(A)]

The title, the need for and proposed use of the information, a summary of the collections of information, description of the respondents, and frequency of response required to implement the required information collection are described below with an estimate of the annual cost and reporting burden (as required by 5 CFR 1320.5 (a)(1)(iv) and Sec. 1320.8 (d)(2)). Included in the estimate is the time for reviewing instructions, gathering and maintaining the data needed, and completing and reviewing the collection of information.

OSHA invites comments on whether the proposed collection of information:

• Ensures that the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Estimates the projected burden accurately, including whether the methodology and assumptions used are valid;
• Enhances the quality, utility, and clarity of the information to be collected; and
• Minimizes the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.

Title: Respiratory Protection, 29 CFR 1910.134.

Description: The final Respiratory Protection standard is an occupational health standard that will minimize occupational exposure to toxic substances. The standard's information collection requirements are essential components that will protect employees from occupational exposure to these toxins. The information will be used by employers and employees to implement the protection required by the standard. OSHA will use some of the information to determine compliance with the standard.

Respondents: The total number of respondents for the first year is 1,300,000, and for the second year 1,430,000 (1,300,000 (1st year) plus 10% (130,000)).

Average Time Per Response: 2.21 hours (this is the result of dividing the total number of responses (19,767,461) by the total number of burden hours (8,926,558)).

Average Time Per Firm: 6.87 hours (this represents the average time a firm would need to comply with all of the information collection provisions, including the written respiratory protection program. This is a result of dividing the total number of burden hours (8,926,558) by the total number of firms (1,300,000)).

Summary of the Collections of Information

Summary of the Collections of Information (Cont'd)

Marginal Differences in Burden Hours and Costs

Interested parties are requested to send comments regarding this information collection to the OSHA Docket Office, Docket No. ICR 97-5 , U.S. Department of Labor, Room N-2625, 200 Constitution Avenue, N.W., Washington, D.C. 20210. Written comments limited to 10 pages or fewer may also be transmitted by facsimile to (202) 219-5046.

Comments submitted in response to this notice will be summarized and included in the request for Office of Management and Budget approval of the final information collection request; they will also become a matter of public record.

Copies of the referenced information collection request are available for inspection and copying in the OSHA Docket Office and will be mailed to persons who request copies by telephoning Adrian Corsey at (202) 219-7075. Electronic copies of the Respiratory Protection Final information collection request are available on the OSHA WebPage on the internet at http://www.osha.gov/ under Standards.

2. Federalism

This final standard has been reviewed in accordance with Executive Order 12612 (52 FR 41685, October 30, 1987), regarding Federalism. This Order requires that agencies, to the extent possible, refrain from limiting state policy options, consult with states prior to taking any actions which would restrict state policy options, and take such actions only when there is clear constitutional authority and the presence of a problem of national scope. The Order provides for preemption of state law only if there is a clear Congressional intent for the Agency to do so. Any such preemption is to be limited to the extent possible.

Section 18 of the Occupational Safety and Health Act (OSH Act) expresses Congress' clear intent to preempt state laws relating to issues on which Federal OSHA has promulgated occupational safety and health standards. Under the OSH Act, a state can avoid preemption only if it submits, and obtains Federal approval of, a plan for the development of such standards and their enforcement. Occupational safety and health standards developed by such Plan-States must, among other things, be at least as effective in providing safe and healthful employment and places of employment as the Federal standards. Where such standards are applicable to products distributed or used in interstate commerce, they may not unduly burden commerce and must be justified by compelling local conditions (see OSH Act, Section 18(c)).

The final Federal standard on respiratory protection addresses hazards which are not unique to any one state or region of the country. Nonetheless, states with occupational safety and health plans approved under Section 18 of the OSH Act will be able to develop their own state standards to deal with any special problems which might be encountered in a particular state. Moreover, because this standard is written in general, performance-oriented terms, there is considerable flexibility for state plans to require, and for affected employers to use, methods of compliance which are appropriate to the working conditions covered by the standard.

In brief, this final standard addresses a clear national problem related to occupational safety and health in general industry, construction, and maritime employment. Those states which have elected to participate under Section 18 of the OSH Act are not preempted by this standard, and will be able to address any special conditions within the framework of the Federal Act while ensuring that the state standards are at least as effective as that standard.

3. State Plans

The 25 states and territories with their own OSHA-approved occupational safety and health plans must adopt a comparable standard within six months of the publication date of a final standard. These 25 states are: Alaska, Arizona, California, Connecticut, New York (for state and local government employees only), Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Virgin Islands, Washington, and Wyoming. Until such time as a state standard is promulgated, Federal OSHA will provide interim enforcement assistance, as appropriate, in these states.

4. Unfunded Mandates

The final respiratory protection rule has been reviewed in accordance with the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1501 et seq.) and Executive Order 12875. As discussed below in the Summary of the Final Economic Analysis (FEA) (Section VI of this document), OSHA estimates that compliance with the revised respiratory protection standard will require the expenditure of more than $100 million each year by employers in the private sector. Therefore, the final rule establishes a Federal private sector mandate and is a significant regulatory action, within the meaning of section 202 of UMRA (2 U.S.C. 1532). OSHA has included this statement to address the anticipated effects of the final respiratory protection rule pursuant to section 202.

OSHA standards do not apply to state and local governments, except in states that have voluntarily elected to adopt an OSHA State Plan. Consequently, the respiratory protection standard does not meet the definition of a "Federal intergovernmental mandate" (Section 421(5) of UMRA (2 U.S.C. 658(5)). Thus, the final respiratory protection standard does not impose unfunded mandates on state or local governments.

The anticipated benefits and costs of this final standard, and other issues raised in section 202 of the UMRA, are addressed in the Summary of the FEA (Section VI of this preamble), below, and in the FEA (Ex. 196). In addition, pursuant to section 205 of the UMRA (2 U.S.C. 1535), having considered a reasonable number of alternatives as outlined in the preambles to the proposal and the final rule and in the FEA (Ex. 196), the Agency has concluded that the final rule is the most cost-effective alternative for implementation of OSHA's statutory objective of reducing significant risk to the extent feasible. This is discussed in the FEA (Ex. 196) and in the Summary and Explanation (Section VII of this preamble) for the various provisions of the final standard.

5. Executive Order 13045 -- Protection of Children From Environmental Health and Safety Risks

Executive Order 13045, signed by the President on Apri1, 1997, requires that for certain Federal agency "regulatory actions submitted to OMB's Office of Information and Regulatory Affairs (OIRA) for review pursuant to Executive Order 12866, the issuing agency shall provide to OIRA the following information developed as part of the Agency's decisionmaking process, unless prohibited by law:

(a) An evaluation of the environmental health or safety effects of the planned regulation on children; and

(b) An explanation of why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the agency."

"Covered Regulatory Actions" under this Order are rules that may:

(a) Be "economically significant" under Executive Order 12866 (a rulemaking that has an annual effect on the economy of $100 million or more or would adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities); and

(b) Concern an environmental health risk or safety risk that an agency has reason to believe may disproportionately affect children.

"Environmental health risks and safety risks" mean risks to health or to safety that are attributable to products or substances that the child is likely to come in contact with or ingest (such as the air we breathe, the food we eat, the water we drink or use for recreation, the soil we live on, and the products we use or are exposed to).

The final standard on respiratory protection does not concern "Environmental health risks and safety risks" to children as defined under the Executive order. The respirator standard is only concerned with means of limiting employee exposures to toxic substances. The Agency believes, therefore, that the requirement noted above to provide OIRA with certain information does not apply since the respiratory protection standard is not a "covered regulatory action" under Executive Order 13045.

Section 6(b) (8) of the OSH Act requires OSHA to explain "why a rule promulgated by the Secretary differs substantially from an existing national consensus standard," by publishing "a statement of the reasons why the rule as adopted will better effectuate the purposes of the Act than the national consensus standard." In compliance with the requirement, the Agency has reviewed the standards proposed through this rulemaking with reference to the ANSI Z88.2-1992 standard for Respiratory Protection. OSHA has discussed the relationship between individual regulatory provisions and the corresponding consensus standards in the Summary and Explanation of the final rule.

6. Reasons Why the Revised Rule Will Better Effectuate the Purposes of the Act Than the Existing Consensus Standard

This process was facilitated by the fact that the previous OSHA standards on respiratory protection were start-up standards adopted directly from the ANSI Z88.2-1969 standard, "Practices for Respiratory Protection" under section 6(a) of the OSH Act, 29 U.S.C. 655(a). Therefore, even with subsequent revisions to the ANSI standards and the Agency's consideration of a widely varied and substantial body of information in the rulemaking record, the requirements of the OSHA final rule would tend to resemble the corresponding provisions of the current ANSI standards. In a number of instances, OSHA has utilized language identical to that in the current ANSI standard. These instances are noted in the Summary and Explanation. Where the Agency has determined that the pertinent ANSI language is not appropriate for this OSHA standard, the Summary and Explanation provides the basis for that decision.