Citation policy when an OSHA standard is under revision

August 24, 1989

MEMORANDUM FOR: REGIONAL ADMINISTRATORS

THROUGH: LEO CAREY, DIRECTOR
OFFICE OF FIELD PROGRAMS

FROM: PATRICIA K. CLARK, ACTING DIRECTOR
[DIRECTORATE OF ENFORCEMENT PROGRAMS]

SUBJECT: Citations for Violations of Standards which Are Under Revision

There have been a number of questions both from the public and from the field regarding OSHA's policy with regard to issuing citations for conditions which technically violate current OSHA standards, but which are in compliance with either a more recently promulgated consensus standard, or a proposed OSHA standard. More specifically, the questions have arisen regarding situations where a standard has been proposed, but the promulgation process is prolonged and/or its outcome is uncertain.
The Agency policy regarding an employer's compliance with a proposed OSHA standard or a consensus standard is stated in [CPL_02-00-148, Field Operations Manual].
When an employer is in compliance with a proposed standard, a proposed amendment to a standard, or a consensus standard rather than with an OSHA standard in effect at the time of the inspection and the employer's action provides equal or greater employee protection, the violation shall be considered as de minimis. If the employer's action does not provide equal or greater employee protection than that which would be provided under the current standard, the conditions shall be appropriately classified as serious, other-then-serious, repeated, or willful and cited along with all other violations noted.
Thus, in every such case, professional judgment will be required to assess the specific conditions and the protection provided to workers. The de minimis classification is not automatic and should not be used solely on the grounds that a new standard has been proposed.
If you have any questions regarding this policy please [contact the Directorate of Enforcement Programs at (202) 693-2100].
[Corrected 1/21/2009]