[Federal Register Volume 59, Number 27 (Wednesday, February 9, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-2273]
[[Page Unknown]]
[Federal Register: February 9, 1994]
_______________________________________________________________________
Part III
Department of Labor
_______________________________________________________________________
Occupational Safety and Health Administration
_______________________________________________________________________
29 CFR Part 1910, et al.
Hazard Communication; Final Rule
DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Parts 1910, 1915, 1917, 1918, 1926, and 1928
RIN 1218-AB02
Hazard Communication
AGENCY: Occupational Safety and Health Administration (OSHA); Labor.
ACTION: Final rule.
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SUMMARY: The HCS requires employers to establish hazard communication
programs to transmit information on the hazards of chemicals to their
employees by means of labels on containers, material safety data
sheets, and training programs. Implementation of these hazard
communication programs will ensure all employees have the ``right-to-
know'' the hazards and identities of the chemicals they work with, and
will reduce the incidence of chemically-related occupational illnesses
and injuries.
This modified final rule includes a number of minor changes and
technical amendments to further clarify the requirements, and thereby
help ensure full compliance and achieve protection for employees. In
particular, the rule adds and clarifies certain exemptions from
labeling and other requirements; modifies and clarifies aspects of the
written hazard communication program and labeling requirements;
clarifies and slightly modifies the duties of distributors,
manufacturers, and importers to provide material safety data sheets
(MSDSs) to employees; and clarifies certain provisions regarding MSDSs.
EFFECTIVE DATES: The amendments in this document will be effective on
March 11, 1994.
FOR FURTHER INFORMATION CONTACT: Mr. James F. Foster, Office of
Information and Consumer Affairs, Occupational Safety and Health
Administration, 200 Constitution Avenue, NW., room N3647, Washington,
DC 20210; telephone (202) 219-8151.
To aid in efforts to comply with the HCS, a single copy of the
following documents may be obtained without charge from OSHA's
Publications Office, room N3101 at the above address, (202) 219-4667:
the Hazard Communication Standard (a Federal Register reprint of
today's publication); OSHA 3084, Chemical Hazard Communication, a
booklet describing the requirements of the rule; OSHA 3117, Informacion
Sobre Los Riesgos De Los Productos Quimicos, a Spanish translation of
OSHA 3084; OSHA 3111, Hazard Communication Guidelines for Compliance, a
booklet which reprints Appendix E of the standard to further help
employers comply with the rule; and OSHA 3116, Information Sobre Riegos
Normas De Cumplimiento, a Spanish translation of OSHA 3111.
OSHA 3104, Hazard Communication--A Compliance Kit (a step-by-step
guide to compliance with the standard) is available from the
Superintendent of Documents, U.S. Government Printing Office,
Washington, DC 20402, (202) 783-3238; GPO Order No. 929-022-00000-9;
$18--domestic; $22.50--foreign.
SUPPLEMENTARY INFORMATION: References to the rulemaking record are made
in the text of this preamble. The Hazard Communication Standard docket,
No. H-022, contains eight sub-dockets--H-022A, H-022B, H-022C, H-022D,
H-022E, H-022F, H-022G, and H-022H. All of these docket files are part
of the rulemaking record. However, in this document, no specific
references are made to either Docket H-022C or H-022E (these files deal
exclusively with the issue of trade secrets), or H-022F, H-022G, and H-
022H. The following abbreviations have been used for citations to the
other record files:
H-022, Ex.: Exhibit numbers in Docket H-022, which includes H-022A
and H-022B, for exhibits collected for the original 1983 HCS for
manufacturing.
Ex.: Exhibit numbers in H-022D for exhibits collected since the
1985 Court remand related to the expansion of the scope of industries
covered. This docket includes the comments received in response to the
August 8, 1988 proposal.
Tr.: Public hearing transcript page numbers. The hearing transcript
pages from the December 1988 hearing are not numbered consecutively,
i.e., each day begins again with page 1. Transcript references will
thus include a reference to the day, and the page number for that day's
testimony. The days are numbered as follows: December 6 is Day 1;
December 7 is Day 2; December 8 is Day 3; December 9 is Day 4; December
12 is Day 5; December 13 is Day 6; and December 14 is Day 7. As an
example, a reference to testimony which appears on page 65 of the
transcript for December 8 will be indicated as ``Tr. 3-65.'' Transcript
references to hearings held between June 15 and July 31, 1982, are
consecutively numbered, and will not have a prefix number identifying
the day.
I. Background
A. Review of the Need for the Standard
The HCS was promulgated to provide workers with the right to know
the hazards and identities of the chemicals they are exposed to while
working, as well as the measures they can take to protect themselves.
OSHA has estimated that there are over 32 million workers exposed to
hazardous chemicals in over 3.5 million workplaces (48 FR 53282, 53323;
52 FR 31871). According to the National Institute for Occupational
Safety and Health (NIOSH), there are as many as 575,000 hazardous
chemical products in these workplaces (48 FR 53323). Based on the
growth rate of the chemical industry with regard to new products, this
number may now be as high as 650,000. Chemical exposures occur in every
type of industry (52 FR 31858). (See also Exs. 4-1 and 4-2.) In fact,
workers typically experience multiple exposures to numerous industrial
chemicals at one point of time or over a long period of employment. 48
FR 53323.
Besides having what OSHA considers to be an inherent right to know
about hazardous chemicals in their workplaces, exposed employees have a
need to know this information as they are at significant risk of
experiencing adverse health or physical effects in the absence of such
knowledge. Chemicals pose a myriad of hazards to exposed workers, from
mild health effects, such as irritation, to death. Some chemicals cause
or contribute to chronic diseases, such as heart disease, kidney
disease, sterility, or cancer. Many chemicals cause acute injuries or
illnesses such as rashes, burns, and poisoning. Numerous chemicals pose
physical hazards to workers by contributing to accidents like fires and
explosions.
During the HCS rulemaking, data collected about chemical illness
and injury rates in manufacturing sectors showed that some 40-50,000
manufacturing workers experienced chemical source illnesses a year, and
an average 10,000 worker compensation claims were filed annually in
connection with chemical illness or injury in manufacturing (48 FR
53285). Employees in non-manufacturing industries were estimated to
experience acute chemical illness and injury at the rate of 13,671
injuries, 38,248 illnesses, and 102 fatalities per year. 52 FR 31868.
The chronic disease rate was 17,153 chronic illnesses, 25,388 cancer
cases, and 12,890 cancer deaths per year. Id. (Compare with, Ex. 4-77
(NIOSH data indicating 136,212 work-related chemical injuries treated
in emergency rooms in 1986)).
OSHA believes that the reported data understate the extent of the
health and safety problems caused by chemicals in the workplace. Lack
of knowledge about health effects associated with chemical exposures
contributes to the chronic underreporting of occupational illnesses
(Exs. 4-44; 41). As the effects caused are diseases or physical
manifestations that may also occur in workers as a result of non-
chemical or non-occupational factors, it is often difficult to identify
such ailments as being caused by occupational exposures. Misdiagnosis
is a problem and often symptoms are treated without realizing that the
cause is an occupational chemical exposure. See, e.g., 53 FR 25973 (Ex.
4-178).
Worker turnover in many industries also increases the likelihood
that the link between a workplace chemical exposure and subsequent
illness will be overlooked and will not be reported. This is
particularly true for long-term health effects which develop over time,
or after repeated exposures. Many chronic diseases are characterized by
long latency periods of 20-30 years or longer.
In addition, health effects of some chemicals may contribute to the
occurrence of injuries that are reported but are not causatively linked
to chemical exposures. For example, central nervous system depression
due to solvent exposure may cause a painter to become dizzy and fall
off a ladder. The subsequent injury may be reported, but the solvent
exposure is not identified as the cause. (See Exs. 67 for studies on
neurobehavioral changes in painters due to solvent exposures; 4-161 for
case of injury to cosmetologist resulting from solvent exposure causing
dizziness, loss of balance, and a fall.)
B. Overview of Standard
The purpose of the HCS is to ensure that the hazards of all
chemicals produced or imported are evaluated, and that information
concerning their hazards is transmitted to employers and employees. In
broad outline, the HCS achieves its purpose by an integrated three-
pronged system. First, chemical manufacturers and importers must review
available scientific evidence concerning the physical and health
hazards of the chemicals they produce or import to determine if they
are hazardous. (Paragraph (d)). Second, for every chemical found to be
hazardous, the chemical manufacturer or importer must develop
comprehensive material safety data sheets (MSDSs) and warning labels
for containers and send both downstream along with the chemicals.
(Paragraphs (f), (g)). Third, all employers must develop a written
hazard communication program and provide information and training to
employees about the hazardous chemicals in their workplace. (Paragraphs
(e), (h)).
The three information components in this system--labels, material
safety data sheets, and worker training--are all essential to the
effective functioning of the program. The MSDSs provide comprehensive
technical information, and serve as a reference document for exposed
workers as well as health professionals providing services to those
workers. The labels provide a brief synopsis of the hazards of the
chemicals at the site where the chemical is used in the work area.
Training ensures that workers understand the information on both MSDSs
and labels, know how to access this information when needed, and are
aware of the proper protective procedures to follow. Each component
effectuates the others. See General Carbon Co. v. OSHRC, 860 F.2d 479,
481 (DC Cir. 1988).
The provision of information under the HCS about these effects and
protective measures will reduce the incidence of chemical source
illnesses and injuries in the workplace. 48 FR 53281-83. An effective
hazard communication program will accomplish this purpose through
modifying the behavior of both employers and employees. Employers, many
of whom have not been aware of the potential hazards of the chemicals
they purchase to use in their workplaces, will be able to use the
information provided under the HCS to design better protective
programs. Complete information about chemicals may allow an employer to
choose a less hazardous product, thus preventing dangerous exposures
from occurring. Exs. 4-194, 71-40. Accurate information is also needed
to properly design engineering controls, select appropriate protective
clothing, and choose an effective respirator for exposed employees. Ex.
71-40. Improved understanding of chemical hazards by supervisory
personnel results in safer day-to-day handling of hazardous substances,
and proper storage and clean-up. See e.g., Exs. 4-61, 4-75, 71-40.
Workers provided the necessary hazard information will more fully
participate in, and support, the protective measures instituted in
their workplaces. The presence of labels and material safety data
sheets in the workplace will provide each worker with the hazards of
the chemicals, as well as the means to protect themselves. The training
of workers will teach them how to use the available information
effectively. Properly trained workers will know how to read and use
labels and material safety data sheets, will know what protection is
required to work safely with the chemicals in the workplace and will
use it, and will be able to determine what actions are necessary if an
emergency occurs. (E.g., Exs. 4-75, 4-174.) Information on chronic
effects of exposure to hazardous chemicals will help workers recognize
such symptoms and seek early treatment of chronic disease.
The information provided under hazard communication will also
enable health and safety professionals to provide better services to
exposed employees. (E.g., Exs. 4-153, 71-37.) Medical surveillance,
exposure monitoring, and other such services will be enhanced by the
ready availability of health and safety information.
As OSHA has noted in Appendix E of the rule: ``For any safety and
health program, success depends on commitment at every level of the
organization. This is particularly true for hazard communication, where
success requires a change in behavior. This will only occur if
employers understand the program, and are committed to its success, and
if employees are motivated by the people presenting the information to
them.''
It is in these ways that the HCS addresses the significant risks
posed to workers handling hazardous chemicals and not knowing their
hazards or the proper methods of handling and using them. This
rulemaking is intended to promulgate minor changes and technical
amendments to the existing HCS to enhance its effectiveness.
C. History of the Rulemaking
The development of OSHA's Hazard Communication Standard (HCS) was
initiated in 1974. The process has been lengthy and is discussed in
detail in the preambles to both the original and revised final rules
(see 48 FR 53280-81 and 52 FR 31852-54), and in the August 1988 NPRM
(53 FR 29822-25). This discussion will focus on the sequence of events
which has occurred since the original final rule was published in the
Federal Register on November 25, 1983, and in particular, those which
have occurred since the NPRM was published.
The original rule, which was promulgated on November 25, 1983 (48
FR 53280), covered employees in the manufacturing sector of industry.
That rule was modified on August 24, 1987 (52 FR 31852) to expand the
coverage to all industries where employees are exposed to hazardous
chemicals. Complete implementation of the standard's requirements in
the non-manufacturing sector was subsequently delayed by various court
and administrative actions. However, the August 24, 1987, rule is now
fully effective and has been so since January 24, 1989, and is being
enforced in all industries. (See Notice of Enforcement, 54 FR 6886,
Feb. 15, 1989).
Petitions for judicial review of the original 1983 rule covering
manufacturing were filed in the U.S. Court of Appeals for the Third
Circuit (hereinafter referred to as ``the Court'' or ``the Third
Circuit'') by the United Steelworkers of America, AFL-CIO-CLC, and by
Public Citizen, Inc., representing itself and a number of labor groups.
Motions to intervene in these cases were received from the Chemical
Manufacturers Association, the American Petroleum Institute, the
National Paint and Coatings Association, and the States of New York,
Connecticut, and New Jersey. In addition, petitions for review of the
standard were filed by the State of Massachusetts in the First Circuit;
the State of New York in the Second Circuit; the State of Illinois in
the Seventh Circuit; the Flavor and Extract Manufacturers' Association
in the Fourth Circuit; and the Fragrance Materials Association in the
District of Columbia Circuit. These cases were subsequently transferred
to the Third Circuit and consolidated into one proceeding. The cases
brought by the Flavor and Extract Manufacturers' Association and the
Fragrance Materials Association were withdrawn prior to filing briefs.
The Court issued its initial decision on the challenges to the
rule on May 24, 1985 United Steelworkers of America v. Auchter, 763
F.2d 728 (3d Cir. 1985)(Ex. 4-21.) The standard was upheld in most
respects, but three issues were remanded to the Agency for
reconsideration. The decision was not appealed.
First, the Court concluded that the definition of trade secrets
incorporated by OSHA included chemical identity information that was
readily discoverable through reverse engineering and, therefore, was
``broader than the protection afforded trade secrets by state law.''
The Court directed the Secretary of Labor to reconsider a trade secret
definition which would not include chemical identity information that
is readily discoverable through reverse engineering. Secondly, the
Court held the trade secret access rule in the standard invalid insofar
as it limited access to health professionals, but found the access rule
otherwise valid. The Secretary was directed to adopt a rule permitting
access by employees and their collective bargaining representatives to
trade secret chemical identities. OSHA complied with the Court orders
regarding the two trade secret issues in a separate rule, published in
final form on September 30, 1986 (51 FR 34590). The revised trade
secret provisions were incorporated into the text of the final rule
published on August 24, 1987.
The third issue remanded to OSHA involved the scope of industries
covered by the standard. The original HCS applied to employers and
employees in the manufacturing sector. The Court directed the Secretary
of Labor to reconsider the standard's application to employees in other
industry sectors, and ``to order its application in those sectors
unless he can state reasons why such application would not be
feasible.'' 763 F.2d at 739, 743.
OSHA subsequently published an advance notice of proposed
rulemaking (ANPR) to collect comments and information on the expansion
of the scope to cover these additional sectors (50 FR 48795; November
27, 1985). In particular, the Agency sought information on the extent
employers in non-manufacturing industries had already implemented
various aspects of a hazard communication program. In addition, OSHA
wanted to obtain data regarding the applicability of the provisions as
written in the original rule to these other sectors. A total of 226
responses were received. (See Ex. 2.) OSHA also commissioned a study of
the economic impact of extending the HCS to the fifty major non-
manufacturing industry groups within its jurisdiction. (See Exs. 4-1
and 4-2.) Based on this newly acquired evidence, as well as the
previous rulemaking record, OSHA was in the process of drafting a
proposed rule.
On January 27, 1987, however, the United Steelworkers of America,
AFL-CIO-CLC and Public Citizen, Inc., petitioners in the 1985
challenge, filed a Motion For An Order Enforcing the Court's Judgment
and Holding Respondent in Civil Contempt. Petitioners claimed that the
Court's 1985 order had not authorized OSHA to embark on further fact
gathering, and that OSHA should have made a feasibility determination
based upon the 1985 rulemaking record. Petitioners also argued that
even if further fact gathering had been allowed by the Court's order,
OSHA's pace was unduly slow.
In response, OSHA noted that the Court's 1985 order did not specify
that OSHA should act on the then-existing record. OSHA believed that
seeking further evidence on feasibility in non-manufacturing was
appropriate in light of its statutory obligation to issue rules that
are well grounded in a factual record. OSHA also asserted that,
consistent with Supreme Court precedent, the Agency should be permitted
to exercise its discretion in determining the appropriate rulemaking
procedures for complying with the Court's remand order. Lastly, the
Agency argued that its schedule to complete the rulemaking was
reasonable and did not constitute undue delay.
On May 29, 1987, the Court issued a decision holding that the
Court's 1985 remand order required consideration of the feasibility of
an expanded standard without further rulemaking. United Steelworkers of
America, AFL-CIO-CLC v. Pendergrass, 819 F.2d 1263 (3d Cir. 1987) (Ex.
4-20.) The Court declared that adequate notice had been provided to
non-manufacturers during the original rulemaking that they might be
covered by the HCS, id. at 1265-1266, 1269, that the answers to the
remaining questions OSHA may have had regarding feasibility were
``self-evident'' or ``readily ascertainable'' from the original record,
id. at 1268-69, and that further fact finding was ``unnecessary'', id.
at 1268. The Court ordered the Agency to issue, within 60 days of its
order, ``a hazard communication standard applicable to all workers
covered by the OSHA Act, including those which have not been covered in
the hazard communication standard as presently written, or a statement
of reasons why, on the basis of the present administrative record, a
hazard communication standard is not feasible.'' Id. at 1270.
OSHA subsequently re-evaluated the evidence in the record and
determined that a modified final rule covering all employers subject to
the Act (i.e., both manufacturing and nonmanufacturing) was both
necessary (the Agency had determined in 1983 that all employees exposed
to hazardous chemicals without having adequate information about them
were at significant risk of experiencing adverse effects) and feasible
(both technologically and economically). The Agency therefore issued
the revised rule on Hazard Communication which was published in the
Federal Register on August 24, 1987 (52 FR 31852).
The only modifications OSHA made to the original rule in the 1987
revision were those that were related to expansion of the scope.
Publication of a final rule precluded any actions other than those
specifically required by the expansion, particularly since the Court
determined that the record it reviewed (exhibits collected through
November 1983) was a sufficient basis for the final rule. Thus evidence
collected subsequent to that time was merely cited as additional
substantiation for the expansion.
The revised final rule expanded the scope of industries covered
from just the manufacturing sector to all industries where employees
are exposed to hazardous chemicals. As OSHA stated at that time, the
Agency has evidence to indicate that there is chemical exposure in
every type of industry, lack of knowledge about those hazardous
chemicals puts employees at a significant risk of experiencing material
impairment of health, and thus employees in all industries must have
protection under the rule. (See 52 FR 31858.)
Although the standard was issued as a final rule, OSHA invited
interested parties to submit information, data or evidence regarding
the feasibility or practicality of the provisions as written when
applied to the non-manufacturing sector, as well as any recommendations
for further modification. A 60-day period was established for such
comments, and it ended on October 23, 1987. A total of 137 comments
were received (40 of them were received after the deadline), and
entered into Docket H-022D (Ex. 5). A variety of opinions was expressed
in the comments regarding a number of issues; however, most of the
comments did not contain data or evidence concerning either feasibility
or practicality. Many of the comments were questions or requests for
clarification of the provisions.
In addition to the comments submitted to OSHA, the Office of
Management and Budget (OMB) convened a public meeting under the
Paperwork Reduction Act (44 U.S.C. 35) to address the information
collection requirements of the expanded rule. The transcript of the OMB
public meeting (which was held on October 16, 1987) is entered in the
docket as Ex. 5-76, and other relevant documents (e.g., copies of
statements, etc.) are entered in Exhibit 6. (In addition, the
transcript of an April 2, 1987, public meeting on the information
collection requirements for the manufacturing sector is Ex. 4-3.) The
majority of the participants in OMB's October 16 meeting submitted
written comments to OSHA as well, so there is considerable duplication
in Exhibit 6 of opinions that had already been expressed by the same
parties in other parts of the rulemaking record.
In a letter sent to the Department of Labor on October 28, 1987,
and subsequently published by OSHA in the Federal Register on December
4, 1987 (52 FR 46075) (Ex. 4-67), OMB, under the authority of the
Paperwork Reduction Act (44 U.S.C. 3501 et seq.), disapproved certain
information collection requirements in the expanded scope rule, as of
the rule's effective date (May 23, 1988). These were based upon the
record of the October 16 public meeting and the previous meeting on
April 2, 1987 regarding the information collection requirements for the
manufacturing sector, as well as OSHA's preamble to its August 24 rule
and its justification submitted formally under the Paperwork Reduction
Act. The October 28 letter stated that OMB disapproved: (1) The
requirement that material safety data sheets be provided on multi-
employer worksites; (2) coverage of any consumer product that falls
within the ``consumer products'' exemption included in Section
311(e)(3) of the Superfund Amendments and Reauthorization Act of 1986;
and (3) coverage of any drugs regulated by the Food and Drug
Administration in the non-manufacturing sector. In addition, OMB
determined that OSHA should reopen the rulemaking on the HCS to
consider alternatives to the definition of ``article'' which was
included in both the original and revised final rules. Lastly, OMB
conditioned paperwork approval upon OSHA's consulting with the U.S.
Small Business Administration and the Department of Commerce in order
to develop a plan for a Federal administrative effort that will provide
assistance to the regulated industries to alleviate paperwork burdens
and costs. For a complete description of OMB's rationale for these
determinations, see the Federal Register notice of December 4, 1987 (52
FR 46075).
On April 13, 1988, OMB extended its approval of all information
collection requirements in the HCS through April 1991, except that OMB
continued to disapprove the three provisions previously disapproved. 53
FR 15033. OMB's approval of the existing definition of ``article'' was
limited to the clarification included in a January 14, 1988, letter
from Assistant Secretary for Occupational Safety and Health John
Pendergrass to OMB, which stated that ``absent evidence that releases
of such very small quantities could present a health hazard to
employees, the article exception to the rule's requirements would
apply.'' In response to commenters who requested that OMB not extend
approval to any requirements in the non-manufacturing sector, OMB also
stated:
The concerns of these commenters are largely based on the
possibility that the standard and OMB's decision under the PRA will
change dramatically as a result of the rulemaking. Although change
is always possible, any such change would be fully considered during
the rulemaking process. Of course, in order for OMB to grant PRA
approvals, any changes must offer sufficient practical utility to
justify any incremental paperwork burden they impose, including the
burden of revising already-developed written programs. Moreover, as
stated above, we are continuing to disapprove the previously-
disapproved provisions; the rulemaking should of course conform the
rule to these disapprovals.
On August 8, 1988, OSHA published a notice of proposed rulemaking
(NPRM) to modify its Hazard Communication Standard (HCS) (53 FR 29822).
In the NPRM, OSHA reopened the rule on all of the issues raised by
OMB in its letter in order to have an opportunity to fully discuss the
complete current record on each item, as well as to collect additional
data from the public.
The initial deadline for receipt of comments on the NPRM was
October 7, 1988. This date was later extended to October 28, 1988. OSHA
received 167 comments.
An informal public hearing was convened in Washington, DC on
December 6, 1988, and was adjourned on December 14, 1988. Over 1300
pages of oral testimony were received. Sixty days were provided for
post-hearing submissions of new information by hearing participants
(ending February 13, 1989), and an additional thirty days were allowed
for submission of summary briefs. A total of thirty-four post-hearing
exhibits have been entered into the record.
Administrative Law Judge George Fath certified and closed the
hearing record on November 9, 1990.
OSHA published two requests for comments and information subsequent
to the 1988 NPRM. On January 22, 1990 (55 FR 2166), the Agency
solicited public input related to international harmonization of
chemical safety and health information, and a proposed convention and
recommendation of the International Labor Organization (ILO). OSHA
received 52 comments in response to this notice which were used by
United States' representatives to prepare for participation in the ILO
meetings on these documents.
On May 17, 1990 (55 FR 20580), OSHA published a request for
comments on improving the effectiveness of information generated in
accordance with the HCS, and subsequently disseminated on labels and
MSDSs. Nearly 600 comments were received during the 90 day comment
period. Many commenters supported standardization of the format or
order of information on the MSDSs, and of the presentation of
information on labels. The Agency has decided that administrative or
regulatory changes to be made in response to these comments will be
done separately from this final rule.
D. Court Challenges to the Revised Final Rule
The revised final rule was challenged in the U.S. Court of Appeals
by the Associated Builders and Contractors, National Grain and Feed
Association, Associated General Contractors of Virginia, Associated
General Contractors of America, and United Technologies Corporation. A
number of interested parties intervened in the cases as well. The
challenges generally involved the appropriateness of OSHA's publishing
a final rule in response to the Third Circuit's order.
Although these cases were originally consolidated in the U.S. Court
of Appeals for the District of Columbia Circuit, they were transferred
to the U.S. Court of Appeals for the Third Circuit on May 20, 1988. The
cases were transferred to the Third Circuit because the ``revised [HCS]
was promulgated in response to orders by the Third Circuit * * * and
petitioners have raised issues similar to those already considered by
that court.''
On June 24, 1988, the Third Circuit granted a stay of the standard
as it applied to the construction industry (29 CFR 1926.59) pending the
outcome of the litigation challenging the rule. OSHA published a notice
in the Federal Register on July 22, 1988 (53 FR 27679) to provide the
public further information regarding the applicability of the stay to
construction employers and enforcement of the rule in the other
industries
After considering the merits of the challenges to the standard
which were filed by employer representatives, the U.S. Court of Appeals
for the Third Circuit issued a decision on November 25, 1988 that
denied the petitions for review. The Court stated: ``None of the
substantive or procedural challenges to the application of the hazard
communication standard to the construction or grain processing and
storage industries have merit. The petitions for review of ABC
(Associated Builders and Contractors, Inc.), AGC (The Associated
General Contractors), NGFA (The National Grain and Feed Association,
Inc.) and UTC (United Technologies Corporation) will therefore be
denied. The stay of those standards granted by a panel of this court on
June 24, 1988, shall be vacated.'' Associated Builders and Contractors,
Inc. v. Brock, 862 F.2d 63, 69 (3d Cir. 1988) (Ex. 15). Further
requests from the AGC and the ABC for a continuation of the stay were
denied by the Third Circuit and by the United States Supreme Court
(Nos. 88-1070; 88-1075). The Supreme Court also declined to review the
Third Circuit's decision (November 29, 1988). The Third Circuit's
ruling became fully effective on January 30, 1989. The standard,
therefore, is effective in all industries. 54 FR 6886.
E. Litigation Involving Provisions Disapproved With Regard to
Information Collection Requirements
As described above, on October 28, 1987, the Office of Management
and Budget (OMB), citing authority of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.), disapproved certain information collection
requirements in the expanded scope rule, as of the rule's effective
date. On December 4, 1987 (52 FR 46075), OSHA published OMB's letter
describing its determination in a notice in the Federal Register. (See
also 53 FR 15033 (Apr. 27, 1988) (OMB letter to Department of Labor
dated April 13, 1988)).
The provisions that OMB disapproved were: (1) The requirement that
material safety data sheets be provided on multi-employer worksites;
(2) coverage of any consumer product that falls within the ``consumer
products'' exemption included in section 311(e)(3) of the Superfund
Amendments and Reauthorization Act of 1986; and (3) coverage of any
drugs regulated by the Food and Drug Administration in the non-
manufacturing sector. In accordance with OMB's decision, OSHA did not
enforce these three disapproved requirements.
OMB's disapproval of the HCS provisions was challenged in the U.S.
Court of Appeals for the Third Circuit. On August 19, 1988, the Court
of Appeals invalidated OMB's actions as being outside OMB's authority
under the Paperwork Reduction Act. United Steelworkers of America v.
Pendergrass, 855 F.2d 108 (3d Cir. 1988)(Ex. 4-190). The Court held
that the three disapproved HCS provisions did not require ``collection
of information'' under the Paperwork Reduction Act and embodied
substantive policy decisionmaking entrusted to OSHA. Id. at 112. The
Court ordered that: ``The Secretary [of Labor] shall publish in the
Federal Register a notice that those parts of the August 24, 1987
hazard communication standard which were disapproved by OMB are now
effective.'' Id. at 114.
On September 2, 1988, the U.S. Department of Justice filed a
petition with the Third Circuit requesting a rehearing and suggesting a
rehearing en banc, which automatically stayed the effect of the Court's
order. The Court denied the petition for rehearing (November 29, 1988),
as well as requests for stay of the decision. In addition, a further
motion by industry representatives for a stay of the decision was
denied by U.S. Supreme Court Justice Brennan (January 24, 1989), and by
the full Court upon reconsideration (February 21, 1989).
The Third Circuit's decision became effective January 30, 1989. As
ordered by the Third Circuit, OSHA published a notice in the Federal
Register on February 15, 1989 (54 FR 6886) to inform affected employers
and employees that all provisions of the HCS were in effect in all
industries. As a matter of enforcement policy, OSHA did not check for
compliance with the three provisions in programmed inspections until
March 17, 1989.
To implement the court order, technical amendments were made to the
HCS to delete from notes following the headings of the standard, and
from the parentheticals following the text of the standard, statements
that any provisions of the HCS are disapproved by OMB. The OMB-assigned
control number for the approved collection of information requirements
of the HCS remain following the text of the standard. The Paperwork
Reduction Act requires display of OMB control numbers with all
information collection provisions.
Following the decision in United Steelworkers, the Solicitor
General requested the Supreme Court on behalf of the United States
government to review the case, and the Court granted its request. In
Dole v. United Steelworkers of America, the Supreme Court affirmed the
judgment of the Third Circuit. 110 S.Ct. 929 (1990). The Court held
that the term ``collection of information'' in the Paperwork Reduction
Act refers solely to the collection of information by or for the use of
a federal agency, and does not cover rules mandating disclosure of
information to a third party. Id. at 937. Thus, the OMB-disapproved
provisions reinstated by the Third Circuit continue to be in effect.
The primary purpose for the 1988 HCS NPRM was to address the issues
related to the OMB disapproval. As the Third Circuit has invalidated
OMB's disapproval, and that decision was upheld by the Supreme Court,
those provisions are no longer considered to be information collection
requirements subject to OMB review and approval. The modifications in
this final rule are based upon OSHA's determination that clarifications
would enhance compliance and thus protection of workers. The only
information collection burdens for the rule involve access by OSHA
during inspections to records maintained by the employer. These were
approved by OMB on June 24, 1991 until April 1994 (control number 1218-
0072). As this final rule does not affect the access burden, OSHA is
not submitting this rule for further consideration under the authority
of the Paperwork Reduction Act.
F. Advisory Committee on Construction Safety and Health (ACCSH)
As discussed in the preamble to the August 1987 final rule (52 FR
31858-59), the ACCSH reviewed a draft notice of proposed rulemaking to
expand the scope of the HCS to construction on June 23, 1987. The ACCSH
went through the NPRM line-by-line, making recommendations to adapt it
to the construction industry, i.e., the document with the recommended
changes constituted an ACCSH recommended standard for hazard
communication (Ex. 4-186). A number of the recommendations were adopted
(e.g., the definition of workplace was modified to include job sites or
projects; the written hazard communication program requirements were
amended to state more clearly that the programs are to be maintained at
the site).
As the 1988 NPRM addressed issues that affect construction, OSHA
transmitted a draft of it to the ACCSH for review and comment. In a
meeting on March 30, 1988, the ACCSH did not provide specific
recommendations on the NPRM. The ACCSH reiterated its desire to have a
separate standard for construction, and appointed a subcommittee to
make further recommendations to the Assistant Secretary. However, the
ACCSH also reaffirmed that the standard as written should be
implemented on May 23, 1988 as originally scheduled.
The ACCSH-appointed subcommittee reviewed the standard again and
prepared new recommendations. The full committee voted to submit the
subcommittee's recommendations to OSHA at their meeting on November 30,
1988. Their recommendations are in the record as Exs. 14-1, 14-2, and
14-3.
The focus of their recommendations was to reorganize the
requirements of the rule by removing any provisions that apply
primarily to chemical manufacturers and importers. Their proposed draft
rule either deleted the requirements or moved them to an appendix. OSHA
does not agree that these requirements should be removed from the rule.
It is important for construction employers to be aware of what
information they are entitled to, and the distribution mechanisms.
Reorganization as suggested by the ACCSH detracts from the logical
presentation of the requirements, and makes the rule more difficult to
understand. OSHA believes that the addition of non-mandatory Appendix E
provides sufficient guidance for construction employers, as well as all
other employers using chemicals, to guide them to the applicable
provisions of the rule.
In addition, the ACCSH subcommittee suggested that a definition be
added for a ``competent person,'' and that such individuals be given
certain duties under the rule. OSHA does not believe that this is a
provision that would add to the protections of the rule. The HCS is
intended to train all workers about the hazards of chemicals and
appropriate protective measures. It is not clear what additional
training a worker would have to have to be designated a ``competent
person.'' The intent of the rule is to ensure that all workers are
trained to be ``competent.'' In addition, it was suggested that the
``competent person'' would have the authority to stop the job or
correct the hazards. This type of action is beyond the information
transmittal requirements of the HCS.
II. Pertinent Legal Authority
The primary purpose of the Occupational Safety and Health Act (the
Act) (29 U.S.C. 651 et seq.) is to assure, so far as possible, safe and
healthful working conditions for every American worker over the period
of his or her working lifetime. One means prescribed by the Congress to
achieve this goal is the mandate given to, and the authority vested in,
the Secretary of Labor to set mandatory safety and health standards.
Authority for issuance of this standard is found primarily in
sections 6(b), 8(c)(1), and 8(g)(2) of the Act. 29 U.S.C. 655(b),
657(c)(1), 657(g)(2). Section 6(b), and in particular Section 6(b)(5),
governs the issuance of occupational safety and health standards
dealing with toxic materials or harmful physical agents. Section
8(c)(1) of the Act empowers the Secretary to require employers to make,
keep, and preserve records regarding activities related to the Act and
to make such records available to the Secretary. Section 8(g)(2) of the
Act empowers the Secretary to ``prescribe such rules and regulations as
[she] may deem necessary to carry out [her] responsibilities under this
Act * * *.''
Section 3(8) of the Act, 29 U.S.C. 652(8), defines an occupational
safety and health standard as follows:
[A] standard which requires conditions, or the adoption or use of
one or more practices, means, methods, operations, or processes,
reasonably necessary or appropriate to provide a safe or healthful
employment and places of employment.
In addition, Congress specifically stated in section 6(b)(5) that:
The Secretary, in promulgating standards dealing with toxic
materials, or harmful physical agents under this subsection, shall
set the standard which most adequately assures, to the extent
feasible, on the basis of the best available evidence, that no
employee will suffer material impairment of health or functional
capacity even if such employee has regular exposure to the hazard
dealt with by such standard for the period of his working life.
Development of standards under this subsection shall be based upon
research, demonstrations, experiments, and such other information as
may be appropriate. In addition to the attainment of the highest
degree of health and safety protection for the employee, other
considerations shall be the latest available scientific data in the
field, the feasibility of standards, and experience gained under
this and other health and safety laws. Whenever practicable, the
standard promulgated shall be expressed in terms of objective
criteria and of the performance desired.
The Supreme Court has said that section 3(8) applies to all
permanent standards promulgated under the Act and requires the
Secretary, before issuing any standard, to determine that it is
reasonably necessary and appropriate to remedy a significant risk of
material health impairment. Industrial Union Dep't v. American
Petroleum Institute, 448 U.S. 607 (1980). The ``significant risk''
determination constitutes a finding that, absent the change in
practices mandated by the standard, the workplaces in question would be
``unsafe'' in the sense that workers would be threatened with a
significant risk of harm. Id. at 642. This finding, however, does not
require mathematical precision or anything approaching scientific
certainty if the ``best available evidence'' does not warrant that
degree of proof. Id. at 655-656; 29 U.S.C. 655 (b)(5). Rather, the
Agency may base its findings largely on policy considerations and has
considerable leeway with the kinds of assumptions it applies in
interpreting the data supporting it. 448 U.S. at 656.
Moreover, under the authority of Section 6(b)(7), 29 U.S.C.
655(b)(7), any standard issued by the Secretary shall contain
requirements that are essentially ``information-gathering'' in
function, including:
* * * prescrib[ing] the use of labels or other appropriate forms of
warning as are necessary to insure that employees are apprised of
all hazards to which they are exposed, relevant symptoms and
appropriate emergency treatment, and proper conditions and
precautions of safe use or exposure.
These requirements may be imposed at levels of risk below what would be
necessary for the setting of exposure limits because they serve the
purpose of ``keep[ing] a constant check on the validity of the
assumptions made in developing the permissible exposure limit, giving
it a sound evidentiary base for decreasing the limit if it was
initially set too high.'' Id. at 658 (footnote omitted). They also
provide basic protections for workers in the absence of specific
permissible exposure limits, particularly by providing employers with
guidance for designing protective programs.
After OSHA has determined that a significant risk exists and that
such risk can be reduced or eliminated by a proposed standard, it must
set a standard ``which most adequately assures, to the extent feasible
on the basis of the best available evidence, that no employee will
suffer material impairment of health * * *.'' 29 U.S.C. 655(b)(5). The
Supreme Court has interpreted this section to mean that OSHA must enact
the most protective standard possible to eliminate a significant risk
of material health impairment, subject to the constraints of
technological and economic feasibility. American Textile Manufacturers
Institute, Inc. v. Donovan (ATMI), 452 U.S. 490 (1981). The
``feasibility'' constraint has also been described simply as limiting
standards to requiring only what is ``capable of being done'' or
``achievable.'' Id. at 508-509. The Court held that ``cost-benefit
analysis is not required by the statute because feasibility analysis
is.'' Id. at 509. The Court stated that the Agency could use cost-
effectiveness analysis and choose the less costly of two equally
effective standards. Id. at 531 n.32.
A. Finding of Significant Risk
In United Steelworkers of America v. Auchter, 763 F.2d 728, 735 (3d
Cir. 1985), the U.S. Court of Appeals for the Third Circuit concluded,
as a threshold matter, that the hazard communication rule is a section
6 standard under the Act which is aimed at correcting a particular
``significant risk'' in the workplace. The HCS is not ``merely an
enforcement or detection procedure designed to further the goals of the
Act generally.'' Id. (quoting test for distinguishing standards from
regulations first explained in Louisiana Chemical Ass'n v. Bingham, 657
F.2d 777, 782 (5th Cir. 1981)). See also Associated Builders &
Contractors v. Brock, 862 F.2d at 67.
The practices mandated by the standard--hazard evaluations, written
hazard communication programs, labels and other forms of warning,
material safety data sheets, and information and training--are, at
bottom, directed not merely at the identification of workplace
chemicals, but more significantly at the correction of their hazards as
well. This correction will occur largely as a result of employee
compliance with instructions on how to protect themselves when exposed
to hazardous chemicals that are an integral part of any hazard
communication program, as well as by other hazard-reducing strategies
adopted by employers when they become more aware of the hazards in
their workplaces (e.g., chemical substitution). And because the record
clearly indicates that inadequate communication about serious chemical
hazards endangers workers, and that the practices required by this
standard are necessary and appropriate to the elimination or mitigation
of these hazards, the Secretary is able to make the threshold
``significant risk'' determination that is an essential attribute of
all permanent standards. The Third Circuit Court of Appeals agreed that
``inadequate communication is itself a hazard, which the standard can
eliminate or mitigate.'' United Steelworkers v. Auchter, 763 F.2d at
735.
A number of commenters have questioned OSHA's general finding of
significant risk. These commenters argue that OSHA needed to find
significant risk: (1) For each industry covered (e.g., Ex. 84
(construction)); (2) for each chemical covered (e.g., Ex. 11-129 (grain
dust)); and (3) for each exposure situation (e.g., Ex. 85 (mixtures,
articles)). Although these comments are addressed in more detail in
Part III of this preamble where the rule is summarized, briefly, it is
clear from the relevant court decisions that these specific findings
are not required for a standard such as this, where the risk of
inadequate knowledge is the same in every application of the standard.
In Associated Builders & Contractors v. Brock, 862 F.2d 63 (1988),
the Third Circuit responded to the first two complaints against OSHA's
significant risk finding. The Court noted that the general significant
risk finding for the original 1983 rule was appropriate for the entire
manufacturing sector, even though OSHA did not make individual findings
for each of the twenty major Standard Industrial Classification (SIC)
Code manufacturing subdivisions. Id. at 67. The Court concluded that
``[t]here is no more obvious need for industry specific significant
risk determinations for the [non-manufacturing] industries than for
subdivisions of the manufacturing sector.'' Id. at 67-68. The Court
held that for this ``performance-oriented information disclosure
standard covering thousands of chemical substances used in numerous
industries * * * the significant risk requirement must of necessity be
satisfied by a general finding concerning all potentially covered
industries. A requirement that the Secretary assess risk to workers and
the need for disclosure with respect to each substance in each industry
would effectively cripple OSHA's performance of the duty imposed on it
by 29 U.S.C. 655(b)(5); a duty to protect all employees, to the maximum
extent feasible.'' Id. at 68. OSHA was not required to assess
individually the significant risk that would be alleviated by the HCS's
application to each of the seventy major business classifications, much
less for each of the hazardous substances used in those industries.
As for arguments that OSHA should only apply the HCS where chemical
exposures pose known significant risks (e.g., Ex. 85), the Agency
concludes that neither the record evidence nor policy considerations
support such an approach. The record shows that although chemical
manufacturers or importers may know, in principle, the use to which
their product will be put, they generally do not know enough about
downstream operations to make reliable predictions about downstream
exposure levels. Therefore, information must be provided for all
hazardous chemicals to which employees may be exposed, regardless of
any judgments by the chemical manufacturer or importer about possible
levels of risk. 48 FR 53295, 53296, 53307. Furthermore, to allow
chemical manufacturers or importers to edit hazard information based on
their predictions of the extent of downstream exposures is to deprive
downstream employers and employees an opportunity to make an effective
assessment of potential hazards based on complete information on the
individual chemical and in light of any possible additive or
synergistic effects that may be posed by the presence of other
hazardous chemicals in the workplace. Id. at 53295, 53323. OSHA finds
that workers would be threatened with a significant risk of harm if
chemical manufacturers or importers are allowed to delete hazard
information based on a presumption of downstream risks, thus depriving
downstream employees and employers from having complete information on
which to base their decisions regarding control measures. See, General
Carbon Co. v. OSHRC, 860 F.2d 479 (DC Cir. 1988).
In addition, in light of Sec. 6(b)(7) of the Act requiring OSHA to
``insure that employees are apprised of all hazards to which they are
exposed,'' the Agency concludes that employees must be informed about
all potential hazards before the worker is exposed to them and not only
when there is overexposure. Linking HCS applicability to downstream
exposures posing a significant risk is contrary to the standard's very
purpose: to change downstream employer and employee behavior before
adverse health effects occur. 48 FR 53296. OSHA has concluded that
imposing informational requirements is necessary and appropriate to
protect workers even when OSHA has not determined that the level of
risk at a particular worksite warrants a substance-specific standard
that would employ more elaborate types of controls. Cf. Associated
Builders & Contractors, 862 F.2d at 67-68; United Steelworkers, 819
F.2d at 1269-70.
B. Finding of Feasibility
OSHA originally chose to direct the HCS to employers in
manufacturing, based on what were believed at that time to be relevant
policy considerations. The Third Circuit held that ``[o]nce a standard
has been promulgated, however, the Secretary may exclude a particular
industry only if he informs the reviewing court, not merely that the
sector selected for coverage presents greater hazards, but also why it
is not feasible for the same standard to be applied in other sectors
where workers are exposed to similar hazards.'' United Steelworkers,
763 F.2d at 738. Therefore, because inadequate communication of
chemical hazards is itself a significant risk, id. at 735, OSHA was
required by the Court order to apply the HCS to all workplaces where
employees are exposed to chemical hazards, to the extent feasible.
The feasibility question raised by the HCS is not difficult to
resolve. This standard does not relate to activities on the frontiers
of scientific knowledge; the requirements are not the sorts of
obligations that approach the limits of feasibility. Associated
Builders & Contractors, 862 F.2d at 68. The record on which the
original and expanded HCS's were based did not contain credible
evidence that the HCS would be technologically or economically
infeasible for any industrial sector, id., and there was substantial
evidence of feasibility, 52 FR 31855-58.
Part III of this preamble addresses in more detail the comments
which argue that individual requirements of the rule are infeasible
(e.g., Exs. 29 (distribution of MSDSs by wholesalers); 32 (provision of
MSDSs at construction sites)). As a general matter, however, OSHA
concludes that there is substantial evidence in the record that the
performance-oriented, informational provisions of the HCS are capable
of being done, and will not threaten any industry's ``long-term
profitability,'' ATMI, 452 U.S. at 531 n.55.
Certainly, the technical expertise needed to develop the chemical
hazard information is feasible for producers of the hazardous
chemicals. See, e.g., 48 FR 53296-99. Likewise, there are no
technological barriers preventing implementation of the other HCS
requirements, in that they are conventional and common business
practices that are administrative in nature. 52 FR 31855.
Moreover, OSHA concludes that the HCS administrative requirements
can be economically incorporated into present practices. OSHA believes
all businesses that produce, distribute, and use chemicals can ensure
that their containers are maintained with proper hazard warnings just
as these businesses would maintain labels or markings on containers to
ensure that downstream purchasers and workers handling or using the
chemicals comprehend the containers' contents and intended uses. Hazard
information can be sent from supplier to user just as suppliers are
able to send the chemical product itself to the user. All employers are
able to acquire and maintain up-to-date MSDSs for hazardous chemicals
just as they are able to acquire and maintain up-to-date cost
information and performance specifications on those very same products.
OSHA also concludes it is feasible for employers to inform and train
workers regarding chemical hazards present in the workplace just as
employers are capable of instructing and training their workers to
perform their jobs in an efficient and speedy manner. 52 FR 31856-57.
OSHA concludes that the record contains substantial evidence of the
economic feasibility of the HCS, including such evidence as: (1) The
numerous examples of compliance in all industries (see, e.g., id., Ex.
4-169 (71% of the 42,779 manufacturing facilities inspected by OSHA
from the initial compliance date to Feb. 1988 in full compliance; of
those cited for violating the HCS, majority had a hazard communication
program although it was deficient in some respect)); (2) the similar
implementation of other Federal communication laws and of state laws
(see, e.g., Ex. 4-183 (some 1000 employers inspected by Maryland Apr.
1, 1987 to Mar. 31, 1988, in total compliance with state law; over 1100
non-manufacturing workplaces inspected by Tennessee Oct. 1, 1987 to
June 30, 1988, in total compliance), 4-184 (over 16,000 establishments
inspected by Washington Jan. 1, 1987 to Dec. 31, 1987, in total
compliance)); (3) the detailed regulatory impact and regulatory
flexibility analyses which concluded that the costs associated with the
HCS were negligible in relation to revenues and profits of affected
industries (Ex. 4-1, 4-2. See also 52 FR 31867-76, 53 FR 29846-49); and
(4) the development of numerous guidelines and consultative services
offered by the Federal Government, States, trade associations, unions,
professional organizations, and private consultants (see e.g., 52 FR
31857, 53 FR 29848; Exs. 4-116, 4-118, 4-121, 4-122, 4-123, 4-128, 4-
129, 4-130, 4-137, 4-138, 4-139, 4-144, 4-147, 4-148, 4-149, 4-150, 4-
151, 4-154, 4-157, 4-158, 4-159, 4-160, 71-16, 71-55, 71-58, 71-61.)
OSHA has tailored the standard for a number of manufacturing and
non-manufacturing operations to ensure that its requirements are
feasible and effective in protecting all workers. See 52 FR 31858. Cf.
452 U.S. at 531, n.32 (OSHA can choose the less costly of two equally
effective standards.) Modifications adopted in this final rule also act
to tailor the rule to be more effective by incorporating language which
clarifies the requirements.
III. Summary and Explanation of the Issues and the Provisions of the
Final Rule
The regulatory text presented in this document reprints the entire
final rule with the adopted modifications incorporated into the
existing provisions. However, the discussion which follows is limited
to the adopted changes and related issues raised in the record. It does
not provide a complete summary and explanation of all of the provisions
of the rule--for such information interested parties should refer to
the preambles of the original (48 FR 53334-40) and revised (52 FR
31860-67) final rules.
While the primary purpose of publishing the NPRM was to resolve the
issues raised by OMB and presented in the proposed and alternative
provisions, OSHA also invited comment on other related issues. (As
described in the background section above, due to a decision issued by
the U.S. Court of Appeals for the Third Circuit, subsequently upheld by
the U.S. Supreme Court, the OMB disapproval has been invalidated.) In
reopening the record, OSHA recognized that it was not operating ``on a
clean slate.'' In developing the revised final rule in 1987, OSHA had
the benefit of an extensive evidentiary record. In addition, the
Agency's experience gained under the original standard, as well as
under state standards, some of which already applied to the
nonmanufacturing sector, further supported OSHA's regulatory approach.
OSHA continues to believe that the record substantially justifies the
Agency's regulatory choices, and the information presented to OSHA
since the standard was issued in 1987 has not convinced OSHA that
significant changes are warranted to comply with the OSH Act. This
final rule reflects that position. There are no substantial changes in
the requirements, and OSHA is simply promulgating clarifications and
modifications to enhance compliance.
As noted in the NPRM, OSHA retains ``almost unlimited discretion to
devise means to achieve the Congressionally mandated goal.'' United
Steelworkers of America v. Marshall, 647 F.2d 1189, 1230 (D.C. Cir.
1980), cert. denied, 453 U.S. 913 (1981). Accord, Building and
Construction Trades Dept., AFL-CIO v. Brock, 838 F.2d 1258, 1271 (DC
Cir. 1988). As the Agency determined at the time of the original final
rule in 1983 that all employees exposed to hazardous chemicals are at
significant risk of experiencing adverse health effects without the
protections of the HCS, OSHA is statutorily required to extend those
protections to those employees unless it can be shown that the
requirements are not feasible (i.e., they are not capable of being
done). In the 1987 revised final rule, OSHA determined that the
provisions are feasible in all industries. The rule's requirements had
thus been determined by OSHA to be both necessary for the protection of
all workers exposed to hazardous chemicals (i.e., they would mitigate a
significant risk of exposure), as well as capable of being done (i.e.,
are technologically and economically feasible). As a result of these
determinations, OSHA published the NPRM with the stated expectation
that the standard would not be changed significantly in this final rule
unless the Agency received substantial evidence during the rulemaking
that a regulatory modification was clearly necessary. This necessity
would have to be based on evidence that the 1987 standard is
demonstrably infeasible in a specific respect, or that the proposed
alternative would significantly increase the standard's intended safety
and health benefit or significantly improve its cost-effectiveness.
As will be discussed in detail below, the information submitted
during this rulemaking proceeding has convinced OSHA that its
regulatory choices are supported by substantial evidence and that
significant changes to the rule are unnecessary. However, some of the
comments do reflect a lack of understanding of the requirements and of
what is necessary for proper implementation of an acceptable program.
Hence OSHA is taking the opportunity in this final rule to incorporate
modifications to clarify such provisions and enhance compliance.
The discussion of the record which follows is organized in the
order the subjects are addressed in the standard for ease of reference.
Scope and Application
Coverage of all industries. As OSHA described in the preamble to
the revised final rule (52 FR 31855-59), expansion of the protections
afforded by the HCS to all nonmanufacturing industries is supported by
the rulemaking record. Evidence collected by OSHA indicates that there
is chemical exposure occurring in every type of industry covered
(although every employee may not be exposed), and that employees
exposed to hazardous chemicals without knowledge of their identities,
hazards, and appropriate protective measures are at a significant risk
of experiencing adverse effects from such exposures. Furthermore, it is
the Agency's position that all such employees are entitled to
information regarding the chemical hazards they are exposed to in the
workplace (i.e., that they have a fundamental right to know this
information), and that a uniform Federal hazard communication standard
is the best method to ensure that it is provided. OSHA's regulatory
requirements in this regard are consistent with the mandate of the Act
(to protect all employees to the extent feasible), as well as with the
Court's decisions upon review of the rule.
Despite these explicit determinations by OSHA in 1983 and 1987, as
well as by the Third Circuit in its decisions (subsequently upheld by
the Supreme Court), and a subsequent reiteration of this determination
in the NPRM, there were still some comments submitted which suggested
that certain industrial sectors should be exempted from the rule, or
only covered by limited provisions. The majority of these were from
representatives of the construction industry, and from distributors of
hazardous chemicals. The arguments generally involved the degree of
risk encountered in the industry, and the feasibility of the
requirements. OSHA has not found the arguments regarding infeasibility
to be persuasive, nor is there any justification for lessening the
protections afforded employees in the industries in question.
Coverage of the Construction Industry
Significant risk--industry perspective. As was described in the
preamble to the NPRM, representatives of the construction industry
submitted comments objecting to coverage under the revised final rule
(53 FR 29827). They argued that the rule's protections were not
required in their industry as exposures to hazardous chemicals did not
present a significant risk to workers, and construction employees are
already required to be trained under the existing construction training
standard, 29 CFR 1926.21. Therefore, according to these commenters,
whatever risk there is has already been mitigated by the existing
training, and any incremental risk remaining is not significant enough
to warrant coverage under the HCS.
The comments and testimony received subsequent to the publication
of the NPRM reiterate and expand upon this position. For example, a
number of commenters opposed the rule in its entirety, suggesting that
it is too burdensome, construction is already adequately covered, and
the requirements are not appropriate for construction. See, e.g., Exs.
11-9, 11-24, 11-29, 11-114, and 11-142. ``We believe an extension of
the Hazard Communication Standard to the non-manufacturing sector is
unwarranted and burdensome. Construction workers simply do not face a
significant risk of material harm from exposure to chemicals, and the
standard is infeasible for the construction industry to implement.''
Ex. 11-114.
A number of commenters suggested that construction should not be
covered since workers in this industry only use hazardous chemicals for
short periods of time, the quantities they use are small, and they
usually work outdoors (see, e.g., Exs. 11-1, 11-73, 11-84, and 11-97).
Similarly, other commenters suggested that only a few chemicals
used in construction are hazardous, and thus may warrant providing the
protections of hazard communication to exposed workers (Ex. 11-4,
asbestos is hazardous and employees should be trained regarding its
hazards). It was also suggested that the definition of what constitutes
a hazardous chemical be limited under the rule (Ex. 11-6), and that
OSHA cannot cover the only chemicals that pose a true hazard to workers
on the construction job site (Ex. 11-114, natural gas seepage).
The majority of the construction industry commenters stated that
there is no significant risk in the industry that requires coverage by
the HCS. The Associated General Contractors of America (AGC) (Ex. 11-
135) suggested to its members that comments submitted to OSHA in
response to the NPRM address whether the company believes construction
workers face a significant risk of material harm from exposure to
chemicals; whether the standard would reduce whatever risks from
hazardous chemicals do exist; and whether the rule is feasible. These
commenters uniformly responded to AGC's request for this information to
be submitted to the record by stating that there is no significant risk
in construction, the rule would not reduce whatever risks there are,
and the burdens are substantial (see, e.g., Exs. 11-12, 11-18, 11-20,
11-26, 11-36, 11-83, 11-97, 11-135, and 11-157). (The AGC surveyed its
membership to collect information regarding their opinions on the HCS
and associated burdens. At the time their comments were submitted, only
102 responses had been received from the 8,000 members that are general
contractors. Ex. 11-135.)
Most did not provide any specific comments on provisions of the
rule, or suggestions for solutions to the problems they identified,
other than exempting the construction industry from coverage. Providing
no evidence or substantiation for their opinions, they simply stated
that there is no significant risk, the risk would not be alleviated by
implementation of the rule, and the burden would not be feasible. For
example, at least six of this type of response were received from
officers of Charlie's Acoustical Systems, Inc. (Exs. 11-16, 11-18, 11-
19, 11-20, 11-26, 11-27, and 11-28). ``Chemicals on the construction
site are not a significant risk and the manufacturing standard is an
infeasible program to implement.'' Ex. 11-26.
The conclusions of some of the commenters on the issue of
significant risk are apparently based on their own organizations'
reports of illnesses and injuries caused by chemical exposures.
According to these industry representatives, the number of injuries
reported that are due to chemical exposures is small, and those which
do occur are caused by well known hazards (such as burns caused by
handling wet concrete). They further contend that the HCS would not
alleviate any of those injuries caused by well-known hazards since no
new information would be presented to workers. ``[T]he majority of
chemical injuries were the result of exposure to concrete. This work is
done by union workers with years of experience in this field. It is
highly unlikely that training and MSDSs would reduce concrete burns or
rashes. Most of which are an allergic reaction.'' Ex. 11-73.
An additional argument is that chemicals are already handled safely
on construction sites (Exs. 11-9, 11-83, and 11-142), and in
particular, that compliance with existing training requirements in 29
CFR 1926.21 results in adequate information being given to workers
about hazardous chemicals. ``With regard to regulating the few
chemically related injuries that do occur, OSHA's existing standards
regarding employee training (1926.21(b) 2 through 6) address these
sufficiently.'' Ex. 11-83.
In its brief summarizing the record, the AGC cites the testimony of
various construction contractors indicating that training is already
conducted as proof that no additional information is necessary (Ex.
84). They further discount reports of incidents of chemical injuries
occurring: ``AGC does not contend that there are no chemical hazards in
construction. Rather, AGC maintains that the hazards which exist are
well known to employers and employees alike, and that those hazards do
not occur with a frequency or intensity which merit the elaborate
mechanisms of the revised HCS.''
The AGC also argues that the degree of safety and health training
unions have in their apprenticeship training programs also indicates
how significant workers consider the risk to be in their particular
industry (Ex. 84). ``During the hearing, AGC sought to ascertain from
the Building and Construction Trades Department, AFL-CIO (BCTD), how
seriously its members take the risk of chemical exposure in
construction, by inquiring whether this issue is covered in
construction union apprenticeship programs. Unfortunately, BCTD refused
to provide any such information, and even objected that the question
was irrelevant. Tr. 12/13/88 pp. 134-136. It would appear, however,
that if BCTD truly believes that chemical hazard exposure is a major
risk to workers, it would readily have introduced evidence showing the
emphasis placed on these concerns in apprenticeship training. The
failure to produce any such evidence, coupled with an objection to its
relevance, speaks volumes.'' (Quoted without footnotes.)
Construction industry representatives also contend that statistics
cited by OSHA regarding the incidence of chemical source illnesses and
injuries verify that the risk in construction is not significant (see,
e.g., Ex. 11-142). By their interpretation, the number of illnesses and
injuries is too low to warrant the coverage of the HCS.
Significant risk--employee perspective. Representatives of
construction workers participating in the rulemaking do not appear to
agree with the AGC's contention that the hazards they face are well
known to them, and do not warrant coverage under the HCS. In its brief
summarizing the record (Ex. 89), the Building and Construction Trades
Department (BCTD) of the AFL-CIO states that ``although the skin rashes
and other chemical incidents these employers report are certainly of
concern, there are a myriad of other, far more serious illnesses which
our members suffer as a result of exposures on the job.'' The BCTD
further elaborates by citing scientific studies in the record (Ex. 67,
submitted by the Sheet Metal Workers' International Association) which
give epidemiological evidence of illnesses occurring in construction
workers due to workplace exposures: ``For example, welders suffer from
acute and chronic respiratory disease, and show increased rates of lung
cancer of up to 74% after 20 years in the trade. Painters, plumbers and
floor-layers experience skin conditions, as well as serious central
nervous system problems from exposures to solvents. Employees working
with man-made mineral insulation suffer from bronchitis; roofers have
skin and eye problems, in addition to increased cancers; and masons
suffer from silicosis and lung cancer. Indeed, some of these problems,
rather than being minimized by outdoor work, are exacerbated by
exposures to sunlight.'' (Quoted from Ex. 89 without footnote cites.)
In response to questions raised during their oral testimony, the
BCTD also addressed the issue of underreporting of illnesses and
injuries in construction by reference to the National Academy of
Sciences study on reporting of illnesses and injuries (Ex. 41): ``That
National Academy of Sciences study did dramatically find an under-
reporting of illnesses in the construction industry.'' Tr. 6-97.
Another report on recordkeeping prepared by the Keystone Center was
also referred to: ``And it was agreed upon by that Keystone Center, in
their report, that there are serious under-reporting of illnesses in
the construction industry. Actually, across all industries, but more
notably the construction industry, because of the latency of most of
the illnesses.'' Tr. 6-97-98.
The Sheet Metal Workers stated in their testimony: ``We, in the
Sheet Metals Workers', our contractors, and others in construction
unions, know that many more health hazards exist on a construction site
than is generally believed.'' (Tr. 5-100.) The testimony further
pointed out that products that were once considered to be fairly safe
(e.g., asbestos) were later found to be highly hazardous. ``As we
attempt to cope with the problems of our members with asbestos disease,
we are also watching closely research which is unfolding around man-
made mineral fibers. Within the past year, Johns-Manville and Owens-
Corning have modified their material safety data sheets to recommend
the use of respirators for those working around its fiberglass
products.'' (Tr. 5-101-2.) Other substances of concern include those in
welding fumes, and propellents in adhesives used in asbestos removal
work (such as methylene chloride)(Tr. 5-102). ``We want to share in the
same protections from those and other health hazards that OSHA offers
to our union sisters and brothers, and those in other walks of life.
For many obvious reasons, we can't allow the same, or similar kinds of
exposures to happen to yet another generation of sheet metal workers.''
(Tr. 5-102)
Another employee representative asked the Coalition panel to
comment on the conclusion of the NAS report, which was read into the
record as follows (Tr. 5-87-9): ``The only illness data from the BLS
annual survey that might be useful for any purpose, may be those on
occupational skin diseases, all other illnesses included on the annual
survey form are under-reported and can be used only with great
caution.'' The conclusion of the report was further quoted as reading:
``For all of these reasons, data on occupational illnesses in the
annual survey, other than those for skin diseases, are understated to
the point that they are more misleading than useful.'' The panel
declined to comment on this conclusion. The study was entered into the
record (Ex. 41).
The AFL-CIO also addressed the issue of significant risk in
construction in their oral testimony: ``Contrary to the OMB and
industry claims, it is clear that chemicals do pose a significant risk
to construction workers and to workers at multi-employer worksites--
paints, solvents, heavy metals, adhesives, put painters, iron workers,
and roofers at serious risk of disease. And these workers, like other
workers, exposed to toxic chemicals, should receive the full
protections of the standard.'' Tr. 7-44.
Significant risk--OSHA's findings. As has been discussed previously
in this preamble, as well as in the preambles to the final rules in
1983 and 1987 and the Third Circuit litigation on the HCS, OSHA has
determined that there is a significant risk to all workers exposed to
hazardous chemicals without benefit of information regarding those
hazards, the identities of the chemicals, and associated protective
measures.
This finding of significant risk applies to construction employment
as well as to every other type of industry regulated by OSHA. The sole
difference in construction is that those employers in complete
compliance with the existing construction training standard (29 CFR
1926.21) will have already done most of the training required under the
HCS. Therefore, the burden of compliance is less for construction than
for any other of the nonmanufacturing industries.
Although the AGC claims in its post-hearing brief that ``the
rulemaking record as a whole does not support the finding that the
standard is reasonably necessary to reduce significant risk'' in the
construction industry (Ex. 84), OSHA does not agree. The AGC cites as
its primary evidence the statements made by its own representatives and
those of other industry sources that the rule is not needed. OSHA
believes that the record accumulated since the 1987 rule was published
amply demonstrates that the majority of the participating
representatives of the construction industry do not want the rule to
apply to them. That, however, is quite different than demonstrating
that the rule is neither necessary nor feasible in the construction
industry. OSHA does not believe that the record evidence supports
either of those conclusions.
As OSHA established in the 1983 final rule (48 FR 53284-86),
thousands of chemical source illnesses and injuries are reported
annually in the construction industry. The numbers are substantial, and
yet all scientific indications are that the illnesses are probably
grossly underreported (47 FR 12094-95; 48 FR 53284-86; Ex. H-022: 17;
Exs. 4-1 and 4-2; Ex. 4-70; Ex. 4-44; and Ex. 41).
The Coalition of Construction Trade Industry Associations
(hereinafter referred to as ``the Coalition'')(Ex. 11-142) claims that
the reported incidence rate of chemically-related illness is too low to
be considered significant. This is not true. In fact, construction is
third after agriculture and manufacturing in terms of incidence rates,
and thus exceeds the rates of all other nonmanufacturing industries (48
FR 53285).
This has occurred despite the fact that in construction there are a
number of factors which tend to contribute to the underestimation of
chemical source illnesses and injuries. The transient nature of the
workforce minimizes the likelihood that any illness or injury that does
not produce an immediate, acute effect (such as concrete burns) is
identified and reported. Since a worker may not report back to the same
workplace the day after an exposure, even a number of acute effects
would be unreported. Thus any effect which has a latency period of more
than one day will generally not be included in the illness and injury
log and linked to occupational exposures. This is aptly demonstrated by
the anecdotal reports of injuries being limited to concrete burns and
similar ailments (Ex. 11-135; Tr. 6-20, 21; Tr. 6-28), while the
scientific epidemiological data based on studies of exposed
construction workers whose health status was followed over longer
periods of time reveal the incidence of serious, chronic health effects
(Ex. 67).
The ability of employers to identify occupational illnesses with
chemical exposures is always a concern, particularly since the effects
of exposure are effects which may also be caused by other factors. As
cited in the original NPRM preamble (47 FR 12094), the Bureau of Labor
Statistics (BLS) noted this reporting disparity in its annual report.
``The recording and reporting of illness continue to present some
measuring problem since employers (and even doctors) are often unable
to recognize some illnesses as being work related. The annual survey
includes data on only current and visible illnesses of workers; it does
not include data on illnesses which might surface later.''
So if workers being exposed to solvents have headaches and feel
nauseous, this may not be identified as being caused by their chemical
exposures when in fact they are experiencing central nervous system
depression. Part of the purpose of the HCS is to increase awareness
regarding these potential effects. In fact, improved reporting of
occupational illnesses and injuries caused by chemical exposures is
expected to be one of the positive effects of the HCS.
The comments and testimony submitted by the construction industry
suggest that some construction employers are either unaware of the
extent of potential hazardous effects in their industry, or are
attempting to minimize the evidence of the seriousness of the types of
effects which may occur as a result of employee exposure. For example,
Trio Construction Services, Inc. (Ex. 11-100) supports an exemption for
the construction industry ``because the construction industry is not a
user of today's highly toxic materials, chemicals, carcinogens,
explosives, etc.'' And yet Trio indicates further that their company
uses ``gasoline, kerosene, fuel oil, WD-40, paints, lacquers, thinners,
adhesives, concrete, oxygen and acetylene to name a few.'' By the
definitions of hazard in the rule, the types of chemicals cited do
indeed include ``highly toxic materials, chemicals, carcinogens * *
*.''
Similarly, the Ruhlin Company (Ex. 11-97) argues that ``many
chemicals utilized by Construction Contractors such as water
repellents, form release agents, concrete sealers, solvents, adhesives,
bonding agents, epoxy resins, linseed oil and curing compounds are non
toxic * * *'' This too reveals a lack of information regarding the
hazardous properties of chemicals as these types of products commonly
include numerous hazardous chemicals.
The AGC itself admitted in a newsletter to its members that there
are 82 hazardous chemicals employees involved in concrete work may be
exposed to, including such potential carcinogens as benzene and vinyl
chloride (Ex. 4-98). In addition, an AGC representative submitted about
400 MSDSs with his notice of intent to appear at the public hearing
(Ex. 13-39), including MSDSs for a number of the chemicals listed by
Trio and Ruhlin above. The hazards of the chemicals covered by those
MSDSs cover a full range of health effects, as well as physical
hazards.
Clearly, these comments and references indicate that chemical
exposures in the construction industry are extensive, and that the
hazards are not apparently as ``well known'' as the AGC has indicated
(Ex. 84).
The industry representatives argue that the transient nature of the
work force must result in unique treatment of the industry from a
regulatory standpoint, yet they do not seem to recognize that the same
industry characteristic results in an underestimation of the magnitude
of the problem with respect to chemical exposures.
For example, they argue that exposures are, in essence, relatively
isolated instances of brief duration. There is no recognition in their
comments that painters exposed on one site today and another tomorrow
throughout their working careers have a significant cumulative dose of
chemical exposures. In the industry's perspective, viewing exposures as
a finite occurrence, the need for the standard is limited and the
possibility of disease occurring as a result is remote. In fact,
professional trade workers generally use the same types of chemicals
from job to job (although the specific constituents may vary) and their
potential for long-term substantial exposure is significant. (The
industry representatives use the similarity of job exposures to argue
for ``portability'' of training, yet do not seem to recognize that it
contributes to the occurrence of chronic disease that is not reported.)
The arguments that the work is completed outdoors and is therefore
insignificant are also not persuasive. (See, e.g., Ex. 11-91.) Much
construction work is finish or repair work that is conducted indoors,
and significant exposures can occur. Outdoor exposures are not
guaranteed to be low. A recent article describing exposure to lead at
an outdoor site found that the measured levels far exceeded legal
limits (Ex. 71-31). No industry representatives submitted exposure data
to support their contentions, and it is highly likely that such data do
not exist as many of these employers do not generally measure for
exposures.
In fact, according to the Coalition, employers don't need
permissible exposure limit information on MSDSs because they don't
understand it anyway and apparently aren't interested in learning about
it (Ex. 11-142). ``Nearly all MSDSs provide PELs or TLVs (Threshold
Limit Values); none of the labels do. Neither employees nor employers
are trained chemists. Since they are incapable of quantifying job-site
exposures, PELs and TLVs are useless to them.'' Of course, PELs are
legally established exposure limits that must not be exceeded. The
purpose of including them on an MSDS is to ensure the downstream
employers and employees are alerted to the fact that the product
contains a chemical that is regulated, and thus proper protective
measures must be implemented.
AGC's argument that the significance workers attach to the risks of
chemical exposures can be determined by the number of hours included in
union apprenticeship training programs is spurious at best (Ex. 84).
And despite AGC's claims to the contrary, the BCTD's refusal to respond
to AGC's inquiries regarding such programs does not indicate that its
members do not consider the issue to be important (Tr. 6-134-36). As
counsel for the BCTD indicated, ``the employer has the responsibility
to ensure safety on the work site, and that includes the safety
training and hazard communication identification.'' (Tr. 6-135.)
Nevertheless, a member of the BCTD panel had already addressed
knowledge gained in apprenticeship programs (Tr. 6-91-3), and in
response to similar inquiries from the AGC, both the Sheet Metal
Workers (Tr. 5-113-14; Ex. 81) and the AFL-CIO (Tr. 7-77-78) confirmed
that such training is in fact included in union programs, and that the
emphasis on such information has increased in recent years.
There were suggestions in the record that unions be required to
assume some of the compliance burden. The Flat Glass Marketing
Association indicated that unions should be held responsible for
training since the contractors frequently hire employees from union
halls (Ex. 11-152). ``There is no reason why OSHA should not require
the unions to include in their apprenticeship training programs courses
on hazardous chemical identification, detection, and treatment. The
unions should be required to cooperate with the employers in developing
and conducting such programs insofar as they deal with communicating
the hazards of chemicals on the job site.''
The reason that this is not a viable option for the HCS is that
OSHA has no authority under the Act to compel employees or their
representatives to provide training. Although section 5(b) of the Act
requires ``[e]ach employee comply with all occupational safety and
health standards and all rules, regulations and orders issued under the
Act'' that are applicable, Congress ``[did] not intend the employee-
duty * * * to diminish in any way the employer's compliance
responsibilities or his responsibility to assure compliance by his own
employees. Final Responsibility for compliance with the requirements of
this [A]ct remains with the employer.'' S. Rep. No. 1282, 91st Cong. 2d
Sess. 1-11 (1970). OSHA cannot sanction employees or their
representatives for failure to provide training. Atlantic & Gulf
Stevedores v. OSHRC, 534 F.2d 541 (3d Cir. 1976).
In addition, since the majority of employees working in this
country are not members of unions, such an approach would be
ineffective for the great majority of worksites in any event. However,
as OSHA has stated a number of times with regard to the training
requirements of this rule, the HCS only requires each employer to
ensure that training has been provided to employees. If employers and
employee representatives in a particular area agree to some sort of
centralized training program so that training on the jobsite will be
minimal (limited to the information that is specific to that site), the
rule is flexible enough to permit that type of approach. Indeed, OSHA
encourages joint efforts where possible because such partnerships
result in better and more efficient information transfer. (See, e.g.,
Exs. 4-63, 4-75.) Employers will be held accountable for the adequacy
of the training provided, but need not present all of the information
themselves.
Reduction of Risk Through Current Training Requirements. Although,
as has been described herein, the construction industry representatives
claim that the risk of exposure to chemicals in construction is not
``significant,'' this conclusion is coupled with the contention that
the existing training requirements (29 CFR 1926.21) alleviate whatever
risk there may be (see, e.g., Exs. 11-135, 11-142 and 84).
The construction training requirements that apply to chemicals may
be summarized as follows:
(b)(2) The employer shall instruct each employee in the recognition
and avoidance of unsafe conditions and the regulations applicable to
this work environment to control or eliminate any hazards or other
exposure to illness or injury.
(b)(3) Employees required to handle or use poisons, caustics, and
other harmful substances shall be instructed regarding the safe
handling and use, and be made aware of the potential hazards, personal
hygiene, and personal protective measures required * * *.
(b)(5) Employees required to handle or use flammable liquids,
gases, or toxic materials shall be instructed in the safe handling and
use of these materials and made aware of the specific requirements
contained in subparts D, F, and other applicable subparts of this part
* * *.
(6)(i) All employees required to enter into confined or enclosed
spaces shall be instructed as to the nature of the hazards involved,
the necessary precautions to be taken, and in the use of protective and
emergency equipment required. The employer shall comply with any
specific regulations that apply to work in dangerous or potentially
dangerous areas.
(ii) For purposes of paragraph (b)(6)(i) of this section,
``confined or enclosed space'' means any space having a limited means
of egress, which is subject to the accumulation of toxic or flammable
contaminants or has an oxygen deficient atmosphere * * *.
As OSHA has indicated in its regulatory impact analysis (Ex. 4-1)
and in response to questions in the public hearing (Tr. 1-45), the
Agency estimated that approximately 75-80% of the training required
under the HCS is also required under the construction training
standards described above. Thus if a construction contractor was in
full compliance with Sec. 1926.21, the incremental training required to
complete compliance with the HCS would primarily be limited to the
requirements for explanation of the MSDSs, labels, and other features
of the employer's hazard communication program.
The primary difference between the two rules is that the
Sec. 1926.21 standard is very general and does not provide employers
with sufficient guidance to establish an adequate training program for
hazard communication. OSHA testified to this point in response to
questions raised at the public hearing, Tr. 1-47-8. This has been
pointed out repeatedly by members of the Advisory Committee on
Construction Safety and Health (ACCSH) (Tr. 6-78-9), and the Agency has
attempted to somewhat rectify the problems by providing additional
guidance in a compliance directive (Ex. 4-152). However, there are
still problems with enforcement due to the way the provisions were
drafted when adopted.
The AGC claims that its analysis of the enforcement statistics OSHA
entered into the record (Ex. 4-199) indicates that Sec. 1926.21 is one
of the most cited Agency rules (Ex. 84). As described in their post-
hearing brief, between fiscal year 1982 and fiscal year 1987, OSHA
issued 4,205 citations for violations of Sec. 1926.21(b), ``3,814 of
which were for Sec. 1926.21(b)(2) governing hazard training.'' A review
of the subparagraphs included in paragraph (b) raises questions
regarding the AGC's analysis. Subparagraph (b)(2) is a general one
which covers all types of hazards, including safety hazards such as
trenching, etc. The subparagraphs of primary relevance to chemical
hazard training are (b)(3) and (b)(5). When 90% of the citations that
have been issued for paragraph (b) involve subparagraph (b)(2), there
are clearly very few citations issued for subparagraphs (b)(3) and
(b)(5). In fact, in the 6 year period included in the statistics, only
156 citations were issued for violations of (b)(3) and (b)(5). (As a
point of reference, in 1990 OSHA issued over 5600 citations for
violations of the HCS training requirements. Over 4300 of those
violations were cited as being serious, and 32 were considered to be
willful.)
There is evidence in the rulemaking record that complete training
on chemical hazards is not widespread in the construction industry
despite the long-established requirements. As cited in the NPRM
preamble (53 FR 29827), the most compelling evidence is a BLS study
which indicated that only 23% of construction workers had been trained
regarding such hazards. The BLS report was based on a survey
administered to construction workers who had been injured on the job.
AGC cites the testimony of employer representatives during the
hearing as substantiating that sufficient training is occurring. In
OSHA's view, many of the submissions in the testimony and comments
support the Agency's position that the current state of chemical hazard
training in construction is not sufficient to protect employees.
Therefore, the additional training requirements of the HCS are
necessary.
Four employer representatives testified on behalf of the Coalition.
As a primary argument of construction industry representatives was that
current training sufficiently mitigates any risk of exposure that may
occur in construction, OSHA questioned these employers on present
practices. Specifically, the OSHA panelist asked each employer to
``tell me what kind of training you provide for your workers in
accordance with 1926.21, when you do it, and how you get the
information in order to do it.''
The first contractor initially indicated that his homebuilding firm
did not do any training (Tr. 5-43). He then modified his response to
indicate that the superintendents on the job were responsible for
training, and he didn't know what was included in the training program
(Tr. 5-44).
The second employer representative described in detail training
regarding scaffolding and other related safety issues for workers in
the masonry industries. When further questioned as to whether the
training included any information on chemical hazards as required under
Sec. 1926.21, he replied (Tr. 5-46): ``Not at this time. We have
conducted one session. We were cited on a Maryland job site through the
Maryland OSHA for not having, by their standards, a hazardous
communication program in place.'' He also did not appear to be aware
that in Delaware, where his firm is located, a state right-to-know law
was implemented prior to expansion of the HCS, and it covered
construction (Tr. 5-46, 5-60). It is likely his firm would have been in
substantial compliance with the HCS if it had complied with the
preexisting state law in Delaware. He further indicated later in his
testimony that he interpreted the current standard (Sec. 1926.21) as
covering safety hazards, and not training regarding chemical hazards
(Tr. 5-59-60).
The third employer was an electrical contractor, and he stated that
safety hazards related to electrical work are addressed in worker
training. Coverage of chemical hazards in current training was less
clear since he indicated there aren't many products of concern in the
electrical industry, and the employers are not sure what is a hazard
(Tr. 5-47). Apparently, employers are receiving MSDSs for many products
they use that are not actually hazardous chemicals covered by the HCS
(e.g., flashlight batteries). Products such as flashlight batteries are
exempted as articles under the rule, and thus do not have to be
included in training.
Only the fourth contractor employer on the Coalition panel, whose
business involved painting, appeared to have clearly included training
regarding chemical hazards in his program (Tr. 5-48).
The participants on the AGC's panel described chemical training
programs in their organization. The two contractor employers were from
states with pre-existing right-to-know laws (Vermont and Wisconsin),
and had apparently instituted training programs to comply with those
rules. Although they referenced training conducted prior to the right-
to-know requirements, it appeared to be safety training. There was no
description of chemical hazard training done in compliance with
Sec. 1926.21. Ex. 44.
As cited before, there are numerous indications in the comments and
testimony of the participants that the hazards in the construction
industry are not recognized by the employer representatives, thus it is
unlikely that adequate training is being done. (See, e.g., Exs. 11-97
and 11-100.) Comments submitted in response to the revised final rule,
for example, clearly indicate that companies were estimating compliance
burdens based on analyses that assumed no training had been done to
date (see, e.g., Exs. 5-10, 5-65, and 5-117).
As the ACCSH indicated in its 1980 report to OSHA regarding
occupational health standards for the construction industry (Ex. 4-4),
the construction industry's implementation of Sec. 1926.21 has been
hampered by lack of information regarding the hazards of the chemicals
in use. As OSHA noted in the preamble to the 1987 final rule (52 FR
31858-59): ``Of particular concern to the Committee at that time was
that construction employers do not have access to the necessary
information upon which to develop appropriate signs and labels or
material safety data sheets, and therefore must depend upon suppliers
for such information. `[C]onstruction employers may not always be aware
of the hazard associated with a particular product or device if the
items are not accompanied upon purchase by appropriate labels and data
sheets * * *.' OSHA agrees that this lack of information has been a
problem for all downstream users of chemicals, and thus developed the
approach incorporated into the HCS--producers or importers of chemicals
are responsible for evaluating the hazards and transmitting that
information to downstream employers or users of the materials. Under
the expanded rule, construction employers would be the recipients in
this downstream flow of information.'' The ACCSH further noted that
``such information was fundamental to the preparation of warning signs,
labels, training programs, and other important job safety and health
activities.''
OSHA's current rule is thus completely consistent with the ACCSH's
recommendations in this area. In fact, although the AGC (Ex. 84) and
the Coalition (Ex. 11-142) have repeatedly stated that the OSHA rule
``ignores'' the advice of the ACCSH, the record demonstrates that the
Agency has not only consulted the Committee but has also incorporated
their advice in a number of respects. The requirements of the rule for
labels, MSDSs available to employees on-site, and amplified training
programs are entirely consistent with substantive recommendations made
by the ACCSH in 1980, as well as when they reviewed the rule line by
line in 1987 (Exs. 4-6 and 4-186). Ex. 4-186 is an OSHA-prepared
working document in which the Agency took the ACCSH transcript from the
June 23, 1987 meeting that was a detailed review of the HCS, and
incorporated the suggested changes into the text of the rule to most
efficiently address the ACCSH comments. As noted in the preamble to the
1987 rule, a number of the suggestions made by the ACCSH were
incorporated into the regulatory text (52 FR 31858). At subsequent
meetings in 1987 (Ex. 4-74) and 1988 (Ex. 4-108), they further
reiterated their view that the rule as written be implemented.
Despite claims to the contrary, the record clearly shows that OSHA
has consulted the ACCSH repeatedly on this issue. And on the
substantive requirements, the Agency's rule has been entirely
consistent with the recommendations of the Committee. The only
difference of opinion in approach has been that the Committee would
like a separate standard to be promulgated, and the Agency has
maintained that such an approach is not appropriate on this particular
issue. A difference of opinion does not mean that the Agency has
ignored the advice of the Committee.
The AGC and the Coalition have not substantively addressed the
specific recommendations of the ACCSH, and have implied that OSHA has
not given the Committee an opportunity to present recommendations.
Close examination of the documents cited above that are related to
specific ACCSH reviews will reveal that the ACCSH's opinions have been
addressed by OSHA in the rule's requirements, and that these opinions
are quite different than those put forth by the industry
representatives who claim the ACCSH has not been properly consulted.
From the 1980 report to the most recent recommendations in November of
1988, the Committee has endorsed the need for a standard; confirmed
that such a standard is feasible; recognized that availability of
information on multi-employer worksites must be specifically addressed;
supported requirements for MSDSs, including their availability on site;
and emphasized the need for further training requirements. Thus it
appears clear that, unlike the AGC and the Coalition, the ACCSH's
recommendations for a vertical standard for construction did not mean a
rule that is less protective for construction workers than the rules
covering workers in other industries.
Employee representatives in the construction industry have also
consistently indicated that training is either not being done, or is
inadequate (see, e.g., Tr. 6-91-3). In response to a question, the
Sheet Metal Workers' representative indicated that the rule would
provide information about chemical hazards that they do not currently
have under existing regulations: ``Yes, there are adhesives that we are
not sure about, that are being used in ventilating systems for
coatings. And we are not necessarily sure what they are, except that
people will complain about noxious, or obnoxious gases on the job, for
example. And we don't know what they are.'' Tr. 5-115-16.
Thus the rulemaking record clearly indicates that the requirements
of the HCS are needed to supplement the provisions of Sec. 1926.21. As
has been discussed at length in the preamble to the original final rule
(see in particular 48 FR 53301, 53305-06, 53310), in order to ensure
that the information is effectively communicated, a hazard
communication program must include three components--labels, material
safety data sheets, and training. These provisions are interdependent,
serving different purposes and communicating the information in a
different way, thus improving the effectiveness of the program. (See
also H-022, Exs. 3 and 4; 52 FR 31855.) As indicated by the ACCSH, the
construction industry employers will benefit from the acquisition of
this information as it will enable them to enhance compliance with the
training provisions in Sec. 1926.21. As a result of the improved
programs, construction employees' significant risk of experiencing
adverse effects due to chemical exposures will be reduced. Associated
Builders & Contractors, 862 F. 2d at 68 (``We reject * * * the
contention by ABC and AGC that because the construction industry
already provides training in hazardous materials handling, there is no
significant risk in that industry. At best that argument establishes
the existence of risks, and the requirement for maintenance on the
jobsite of information on those risks can only make the existing
training more effective.'')
The training requirements of the HCS are more complete, and more
specific in terms of what is required. The additional requirements to
maintain labels and MSDSs supplied by the producers and distributors of
the products used will provide the employer with more information
regarding the hazards of the chemicals, identities, and appropriate
protective measures. Such information will enable the employer to
better protect workers from chemical hazards, as well as improve
existing training programs. They will also serve as a reference source
for workers to ensure that they truly have access to all applicable
information regarding that chemical. As discussed previously, this
standard is based primarily on the premise that all workers exposed to
hazardous chemicals have a right, and need, to know this basic
information.
Feasibility of the rule in the construction industry. In addition
to contending that there is no significant risk of exposure in the
construction industry, and that the pre-existing training rule
mitigates that risk sufficiently, industry representatives claim that
the rule as written is infeasible. See, e.g., 11- 36, 11-97, 11-98, 11-
114, 11-135, and 11-142. But see also Ex. 71-16: ``Compliance with the
OSHA Hazard Communication Standard will not be as difficult as it first
appears if you start now and follow an organized approach--in fact, you
may already have some procedures in place that comply with the
standard.'' (From compliance guidance manual prepared by AGC counsel.)
It is clear that these commenters sought to indicate the rule is
infeasible because the Court order to OSHA stated that the rule was to
be expanded unless the Secretary of Labor found it would be infeasible
to do so. OSHA explicitly determined that the rule is both
technologically and economically feasible to implement in all
industries. 52 FR 31855-58. Of course, as the Court has recognized, the
Agency had already determined that there was a significant risk to
employees in all industries where they are exposed to hazardous
chemicals without benefit of the information provided under the
requirements of the HCS.
Clearly, the HCS does not include any requirements that can be
considered to be ``technology-forcing.'' It simply requires the
development of information regarding hazardous chemicals, and the
transmittal of that information to exposed employees as well as to
downstream employers using the materials. For the construction
industry, where some training was required prior to the expansion of
the rule, the requirements simply involve the preparation of a written
program, maintenance of labels on containers within the workplace,
obtaining and maintaining material safety data sheets prepared by
chemical suppliers, and some incremental additional training of
workers. There simply are no issues of technological feasibility in
these types of requirements. 52 FR 31856-57.
OSHA completed a regulatory impact analysis prior to promulgation
of the 1987 final rule, and found that the standard is economically
feasible in all industries (Exs. 4-1 and 4-2; 52 FR 31867-76). The
analysis for this rulemaking is limited to the changes that were
proposed in the NPRM. OSHA concluded that the changes are not
significant or major, and therefore a regulatory impact analysis was
not required.
As the BCTD has pointed out (Ex. 89), employers' claims of economic
infeasibility are based on cost analyses that use inaccurate
assumptions about requirements of the rule. ``While showing that the
employer will incur some economic cost in complying with the standard,
industry representatives have fallen far short of demonstrating that
the cost they project will cause economic dislocation in the industry.
But even their projected costs are greatly inflated.'' The BCTD then
analyzed projections by the Coalition that a general contractor with
ten employees would have to spend $15,197.50 to comply the first year.
Without questioning the unit costs used, the BCTD deleted costs
assessed for activities that are not required by the rule. As a result,
using the Coalition's own figures, the costs would be reduced to
$5,053. OSHA believes that even that figure is an overestimation of the
actual costs, but in any event, the BCTD's analysis aptly illustrates
what OSHA itself has found to be true--that the construction industry's
statements regarding feasibility are based on inaccurate and inflated
assessments of activities that are not required by the rule.
In fact, statements from the industry representatives themselves
conflict on this issue. For example, although the AGC (Ex. 11-135, Ex.
84) and various members of the AGC have indicated that the rule is not
feasible, the AGC Dallas (Ex. 11-24) stated: ``All members have been
complying with the standard since 23 May, 1988 * * *.'' If the 600
members of the Dallas AGC were able to comply with the rule by May
1988, it cannot be considered to be infeasible. The Dallas AGC is
opposed to the HCS, and yet indicate that ``our members have always
trained and monitored the safe work practices of their workers which
they feel covers nearly 100% of the Hazard Communication training i.e.
safety goggles, protective gloves, respirators, etc. and believe the
regulation as it now stands is near impossible to comply with.'' It is
difficult to understand how the members could have accomplished
``nearly 100%'' of the HCS training prior to the implementation of the
rule, and yet have determined that it is ``near impossible to comply
with.''
Similarly, the Coalition has argued that the training requirements
of the rule are technologically infeasible (Ex. 11-142). And yet the
employer representatives testifying on behalf of the Coalition did not
indicate that this is the case. In response to a question from OSHA as
to whether training of workers before they actually go out on a site is
done, and is therefore feasible, the answer was yes (Tr. 5-48-9).
It is somewhat inexplicable to OSHA that the industry
representatives can claim that it is feasible to comply with the
existing training standards, and yet not with the HCS requirements.
Some of the discrepancy can be explained by the inaccurate
interpretations regarding training that persist in the industry despite
numerous clarifications and corrections by OSHA. On other issues,
however, the different positions on the rule are less clear.
For example, the Sec. 1926.21 rule does not address the so-called
``portability'' of training. There is no specific provision in that
rule for allowing employers to rely on training provided by some other
source, yet employers claim that compliance with that rule is feasible
and is being done. On the other hand, the HCS has been criticized for
not including such provisions. Ex. 84.
However, OSHA has already provided employers with guidance on this
issue in Appendix E to the rule (included in the NPRM at 53 FR 29855,
and published separately as a booklet, OSHA 3111). ``An employer can
provide employees information and training through whatever means found
appropriate and protective. Although there would always have to be some
training on-site (such as informing employees of the location and
availability of the written program and MSDSs), employee training may
be satisfied in part by general training about the requirements of the
HCS and about chemical hazards on the job which is provided by, for
example, trade associations, unions, colleges, and professional
schools. In addition, previous training, education and experience of a
worker may relieve the employer of some of the burdens of informing and
training that worker. Regardless of the method relied upon, however,
the employer is always ultimately responsible for ensuring that
employees are adequately trained. If the compliance officer finds that
the training is deficient, the employer will be cited for the
deficiency regardless of who actually provided the training on behalf
of the employer.''
In addition to this guidance in the appendix to the rule, OSHA has
also addressed this issue in its instructions to compliance officers
enforcing the rule. These instructions are publicly available, and are
included in the record at Ex. 4-170. ``Complete retraining of an
employee does not automatically have to be conducted when an employer
hires a new employee, if the employee has received prior training by a
past employer, an employee union, or any other entity.'' It continues:
``An employer, therefore, has a responsibility when hiring a new
employee who has been previously trained by someone other than the
current employer to evaluate the employee's level of knowledge against
the training, information requirements of the standard, and the
employer's own program.''
Both of these written interpretations were publicly available in
August 1988, and thus the construction industry representatives had
access to them prior to submitting comments or oral testimony. In any
event, they are also entirely consistent with all previous
interpretations of the rule on this issue provided by the Agency since
it was first promulgated in 1983. As discussed later in this preamble
in the discussion of the information and training provisions, OSHA is
clarifying the regulatory text to address this misinterpretation of the
rule's requirements. However, OSHA does not find that these claims of
infeasibility based on an apparent disregard for current
interpretations of the rule to be valid.
If employers in an area choose to establish a centralized training
program, perhaps in conjunction with local unions, the rule does not
prohibit such an arrangement. If the employers can assure themselves
that a worker has been properly trained, re-training is not required.
Another misinterpretation that persists in the industry comments
also involves training. Many of the claims of both economic and
technological infeasibility in the comments (see, e.g., Exs. 11-135,
11-142, and 84) are based on the misconception that the rule requires
training on each chemical, and subsequently each MSDS.
The 1987 HCS (as well as the 1983 rule), stated in paragraph
(h)(1): ``Employers shall provide employees with information and
training on hazardous chemicals in their work area at the time of their
initial assignment, and whenever a new hazard is introduced into their
work area.'' The training may be done in whatever way employers find
appropriate for their particular work operations, as long as all of the
elements addressed in the rule are included.
When OSHA published the 1987 rule, the re-training issue was
discussed in the preamble (52 FR 31866-67): ``One question that does
arise regarding training is whether it needs to be done specifically on
each chemical, or whether employers can train regarding categories of
hazards. Either method would be acceptable. See 48 FR 53312, 53338. If
employees are exposed to a small number of chemicals, the employer may
wish to discuss the particular hazards of each one. Where there are
large numbers of chemicals, the training regarding hazards could be
done on categories (e.g., flammable liquids; carcinogens), with
employees being referred to substance-specific information on the
labels and the MSDSs. Similarly, the re-training occurs when the hazard
changes, not just when a new chemical is introduced into the workplace.
If the new chemical has hazards which employees have been trained
about, no re-training occurs. If the chemical has a hazard they have
not been trained about, re-training would be limited to that hazard.''
This issue was also addressed in Appendix E to the proposed rule
(53 FR 29855): ``Information and training may be done either by
individual chemical, or by categories of hazards (such as flammability
or carcinogenicity). If there are only a few chemicals in the
workplace, then you may want to discuss each one individually. Where
there are large numbers of chemicals, or the chemicals change
frequently, you will probably want to train generally based on the
hazard categories (e.g., flammable liquids, corrosive materials,
carcinogens). Employees will have access to the substance-specific
information on the labels and MSDSs.''
The compliance directive included this topic as well (Ex. 4-170):
``Additional training is to be done whenever a new hazard is introduced
into the work area, not a new chemical. For example, if a new solvent
is brought into the workplace, and it has hazards similar to existing
chemicals for which training has already been conducted, then no new
training is required. Of course, the substance-specific data sheet must
be available, and the product must be properly labeled. If the newly
introduced solvent is a suspect carcinogen, and there has never been a
carcinogenic hazard in the workplace before, then new training for
carcinogen hazards must be conducted in the work areas where employees
will be exposed to it.''
Thus if an employer trains regarding all possible hazards (and
there are a total of 23 types of physical and health hazards covered
under the rule), there is no re-training required. If the employer
chooses to limit the initial training to some subset of the 23 hazards,
and a chemical is introduced into the workplace that has a hazard which
has not been addressed in the initial training, then re-training must
occur.
The construction industry's interpretation of this requirement is
not supported by available documentation. The plain reading of the text
indicates that re-training is to be done when the hazard changes, and
the hazards covered by the rule are defined, yet the industry
representatives interpret the requirement as being chemical-specific.
See, e.g., Exs. 11-6, 11-15, 11-24, 11-73, 11-84, 11-98, 11-142, and
11-152. (But see Ex. 4-106, Hazard Communication Guide for California
Construction by the Safety and Health Committee of AGC of California,
at p. 7. (``Training can be for each individual substance, chemical
families (solvents, metals), or categories of hazards.'') See also Ex.
71-16, a manual providing compliance guidance that was prepared by
AGC's counsel: ``Depending upon the types of hazardous chemicals used,
you may organize the subject matter by specific chemical, by categories
of hazard or by work area.'') The cost analyses they present to
demonstrate infeasibility are also based on this perception of the
rule's requirements (see, e.g., Ex. 11-142).
As will be discussed in the section of this preamble dealing with
information and training, OSHA is further clarifying the regulatory
text to deal with this issue. In terms of feasibility, however, the
Agency finds no evidence to indicate that the rule is infeasible with
respect to training, and particularly training of employees who will be
working on multi-employer worksites. OSHA has provided substantial
guidance to employers regarding these provisions, and such guidance was
available prior to, or at the time of, publication of the NPRM.
Infeasibility cannot be established through analyses based on
misinterpretations of the rule.
OSHA maintains that the rule is both economically and
technologically feasible. Industry claims to the contrary are based
primarily on inaccurate statements regarding the requirements of the
rule, and on assessments that do not account for training that should
have been done to comply with s1926.21 or programs that are required
under preexisting state standards. There is a cost associated with
compliance with this rule as with any other regulation. The cost is
justified by the protections that will be afforded employees as a
result of implementation of the requirements.
With regard to state requirements, OSHA included in the rulemaking
record enforcement data from a number of state plan states that
expanded the scope to construction prior to promulgation of the Federal
rule (Exs. 4-183, 4-184). As can be seen from these statistics,
construction employers in these states are found to be in compliance in
the majority of inspections. This evidence indicates that the rule is
feasible. For example, the state of Tennessee has a provision for
exchanging MSDSs on multi-employer worksites. Yet two-thirds of the
employers inspected were found to be in complete compliance with the
rule, indicating that they must be able to comply with the requirements
for exchanging MSDSs. This is confirmation that the industry arguments
discussed above are not substantiated in practice.
In summary, OSHA concludes that there is substantial evidence in
the record indicating that there is a significant risk in the
construction industry that warrants coverage under the HCS; the current
requirements for training under Sec. 1926.21 do not mitigate that risk
sufficiently; and the requirements of the rule can feasibly be
implemented in the construction workplace.
Coverage of small businesses and ``low hazard'' industries. As
discussed in the preamble to the NPRM, OSHA does not consider it to be
appropriate to determine the extent of protection afforded an employee
by the size of business he/she is employed in (53 FR 29826). Although
the Agency does have enforcement policies that take into consideration
the size of the business, as well as free consultation services that
are primarily intended for small employers without on-staff safety and
health capability (see Exs. 4-38 and 4-39), such small businesses must
still comply with regulations and ensure that their employees are
protected to the same extent as employees of larger businesses.
Several responses to the NPRM again argued that the rule is not
feasible for small businesses, and is too costly to implement (see,
e.g., Exs. 11-3, 11-39, 11-123, and 11-132). ``The HCS was enacted for
all the right reasons but has placed an unreasonable burden on small
businesses.'' Ex. 11-39. OSHA recognizes that there are costs involved
in achieving compliance, but our analyses indicate that these costs are
feasible, and the requirements are necessary to achieve employee
protection.
Congressional hearings on the impact of the HCS on small business
were convened in both the Senate and the House of Representatives under
the auspices of their small business committees. Testimony and
statements from the House hearing appear in the record in Ex. 4-198.
The Senate hearing took place in June 1989, after completion of the
rulemaking comment periods and public hearings.
Following these congressional hearings, the General Accounting
Office (GAO) was requested to conduct a study of the HCS with regard to
small business by the committee chairs, Senator Dale Bumpers and
Congressman Norman Sisisky. The GAO recently completed their
investigation, and issued two reports. While these studies are not part
of the rulemaking record on this final rule, they contain information
that is relevant to these discussions. A single copy of each report may
be received free of charge from the GAO. The first, issued in November
1991, is entitled OSHA Action Needed to Improve Compliance With Hazard
Communication Standard (GAO/HRD-92-8), and the second, issued in May
1992 is Employers' Experiences in Complying With the Hazard
Communication Standard (GAO/HRD-92-63BR). Copies may be obtained by
calling the GAO at (202) 275-6241, or writing to them at U.S. General
Accounting Office, P.O. Box 6015, Gaithersburg, MD 20877.
In the course of preparing these studies, the GAO conducted a
national survey of approximately 2,000 employers in construction,
manufacturing, and personal services. Thus the burdens and benefits
described by the GAO were self-reported by the employers surveyed. They
also collected information through other means, such as OSHA's
compliance data, and interviews with affected employers.
The congressional request for GAO to investigate had particularly
focussed on the MSDS provisions of the rule. However, GAO found that
70% of those small employers (fewer than 20 employees) who had
attempted to comply had little difficulty with the MSDS requirements.
Furthermore, while there were costs associated with compliance, the
burden was reported to be ``great'' or ``very great'' in fewer than
one-fifth of the survey responses.
In addition to assessing burdens, GAO solicited information on the
benefits of the HCS. Over 56% reported a ``great'' or ``very great''
improvement in the availability of hazard information in the workplace
and in management's awareness of workplace hazards. In addition, about
45% of all employers appearing to comply believed that the rule had
been beneficial for workers. And about 30% reported that they replaced
hazardous chemicals used in their workplaces with less hazardous ones
because of information they received on an MSDS.
Other findings of the GAO will be discussed in this preamble where
appropriate. On the whole, however, OSHA is encouraged by the results
of their study. While the GAO has suggested improvements in the
enforcement and implementation of the rule, the findings are supportive
overall of hazard communication and indicate that when employers
comply, the expected benefits do occur. Furthermore, employers
themselves reported that compliance is achievable.
Similar to the suggestions to exempt or limit coverage for small
businesses, there were suggestions that certain ``low hazard''
industries be exempted from the rule as well (see, e.g., Ex. 11-118).
OSHA believes that the rule already includes accommodations for many
types of operations that are less hazardous (for example, limited
coverage where chemicals are handled in sealed containers), but the
rule's protections are necessary for all workers exposed to hazardous
chemicals.
Coverage of pesticides. In the NPRM (53 FR 29827-28), OSHA invited
comment on an area of potential conflict that had been raised in the
comments on the 1987 rule (see, e.g., Exs. 5-6, 5-44, 5-50, and 5-66),
involving employees exposed to pesticides. Commenters maintained that
OSHA cannot cover pesticide exposures outside the manufacturing sector
as these are regulated under the Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA) (7 U.S.C. 136 et seq.) administered by the
Environmental Protection Agency (EPA). EPA requires pesticides to be
labeled, approves the specific label language, and requires the
pesticides to be applied in accordance with the labeling instructions.
EPA also has some specific requirements to protect farmworkers
exposed to pesticides (40 CFR part 1970), and proposed modifications to
provide additional protection on July 8, 1988 (53 FR 25971) (Ex. 4-
178).
OSHA invited comment in the NPRM on the relationship of the
jurisdictions of EPA and OSHA with regard to the protection of workers
exposed to pesticides. For purposes of this discussion, OSHA suggested
that its own jurisdiction could be seen to vary with the degree of
protection afforded workers under the EPA rules. (53 FR 29827-28.)
The majority of the comments received stated that EPA should retain
sole jurisdiction for farmworker exposure to pesticides (see, e.g., 11-
14, 11-30, 11-41, 11-55, 11-87, 11-96, 11-101, 11-112, 11-159). Many of
these were from state cooperative extension agents. Other commenters
indicated that OSHA and EPA should coordinate to have consistent
approaches, or that the jurisdictions need to be clarified (Exs. 11-14,
11-32, 11-102, 11-121). Worker representatives tended to believe that
OSHA coverage is needed to provide adequate protection (see, e.g., Exs.
11-21, 11-49, 11-144).
EPA and OSHA worked together to coordinate regulations in this
area. EPA issued its final Worker Protection Standard for Agricultural
Pesticides on August 21, 1992 (57 FR 38102). OSHA has agreed not to
cite employers who are covered under EPA's final rule with regard to
hazard communication requirements for pesticides. This policy is
already in effect. Agricultural employers who are otherwise covered by
OSHA will still be responsible for having a hazard communication
program for hazardous chemicals that are not pesticides.
Coverage of the agriculture industry. Representatives of the
agriculture industry (Exs. 5-6, 5-50) were also concerned that the
revised final rule did not mention the Congressional appropriations
rider under which OSHA is prohibited from promulgating or enforcing any
OSHA standards on farms with 10 or fewer employees unless the farm has
a temporary labor camp. As long as this rider is added annually to
OSHA's appropriations bill, the protections of the HCS will not apply
on those farms. However, farms with 11 or more employees, as well as
those with temporary labor camps, are covered by the rule, except
coverage of pesticides as discussed above.
Commenters on the NPRM reiterated that they believed the
appropriations rider should be specifically referenced in the rule,
rather than simply discussed in the preamble (Exs. 11-34, 11-67, 11-78,
11-87, 11-99, and 11- 101). OSHA does not agree. An appropriations
rider may change from year-to-year, and is not a determination by the
Agency that coverage of such employers is not necessary. Thus it does
not belong in the regulatory text of a rule.
Other comments related to the agriculture industry included a
suggestion that OSHA should not cite farmers until jurisdictional
problems with EPA are resolved (Ex. 11-34). OSHA is not currently
issuing citations for violations of the rule with regard to pesticide
application in the fields. All other provisions of the rule are being
enforced in the agriculture industry. As this same commenter noted,
approximately 100,000 farms will have to have programs for chemicals
other than pesticides as they have more than 10 employees.
It was also suggested that the HCS is not needed in agriculture as
exposures are limited (Ex. 11-67). OSHA does not agree. (See, e.g., 52
FR 16059-61 (Ex. 4-91); Exs. 4-28; 4-102). As discussed in the preamble
to the NPRM (53 FR 29826), the HCS is a right-to-know standard, and
employees have the right to know as long as the potential for exposure
exists in the work operation, and the chemical has been demonstrated to
be hazardous. It is also not sufficient to simply tell a worker that a
chemical is hazardous, without telling them what the hazard is (Ex. 11-
67). The appropriate response to the information presented about the
hazard will vary with the type of hazard. A chemical that is flammable
requires a different protective response than one that causes skin
burns.
Coverage of distributors. A constant feature of the HCS has been
the downstream flow of information from suppliers of chemicals to the
ultimate users. When the HCS was originally proposed in 1982, it did
not explicitly cover importers or distributors. OSHA invited comment on
coverage of these suppliers in addition to the coverage of chemical
manufacturers that was already included in the NPRM. The Agency stated
that explicit coverage may not be necessary because marketplace
pressure exerted by manufacturers needing the hazard information would,
in fact, ensure that the importers and distributors make it available
to their customers.
Rulemaking participants did not agree that this ``marketplace
pressure'' approach would work, and overwhelmingly supported explicit
inclusion of importers and distributors in the final rule (48 FR 53287-
88). As a result of those comments, OSHA required these suppliers to
ensure that containers they shipped were labeled, and under the
original rule, material safety data sheets were supplied with the
initial shipment of a chemical to a manufacturing employer.
A regulatory impact analysis of this requirement indicated clearly
that this automatic provision of information to downstream customers
was the most efficient and cost-effective way of ensuring that the
employers using the chemicals had the information before exposing
employees. OSHA considered requiring such suppliers to provide the
information on request, but information presented by employers in the
rulemaking record indicated that this approach was more costly than the
automatic transmittal, as well as being less effective. 48 FR 53330. H-
022, Ex. 184. When the rule was expanded to cover nonmanufacturing,
importers and distributors were required to provide MSDSs in accordance
with the rule to all downstream employers.
A number of representatives of distributors to the non-
manufacturing sector have requested that the rule be modified to either
exclude them from the requirements of the rule (i.e., require employers
to request MSDSs directly from the original chemical manufacturer), or
allow them to simply respond to requests rather than affirmatively
sending the MSDSs with the first shipment of a chemical to a downstream
employer. (See, e.g., Exs. 25, 28, 29, 31, 32, 60, and 62.) ``[T]he
intent of the law to provide meaningful and timely notice to employees
using hazardous materials can best be fulfilled through the
implementation of an as-needed and on-request responsibility for
transmission of MSDS's.'' (Ex. 62; Beauty and Barber Supply Institute,
Inc.)
Although OSHA recognizes that complying with this requirement does
present a burden to distributors, the rulemaking record indicates that
such an approach is the most cost-effective way to ensure that the
downstream employees are properly protected. The costs of the
distribution of the MSDSs are ultimately borne by the downstream user
obtaining the information. The recommendations of these distributors
that they either be exempted, or allowed to respond to requests only,
simply shift the burdens of compliance to other employers and create a
less efficient system of information transmittal. In particular, OSHA
believes that the distributors who wish to simply respond to requests
are assuming that the number of requests will be minimal. As all
downstream employers are now covered by the rule, this is not a
realistic assumption. Every customer they have to which hazardous
chemicals are supplied is required to have the MSDSs. If a distributor
has to respond to multiple requests from, as one commenter testified
(Tr. 3-43), 10,000 customers, the burden on both the requestors and the
distributor will be significant.
OSHA specifically recalculated the costs for distributors to the
nonmanufacturing sector to consider an ``on request'' system (Ex. 71-
70). These cost figures reiterated the findings of the original cost
analysis, i.e., this is a more costly and less efficient way to
distribute the information. Furthermore, as the downstream employers
are not supposed to use a chemical without having the MSDS, it will
cause them a delay in use of the product, or increase the probability
that employees will be inadequately protected because employers will
use the product without the MSDS. Clearly, downstream users are not as
knowledgeable about the hazards of the chemical products as the
manufacturers of those products. The best way to protect downstream
employees is for OSHA to assure that complete hazard information is
provided to the downstream employers and employees by the time they
receive the chemical.
Other comments from these employers related to ideas for
information to be included on more detailed labels, instead of MSDSs
(Ex. 28), or other specific suggestions for modification of the
distributor's duties (Ex. 22). These will be dealt with in the sections
of the preamble covering labels and material safety data sheets.
Laboratory coverage. The current HCS limits coverage of
laboratories (paragraph (b)(3)), simply requiring that labels be kept
on containers that are received labeled; that material safety data
sheets which are received be kept, and employees be given access to
them; and that employees be trained in accordance with paragraph (h) of
the rule. Paragraph(h)(2)(iii) states, among other things, that
employees are to be informed of the location and availability of the
written hazard communication program. Since laboratories are not
required to have written hazard communication programs, this part of
the information and training program would not apply to these types of
facilities. Although this would appear to be evident, OSHA has received
a number of questions regarding this, so the provision has been
modified to clarify that the location and availability of the written
hazard communication program does not have to be addressed in the
laboratory training program. The location and availability of material
safety data sheets, which is also currently addressed under paragraph
(h)(2)(iii), would still have to be included in the training program.
Two other technical amendments have been made to clarify the
laboratory provisions. In paragraph (b)(3)(iii), the current rule
states that employees are to be ``apprised of the hazards of the
chemicals in their workplaces in accordance with paragraph (h) of this
section''. Paragraph (h) requires employers to provide employees with
both information, (h)(2), and training, (h)(3), on hazardous chemicals
in their work area. Some employers have misinterpreted the use of the
word ``apprised'' in (b)(3)(iii) as only requiring hazard information
transmittal and not training. Clearly the intent of referencing
paragraph (h) in paragraph (b)(3)(iii) was to require employers to
``fully implement the training provisions of the hazard communication
standard for laboratory employees.'' 48 FR 53288. Paragraph
(b)(3)(iii), therefore, has been clarified to indicate that laboratory
employees must be provided both information and training in accordance
with paragraph (h).
Another recurring question involves a laboratory's responsibilities
as a chemical manufacturer or distributor. The limited provisions of
paragraph (b)(3) are directed to an employer's duties to laboratory
employees. They do not, in current form, affect such an employer's
duties once the material is being packaged and shipped elsewhere. At
that point, the parts of the standard that deal with distribution of
chemicals apply. In order to reiterate those requirements, OSHA has
adopted a technical amendment to clarify a laboratory's duties when
shipping or transferring a chemical out of the laboratory. In this
situation, a laboratory would be a chemical manufacturer or
distributor, and would have to evaluate the chemical's hazards under
paragraph (d) and label containers and provide material safety data
sheets in accordance with the rule if the chemical is determined to be
hazardous. This would include samples sent to another laboratory. It
must be reemphasized, however, that the HCS is based upon currently
available information. If a new chemical is developed, and it has not
been tested to determine its hazardous effects, then there is no
information to transmit. The rule does not require testing of chemicals
to be performed.
One commenter has suggested that laboratories be treated the same
as any other workplace in terms of protection (Ex. 11-125). OSHA
believes that the feasibility and practicality concerns of laboratories
warrant the approach taken (see 52 FR 31861; 48 FR 53287-89 for further
discussion).
With regard to laboratories, it should also be noted that OSHA has
finalized a specific rulemaking to address Occupational Exposure to
Toxic Substances in Laboratories (29 CFR 1910.1450). Some interested
commenters in both rulemakings were concerned about potential
duplication or conflict in the requirements of the HCS versus the
laboratory standard. The Agency drafted the final laboratory standard
in a manner that does not conflict with or duplicate the requirements
of the HCS.
Coverage of operations involving sealed containers. The 1987 rule
included limited coverage for work operations where employees only
handle chemicals in sealed containers, i.e., they are not opened in the
workplace under normal conditions of use (paragraph (b)(4)). No changes
were proposed for the provision when the NPRM was published. However,
OSHA is making a minor technical amendment in this final rule. The
provision as promulgated requires employers to request an MSDS for
chemicals received without one when employees want to have access to
the MSDS. There was no time frame included in the rule for this request
process. In this final rule, OSHA has clarified that the request is to
be made as soon as possible. OSHA has generally interpreted this to
mean within 24 hours. This is consistent with the requirement in
(g)(6)(iii) for an employer or distributor to obtain an MSDS as soon as
possible when one has not been provided with a shipment of a hazardous
chemical.
There were comments received which asked for clarifications of the
sealed container exemption. In particular, commenters questioned
whether the training requirements of the sealed container provisions
apply to retail establishments selling consumer products. Exs. 11-11
and 11-93. For those consumer products that are not otherwise
completely exempted (i.e., food, drugs, cosmetics packaged for sale to
consumers in a retail establishment), training would apply under the
rule. OSHA believes that the limited nature of the requirements are
minimally burdensome to these types of employers, but that workers need
to be told what to do in the event of a spill or leak in this
situation. The large quantities of materials present pose a different
potential exposure situation than there would be in a home where
consumers generally have smaller quantities stored. The training can be
directed to the various types of hazards, and need not be on the
specific chemicals.
Labeling exemptions. Following publication of the 1987 final rule,
the Department of Agriculture (Ex. 5-28) and the Animal Health
Institute (Ex. 5-37) requested that a specific exemption be included
for labeling of veterinary biological products. Although these
materials are considered to be drugs, the Federal Food, Drug, and
Cosmetic Act (FDCA), 21 U.S.C. 392(b) ``defers'' regulation of some
veterinary biologics to the Department of Agriculture when the
biologics are subject to the Virus-Serum-Toxin Act of 1913, 21 U.S.C.
151 et seq.
To the extent that the hazards of these materials are biological
hazards, the HCS would not apply in any event. However, there are
apparently some chemicals used in the materials that would potentially
be covered by the HCS (in particular, formaldehyde). OSHA has added an
exemption for labeling of these items when they are subject to the
labeling requirements of either the Food and Drug Administration or the
Department of Agriculture. A number of commenters supported this
clarification (Exs. 11-48, 11-60, 11-76, 11-89, 11-101, and 11-134),
and no one objected. It should be noted, however, that this exemption
is just for labeling, and to the extent chemical hazards are present in
these materials, the other provisions of the HCS would apply in terms
of employee protection.
An additional comment (Ex. 11-119) suggested that a similar
labeling exemption be incorporated for seeds that are labeled in
accordance with the Federal Seed Act administered by the U.S.
Department of Agriculture. OSHA agrees, and has added such an exemption
to this final rule.
OSHA has also added an exemption for additional labeling of
chemical substances or mixtures that are labeled in accordance with the
requirements of EPA under the Toxic Substances Control Act (TSCA). EPA
has labeling authority for such products under TSCA, and has adopted
some labeling requirements for specific substances. These specific
labeling requirements would apply.
Other Exemptions
Hazardous waste. The existing HCS includes a total exemption for
hazardous waste when regulated by EPA under the Resource Conservation
and Recovery Act (RCRA). However, the rule does not mention hazardous
waste regulated by EPA under the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA). In order to ensure that
coverage of the rule is consistently applied, this exemption has been
modified to include hazardous substances regulated by EPA under CERCLA.
Wood dust. In the preamble to the revised final rule, OSHA
clarified that the wood and wood products exemption did not apply to
``wood dust.'' Wood dust is not generally a wood ``product,'' but is
created as a byproduct during manufacturing operations involving
sawing, sanding, and shaping of wood. Wood dust does not share solid
wood products' ``self-evident'' hazard characteristics that supported
the exemption of wood products from the HCS' coverage. Except for the
chemical additives present in the wood, products such as lumber,
plywood, and paper are easily recognizable in the workplace and pose a
risk of fire that is obvious and well-known to the employees working
with them. The potential for exposure to wood dust within the
workplace, especially with regard to respirable particles, is not self-
evident, nor are its hazards through inhalation so well-known that
hazard communication programs are unnecessary.
OSHA is technically amending the rule to clarify that the wood and
wood products exemption, paragraph (b)(6)(iv), only applies to wood or
wood products for which the chemical manufacturer or importer can show
that the hazard potential is limited to its flammability or
combustibility, and therefore the other hazards of wood dust or other
chemicals that may be emitted from treated wood would be covered.
Lumber which will not be processed is exempted. Although this has been
the Agency's enforcement policy, there have been commenters who
suggested that the rule itself should be clarified (Exs. 2-104 and 2-
105).
OSHA recognizes that there are some practical questions regarding
the appropriate application of the HCS requirements to wood dust.
First, it is obvious that exposure can only occur when the dust is
generated in airborne concentrations, in a particle size that can be
inhaled by people working in the area, such as sanding, sawing, or
grinding operations. (See, e.g., Ex. 2-211). The rule should not be
interpreted as requiring hazard communication programs for wood mulch,
which is typically made up of rather large pieces of wood, and not
processed downstream, or trace quantities of wood dust on boards that
have been cut. Secondly, it is also obvious that wood dust cannot be
labeled in these work situations since it is not ``contained.'' Work
areas could be placarded with the hazard information to provide an
immediate visual warning for workers involved in these types of
operations. The inability to label in some situations, however, does
not negate the need for a material safety data sheet and training on
the hazards and the available means of protection, and these, and all
other HCS requirements, would still apply.
The question of who should be responsible for generation of the
material safety data sheet is one which is more difficult to answer.
Several commenters suggested that the generator of the dust in a
particular operation (e.g., furniture manufacturing) should be
responsible, not the producer of the wood product (e.g., a logging
company) (Exs. 2-68, 2-104, 2-138, and 2-211). In this situation, as
well as similar situations with grain and other products which are
grown rather than produced, OSHA believes it is appropriate to place
the responsibility for development of the MSDS on the first employer
who handles or processes the raw material in such a way that the
hazardous chemical is ``produced'' and released into the work
environment. For wood, although some dust would be produced when the
tree is felled, it appears that the duty would most appropriately fall
on the sawmill, which is a manufacturing operation (SIC Codes 24 and
26). For grain dust, it would be the grain elevator. Data sheets would
thus have to be provided to the workers in these facilities exposed to
the hazards, and where these types of operations distribute the product
in a form where the hazard will be generated under further processing
(e.g. the sawmill sells boards to a furniture manufacturing facility),
then the material safety data sheet must be transmitted downstream as
well.
Articles. As discussed at length in the NPRM preamble (53 FR 29828-
33), OSHA believes that the definition of an exempted ``article'' which
was promulgated under the original final rule in 1983 is still
appropriate, but proposed a minor modification to clarify the
definition to be consistent with Agency interpretations.
The current definition of ``article'' is as follows:
``Article'' means a manufactured item: (i) Which is formed to a
specific shape or design during manufacture; (ii) which has end use
function(s) dependent in whole or in part upon its shape or design
during end use; and (iii) which does not release, or otherwise
result in exposure to, a hazardous chemical under normal conditions
of use.
The new definition will read as follows:
``Article'' means a manufactured item, other than a fluid or a
particle: (i) Which is formed to a specific shape or design during
manufacture; (ii) which has end use function(s) dependent in whole
or in part upon its shape or design during end use; and (iii) which
under normal conditions of use does not release more than very small
quantities, e.g., minute or trace amounts, of a hazardous chemical
(as determined under paragraph (d) of this section) and does not
pose a physical hazard or health risk to employees.
The new definition differs from the current one in that it includes
as articles items which release not more than very small quantities--
e.g., minute or trace amounts--of a hazardous chemical, as long as
these items do not pose a physical hazard or health risk to employees.
This definition gives manufacturers and importers more latitude in
determining whether an item is covered under the HCS, as the current
definition requires that to be considered an article, an item not
release any amount of a hazardous chemical. The proposed definition
also makes clear that fluids and particles are not articles; this is
not a change in the definition, but simply articulates this fact for
the sake of clarity.
Many of the commenters on the proposed revision supported the
changes (see, e.g., Exs. 11-1, 11-11, 11-40, 11-48, 11-50, 11-51, 11-
54, 11-86, 11-90, 11-111, and 11-133). Some commenters did not believe
that a revision was necessary in any event: ``* * * [W]e believe that
the definition of the term `article' is in danger of overelaboration.
The extant definition is sufficient. The proposed version, while
becoming wordier, would still be acceptable.'' Ex. 11-10. See also Ex.
11-136. OSHA has concluded that the additional language as proposed is
necessary in order to give employers more complete information on what
an exempted article is, and is adopting the proposed modifications in
this final rule.
As the Agency indicated in the NPRM discussion, the definition has
been in place since 1983, and chemical manufacturers and importers have
been successfully applying it to their products since that time. There
appear to have been few citations issued regarding inappropriate
application of the article exemption. The rulemaking participants
objecting to the definition have couched their objections in terms of
difficulties in applying the requirements of the rule. However, OSHA
believes, and the record accumulated since the NPRM was published
continues to support this belief, that the true objection is to the
coverage of specific products, not to whether the definition can be
applied as written. Producers of these types of products clearly can
determine that they are not articles under the HCS, and thus the
requirements of the rule apply. Their objections, therefore, are to
coverage under the rule.
OSHA discussed this issue at length in the NPRM. As indicated at
that time, the primary participants regarding this issue are The
Formaldehyde Institute (Ex. 11-37, 11-140, Ex. 86), and representatives
of other organizations associated with formaldehyde-treated products
(see, e.g., National Particleboard Association (Ex. 11-137, Ex. 74);
National Cotton Council (Ex. 58, Tr. 7-183-91, Ex. 91)). It should be
noted that both the Formaldehyde Institute and the National
Particleboard Association submitted notices of intent to appear at the
informal public hearings, but withdrew prior to presenting their
testimony. Furthermore, although their post-hearing exhibits have been
entered into the record, as a procedural matter, organizations not
participating in the hearing are not allowed to file post- hearing
exhibits. In addition, the National Cotton Council was permitted to
testify the last day of the hearing, but had not submitted a notice of
intent to appear. Consequently, testimony was not available prior to
the hearing to enable OSHA and other interested parties to prepare
questions on it. The National Cotton Council submitted a post-hearing
exhibit March 23 (8 days after the period for submission of briefs was
concluded). Since this submission was not a brief, it should have been
submitted by February 13, the date for hearing participants to present
additional information.
OSHA is not going to repeat all of the discussion regarding the
Agency's interpretation of the rule's requirements. (See 53 FR 29828-
33.) The formaldehyde-related commenters have attempted to use that
discussion to argue that OSHA's position on articles is inconsistent
with other parts of the rule or with Agency interpretations. This
simply is not the case, and the discussion stands as the Agency's
position.
The rule cannot credibly be interpreted as not covering the
products these commenters are discussing. In particular, in the
original final rule, OSHA indicated that the definition of article was
specifically worded in the fashion it was to address problems with such
products as these commenters are concerned about: ``For example, the
ACTWU (Ex. 111) described a situation involving fabrics in common use
which are treated with permanent press resins which release
formaldehyde when handled. Workers engaged in making clothing from such
fabrics should be informed about the nature and identity of their
formaldehyde exposures * * *. Therefore, the definition has been
modified to ensure that in this type of situation, hazard information
is transmitted to employees and downstream employers.'' 48 FR 53293.
Commenters' arguments that their professional judgment allowed them to
determine that downstream risks are negligible are completely contrary
to the rule as written. Professional judgment comes into play only with
regard to the weight of the evidence substantiating a hazard, not with
regard to predicting downstream exposures.
As OSHA noted in the NPRM, the definition of an article and
application of that definition to determine whether an item is
exempted, is an issue for chemical manufacturers and importers, not
non-manufacturers. Non-manufacturers have no responsibility for
applying the definition, and can rely on the evaluations performed by
their suppliers. One commenter took issue with this statement (Ex. 11-
111), and indicated that non-manufacturing is concerned about articles
as well. Some of these commenters supported the position that the
article definition should be narrowed so as to result in fewer products
being covered in non-manufacturing workplaces (see, e.g., Ex. 11-135,
11-142). That is a different issue than claiming that the definition
itself is unworkable, and OSHA is reiterating that application of the
definition to manufactured items is an issue that is solely the concern
of manufacturers. Therefore, opinions expressed by these non-
manufacturers who have no experience applying the definition, and have
no responsibility to do so, are irrelevant as to whether the definition
should be revised.
The primary alternative suggested by representatives of the
formaldehyde industry commenters is that OSHA exempt de minimis
releases so that a manufactured item which releases ``small'' amounts
of a hazardous chemical during normal conditions of use is still
considered an article and not covered by the HCS. (See, e.g., Exs. 11-
37, 11-107, 11-122, 11-127, 11-135, 11-137, 11-140, 11-142, 11-146, and
11-154) (six of these commenters are formaldehyde-related
organizations; two are construction representatives who do not have to
apply the definition; one is a mining industry representative that is
not covered by OSHA). Several commenters indicated that the changes
were a step in the right direction, but did not go far enough (Exs. 11-
38, 11-137, and 11-147).
As indicated in the NPRM, this alternative simply does not provide
sufficient protection for employees, and does not address the true
issue of concern--the exposure of employees. Manufacturers and
importers often cannot accurately predict downstream exposures to a
hazardous chemical, and individual reactions to an exposure vary. The
purpose of this standard, therefore, is to provide information on all
hazardous chemicals to which employees could be exposed.
No new arguments have been presented by these rulemaking
participants, and as discussed in the NPRM, the existing arguments are
not persuasive. As a result of comments these same participants and
others have made in the formaldehyde docket, the hazard communication
provisions of the formaldehyde rule were stayed repeatedly, and the HCS
was applied to those products. As OSHA had indicated in the NPRM, the
0.1 ppm cut-off that applied in the formaldehyde standard was a de-
regulatory provision--it resulted in the hazard communication
provisions of that rule applying to fewer products than would be
covered under the HCS. As far as OSHA is concerned, the specific
formaldehyde rulemaking addressed the concerns of the industry
producing such products by establishing a substance-specific de minimis
cut-off for formaldehyde. That cut-off was then stayed at the request
of the industry representatives. The Agency does not believe it is
appropriate to revise the generic HCS rule to address the specific
situation with regard to formaldehyde.
OSHA recently published a new final rule on formaldehyde which
revised the substance-specific hazard communication provisions (57 FR
22290; May 27, 1992). The requirements of this specific standard with
regard to hazard communication now supercede the generic HCS
provisions. As these new provisions address the unique concerns of the
formaldehyde-related industries, OSHA does not believe those
industries' concerns need be dealt with further in this rulemaking
proceeding with regard to the article definition. As noted in the
formaldehyde preamble (57 FR 22297-98), nothing in the formaldehyde
rule should be considered to be precedent-setting with regard to hazard
communication. It was a unique situation that was handled on an
individual basis and does not apply to the generic provisions of the
HCS.
Several commenters suggested that the mixture rule should be
applied to the entire article, including the chemicals that are bound
inextricably and to which employees are not exposed (Exs. 11-122, 11-
127, 11-137, and 11-140). As OSHA described in the NPRM, this is
inappropriate and irrelevant to employee exposures. The weight or
volume of a gas present in a solid material is totally unrelated to
what is released--in the situation of the formaldehyde-contaminated
products, the gas is 100% of the release even though the relative
weight or volume would be far less than the percentages indicated. Two
other commenters indicated they did not agree with the discussion
regarding mixtures (Exs. 11-86, 11-137)--however, the discussion merely
describes what the standard already requires. One commenter suggested
that the definition be clarified to indicate that the hazard
determination is to be done on the release. Ex. 11-147. The definition
already refers to paragraph (d) with regard to the release, and the
overall scope of the standard is limited to exposures which occur when
chemicals are released.
Other commenters indicated that OSHA should emphasize that
manufacturers do not have to consider misuse when determining if their
product is an article. Exs. 11-11, 11-111. (Another commenter indicated
that the definition should cover abnormal conditions of use as well as
normal. Ex. 11-125.) The definition does not mention misuse, and
certainly that is not a factor in the manufacturer's decision. It also
does not apply to the ultimate destruction of the product, e.g.,
materials emitted when plastics are incinerated. Chemical manufacturers
and importers do have to consider any intermediate uses prior to the
final use, i.e., whether installation or finishing of the item results
in employee exposures (Ex. 11-21). The ACCSH recommendations suggested
that the definition list some of these types of operations that would
be covered (such as welding). OSHA does not think that is necessary,
and as has already been stated, the definition is in danger of becoming
too detailed. Therefore, we reiterate again that the exemption applies
to the end use of the product only--if intermediate uses result in
exposures, they are covered under the rule.
A number of other comments were also received. One suggestion (Ex.
11-51) was that further consideration should be given to exempting
those amounts not known to cause adverse health effects. Similar to the
arguments regarding de minimis cut-offs, this suggestion presumes a
``bright line'' determination of when risks will occur and knowledge of
downstream exposures. This approach is not consistent with the intent
of the HCS to prevent effects from occurring by providing information
prior to putting the employee at risk.
It was also suggested that for polymers, the primary concern should
be what employees are exposed to, not simply the constituents (Ex. 11-
51). This is true for all articles, and is the approach OSHA has
adopted.
One commenter indicated that most medical devices are articles (Ex.
11-107)--OSHA agrees that this is probably true, since medical devices
include such items as crutches, etc. Where this is not true and
hazardous chemicals are not completely bound up in the medical device,
it would not be an article. It was also noted that trace amounts will
be difficult to determine (Ex. 11-122).
Another commenter stated that adding the exemption for fluids and
particles confused the issue, and it should be deleted (Ex. 11-108).
OSHA does not agree. Fluids and particles never met the definition in
the exemption anyway, and stating that explicitly ensures the
definition is interpreted correctly and is consistent with EPA's
definition of an article.
However, as has been discussed previously, it is not appropriate to
adopt all of EPA's definition since it does not adequately address
worker exposures (Ex. 11-135), nor is it appropriate to exempt
exposures below the PEL (many chemicals do not have PELs, and the
manufacturers cannot predict what downstream exposures will be (Ex. 11-
122)). Similarly, an action level or percentage of PEL as a trigger is
not appropriate for an information transmittal standard, and will not
work as the majority of chemicals do not have PELs (Exs. 11-127, 11-
131).
One commenter was under the impression that the change in
definition would result in hundreds of products in the printing
industry being covered that weren't covered under the original rule
(Ex. 11-162). This is inexplicable to OSHA since the revised definition
was simply a clarification of the requirements, not a change in the
provision.
The National Electrical Manufacturers Association (Ex. 24)
submitted examples of electrical brushes to the record, and was
concerned about a court decision involving such products. It should be
noted that decisions concerning the applicability of the rule to items
such as electrical brushes are to be made on a case-by-case basis by
the chemical manufacturer or importer in the hazard determination
process. It is entirely possible that electrical brushes from different
manufacturers would be treated differently under the rule, depending
upon their specific characteristics. The brushes of concern in the
court case released copper and graphite dust as a result of handling,
and employees were exposed. It is conceivable that other brushes would
not be capable of releasing such materials when handled, and thus would
not be covered.
OSHA concludes that no further change in the definition is
warranted based on the information submitted to the record. In fact,
the information is not new, and simply repeats the arguments previously
presented and rejected by OSHA in the NPRM.
Food, drugs, cosmetics, and alcoholic beverages. For ease of
reference, OSHA has reorganized these exemptions in this final rule and
separated them by topic (i.e., there is a specific subparagraph dealing
with food and alcoholic beverages, another with drugs, and a third with
cosmetics).
In the 1987 revised final rule, OSHA included an exemption for
food, drugs, cosmetics, or alcoholic beverages in a retail
establishment which are packaged for sale to consumers (paragraph
(b)(6)(v)). This exemption recognized that even where these chemicals
are hazardous (and many are not, particularly in the area of food
items), they present little or no hazard to employees when they are in
final packaged form for sale to consumers. This exemption effectively
limited coverage of many retail establishments which only have
hazardous chemicals in this form, i.e., packaged for sale to consumers.
But it did not exempt these products when they are being used in a
retail establishment and thus exposing employees.
As previously stated in the preamble to the revised final rule, if
a product is exempted downstream, a distributor has no responsibility
for providing a MSDS on that product to the retail distributor. ``In
addition, since these products are exempted, employers which package
them for retail sale would not have to furnish material safety data
sheets to distributors receiving the products.'' 52 FR 31862. Several
commenters suggested that wholesale distributors be exempted (Ex. 11-
39), or that the packaged materials be exempted at the wholesale level
as well (Exs. 11-111, 11-117, 11-158). OSHA disagrees. The large volume
of chemicals handled in these types of workplaces, and the fact that
they may readily spill or leak, poses a risk to the distributors'
employees. Their coverage, however, is already limited by the sealed
container provisions (paragraph (b)(4)) of the rule to maintaining
information received, and training workers with particular emphasis on
handling spills and leaks. This approach minimizes the burdens of
coverage, while providing adequate protection for employees who only
handle these chemicals in sealed containers.
Food. OSHA proposed a further modification to this exemption to
both clarify and extend it to other food and alcoholic beverage
products in retail establishments that are being prepared for
consumption by consumers. Thus food used for cooking meals to be sold
to customers would be exempt, as would alcoholic beverages which are
sold by the glass and thus prepared for consumption rather than
``packaged'' for consumer use. Although OSHA believes that most such
products in terms of food items would not be hazardous under the rule
in any event, it appears that some manufacturers are nevertheless
providing material safety data sheets for such items as aflatoxin in
peanut butter used in a restaurant. To ensure such interpretations are
not made, and that material safety data sheets are not unnecessarily
being provided for such items, OSHA proposed this modification to the
exemption and invited comment on the proposed language.
Comments supporting this exemption were received (Exs. 11-25, 11-
88, 11-113, and 11-117), although it was suggested that no
differentiation be made between packaged and unpackaged food in this
exemption (e.g., bulk food shipments) (Exs. 11-25 and 11-115). No
comments were received that objected to the proposed exemption. One
commenter suggested that food be totally exempted (11-115), but food
can be a hazardous chemical at some stages of production (e.g., flour
dust causes baker's asthma). It was also suggested that it be clarified
that beverages other than those that are alcoholic are considered to be
food. This appears to OSHA to be self-evident.
To accommodate the concerns raised, OSHA has re-drafted the
exemption pertaining to food and alcoholic beverages as follows:
``Food or alcoholic beverages which are sold, used, or prepared in
a retail establishment (such as a grocery store, restaurant, or
drinking place), and foods intended for personal consumption by
employees.''
Drugs. The original HCS covered the manufacture and formulation of
drugs in the manufacturing sector. The rule included a labeling
exemption for such products when they were labeled in accordance with
the regulations of the Food and Drug Administration (FDA), but all
other aspects of the program were applicable to the drug products as
well as those chemicals used to make them. In preparing the revised
final rule, OSHA determined that it is not necessary to cover such
drugs in the non-manufacturing sector when they are in a form that is
not likely to result in exposure to employees. Thus the rule totally
exempted drugs when they are in a retail establishment (i.e., a drug
store or a pharmacy) and are pre-packaged for sale to a consumer
(paragraph (b)(6)(v)). Therefore all over-the-counter drugs were
exempted at the retail level (thus wholesale distributors did not have
to send MSDSs to the retail facilities), and many prescription drugs
were exempted at the retail level as well since they are packaged prior
to reaching the retail establishment. In addition, OSHA included an
exemption for drugs in solid, final form (e.g., pills, tablets,
capsules) for direct administration to a patient. As mentioned
previously, this was based on the Agency's determination that the
potential for exposure is minimal from drugs in these forms.
However, in recognition of the fact that there are various types of
workers who may be exposed to drugs in hospitals or pharmacies (e.g.,
nurses, nurses' aides, pharmacy aides, janitors, or technicians), OSHA
did not exempt those drugs that are not solid or are not pre-packaged
for sale to consumers (a pharmacy in a hospital would be considered to
be a retail sale establishment for purposes of the exemption as
written). What remains under this approach are primarily powder,
aerosol, or liquid prescription drugs. (An industry representative
admitted in response to questions during the hearing that these
exemptions eliminated coverage of 75% of drug products and that
industry estimates of cost did not take these exemptions into account
(Tr. 3-94-95)). Thus nurses required to mix anti-neoplastic drugs, for
example, or janitors cleaning up spills, would be entitled to a
material safety data sheet and training under the revised final rule.
There was little discussion of the drug issue in the record prior
to the revised final rule (see, e.g., Ex. 2-176). However, since drugs
are designed to be biologically active, OSHA wants to ensure that
employees will be properly protected. As an example of potential
problems, OSHA cited a report in the American Industrial Hygiene
Association Journal (Ex. 4-59) that described one hospital's experience
with a drug that is generated as an aerosol in a tent for
administration to children. Nurses, respiratory therapists, doctors,
and other employees are directly exposed when they enter the tent to
care for the patients. Information on the drug indicates that such
occupational exposure may result in carcinogenesis, fertility
impairment, and fetotoxicity. In addition, however, employees who were
exposed also complained of experiencing acute effects such as
headaches, burning and dryness of the eyes, coughing and dryness of the
upper respiratory tract. The hospital eventually devised a protective
program for exposed employees based upon its experiences. A MSDS with
recommendations for protective measures may have helped them resolve
the situation prior to employees being exposed.
In response to the approach taken in the revised final rule, the
National Wholesale Druggists' Association (NWDA) (Ex. 5-85) recommended
that OSHA recognize package inserts approved under FDA regulations as
an acceptable alternative to material safety data sheets required under
the rule. Additionally, the NWDA suggested that the Physicians' Desk
Reference, a privately developed reference regarding drugs, also be
considered to be an alternative to requiring MSDSs for drugs approved
by FDA. Other commenters recommended that all prescription drugs be
exempted since they are adequately covered by FDA labels, other
available resources, and the medical training of persons handling or
supervising handling of the drugs (Exs. 5-77 and 5-102).
Although the purpose of the Federal Food, Drug, and Cosmetic Act
administered by the FDA is to protect consumers of such products and
the general public (see, e.g., Pharmaceutical Mfrs v. FDA, 484 F. Supp.
1179, 1183 (D.Del. 1980)), the product data inserts that accompany
pharmaceuticals do contain some information that is analogous to that
found on MSDSs and would provide some protection for employees. In
particular, at 21 CFR 201.100(d)(1), FDA requires that inserts for
prescription drugs for human use must contain the following
information:
Adequate information for such use, including indications,
effects, dosages, routes, methods, and frequency and duration of
administration and any relevant warnings, hazards,
contraindications, side effects, and precautions, under which
practitioners licensed by law to administer the drug can use the
drug safely and for the purposes for which it is intended * * *[in]
the same [ ] language and emphasis as labeling approved or permitted
* * *.
This would be useful chemical hazard information for employees involved
in administering the products even though employee protection is not
the primary purpose of the information presented.
In addition to publication of such information in the package
inserts themselves, the FDA regulations also state that (21 CFR
202.1(l)(2)):
[R]eferences published (for example, the ``Physicians' Desk
Reference'') for use by medical practitioners, pharmacists, or
nurses, containing drug information supplied by the manufacturer,
packer, or distributor of the drug and which are disseminated by or
on behalf of its manufacturer, packer, or distributor are hereby
determined to be labeling as defined [by] the Act.''
According to the Physicians' Desk Reference (PDR) in its Forward (40th
ed. 1986), ``drug information'' in the PDR is ``prepared by
manufacturers, edited and approved by their medical department and/or
medical consultant.'' PDR publishes the information verbatim. Id.
OSHA proposed to modify the definition of ``material safety data
sheet'' under the rule to indicate that a package insert approved by
FDA, or an entry in the PDR prepared in accordance with FDA's
requirements, be considered in compliance with the HCS requirements for
a MSDS for these products. In addition, the exemption regarding solid
drugs was corrected to read ``e.g., tablets or pills'' rather than
``i.e.'' as is currently indicated in the revised final rule (see,
e.g., Exs. 5-77, 5-85, and 5-102).
The Agency invited comment on this issue, particularly from
employees who would be affected by the modification to ensure that they
agree that this information is adequate for their protection. The
existing exemption for labeling would remain in effect, employers would
still have to have hazard communication programs where covered, and
training would have to be given to those employees who have not
previously been trained regarding the hazards and protective measures.
Industry representatives consistently supported the use of
alternatives to MSDSs for drugs (see, e.g., Ex. 11-42, 11-60, 11-108,
11-115, and 11-153), or further thought that a full exemption from all
requirements was warranted (e.g., Exs. 11-54, 11-59, 11-75, 11-120, and
11-138) or that drugs should be exempted when handled by wholesalers
(Ex. 11-158). ``Applying the Hazard Communication Standard to drugs
that are either aerosol, mist, or liquid and for patient use seems both
impractical and questionable. To begin with, if these drugs are being
handled by nurses or doctors, they are being handled by professionals
trained to dispense medication.'' Ex. 11-120. It was also suggested
that the exemption be further extended to manufacturing (Ex. 11-48),
and that other alternative information sources be permitted in addition
to those indicated in the proposal (Exs. 11-92, 11-108, and 11-138).
Additionally, some of these commenters suggested that other items
regulated by FDA (such as medical and dental devices) should also be
allowed to be accompanied by package inserts instead of MSDSs (Exs. 11-
48, 11-96, and 11-108).
It was also suggested that other information comparable to the PDR
should be permitted (Exs. 11-92, 11-108, and 11-138), and it was noted
that FDA does not actually approve package inserts, they are just
issued in compliance with the law, and therefore the OSHA rule should
not refer to approved inserts (Ex. 11-48).
Another commenter suggested that the PDR be permitted to be used,
but that the entries be modified to include safety information for
workers (Ex. 11-62). It was also confirmed that training needs to be
provided for proper handling of drugs (Ex. 11-92), so a total exemption
would not be appropriate. However, one commenter suggested that OSHA
could rely on ``voluntary'' training (Ex. 11-120).
On the other hand, a number of commenters indicated that package
inserts and PDR entries are not acceptable alternatives to MSDSs (Exs.
11-7, 11-21, 11-69, 11-103, 11-125, and 11-144). Concerns expressed by
these commenters included the fact that the information on the package
inserts and PDR entries is not clear or easily understood, and the
information is not comparable to that included on MSDSs.
For example, the American Nurses' Association and the American
Association of Critical-Care Nurses (Ex. 11-69) objected to allowing
alternatives to MSDSs for drugs. ``The use of such inserts or entries
has not historically been for occupational exposure alerts * * *
Additionally, they are usually in minute print and contain voluminous
patient response and safety information. This would negate the effect
of a hazard alert to employees.'' The ANA and AACN indicated that
nurses are experiencing significant exposure potentials to many
different types of drugs: ``Increasingly, nurses have to mix patients'
intravenous medications on holidays, evening, night and weekend shifts
because there is no pharmacist in the facility. Likewise, nurses have
had to perform housekeeping duties, cleaning equipment, and
disinfecting patient areas after waste spills * * * Technological
advances in pharmaceuticals used to medicate patients and for medical
treatment could increase nurse exposures to drugs that are harmful
outside of the pharmacy preparation area.''
Similarly, the American Federation of State, County and Municipal
Employees (Ex. 11-144) stated: ``Workers may receive significant and
hazardous exposure to drugs in the course of manufacturing, preparing,
or administering those drugs. For example, hospital personnel who
prepare and administer cytotoxic drugs have been shown to experience
both short-term health effects (such as dizziness, nausea, headache,
lightheadedness, allergic reactions), and chronic effects (including
cancer, leukemia, birth defects, miscarriages, and chromosomal damage).
Waste anesthetic gases, such as nitrous oxide, have caused nausea,
dizziness, headaches, fatigue, and irritability, as well as sterility,
miscarriages, birth defects, cancer, and liver and kidney disease,
among operating room staff and/or their spouses (in the case of
miscarriages and birth defects).'' AFSCME also noted that PDR entries
and package inserts do not include the following information that MSDSs
would: Exposure limits, physical hazards, routes of exposure, health
hazard data related to worker exposure, control measures, and
procedures for safe handling and use.
OSHA has decided not to adopt the proposed modification in the
final rule. It is clear from the comments of worker representatives and
others that the proposed alternative does not provide adequate
information, and is not as effective as having MSDSs.
Although the National Wholesale Druggists Association has provided
estimates of extensive burdens that would be caused by coverage of the
non-solid, prescription drugs in the non-manufacturing industries,
their numbers are not credible. As mentioned previously, even assuming
that their unit costs are correct, their burden estimates do not take
into account the existing exemptions in the rule. For example, at a
Congressional hearing (Ex. 4-198) the NWDA distributed two MSDSs for
toothpaste and an over-the-counter stomach remedy to illustrate the
types of information they had to distribute. In fact, the MSDS for the
toothpaste clearly indicated that the chemical was not hazardous under
the HCS--so it was not covered and distribution of the MSDS was not
necessary. The stomach remedy was combustible--a concern in the
manufacturing facility. However, it too is exempt in terms of MSDS
distribution once it is packaged for sale to a consumer. Thus NWDA
members are not required to send MSDSs downstream for either of these
products.
NWDA estimated that compliance with the rule would cost their
industry $59 trillion dollars (Exs. 5-76 at p. 175), although at the
same time they reported total sales of pharmaceutical products to be
about $13 billion a year. More recent estimates varied from $1.8
million per facility to $16 million per facility (Tr. 3-94-95; Ex. 82).
These figures are grossly exaggerated, and are based on incorrect
assumptions such as having an MSDS included with every package instead
of provided once with the initial shipment, or providing copies of
every MSDS in a product line to every customer whether they purchase
the product or not. OSHA does not find NWDA's arguments to be credible,
nor do we believe that it is infeasible to distribute MSDSs for drugs
that are not already exempted elsewhere. Proper protection of the
workers exposed to these chemicals warrants the burdens imposed.
OSHA also raised another issue of concern regarding labeling of
drugs dispensed by a pharmacist to a nurse who gives it to the patient.
It is our understanding that these dispensed drugs may not be marked in
any way, and since the nurse doesn't transfer the material from the
labeled container, the portable container exemption for labeling would
not apply. OSHA invited comment on suggestions for dealing with this
issue for non-solid drugs. One commenter suggested that each facility
should develop an appropriate method for dealing with the issue in
conjunction with a training program (Ex. 11-92). The other indicated
that dispensed drugs do not need to be labeled (Ex. 11-96). A third
suggested that although the commenting organization supported such
labeling, it appeared to be more beneficial to the patient than to
health care workers (Ex. 11-69). OSHA has decided that the containers
of drugs dispensed by a pharmacist to a health care provider to give to
a patient will be considered to be exempted under the portable
container provisions of the rule. This exemption has been added to
paragraph (f)(7). Although the employee administering the drugs may not
be the person performing the transfer, it appears that the necessary
information is readily accessible to them, and that labeling the
individual containers is not necessary in this situation.
Cosmetics. OSHA has separated the exemptions applying to cosmetics
and placed them in a new subparagraph, but has not changed the
substance of the requirements. Cosmetics are exempt when packaged for
sale to consumers in a retail establishment, and when brought into the
workplace for employee consumption. Otherwise, they are covered by the
rule when they contain hazardous chemicals.
Consumer products. As described in the NPRM (53 FR 29834-38), one
of the fundamental principles upon which the HCS is built is that
employees are entitled to information regarding any chemical which is
hazardous and to which they are potentially exposed. The type of use a
hazardous chemical is intended for is irrelevant--the risk being
addressed is exposure to a chemical without knowing what the hazards
and appropriate protective measures are. That being the case, the 1982
NPRM contained no exemptions for any ``types'' of chemicals. The
exemptions which were in the original final rule were based upon
comments submitted to the rulemaking record after that proposal. OSHA
limited the exemptions to situations where other regulatory programs
addressed the problems involved (e.g., labeling exemptions for those
products labeled in accordance with another Federal agency's
requirements), or where the hazards did not result from workplace
exposure.
In the area of consumer products, the original final rule included
an exemption for additional labels on such products when they are
labeled in accordance with the requirements of the Consumer Product
Safety Commission (CPSC). CPSC's requirements for labeling of hazardous
substances are for the purpose of protecting consumers when such
products are used in the home, the school, and recreational facilities
(15 U.S.C. 2052(a)(1)). The Federal Hazardous Substances Act, 15 U.S.C.
1261 et seq., and regulations issued under that Act by CPSC are not
designed to protect workers. See American Petroleum Institute v. OSHA,
581 F.2d 493, 510 (5th Cir. 1978), aff'd on other grounds sub. nom.
Industrial Union Dep't. v. American Petroleum Institute, 448 U.S. 607
(1980).
Consumer products generally do not include the type of specific
hazard information OSHA would require on the labels of containers of
hazardous chemicals which are shipped. Although some consideration is
given to chronic hazards, the basic emphasis is on acute effects. In
addition, the labels focus on precautionary statements and routes of
exposure rather than informing the user of the specific hazards. For
example, a label for lead solder purchased in a hardware store
indicates that it is ``fatal if swallowed'' and ``causes severe
burns,'' but gives no indication of the fact that lead causes not only
acute lead poisoning but also has severe effects on a number of body
systems, including damage to blood-forming, nervous, and reproductive
systems (see, OSHA's lead standard, 29 CFR 1910.1025). Furthermore, the
primary route of entry for occupational exposure to lead would normally
be inhalation--the consumer label does not indicate that inhalation of
fumes generated when soldering is of concern. Ex. 4-71. Conversely, a
properly prepared MSDS for the same material will indicate the full
range of health effects, the appropriate protective measures, the fact
that there is an OSHA standard for the material with a permissible
exposure limit, and other useful information for both the employer and
the employee being exposed.
Upon considering what information is necessary for the protection
of workers exposed to these so-called consumer products in the
workplace, OSHA decided that protection of workers would be served by
allowing the CPSC labels to suffice, but requiring MSDSs and training
as for any other hazardous chemicals. There appears to be some
misconception that by virtue of being permitted to be marketed to
consumers, consumer products are inherently safe and don't require any
additional information be given to workers using them. This certainly
is not the case.
As OSHA described at length in the NPRM preamble, the Consumer
Product Safety Commission (CPSC), in its National Electronic Injury
Surveillance System (NEISS), compiles estimates of product-associated
injuries based on a statistically significant sample of incidents
reported to institutions with emergency treatment departments.
Information regarding work-related injuries treated in emergency rooms
has subsequently been provided by CPSC to the National Institute for
Occupational Safety and Health (NIOSH). See Ex. 4-77.
The NIOSH data indicate that a total of 136,212 work-related
chemical injuries were estimated to have been treated in emergency
rooms in 1986. As examples of the types of exposures responsible for
these injuries, included in this total were chemicals and chemical
compounds (solids, liquids, gases): 102,428; coal and petroleum
products: 23,532; and soaps, detergents, cleaning compounds not
classified elsewhere: 10,252. Thus OSHA has concluded that workers
exposed to hazardous chemicals in consumer products are at a
significant risk of experiencing adverse health effects. In particular,
OSHA has determined that workers exposed to such chemicals by using the
products in a manner not anticipated by the chemical manufacturer or
importer, or using them in such a way that exposures are more
substantial than those consumers would normally experience, need the
protections of the HCS. For example, as NIOSH indicated in its
comments, many paint thinners and paint removers available as consumer
products contain organic solvents with toxic properties which could
produce a hazard if used in large quantities and over an extended time
period (Ex. 11-124).
Many products used industrially are also sold and used as consumer
products. Thus exempting such products would be in essence exempting
them because of the method of distribution for them, i.e., that they
are generally sold in retail establishments, rather than through
wholesale distribution systems. This is not an appropriate rationale
for such an exemption since it does not consider either workplace
exposure potential or the hazardous nature of the chemical.
OSHA did not exempt consumer products from any provisions of the
original final rule other than labeling. During the implementation of
the original final rule, OSHA determined that its enforcement policy
regarding consumer products would focus on the type and extent of usage
(see, OSHA's instructions to compliance officers for enforcement of the
HCS, Ex. 4-24):
A common sense approach must be employed whenever a product is
used in a manner similar to which it could be used by a consumer,
thus resulting in levels of exposure comparable to consumer
exposure. The frequency and duration of use should be considered.
For example, it may not be necessary to have a data sheet for a can
of cleanser used to clean the sink in an employee restroom. However,
if such cleanser is used in large quantities to clean process
equipment, it should be addressed in the Hazard Communication
Program.
This appeared to OSHA to be a reasonable accommodation for employers
who use consumer products in the manner intended, and with the same
frequency and duration of exposure as would be experienced as
consumers. The State of Maryland has implemented a similar exemption in
its right-to-know law since 1985 (Ex. 11-21). They commented that the
coverage of consumer products in this manner is necessary for the
proper protection of employees, and employers in Maryland have been
able to comply with the provision.
OSHA recognized that many more non-manufacturers would use consumer
products than would be found in manufacturing facilities, and that the
method of obtaining them might more likely be from retail distributors
than wholesale. Thus the ANPR included questions regarding the use of
such products, and the means of obtaining them. Relatively few
responses were received. However, the responses did confirm that in
many cases the use of consumer products in workplace operations has the
potential to result in significant exposures that warrant more
information being available than that which appears on a consumer
product label (see, e.g., Exs. 2-59, 2-83). OSHA decided to incorporate
into the revised final rule its existing enforcement policy which was
tied to type and extent of exposure (52 FR 31878; paragraph
(b)(6)(vii)):
Any consumer product or hazardous substance, as those terms are
defined in the Consumer Product Safety Act (15 U.S.C. 2051 et seq.)
and the Federal Hazardous Substances Act (15 U.S.C. 1261 et seq.)
respectively, where the employer can demonstrate it is used in the
workplace in the same manner as normal consumer use, and which use
results in a duration and frequency of exposure which is not greater
than exposures experienced by consumers * * *.
OSHA further stated that this exemption ``strikes a balance between the
practical considerations of acquiring and maintaining material safety
data sheets on CPSC regulated products which employees are exposed to
at home as well as at work, and the worker's need for more hazard
information than a CPSC label when exposures are greater or more
frequent than typical public use of the chemical would generate.'' 52
FR 31863.
There were some comments submitted on the coverage of consumer
products following the publication of the revised final rule. A number
of them felt that they could not define what exposures in the workplace
would be comparable to consumer exposure, and that the rule should
exempt such exposures unless they are ``significantly'' greater than
consumer exposure or that such products should be completely exempted
(Exs. 5-53, 5-72, 5-88, 5-93, 5-94, and 5-97). As we have stated
earlier, a common sense approach is required in making these
determinations, and most employers we have dealt with clearly know
whether the use of such products is unusual, of longer duration, or
more frequent than home use. However, in the NPRM we invited further
comment on the issue of adding the word ``significantly'' to the
consumer product exemption to modify ``greater.'' A number of
commenters supported this suggestion (see, e.g., Exs. 11-51, 11-93, 11-
104, 11-111, 11-115, 11-140, and 11-158). In some cases, however, this
support was only endorsed as an alternative if the Agency did not agree
to a broader exemption (see, e.g., 11-111, 11-115).
Another suggestion submitted (Exs. 5-84, 5-93), and endorsed by OMB
in its paperwork decision (Ex. 4-67), was to use the same consumer
product exemption adopted by Congress in the community right-to-know
provisions of the Superfund Amendments and Reauthorization Act (SARA)
of 1986, Public Law 99-499 (Ex. 4-16), which is being implemented by
the Environmental Protection Agency (EPA). The exemption would then be
for ``any substance to the extent that it is used for personal, family,
or household purposes, or is present in the same form and concentration
as a product packaged for distribution and use by the general public.''
As OSHA noted in the NPRM, this exemption is not related to the extent
of employee exposure to chemicals that are hazardous--which is the
concern of OSHA in the HCS--and it is not appropriate for this rule.
NIOSH also noted that ``consumer products'' are defined by EPA and OSHA
for different purposes, and should not be summarily grouped together
(Ex. 11-124).
The legislative history for SARA does not discuss the household or
consumer product exemption. OSHA's rule preceded the SARA legislation,
and it can be presumed that the exemptions in SARA were intended by
Congress to address the different needs of community right-to-know
versus worker right-to-know. Community right-to-know under SARA entails
informing the general public and emergency response facilities about
chemicals in their neighborhoods that could cause hazardous conditions
during emergency situations. The HCS involves informing employees about
the chemicals they are potentially exposed to on a day-to-day basis as
a result of their work. The SARA exemption of consumer products was not
a determination by Congress that such coverage is unnecessary in the
workplace.
Nevertheless, a number of employer representatives supported such
an exemption as appropriate for inclusion in the HCS (see, e.g., Exs.
11-11, 11-74, 11-106, 11-127, 11-142, and 11-156), or simply suggested
that consumer products not be covered (Ex. 11-9), or that CPSC labels
provide enough protection (Exs. 11-82, 11-95). The arguments presented
involve the desire for consistency with SARA (although the HCS
provisions preceded SARA's), the perceived lack of need for additional
information on such products, and concerns about interpreting the
exemption as written. For example, the Texas Eastern Gas Pipeline
Company (Ex. 11-128) stated: ``The significant difference between these
two is that SARA III is a blanket consumer product exemption, whereas
OSHA requires an employer demonstration to exempt an item. Our concern
is the potential adverse interpretations of OSHA Field Compliance
Officers and the required extent of any such demonstration by the
employer.''
Obviously, a complete exemption is easier to comply with and
enforce than a partial exemption. (Likewise, another option that would
be easier to comply with and enforce would be to totally cover the
products, rather than exempting any of them.) However, the issue of
concern here is whether employees have sufficient information to be
protected, not whether it would be less burdensome to completely exempt
the products. A total exemption for consumer products would not
adequately protect employees, and since the Agency has determined that
these employees are at significant risk of experiencing adverse health
effects if the workplace use of consumer products is not covered, then
OSHA would not be meeting its statutory mandate.
Consistency with SARA requirements is not a persuasive argument
either. Since EPA has adopted a permanent reporting threshold of 10,000
pounds for most hazardous chemicals (55 FR 30632), there will be many
products covered in the workplace under the HCS that will not be
reported under SARA. In fact, there will be many workplaces that will
not be required to report anything under SARA that will nevertheless be
covered under the HCS. In addition, although the Agencies have
attempted to be consistent where possible, they nevertheless have
different statutory mandates and purposes for regulation. OSHA's intent
is to protect workers and provide them the right to know about the
hazardous chemicals in their workplaces. This is quite different from
reporting the presence of chemicals to local authorities for the
purpose of emergency planning.
A number of commenters, particularly those who represented workers,
were concerned about employee access to information about consumer
products (see, e.g., Exs. 11-51, 11-125, and 11-144). Some questioned
whether the CPSC label should be permitted even when the product has an
MSDS and there is training. For example, the National Institute for
Occupational Safety and Health (NIOSH) (Ex. 11-124) stated: ``[M]any
paint thinners and paint removers available as `consumer products'
contain organic solvents with toxic properties which could produce a
hazard if used in large quantities and over an extended time period.
The information reported for `consumer products' does not offer the
type of information needed to prevent hazardous exposure if used as an
industrial chemical when extended exposure times are likely.''
Similarly, at testimony during the hearing representatives of
workers in the construction industry expressed concern about coverage
of consumer products: ``Now, the typical label says `Use with adequate
ventilation and don't ingest it', you know, don't eat it. That we do
not think is adequate information for the use of a material on a
construction site. Because, number one, we are not using it as Harry
Homeowner, where he may be fixing one trap underneath the kitchen sink.
Our people are using it every day, over a seven or eight hour period
for 40 hours a week, for 52 weeks a year. That's a little bit different
use.'' Tr. 6-106-7.
Other employee representatives addressed the appropriateness of the
SARA exemption in a worker right-to-know standard: ``In our view,
exclusion of consumer products as done under Title 3 really isn't
appropriate under OSHA. Under OSHA the concern should be is the
chemical hazardous, and what do we need to do with respect to
information, not what is the source--does it come off a shelf of a
retail distributor, or does it come directly from the manufacturer? And
so we think OSHA's treatment in this area is really the appropriate one
of looking at the hazardous nature of the chemical, and stemming from
that, the information that must be provided to the employer and to the
worker. So, we think that the OSHA definition should be maintained.''
Tr. 7-47.
Representatives of the Chemical Manufacturers Association also
agreed that consumer products should not be completely exempted (Tr. 7-
24-6). Their members are producers of such products, and are required
to prepare the MSDSs and distribute them.
OSHA believes that the record does not support excluding consumer
products that are used in a manner different from normal consumer use,
or are used more frequently, resulting in greater employee exposures.
These chemicals present a hazard to workers that is not sufficiently
mitigated by the CPSC-required labels. MSDSs and training are necessary
to protect exposed employees. OSHA also does not believe that adding
the word ``significantly'' to modify ``greater'' in the exemption
resolves the problems employers have suggested will occur as a result
of the exemption. In particular, if these employers believe they cannot
determine when exposures are ``greater'' than that experienced by
consumers (i.e., it's too subjective), it's unclear how these same
employers would be able to determine when the exposures are
``significantly'' greater.
We also believe that some of the employer objections were based on
interpretations of the requirements that were more onerous than
intended. For example, as was quoted above, there were some employers
who felt that the employer would have to go to some great length to
``demonstrate'' that the use was a true consumer-type usage. To come
within the exemption of this provision, an employer need only show that
employee use of a consumer product containing hazardous chemicals is of
a duration and frequency that clearly does not exceed what a reasonable
person would concede to be normal consumer use in a home environment.
(Generally, these types of objections were based on an assumption that
OSHA's enforcement of the provision would be unreasonable. This
certainly has not been the case in the manufacturing sector, and in any
event, if a citation is issued unreasonably, existing options are
available in the form of employer contest to the citation.)
In order to address the concerns about how the exemption was
worded, and therefore would be interpreted, OSHA has modified the
language in the final rule. The exemption is now worded as follows:
Any consumer product or hazardous substance, as those terms are
defined in the Consumer Product Safety Act (15 U.S.C. 2051 et seq.)
and Federal Hazardous Substances Act (15 U.S.C. 1261 et seq.)
respectively, where the employer can show that it is used in the
workplace for the purpose intended by the chemical manufacturer or
importer of the product, and the use results in a duration and
frequency of exposure which is not greater than the range of
exposures that could reasonably be experienced by consumers when
used for the purpose intended.
We believe these changes make the exemption clearer, and yet do not
diminish the protections that are necessary for workers exposed to the
chemicals involved.
There were a few other comments received regarding this issue as
well. One was that training could still be done, based on the labels,
rather than totally exempting the products from coverage (Ex. 11-141).
As has been fully described in both the NPRM preamble and this
document, MSDSs provide information that is necessary for the
protection of exposed workers. Training cannot be done adequately
without the information on the MSDS for the product. Others suggested
that OSHA provide guidance on what it considers to be a consumer
product (Exs. 11-38, 11-104). As OSHA stated in the preamble to the
NPRM, a consumer product is anything that can be purchased in a retail
store and is therefore available to the general public for personal or
household use. One commenter also suggested that the exemption from the
Maine right-to-know standard that was quoted in the NPRM was a better
alternative (Ex. 11-93). We do not agree, and believe the changes
incorporated herein address the situation appropriately.
Consumer products which meet the definition in paragraph (b)(6)(ix)
are totally exempted from the requirements of the rule. Those which do
not meet this exemption are exempted from further labeling under
(b)(5)(v). Employers must still provide MSDSs and training on these
products.
Nuisance particulates. In the 1985 ANPR, OSHA requested comments on
the coverage of nuisance particulates. Under the HCS, all chemicals for
which OSHA has a standard, or which are listed in the latest edition of
the American Conference on Governmental Industrial Hygienists' (ACGIH)
Threshold Limit Values and Biological Exposure Indices annual
publication, are to be considered hazardous for purposes of the HCS
(paragraphs (d)(3)(i) and (ii)). At that time, OSHA had a generic
permissible exposure limit (PEL) for all nuisance dust. There were also
a number of substances listed in the threshold limit value (TLV)
publication which are specifically identified as nuisance particulates.
These substances were listed by name in the main table of the TLVs and
in Appendix D, entitled ``Some Nuisance Particulates.'' The HCS covers
any chemicals listed in the TLV publication, so these nuisance
particulates were in fact part of the ``floor'' of chemicals covered by
the HCS.
However, since any dust or particulate can potentially be a
``nuisance,'' OSHA decided as a matter of interpretation to limit
coverage of this part of the rule to those nuisance particulates that
were specifically listed at that time in Appendix D of the TLV booklet.
OSHA further determined that if a substance listed in Appendix D was
not included in an employer's hazard communication program, a de
minimis notification would be issued as long as the substance did not
pose a covered physical or health hazard other than its nuisance
characteristics. A de minimis violation is one involving a technical
violation of a rule, but which bears no relationship to safety or
health. A de minimis violation has no penalties associated with it, and
the employer has no duty to abate the condition.
The majority of those commenting in response to the 1985 ANPR
stated that nuisance dust should not be covered (see, e.g., Exs. 2-12,
2-23, 2-64, 2-77, 2-90, 2-107, 2-128, 2-144, 2-167, 2-193, 2-211).
Additional comments recommending exclusion of nuisance dusts were
received after the final rule as well (Exs. 5-84, 5-86, and 5-93).
Edison Electric Institute's argument is an example of the comments
received (Ex. 2-107):
The purposes of the standard can be well-served even with the
omission of nuisance dusts. Any solid (powder, flake, granules) can
produce nuisance dusts. Requiring MSDSs on nuisance dusts would be
impractical in some cases (e.g., floor sweeping dusts), and of
little use in others because those do not present a significant
health hazard.
There were also a few comments which supported continued coverage
of nuisance dust (Exs. 2-30, 2-59, 2-88, and 2-105), and others which
addressed specific dusts such as flour (particularly with regard to
baker's asthma) (Exs. 2-88, 2-153, and 2-166), and grain (Exs. 2-97, 2-
125, and 2-160).
In the 1988 NPRM, OSHA proposed to exempt nuisance particulates
which did not meet any of the definitions of health or physical hazards
under the rule. Most participants who commented on this change
supported the exemption (see, e.g., Exs. 11-40, 11-50, 11-56, 11-90,
11-100, 11-147, and 11-160). However, it was suggested that the
exemption was too limited (Ex. 11-135). This does not appear to OSHA to
be true since the dusts are being treated in the same manner as any
other type of chemical would be.
There were concerns raised about the potential irritant effects of
the dusts still being covered (Exs. 11-7, 11-51). If a properly
conducted hazard evaluation indicates the potential to cause eye
irritation, that is a covered hazard and the chemical would not be
exempted as a nuisance particulate. Similarly, one commenter said that
dusts which exhibit effects at high concentrations should not be
exempted (Ex. 11-124). The hazard evaluation process for nuisance
particulates is not any different than for any other chemical. If the
dust does not meet the definition of hazard (at any concentration), it
is not covered. Evaluation of the hazards of the dusts is to be done by
the producer of the material. Again, dusts are not different from any
other material under the rule in terms of hazard evaluation (Ex. 11-
133). One commenter also stated that the exemption will discourage
rigorous testing (Ex. 11-58). OSHA is not sure why this would be the
case, particularly since it has been our understanding that many
companies have undertaken more testing since the HCS was promulgated to
help ensure that better information is available.
It was also suggested that physical hazards should not be
considered to trigger coverage as the HCS was designed to address
health effects, not physical hazards (Ex. 11-129). This statement is
simply not true. The HCS has always covered all types of health and
physical hazards. (See definition of ``hazardous chemical'' in 29 CFR
1910.1200 (c)).
Another suggestion was to extend the exemption to include nuisance
``droplets'' (Ex. 11-126). Mineral oil mist was the concern in this
comment. Mineral oil mist has a specific PEL and is thus a hazardous
chemical under the rule. OSHA does not agree that it would be
appropriate to exempt any such chemical that is specifically regulated.
Therefore, chemical manufacturers or importers must develop and
transmit an MSDS and label for any substance with a specific OSHA PEL.
The ACGIH no longer lists a separate nuisance particulate appendix,
although there is still a general recommended TLV for nuisance
particulates. These would be exempt unless there is evidence they
present a physical or health hazard separate from their nuisance
characteristics.
OSHA is also clarifying that the burden of proof for this exemption
belongs to the manufacturer or importer. The language in the NPRM was
``nuisance particulates for which * * * no evidence is found to
indicate that they pose any covered physical or health hazard,'' and in
the final rule reads ``nuisance particulates where the chemical
manufacturer or importer can establish that they do not pose any
physical or health hazard * * *'' This is consistent with the provision
on wood dust. It also complies with Executive Order 12778 which, in
order to reduce unnecessary litigation, requires each agency
formulating proposed regulations to try to ensure that the regulations
provide a clear and certain legal standard for affected conduct. Exec.
Order No. 12778, 3 CFR 359 (1992).
Coverage of grain dust. Following promulgation of the revised final
rule, a number of commenters objected to grain dust being considered a
hazardous chemical under the rule, and to OSHA ``adopting'' the ACGIH
TLV for grain dust (see, e.g., Exs. 5-2, 5-16, 5-21, 5-32, 5-43, 5-57,
5-104, and 5-124). The majority of the comments on this subject
submitted in response to the NPRM still objected to coverage of grain
dust (see, e.g., Exs. 11-43, 11-53, 11-63, 11-77, 11-109, and 11-151).
Some indicated that OSHA's rule on grain handling already adequately
covers training of workers (Exs. 11-67 and 11-109). OSHA's position on
this issue remains the same--grain dust meets the definition of a
hazardous chemical under the HCS, and is fully covered by the rule. To
the extent that workers are already trained, this merely minimizes the
burden of compliance.
Since publication of the NPRM, OSHA adopted a PEL of 10 mg/m3
for grain dust under its 1989 Air Contaminants final rule (54 FR 2332).
The Eleventh Circuit Court of Appeals vacated the final exposure limits
designated in that standard on July 7, 1992. However, the AFL-CIO and
the National Grain and Feed Association which had reached a settlement
with OSHA on the new grain dust limit moved the appeals court to rule
that its decision did not disturb this settlement. The court granted
the motion on February 1, 1993, and stated that the agreement remains
in effect. Consequently, OSHA will continue to enforce the 1989 limit
(58 FR 35339). Information regarding this PEL must now appear on MSDSs
for grain. Information regarding this PEL must now appear on MSDSs for
grain.
As explained in the NPRM preamble (53 FR 29840-41), under the
provisions of the original final rule, as well as the revised final,
OSHA established a ``floor'' of chemicals which are always considered
to be hazardous under the rule. These include chemicals which OSHA
regulates, and chemicals which appear in the latest edition of
Threshold Limit Values for Chemical Substances and Physical Agents in
the Work Environment, an annual publication of the American Conference
of Governmental Industrial Hygienists (ACGIH) (now entitled Threshold
Limit Values and Biological Exposure Indices)(paragraph (d)(3)). ACGIH
is a professional society which is widely recognized as an authority in
evaluation of the hazards of materials in the workplace, and
establishment of recommended permissible exposure levels for those
materials. During the rulemaking on the original rule, participants
confirmed that if ACGIH finds a material to be hazardous, and thus
establishes a permissible level for it, this is important information
to be considered in the hazard determination process. (See, e.g., 48 FR
53298-99.) Therefore, OSHA included this conclusion in the hazard
determination process by stating that if the material appears on the
ACGIH list, it is, by definition under the rule, a hazardous chemical.
Chemicals listed by ACGIH (or regulated by OSHA), however, are not the
only substances covered under the scope of the rule. If there is
evidence to indicate a material presents a physical hazard in the
workplace (e.g, flammability or combustibility) or if there is one
statistically significant study that indicates a potential adverse
health effect may occur upon exposure, the chemical is covered by the
rule (paragraph (d)(2)).
OSHA has not ``adopted'' the threshold limit value (TLV) for any of
the substances on the TLV list. It has simply stated that the fact that
this recognized authority has found a substance to be hazardous is
important information for exposed employees and users of a product to
be aware of, as well as being aware of the level of exposure that
authority has recommended. Where OSHA has specific exposure levels,
this information must also be indicated on a MSDS, and if the producer
has a recommended level--as many larger manufacturers do--this
information must also appear. Thus the downstream employers will have
the benefit of knowing that such recommendations and requirements
exist, and this will help them design appropriate protective measures
for their employees.
Whether these materials appeared on the TLV list or not is somewhat
immaterial in terms of whether they are covered by the rule since, if
they are not listed, an evaluation still has to be made of the
available hazard data to determine if they meet the definition of
``hazardous chemical'' under the standard. (See Ex. 11-124, comments
from NIOSH specifically supporting the finding of hazard for grain
dust.) For grain dust, there is evidence that it presents both a
physical hazard (potential for explosion) and a health hazard (there is
evidence that respiratory effects result from exposure). (See, e.g.,
OSHA Final Rule for Grain Handling Facilities, 52 FR 49542; Ex. 4-29
(MSDS for grain); Ex. 4-30 (ACGIH documentation for the TLV for grain
dust); Ex. 4-43 (OSHA Grain Elevator Industry Hazard Alert, 1/5/78);
and Ex. 4-49 (U.S. General Accounting Office report on grain
fumigation, 1981). Thus grain dust would be covered by the rule
regardless of whether the TLV list is referenced or not. The additional
TLV reference merely ensures that the downstream employers are provided
the necessary information about available recommendations for control
of the exposures to the material.
OSHA does not agree that it has ``delegated'' its authority to
ACGIH under the rule, and the Agency certainly has not ``adopted'' the
TLV under this rulemaking process. The HCS requires employers to
disclose complete and current information on hazardous materials
employees are potentially exposed to, and employees are entitled to
receive available information on grain dust. It is not necessary for
the Agency to make individual judgments about the hazards of each
chemical under the HCS to determine if it is covered--the HCS is a
generic rule which establishes criteria by which these judgments can be
made by producers of substances, subject to review by OSHA through its
enforcement procedures.
It should also be noted that the National Grain and Feed
Association (NGFA) challenged the requirements of the revised final
rule in the litigation described in the background section of this
preamble. Associated Builders and Contractors, Inc. v. Brock, 862 F.2d
63 (3d Cir. 1988). The Third Circuit rejected the NGFA's arguments as
having no merit. Id. at 69. NGFA petitioned the Supreme Court for a
writ of certiorari, but their request was denied (November 29, 1988).
Radiation and biological hazards. Although OSHA has never
considered either radioactivity or biological hazards to be covered by
the HCS, we have received inquiries regarding such coverage, and
therefore added specific exemptions for these types of hazards in the
NPRM. These specific exemptions are being adopted in this final rule.
If, however, another type of hazard is presented along with the
material (e.g., a container with a biological sample packed in a
hazardous solvent), then the container would be subject to the
requirement of the HCS for the other hazardous chemical.
Several commenters supported the clarification regarding these
types of hazards (Exs. 11-21, 11-48, and 11-50). Others suggested that
biohazards should be included (Exs. 11-103; 37), and that the Centers
for Disease Control could be responsible for generating MSDSs for such
hazards (Ex. 11-103). OSHA believes that this particular rulemaking is
more appropriately limited to chemical hazards, although we do not
discourage employers from including coverage of such agents in their
hazard communication programs. A separate rulemaking on occupational
exposure to bloodborne pathogens (29 CFR 1910.1030) was recently
completed, and should address some of the concerns of these commenters.
Suggestions for other exemptions. Several commenters suggested
additional exemptions for the rule. One indicated that non-food
products used by the food service industry (such as cleaners) should be
exempt (Ex. 11-117). This obviously would not provide adequate
protection for employees in that industry required to use such
products, and no such exemption has been included.
Other commenters indicated that the HCS should only cover chemicals
for which the Agency has made specific hazard determinations (Ex. 11-
78), or initiated notice and comment on whether or not the chemical
should be covered (Ex. 11-145). Such a substance-specific approach is
essentially the system that was in place prior to the promulgation of
the HCS, and only directly covered a few chemicals. As has been
demonstrated, employees exposed to hazardous chemicals without benefit
of information about the hazards and protective measures are at
significant risk of experiencing health effects. This generic standard
provides that broad-based protection, although OSHA will continue to
use a substance-specific approach when necessary.
There was also a suggestion that the rule specifically exempt
kitchen cabinets (Exs. 11-51 and 11-54). OSHA has made no explicit
determination regarding kitchen cabinets in terms of coverage. If
employees are exposed to hazardous chemicals during installation of
such cabinets, they would be covered. It is the responsibility of the
manufacturer of the products to do a proper hazard determination to
decide whether or not they are covered under the rule.
Definitions
Article. The issues involving the article definition and exemption
have already been described in detail in the preceding section. The
modified definition for ``article'' being adopted is ``a manufactured
item, other than a fluid or particle: (i) Which is formed to a specific
shape or design during manufacture; (ii) which has end use function(s)
dependent in whole or in part upon its shape or design during end use;
and (iii) which under normal conditions of use does not release more
than very small quantities (e.g., minute or trace amounts) of a
hazardous chemical (as determined under paragraph (d) of this section)
and does not pose a physical hazard or a health risk to employees.''
Commercial account. OSHA proposed a definition for ``commercial
account'' to help clarify which retail distributors need to maintain
MSDSs for their customers, and is adopting it as part of the final
rule. The rationale for this is discussed further under the section of
the preamble dealing with material safety data sheets.
The definition proposed was: ``commercial account'' means ``an
arrangement whereby a retail distributor sells hazardous chemicals to
an employer, generally in large quantities over time and at costs that
are below the regular retail price.'' One commenter (Ex. 11-21)
suggested that discounts are not always given, even to those who
purchase large quantities over time. Therefore, to accommodate this
concern, the final rule language indicates they generally purchase
large quantities over time ``and/or at costs that are below the regular
retail price.''
Exposure or exposed. An additional clarification has been made to
the definition for ``exposure'' or ``exposed.'' The definition in the
final rule referred to employees being ``subjected to a hazardous
chemical in the course of employment through any route of entry
(inhalation, ingestion, skin contact or absorption, etc.), and includes
potential (e.g. accidental or possible) exposure.'' This was
interpreted by a few people as meaning that if a chemical only poses a
physical hazard (i.e. it is flammable but does not have any health
effects), it would not be covered by the rule because the employee
would not be ``exposed'' to it. This was certainly not the intent, as
the employee would be ``subjected'' to the hazardous chemical by virtue
of it being present in the workplace with the potential for burning,
and thus injuring the employee. In order to ensure that such an
interpretation is not erroneously made, the clarified definition in
this final rule refers to both physical and health hazards, rather than
just a ``hazardous chemical''.
Hazard warning. The 1983 and 1987 final rules included a definition
for ``hazard warning'' which states that it means ``any words,
pictures, symbols, or combination thereof which convey the hazard(s) of
the chemical(s) in the container(s).'' ``Appropriate hazard warnings''
are to be put on container labels. Since the rule covers ``physical''
and ``health'' hazards, specific information regarding these would be
required on a label to comply and be considered appropriate. OSHA
provided clarification regarding the Agency's interpretations of these
requirements in the preamble to the revised final rule (see, 52 FR
31864). In the NPRM, the Agency proposed to incorporate these
clarifications into the text of the rule. Thus the new definition
proposed was that ``hazard warning'' means ``any words, pictures,
symbols, or combination thereof appearing on a label or other
appropriate forms of warning which convey the specific physical and
health hazard(s), including target organ effects, of the chemical(s) in
the container(s). (See the definitions for ``physical hazard'' and
``health hazard'' to determine the hazards which must be conveyed.)
This modification is being adopted in this final rule. The Agency's
interpretation of the rule in requiring health effects information,
including information on target organ effects, was challenged and
upheld in Martin v. American Cyanamid, on No. 92-3321 (6th Circuit
September 15, 1993.)
In the development of the 1983 final rule, the Agency sought to
require on labels that information that it considered to be necessary
to employee protection, and which did not appear on many of the labels
in use in industry at that time. It appeared to OSHA, based on the
information available at that time, that labels frequently included
precautionary information but infrequently enumerated the actual
hazards of the chemical. In addition, the labels often lacked identity
information. Thus OSHA chose to require that this limited information--
the identity and hazards--be included on the label, while not
precluding the addition of other types of information thought to be
appropriate by the chemical industry. The rule also took a performance-
oriented approach to the presentation of information, allowing various
formats to be used as long as the information required by the HCS was
included. OSHA did not endorse or support any particular existing
labeling system as being in compliance with the requirements as drawn.
In fact, it was thought likely that many existing labels, regardless of
what system was used, would have to be revised to meet the new
requirements.
Unfortunately, some have interpreted this performance-oriented
approach to label format as allowing any label to suffice. This was not
the intent of the rule, and OSHA has not enforced it in that manner.
Furthermore, the rule does not permit label preparers to make judgments
about the information to be included based on assumptions about
downstream exposure situations. If the chemical is present in the
quantities required to be considered a health hazard under the mixture
provisions of the rule, and it is there in a form where employees can
be exposed (i.e., it is available for exposure), then the demonstrated
hazards must be included on the label. There is some professional
judgment involved in assessing the weight of the evidence available to
indicate that the hazard exists. Therefore, if there is one animal
study as the only evidence of a particular adverse effect, it is likely
that this generally would not be included on a label as part of an
appropriate hazard warning, although it would have to be on the MSDS.
Where there are multiple studies, or human evidence, professional
judgment would result in a warning statement.
For products that are being shipped, the label is at certain points
the only information available to people handling the container.
Therefore, complete information must be available, and accessible in a
fashion that does not require special training to use. Whether it's on
a loading dock, or in a warehouse where only sealed containers are
handled, it is necessary to have the complete hazard information for
employees who may not have access to an MSDS.
For in-plant systems, OSHA has allowed some leeway with respect to
the nature of the hazard information required on the label, so long as
the employer can establish that its entire Hazard Communication Program
is effective. Some of the labeling systems that pre-dated the HCS and
which are used in-plant highlight the type and severity of the hazard
and the personal protective equipment needed. These alternative in-
plant labeling systems typically make use of a numerical and/or color
coding to indicate the type and severity of a particular hazard (e.g.,
a ``health hazard'' rated at 4 would be a particularly serious
``health'' hazard). The labels are often supplemented by specific
health effect information, but are sometimes limited to the generalized
rankings.
These systems tend to be used in plants where there are large
number of chemicals used, and the chemicals change frequently. These
types of labels give the workers a quick snapshot assessment of the
hazards. The labels also provide workers with information about the
particular protective equipment needed in their work areas so they can
properly and quickly protect themselves.
OSHA has permitted these types of systems to be used for in-plant
labeling when the three-part Hazard Communication system is proven to
be effective despite the potential absence of target organ effect
information on the container labels. It is reasonable to allow this
limited flexibility for in-plant labeling systems (as opposed to
shipping labels) because in the in-plant context, the employer retains
control over the entire hazard communication program within the
workplace. In this limited circumstance, the employer can assure--
through more intensified training--that its own employees are fully
aware of the hazards of the chemicals being used. When these types of
systems are used, the health effects information on the label may
therefore be somewhat streamlined (in comparison to a shipping label
for the same chemical) only because worker training--including training
on the specific health effects of chemicals used--is proportionately
intensified. Employers must ensure that their workers are aware of all
information required to be conveyed under the HCS, and OSHA will make a
plant-specific determination of the effectiveness of the complete
program when an inspection is conducted. Any employer who chooses to
rely on one of these types of alternative labeling systems instead of
using labels which contain complete health effects information will--in
any enforcement action alleging the inadequacy of the information
conveyed through labeling--bear the burden of establishing that its
overall hazard communication program has achieved a level of awareness
among its employees which equals or exceeds the level of awareness that
would have been achieved if the employer had used labels containing
complete health effects information.
As will be discussed under labeling requirements, OSHA is
incorporating this long-standing interpretive distinction into the
requirements of the rule. Based on our implementation experiences, we
believe that target organ information can be made readily accessible to
workers in-plant through all three components of the program. On
shipped containers, however, it must be addressed on the label since
the label will be standing alone in some situations, and workers may
not have the training to understand every different type of labeling
system they may encounter in these situations.
Hazard Determination
Mixtures. OSHA made one minor correction to the mixture provisions
in the NPRM. Paragraph (d)(5)(iv) indicates that hazardous chemical
components of a mixture in concentrations less than one percent (or in
the case of carcinogens, less than 0.1 percent) are covered by the HCS
if they can be released in concentrations which may exceed an OSHA
exposure limit or ACGIH Threshold Limit Value, or could present a
health ``hazard'' to employees in the concentrations released. OSHA
incorrectly used the term ``hazard'' in this provision. A hazard is an
inherent property of the chemical, and would exist no matter what
quantity was present. OSHA intended to refer to the presence of a
health risk to employees exposed to the chemical. The risk is a
function of the inherent hazard and the amount of exposure. Therefore,
in accordance with these scientific principles, OSHA corrected
paragraph (d)(5)(iv) to state that such concentrations of hazardous
chemicals are always covered by the HCS when they present a health risk
to employees even if they are present in a mixture in amounts below the
cut-offs.
Written Hazard Communication Program
Mobile worksites. Under the revised final rule, OSHA included what
it termed a mobile worksite provision which permitted employers of
employees who travel between workplaces during a work shift to maintain
MSDSs at the primary workplace as long as the information is available
to employees immediately in the event of an emergency (paragraph
(g)(9)). Such employees would also have access to the MSDSs at the
primary workplace prior to departing for the other sites, and when they
return to the primary workplace. This appeared to OSHA to be a
reasonable accommodation for such a work operation, but one which would
still provide employees with immediate access to necessary information
in an emergency and daily access to all information as a reference
source.
Several commenters requested that OSHA clarify that in this
situation the written hazard communication programs may also be
maintained at the central workplace (Exs. 5-46, 5-67, 5-79, and 5-110).
Therefore OSHA proposed to add the following paragraph to the written
hazard communication program requirements (paragraph (e)(5)):
Where employees must travel between workplaces during a
workshift, i.e., their work is carried out at more than one
geographical location, the written hazard communication program may
be kept at a central location at the primary workplace facility.
It should be noted that as in the situation with MSDSs, this exception
is limited to work operations where employees are dispatched from a
primary workplace each day, thus making it impractical to either carry
a written program with them, or to have a duplicate copy at each site
serviced (such as oil wells).
Few comments were received on this modification, but those that
were submitted generally supported the approach proposed (Exs. 11-67,
11-90, and 11-101). OSHA has incorporated it into the final rule, but
removed the phrase ``at a central location.'' The written program must
be available at the primary workplace upon request, consistent with
existing requirements in paragraph (e)(4).
Multi-employer worksite provision. When OSHA promulgated the
original final HCS, there was a requirement in the written hazard
communication program that employers include in the plan and implement
``the methods the employer will use to inform any contractor employers
with employees working in the employer's workplace of the hazardous
chemicals their employees may be exposed to while performing their
work, and any suggestions for appropriate protective measures.'' 48 FR
53343, paragraph (e)(1)(iii). As described in the preamble to the NPRM
(53 FR 29842-45), OSHA found substantial evidence in the record to
indicate that the rule needed to address the issue of employers on
multi-employer worksites exposing the other employer(s)' employees to
hazardous chemicals.
In preparing the revised final rule, OSHA took the comments of
rulemaking participants into consideration and included a multi-
employer worksite provision in the written hazard communication program
requirements (52 FR 31880; paragraph (e)(2)):
Employers who produce, use, or store hazardous chemicals at a
workplace in such a way that the employees of other employer(s) may
be exposed (for example, employees of a construction contractor
working on-site) shall additionally ensure that the hazard
communication programs developed and implemented under this
paragraph (e) include the following:
* * * The methods the employer will use to provide the other
employer(s) with a copy of the material safety data sheet, or to
make it available at a central location in the workplace, for each
hazardous chemical the other employer(s)' employees may be exposed
to while working;
* * * The methods the employer will use to inform the other
employer(s) of any precautionary measures that need to be taken to
protect employees during the workplace's normal operating conditions
and in foreseeable emergencies; and,
* * * The methods the employer will use to inform the other
employer(s) of the labeling system used in the workplace.
As described in the preamble to the final rule (52 FR 31865), this
type of provision is necessary to ensure that all employees have
sufficient information to protect themselves in the workplace,
regardless of which employer uses the hazardous chemical. It also
ensures that employers have the necessary information to adequately
conduct training, and to select appropriate protective measures for the
work operation.
It should be noted that the multi-employer worksite provision does
not create the duty for each employer to have MSDSs on-site. That duty
appears in paragraphs (g)(1) and (g)(8), which were not new
requirements in the revised final rule. The multi-employer worksite
provisions simply require that employers describe methods in their
written HCS programs to make those already-present MSDSs available to
the other employers on the site when the other employers' employees are
being exposed.
Initial industry comments objecting to the multi-employer worksite
provisions appeared to envision a situation where every contractor on a
site duplicates every MSDS in his possession for every other contractor
on-site. As has been discussed by OSHA repeatedly, the provisions of
the rule simply do not require such an activity. First of all, the only
time MSDSs must be shared is if the contractors are working in the same
area of a site at the same time and thus exposing each other's
employees. Secondly, the MSDSs can be made available in any way the
employers on a site deem to be appropriate, i.e., they can be made
available in an office trailer on-site, they can be kept in the
employer's truck, or they can be made available to both employees and
other employers through electronic access.
The issue became somewhat confused when OMB disapproved the
requirement to ``provide'' MSDSs on a multi-employer worksite (Ex. 4-
67), as opposed to the multi-employer worksite provision to have
methods that would make the already-present MSDSs available to the
other employers. OMB's action effectively removed the employee
protections of paragraph (g). Furthermore, there appears to be some
misunderstanding about what a multi-employer worksite is (Ex. 11-116).
Such a site is not limited to construction. Any type of workplace where
there are employees of more than one employer working is a multi-
employer site. It is likely that every worksite is a multi-employer
worksite at some point.
A number of the comments received subsequent to OMB's actions favor
keeping the MSDSs in a central office location and providing them on
request (Exs. 11-1, 11-141, 11-142, and 11-155). Others simply object
to MSDSs on every site, and support OMB's approach (Exs. 11-13, 11-110,
11-114, 11-135, and 11-154). These employers claim that employees are
not interested in the MSDSs (Ex. 11-6); there are too many of them to
keep them at the site (Ex. 11-24); and there is no place to keep them
on the site (Ex. 11-142).
Other commenters, however, emphasized the importance of maintaining
MSDSs on-site, for the benefit of employees as well as for making them
available to other employers. ``U S WEST supports the basic
requirements regarding provision of material safety data sheets (MSDS)
at multi-employer work places. In fact, U S WEST would be supportive of
stronger language to emphasize the responsibility of employers who
produce, use or store hazardous chemicals at a workplace to adequately
communicate potential hazards to the employees of other employers.''
Ex. 11-50. See also Exs. 11-51, 11-54, 11-90, and 11-124. And as
another commenter indicated (Ex. 11-40): ``Common sense should serve as
the linchpin for establishing the presence of material safety data
sheets (MSDS) on multi-employer work sites. Very simply, some provision
must be made to advise workers of any actual or potential hazardous
exposure while on the work site.''
The ACCSH subcommittee which recommended a change to this provision
also appeared to be confused. They recommended that the provision
address an employer's duty to obtain MSDSs for chemicals his/her
employees are exposed to that are generated by other contractors. The
duty to obtain MSDSs appears in paragraph (g)--the multi-employer
worksite provision's only purpose is to ensure that the other
employer's written program describes the methods that will be used to
provide the MSDSs. The ACCSH-recommended change does not accomplish
that purpose.
As was discussed in the history section of this preamble, OMB's
disapproval has been invalidated by the Third Circuit decision which
was subsequently upheld by the Supreme Court. Therefore, all of the
requirements are currently being enforced.
The current rulemaking activity has not provided any substantial
evidence that the requirements are unnecessary or inappropriate.
Without MSDSs the hazard communication program will not be
effective. The consensus of the participants in the rulemaking on the
original final rule was that labels can only provide limited
information--the MSDS provides the detailed source of information. Most
concurred with OSHA's conclusion that a program cannot be effective
without all of the major components currently in the OSHA rule--
including MSDSs being available to employees and employers at the job
site (see, e.g., H-022 Exs. 19-62, 19-91, 19-124, 19-156, 19-185, and
19-199.) As will be discussed further below, comments objecting to the
use of MSDSs have been received in this rulemaking. However, these
participants have not provided evidence that has persuaded OSHA that
employees can be protected appropriately without the information
available on the MSDSs.
The argument that there may be large numbers of MSDSs on multi-
employer worksites does not mean that employees should not be protected
from those chemicals. Although cumulative numbers are large (Ex. 11-
142, the Coalition indicates that on a particular homebuilding site
there were 302 MSDSs required), the fact remains that for most
individual contractors the number per site is much smaller and quite
manageable (those 302 MSDSs were accumulated by 38 subcontractors, for
an average of 8 MSDSs per subcontractor.)
Many of these same employers would have OSHA believe that there are
no trailers or offices on these sites, and no vehicles, so they have no
place to keep the MSDSs (Tr. 5-50; 54; 57). As has been stated in the
record before (53 FR 29845), every job site has a significant amount of
paper associated with it, including blueprints, building
specifications, building permits, etc. See, e.g., Ex. 4-162. We believe
that employers can keep the MSDSs in the same location as these other
papers.
By removing the MSDSs from the site, employers are creating a
barrier to access, i.e., it is far less likely that employees will
request MSDSs from a remote site. If an employee is on the site for one
day only, as these employers indicate is often the case, it is unlikely
that a request will be made for the MSDS to be delivered at some later
time. (Similarly, experiences under state laws that allow extended
periods of time for delivery of the MSDS (such as 15 days), are not
analogous. In 15 days, the construction employee's exposure would
likely have long since ended, and he/she would probably be at another
job site. Provision of MSDSs under these conditions does not serve the
purpose of being available prior to exposure to prevent adverse health
effects from occurring.) And although construction employers maintain
that employees are not interested in MSDSs, evidence from other
industries indicates that employees do use MSDSs when they are readily
accessible (Ex. 4-75).
OSHA has costed out the alternative of providing MSDSs on request
through delivery from a central office location, although this would
not be an acceptable alternative to the current requirement because it
is not at least as protective and therefore does not protect employees
to the extent feasible. The costs were calculated using the percentage
of employees reported to be using data sheets in the study referenced
above (Ex. 4-75), and assuming a short and a long distance request for
the information, and thus the time for delivering the MSDS. Ex. 71-70.
This analysis reveals that it is less costly to maintain the MSDSs on-
site as currently required, rather than responding to requests from
employees and delivering the MSDSs to the site upon request.
Therefore, the alternative suggested to maintain MSDSs at the
office, and provide them on request, is not only less effective but
also more costly. OSHA is maintaining the current requirement for MSDSs
to be available on-site for employee access and to be accessible to
other employers when necessary due to exposure of their employees.
We have modified the language of the provision to address some of
the misinterpretations discussed in the comments. The applicable
provision will now read: ``[T]he methods the employer will use to
provide the other employer(s) on-site access to material safety data
sheets for each hazardous chemical the other employer(s)' employees may
be exposed to while working.'' This removes the language that employers
have been interpreting as meaning they had to physically give each
employer a copy of every MSDS, or create an office to deposit them.
Whatever means the employers find appropriate for the on-site access on
a particular job will be acceptable. Thus a repository in the trailer
may be used; they may be accessible electronically; or each
subcontractor could keep his/her own MSDSs in the company vehicle on
the site. The key to ascertaining compliance is whether the MSDSs are
readily accessible (i.e., there are no barriers to accessing the
information) to exposed workers as well as other employers.
Labels and Other Forms of Warning
As noted above under the discussion of the definition of ``hazard
warning'', OSHA proposed to modify the language in paragraph (f)(5)(ii)
regarding in-plant labeling requirements to clarify that employers may,
as an alternative to specific hazard warnings, provide more general
hazard information on the labels as long as the specific physical and
health hazards of the chemicals are effectively conveyed through
implementation of the other aspects of the hazard communication program
(i.e., provision and explanation of data sheets and more extensive
training). For example, some labeling systems indicate the presence of
an acute ``health hazard'' and rate the severity of that ``hazard''
using a number system. The specific health hazard is not on the label
under this system, but is available on the MSDS. Employers using this
type of hazard rating system must ensure that the worker has the
required immediate access to the data sheet, and understands the
labeling system used and how to obtain and use the information
provided. The training program will generally need to be more detailed
to address these aspects of the employer's hazard communication
program. An employer relying on one of these labeling systems will have
to augment his training program to specifically address target organ
effects that may not be readily discerned from a numerical or symbol
warning system. Precautionary statements alone are not considered to be
general hazard information under this provision.
The proposed modification was not a change in Agency policy or
interpretation of this requirement. Since 1985, OSHA's instructions to
its compliance staff have included allowances for these types of
systems in a facility. For example, the current directive, CPL 2-2.38C,
states:
OSHA recognizes that the degree of detail on a label needed to
convey a hazard may be different within a workplace where other
information is readily available compared to labels required on
shipped containers, where the label may be the only information
available.
Several commenters indicated that the proposed distinctions are
helpful (Exs. 11-10, 11-51, and 11-139), and supported the change to
the definition of ``hazard warning'' (Exs. 11-21, 11-86). There was a
suggestion that the acceptance of specific labeling systems be
indicated (Ex. 11-10). OSHA does not agree with that approach. In
keeping with the performance-oriented approach of the rule, whatever
in-plant labeling system is used will be judged during a compliance
inspection in the context of the effectiveness of the entire program.
There were also suggestions that the language be modified to
indicate that only ``significant'' hazards need to be warned about
(Exs. 11-48, 11-90). OSHA does not agree with that suggestion. The HCS
requires warnings on all well-substantiated hazards. If the weight of
the evidence demonstrates that a hazard is ``well-substantiated'', the
hazard must be warned about regardless of its perceived severity.
One commenter noted that Department of Transportation (DOT)
placards on cargo will generally not indicate target organs (Ex. 11-
68). This is true, but the actual containers being shipped are the ones
that would be labeled in accordance with OSHA's requirements, rather
than the shipping containers. The only time this would be a problem is
when there is a bulk shipment, and the shipping container is the only
container. OSHA has already addressed this by allowing the additional
label information to be with the shipping papers, rather than on the
outside of the shipping container.
There were objections to this modification from representatives
concerned about information available to workers (Exs. 11-21, 11-125).
OSHA believes that its compliance policy to assess the effectiveness of
the entire program will ensure that complete information is available
to workers in all situations.
One commenter (Ex. 11-86) thought in-plant labels should only have
the name of the chemical, not the hazards. OSHA does not agree with
this--the label must provide hazard information to be an effective
reminder of the more detailed data available elsewhere on MSDSs and in
training. Additionally, MSDSs cannot be substituted for labels--they
serve different purposes and contain information presented in a
different fashion. ``Hazard warnings'' provide a brief summary of the
hazards in a highlighted form. The MSDS provides more detailed
information.
The current HCS did not address the issue of updating labels when
new information becomes available regarding the hazards of the
chemical. OSHA is clarifying this situation by adding a provision which
is consistent with the updating requirements for material safety data
sheets, i.e., the new information is to be added to the label within
three months of becoming aware of significant new information regarding
the hazards of the chemical.
ANSI Standard for Precautionary Labeling. As noted in the preamble
to the NPRM (53 FR 29542), the American National Standards Institute
(ANSI) revised its standard for precautionary labeling of industrial
chemicals (Z129.1-1988) to include, among other things, guidance for
target organ effect labeling. A copy of the final document has been
available in the record (Ex. 49). OSHA invited comment on whether the
Agency should recognize (either in the final rule or in a compliance
directive) that the ANSI standard provides employers with useful
guidance to produce an acceptable label for compliance with the HCS. In
other words, if the employer follows the guidance provided by ANSI,
that would be one way to comply with the requirements of the HCS.
Employers would still be free to use other labeling systems or
approaches to labeling, where appropriate, as long as they meet the
requirements of the HCS. But those employers who wish to have more
specific guidance to follow would be able to use the ANSI standard to
assist them in complying. OSHA indicated that it was particularly
interested in comments about the extent of target organ information
that would be on a label under the ANSI scheme, and whether this would
provide enough information to comply with the HCS.
A number of comments were submitted which supported the use of the
ANSI standard as compliance assistance (see, e.g., 11-51, 11-57, 11-
106, 11-143, 11-147, and 11-156). Many of these also emphasized that it
should not be considered to be the only way to comply, just one method
that could be used. There were also related suggestions that a uniform
labeling approach would be helpful (Exs. 11-124 and 11-155).
An objection was raised about the public's opportunity to comment
on the final ANSI standard before addressing it in the HCS (Ex. 11-
125). The ANSI standard was finalized prior to the publication of the
HCS NPRM, and was available in the docket as Ex. 4-110. As OSHA
specifically solicited comments on this issue in the NPRM, the public
was given an opportunity to provide input.
OSHA believes that the ANSI standard provides much useful
information for employers required to prepare product labels. The
standard has been revised significantly since the previous version was
issued in 1982, and provides helpful guidance in new areas, such as
classification of carcinogens, mutagens, and teratogens for purposes of
labeling, and the addition of phrases to be used to report target organ
effects. All of this information would assist employers in complying
with the HCS.
OSHA does have one concern, however, regarding the health hazard
evaluation process. As the Agency has stated from the outset of this
rulemaking, the HCS is based on the premise that chemicals have
inherent characteristics that pose potential hazards, and workers have
the right to know what those potential hazards are. Risk of exposure is
to be addressed in training, not in the process of deciding what
information will be provided on labels and MSDSs. Any well-
substantiated hazard must appear on the label where there is a
potential for exposure.
The ANSI standard, on the other hand, specifically states that the
labeling recommendations are not based only on the inherent properties
of the chemical, but are directed to the avoidance of hazardous
exposures resulting from customary and reasonably foreseeable
occupational use, misuse, handling and storage. The health hazard
evaluation also refers to an exposure assessment being performed.
It is possible for someone following the guidance in the ANSI
standard to construct a label that is complete enough to satisfy the
requirements of the HCS. OSHA's concern is that information may be
eliminated from some labels based on the ``exposure assessment''
factor, and employers will not be in compliance with the HCS. The
inability of the producer or importer to accurately predict downstream
exposures, and thus the need for complete disclosure of hazards, was
discussed in the original final rule (48 FR 53296), and is still
applicable.
Therefore, employers must be advised that while following the ANSI
standard would provide useful assistance to them when preparing labels,
it does not guarantee compliance. Employers must also be aware of the
requirements of the HCS, which, among other things, may be interpreted
to have a lower threshold than ANSI for reporting hazard information.
OSHA believes that the use of the ANSI standard will generally be very
helpful to employers when complying with the HCS, and that labels will
be improved through the availability of this voluntary consensus
standard. A reference to it will be included in the Agency's
instructions to its compliance officers.
Labeling limitation for certain shipments. In the revised final
rule, OSHA made a change to the labeling requirements for shipments of
solid metal. Solid metal is often considered to be an ``article'' under
the rule, and thus exempt. Where the metal is not an ``article'' since
its downstream use results in hazardous chemical exposure to employees
working with it, a provision was added which allows shippers of this
type of material to send the label information once, similar to
material safety data sheet transmittal, as long as the material is the
same and it is being shipped to the same customer. In these situations,
there should be no hazard to anyone handling the metal from the time it
is produced in solid form until the time someone works on it in a way
that releases a chemical hazard. Since the label information
transmitted would only reflect the chemical hazards released when it is
later worked on, the label would not provide any hazard information
that is needed by those handling the material in transit. The label
information does serve a different purpose than the MSDS as the label
is an immediate visual warning, a ``snapshot picture'' of the hazards,
whereas the MSDS provides detailed hazard information. Thus both
information transmittal sources are necessary. It was emphasized in the
preamble that this exception is only for the solid metal itself--any
hazardous chemicals present in conjunction with the metal in such a
form that employees may be exposed when handling the material (e.g.,
cutting fluids, lubricants, and greases), would require labels with
each shipment.
OSHA proposed to further modify this exception to include wood,
plastic, and whole grain. The Agency believes the situation involving
wood and plastic is analogous to solid metal in that the hazard
potential is in the downstream use and does not involve employees
involved in transit. For whole grain, OSHA recognized that some dust
may be generated during the transportation process, but believed that
the repetitive nature of the shipments and the relatively small amount
of dust generated due to the handling at this stage makes such an
exemption appropriate. (See, e.g., Ex. 5-13, 5-15, 5-21, 5-52, and 5-
92.) The Agency invited comment on this extended exception. Supporting
comments were received (see, e.g., Exs. 11-51, 11-54, and 11-90). The
modifications are being adopted in this final rule as proposed.
One commenter suggested that it be clarified that only containers
are required to be labeled, not pieces of wood, etc. Ex. 11-137. This
is true. However, ultimately these items are in some sort of container
for purposes of shipment, from shrink-wrapped pallets to the truck
itself. Thus labels are still required for the shipment in this
situation, unless the items are covered by the one-time labeling
approach incorporated into the final rule.
With regard to this change in requirement for shipments of whole
grain, most of the comments from the grain industry were concerned with
totally exempting grain dust rather than the specific labeling
limitation. Several objected to any labels for shipments of whole grain
(Exs. 11-94, 11-109, 11-129, and 11-160), also indicating that all
facilities already have both labels and MSDSs. If this is the case,
they are already in compliance with the rule so there should be no
problem with this provision. The exemption was also supported (Ex. 11-
67).
The American Iron and Steel Institute (AISI) testified that the
exemption for solid metal should be extended to include the coatings on
the metals (Ex. 70). They suggested that employees involved in the
transport of large steel items in particular would not be exposed to
potential hazards due to the manner in which the items are handled.
OSHA does not agree. There is still a risk of contact dermatitis, and
thus workers need to be warned regarded these hazards.
Other comments on labeling. A number of comments were received
suggesting that the labeling requirements be changed. In particular, it
was suggested that the information on the labels be expanded in lieu of
requiring material safety data sheets (see, e.g, 11-8, 11-75, 11-104,
11-118, 11-132, 11-147, and 11-156). ``For non-manufacturers, it is
more efficient for workers to obtain their warnings from the labels on
containers of chemical products. The labels accompany each product and
are always readily available to the user. Labels are required to
contain all significant dangers.'' Ex. 11-104.
Specific suggestions for labels included precautionary statements
(11-17, 11-57, and 11-125), and the telephone number of the supplier
(11-38, 11-115, and 11-150). In terms of precautionary statements,
employers are free to include such information. However, as discussed
at length in the original final rule (48 FR 53300-05), the purpose of
the label is to provide an immediate visual warning of the hazards.
Label warnings tend to be the same from product to product (e.g.,
nearly everything is harmful if inhaled). This type of information does
not tell the worker what the hazard is. Furthermore, most producers
already include such information on their labels--the missing elements
generally involve what the hazards actually are. With regard to the
telephone number, OSHA originally proposed the number be included on
labels (47 FR 12121). There were numerous objections from producers to
this requirement. Thus OSHA limited the telephone number provision to
the MSDS, rather than the label. The information is available through
the MSDS to all employers, as well as to health professionals providing
services to exposed employees.
Material Safety Data Sheets
An issue that is related to the coverage of consumer products, and
is undoubtedly the genesis of some of the recommendations to eliminate
such products from coverage, is the distribution of consumer products
in commerce. It is important to point out that the vast majority of
consumer products are not covered by this rule. Only those which are
hazardous are potentially covered, and within that group, only those
which are used in the workplace. Producers of the materials which,
while marketed to consumers, are also likely to be sold to employers
and used in the workplace are well aware of that potential market.
(See, e.g., Ex. 2-148.) Thus manufacturers of materials used in
construction, graphic arts, and cleaning operations, are aware that
their products have industrial applications even when sold as consumer
products. MSDSs have already been prepared and distributed for many, if
not most, of these products. Manufacturers are required to have MSDSs
for their own workers, and have already been required to distribute
such MSDSs to non-manufacturing customers in a significant number of
states with right-to-know rules. Furthermore, most manufacturers have
and make available MSDSs because of product liability concerns separate
and apart from any regulatory requirements. This was certainly
demonstrated in the record by the large number of manufacturers that
produced MSDSs in the absence of such requirements prior to
promulgation of the original HCS. The sealed container provision also
eliminates many consumer products from full coverage in workplaces
where employees may handle such materials, but do not open the
containers to use them. Employees may, however, request data sheets for
the chemicals they only handle in sealed containers.
The record for the original final rule strongly supported the need
for automatic transmittal of MSDSs from producers to users through the
supply chain. The cost analyses of the rule demonstrated that a system
that relies on users requesting a copy of a MSDS will be more costly,
and less protective (48 FR 53327). However, in the revised final rule,
OSHA determined that where retail distributors are involved in the
distribution chain it was necessary to slightly revise this position.
Therefore, the revised final rule stated (52 FR 31882, paragraph
(g)(7)):
Retail distributors which sell hazardous chemicals to commercial
customers shall provide a material safety data sheet upon request,
and shall post a sign or otherwise inform them that a material
safety data sheet is available. Chemical manufacturers, importers,
and distributors need not provide material safety data sheets to
retail distributors which have informed them that the retail
distributor does not sell the product to commercial customers or
open the sealed container to use it in their own workplaces.
OSHA provided the following rationale for this departure from the
automatic provision approach found to be necessary in the original
final rule (52 FR 31866):
Retail distributors, however, often sell to businesses and the
general public and frequently have no way of knowing who a
particular purchaser is. Under the current rule, retail distributors
might have to give material safety data sheets to each customer to
ensure that commercial customers get the information they need under
the HCS. A specific statement regarding retail distributors is,
therefore, included in paragraph (g)(7) to address this practical
problem. Those retail distributors who sell hazardous chemicals to
employers must provide a material safety data sheet upon request,
and must post a sign or otherwise inform the employers that an MSDS
is available.
OSHA recognizes that although it is possible for an employer to
incidentally purchase a hazardous chemical from any type of retail
establishment, it is not reasonable to expect every retail store that
happens to carry such materials to keep a file of MSDSs in case an
employer decides to make a random purchase at the store. We further
recognize that such random purchases would normally be of small amounts
that would generally be used as a consumer uses them, and thus would be
exempt under the rule anyway. However, even in those cases where they
are used in greater quantities, it appears more reasonable to place the
burden on the user in that situation to obtain the MSDS than to have
every retail establishment keep large numbers of them on file. This
provision also limits the number of establishments to which
distributors of such products have to transmit MSDSs.
The National Retail Merchants Association (NRMA) (Ex. 5-74)
indicated that the revised final rule ``* * * has struck a good balance
between the obvious problem of requiring retailers to train all
employees about every product which may appear on retailers' shelves,
and the real need for employee training for emergency spillage of
packaged products.'' They did think, however, that the definition of
``consumer product'' as stated by CPSC might be confusing to retailers,
particularly small businesses, since ``retailers would have to go
through the process of examining all goods sold in their stores to
determine if they are or are not consumer products.'' In fact, if
retailers are selling the products, they are considered to be
``consumer'' products, and there is no determination to be made by the
retailer in this respect. In this situation, deciding whether a product
is a consumer product or not is a determination made by the producer in
developing the appropriate label for the material based upon its
intended use.
With regard to the issue of making MSDSs available at the retail
distribution level, NRMA suggested that OSHA define the term
``commercial account'' to ensure it is being properly interpreted and
applied. They further suggested that this definition be related to
selling items in large quantities and below the regular retail price.
``Such accounts can be identified, and it would be less burdensome to
notify such customers that MSDSs are available upon request. In fact,
many retail firms have already done this under many state right-to-know
laws.'' (Ex. 5-74).
The United Brotherhood of Carpenters and Joiners of America (UBCJA)
similarly noted that with regard to MSDSs being available from retail
distributors (Ex. 2-105):
[T]hose contractors who do purchase materials from retail
outlets generally buy them from a building-supply house that sells
such materials in larger quantities, and may give them a volume
discount. These stores would have no problem supplying MSDSs to
customers * * *.
OSHA agreed with the NRMA that adding such a definition would
clarify that many retail distributors have no need to maintain MSDSs
because they do not generally supply hazardous chemicals to commercial
customers (e.g., grocery stores, clothing stores). Therefore, we
proposed a definition for the term ``commercial account'' based upon
NRMA's recommended criteria, and invited comment on the appropriateness
of this approach. In addition, we proposed to further modify the
language in paragraph (g)(7). The language regarding the general duty
for distributors to provide MSDSs was modified to track the language in
paragraph (g)(6) immediately preceding it regarding the duty of
chemical manufacturers and importers to transmit such information with
their initial shipment and with the first shipment after a material
safety data sheet is updated. Previously, the rule simply stated that
``distributors shall ensure that material safety data sheets, and
updated information, are provided to other distributors and
employers.'' This slight modification clarifies that distributors are
required to provide MSDSs in the same manner that chemical
manufacturers and importers do.
Proposed paragraphs (g)(7) (iii) and (iv) further indicated that
retail distributors only need to provide MSDSs if they have commercial
accounts for employers purchasing hazardous chemicals. If an employer
incidentally purchases a hazardous chemical from them, and they are not
required to have an MSDS available since they don't use the chemical or
have commercial accounts, then the retail distributor's duty is limited
to providing that employer with the name, address, and telephone number
of the supplier from which the MSDS can be obtained.
As discussed earlier in this preamble, a number of distributors
suggested that they be deleted from the coverage of the rule in terms
of MSDSs, either by eliminating them from the chain of distribution for
the information or by dropping requirements for MSDSs. The record does
not support either of these approaches as being a viable alternative
for the HCS.
In general, the commenters on the proposed modifications supported
the changes (see, e.g., Exs. 11-11, 11-93, 11-106, 11-111, 11-117, and
11-147). ``[W]e agree with the modifications made to the definition of
commercial account, and the requirement that retail establishments
would only have to make MSDSs available upon request to these customers
only.'' Ex. 11-11. Some thought the approach was better but still
needed further revision (Exs. 11-115, 11-132). ``The proposed
modifications of the Standard enunciated in the notice of proposed
rulemaking are a step in the right direction. We urge further
modifications * * *.'' Ex. 11-115.
The State of Maryland pointed out that with the proposed
modifications, a gap was created in the distribution chain with regard
to MSDSs since there was no explicit requirement for manufacturers,
importers, and distributors to provide MSDSs in response to requests
from downstream employers purchasing products from a retail distributor
without having a commercial account. ``There is no requirement (here or
elsewhere) that the manufacturer, importer, or distributor supply that
employer with an MSDS, effectively leaving a hole in the previously
closed `loop'.'' Ex. 11-21.
Other commenters noted that wholesale distributors that have over-
the-counter sales should be permitted to provide MSDSs on request as
their operations are similar to those of concern in retail
establishments. ``The fact is that wholesaler-distributors, like retail
businesses, sell products to employers that do not have a commercial
account and do not use the product itself. Additionally, wholesaler-
distributors, like retail establishments, sell products in walk-in,
over-the-counter transactions.'' Ex. 11-111.
There were also a few comments that did not support the
modifications. In particular, worker representatives were concerned
that employees would be required to use the chemical immediately,
without benefit of the MSDS information (see, e.g., Ex. 125).
OSHA is adopting the modifications in the final rule. In addition,
the Agency has changed paragraph (g)(6) to break it down into
subparagraphs similar to the changes being made to paragraph (g)(7). As
suggested by the State of Maryland, a specific requirement for chemical
manufacturers, importers, and distributors to respond to requests has
been added. In addition, OSHA has added a provision to paragraph (g)(7)
that would allow wholesale distributors to provide MSDSs on request in
over-the-counter sales operations.
These provisions, in summary, are intended to clarify the
obligations of chemical manufacturers and importers to provide MSDSs to
downstream distributors and employers. OSHA especially means for these
requirements to apply in three situations: Where a distributor or
employer does not receive an MSDS from the manufacturer or importer;
where a distributor or employer who has purchased a hazardous chemical
in the normal course of business needs a replacement MSDS; and where an
employer without a commercial account purchases a hazardous chemical
from a retail distributor not required to have MSDSs on file.
A number of other comments were received regarding the distributor
requirements of the rule. One noted that distributors would not have
MSDSs to protect their own employees if they have commercial accounts
(Ex. 11-21). However, many of these employers already come under the
sealed container provisions of the rule and only have to obtain MSDSs
if their employees request them. If they use the chemicals, they will
have to have one as well. Another thought the retailer should have to
ask the employee making a purchase if an MSDS is needed (Ex. 11-133).
This seems to defeat the purpose of allowing the on-request system to
alleviate the burden in over-the-counter operations.
The National Welding Supply Association (Ex. 54) appeared to be
under the impression that the rule previously allowed distributors to
provide MSDSs at some time after the shipment, when it was convenient
for them. They thus viewed the clarification as a change in duties. In
fact, the distributors were always required to provide MSDSs at the
time of the initial shipment, just as the chemical manufacturers and
importers were required to do so. Sending it at some undetermined later
time would not provide timely protection for workers.
There was also a suggestion that the term ``retail'' distributor be
defined. Ex. 11-103. This does not appear to be necessary as the
Standard Industrial Classification (SIC) Codes already define and
delineate between retail and wholesale distribution. The commenter was
particularly concerned about dental product distributors defining
themselves as ``retail'' distributors to avoid the automatic provision
of MSDSs. Dental product distributors are not retail establishments.
Retail establishments primarily sell to the general public for personal
or household use. Distributors, such as those providing dental products
to dental offices, that sell primarily to businesses, institutions,
professional offices, etc., are considered to be wholesale
distributors. They are thus required to provide MSDSs automatically
with their first shipment of a hazardous chemical to the dental office,
and also with the first shipment after the MSDS for a product is
updated.
Several commenters also suggested that retailers be required to
request MSDSs, rather than requiring upstream distributors to ascertain
the need of the retailers for the information. Exs. 11-106, 11-150, and
11-158. As discussed previously, this ``on request'' system is not as
efficient, and is in fact more costly, than the automatic transmittal.
One concern raised was that chemical manufacturers should not have
to keep track of the employers they provide MSDSs to on request, where
the chemicals were purchased from a retail distributor (Ex. 11-156). In
other words, these requestors are not actually customers of the
chemical manufacturer and when the MSDS is updated, it should not have
to be routinely provided to these employers. In fact, the standard does
not require such an approach. Updated MSDSs only have to be provided
with the next shipment to a customer after being updated. If the
shipment is going to a distributor, the MSDS is sent there. It would be
up to the employer making the purchase from a retail distributor to ask
for the current MSDS.
A number of commenters discussed the widespread distribution of
MSDSs for products that do not require them (see, e.g., Ex. 11-158;
Exs. 22, 25, and 30). Many chemical manufacturers and importers are
preparing MSDSs for all of their products, whether they are hazardous
or not, and whether they are required by the HCS or not. This is
apparently being done because some customers request MSDSs for all
products, not just those that are hazardous. In addition, it is
intended to provide adequate warning in light of product liability
concerns.
OSHA certainly cannot prevent anyone from providing MSDSs for
products that are not covered by the rule. In fact, it is often useful
to know that there is no hazard associated with the product, and MSDSs
are often being requested so customers can assure themselves that the
hazards have been evaluated.
It does present a problem, however, for distributors. In
particular, distributors of products that are considered to be articles
are receiving numerous data sheets for these items, and are thus having
to either distribute them or determine whether they have to be
distributed. (See, e.g., testimony of the National Association of
Electrical Distributors, Tr. 2-121-161.)
Distributors do not have to provide the MSDSs to downstream
customers for products that are not hazardous under the rule. OSHA is
aware that many of the MSDSs provided for articles and other exempted
products indicate on them that the MSDS is not required under the HCS.
We encourage all producers of such items to include that information on
the MSDS. One commenter suggested that the rule require that the MSDS
indicate whether the chemical is within the scope of the HCS. Ex. 11-
117. Others made this same suggestion in response to the request for
comments and information OSHA published in May 1990. It will be
considered if the rule is reopened to address improvements to MSDSs. It
would help both the distributor, and the ultimate user of the material,
to have a clear indication as to whether the product is actually
hazardous within the requirements of the rule. (For example,
construction contractors testified that they have received MSDSs for
items such as flashlight batteries, and were thus confused regarding
whether or not these items had to be addressed in their hazard
communication program. See, e.g., Tr. 5-47.)
There were also suggestions that chemical manufacturers be required
to provide MSDSs in each carton or unit they ship (Exs. 11-117, 11-
158). This would result in the proliferation of many more MSDSs than
are required to satisfy the purposes of the rule.
Additionally, one commenter suggested that manufacturers be
required to compile relevant MSDSs into a ``unitary reference source''
and periodically revise it (Ex. 11-158). It appears that this means
that manufacturers should include all MSDSs for their product line in
one book, and send all of them to each customer. Although some
manufacturers have chosen this way to comply, and it would be
acceptable, this alternative also results in the proliferation of many
more MSDSs than the rule requires. A similar suggestion for shifting
the burden is to require the chemical manufacturers to supply customers
with the MSDSs directly. This is less cost-efficient, the chemical
manufacturers frequently don't even know who the customers are, and it
increases the possibility that chemicals will be used without
information.
As discussed previously, OSHA recognizes that there are burdens
associated with complying with the rule (e.g., Ex. 11-132). However,
these burdens are necessary to protect employees, and are ultimately
borne by the downstream users of the chemicals as the costs will be
reflected in the costs of the products. The automatic provision of the
MSDSs is far less burdensome than the alternative ``on request'' system
suggested by some of the commenters (see Ex. 71-70).
A number of other comments were received regarding MSDSs. One
commenter noted that the MSDS requirements are not sufficient to
protect producers against product liability (Ex. 11-7). As far as OSHA
is concerned, this is irrelevant to the rulemaking. The purpose of the
HCS is to provide appropriate information to employees and employers.
If producers want to provide additional data to satisfy product
liability concerns, that's their prerogative.
Inclusion of SARA Title III hazard categories on the MSDSs was also
suggested (Exs. 11-38, 11-52). OSHA is aware that some producers are
including such information, and encourages others to do so. However,
since that information is not required to protect workers, OSHA does
not have the authority to require it or prohibit its being on the
MSDSs.
Another comment was that manufacturers should not be allowed to
provide only component information on the MSDSs for mixtures (Ex. 11-
50). The HCS requires data available on mixtures tested as a whole to
determine its hazards to be utilized first before data on the hazards
of its components. Component information is only permitted when there
is no information on the mixture as a whole. The HCS does not require
testing of a mixture in any way--chemical manufacturers and importers
are allowed to rely on currently available information for components
of the whole mixture where no information exists for the mixture as a
whole.
This same commenter also said that OSHA should not permit chemical
manufacturers and importers to put ``worst case'' recommendations on
MSDSs rather than realistic recommendations (Ex. 11-50). MSDS preparers
are required to provide accurate information on MSDSs. If a
recommendation is not accurate, the chemical manufacturer or importer
could be cited. OSHA is aware that there are MSDSs that have
information on them that is not accurate in this regard. For example,
the MSDS may indicate the material is not hazardous, yet under
precautionary measures it is suggested that if the material gets on the
skin, it must be washed off immediately. The precautionary measures
must be consistent with the hazards of the chemical, not simply written
to protect the liability of the manufacturer by suggesting more
protective measures than are necessary.
It was also suggested that MSDSs should only be updated when
changes are significant (Ex. 11-60). In fact, this is what the standard
already requires. Chemical manufacturers and importers may be updating
them more frequently to meet their internal requirements, but the rule
simply requires updating when there is ``significant'' information of
concern. Paragraph (g)(5).
A request was also received to clarify who is responsible for
ensuring the MSDS is with the shipment and available in marine cargo
handling operations. Ex. 11-68. The MSDS does not have to be ``with''
the shipment--it only has to be provided at the time of the first
shipment. Marine cargo handling operations would generally come under
the limited sealed container provisions of the rule, in which case
MSDSs only have to be obtained by the employer when an employee
requests it.
Other commenters suggested that the format for the MSDSs should be
standardized (Exs. 11-103, 11-124). OSHA has provided a non-mandatory
format (OSHA 174) for those chemical manufacturers and importers that
choose to use it. As described earlier in this preamble, subsequent to
this rulemaking, OSHA published a request for comments and information
on ways to improve the information presented on labels and MSDSs. OSHA
is also aware that the Chemical Manufacturers Association has prepared
guidelines for the preparation of MSDSs (Ex. 11-90 and Ex. 49), and
that an ANSI standard is being developed. International activities
regarding harmonization of formats and information are underway as well
(Exs. 75 and 71-12), and there is research being conducted regarding
MSDS variability, appropriate format, etc. OSHA is evaluating available
information, and expects to take regulatory action to improve the
presentation of information on MSDSs at a later date.
OSHA believes that the quality of available MSDSs needs to be
improved. Although implementation of the HCS has resulted in the
creation of many more data sheets than were provided voluntarily, and
most of these sheets are of better quality than were available prior to
promulgation of the standard, there are still many which need to be
improved. The accuracy and sufficiency of the information provided is
one concern. Some employers have generated MSDSs to comply with the
rule, but have not ensured that the information provided is adequate.
The second issue with regard to the quality of the MSDSs has to do
with the presentation of the information. MSDSs now serve a multitude
of purposes, being directed to employees as well as to health
professionals and the community. In some cases, the language is too
technical to properly communicate the necessary information. The format
of the MSDSs often ``buries'' the information that is of most concern
to workers (such as hazard information and protective measures).
Chemical manufacturers and importers should be carefully reviewing
their MSDSs to ensure they provide accurate and useful information, and
to consider whether or not they are presented in the most communicative
manner. We are aware that many employers are already considering these
factors. For example, many word processing programs will reveal the
reading level required to understand the information presented. For
those parts of the MSDS or label that are intended for workers, the
reading level should be directed to a level that is appropriate for the
workforce (generally sixth to eighth grade). It would also be helpful
to place information intended for workers at the beginning of the
sheet.
As mentioned previously, the GAO has prepared two studies of the
HCS, and has made recommendations concerning MSDS requirements in a
recent report (GAO/HRD-92-8). It found that MSDSs are seen by employers
as being too complicated, and that OSHA's system of reviewing the
accuracy of the sheets is not likely to detect systemic problems. As a
result, they recommended that the standard be revised to:
Specify that developers of MSDSs include on each data sheet a
brief description of employer responsibilities under the standard,
and
Address the problem of employers' and employees' inability to
understand the MSDSs by clearly specifying the language and
presentation of information to be used on MSDSs.
The description of the standard is intended to address concerns that
small businesses in particular are not aware of the requirements of the
rule. OSHA will solicit comment on these suggestions at such time as
the rulemaking is opened to consider changing the MSDS requirements. In
addition, strategies for reviewing MSDS accuracy in compliance
inspections will be reviewed.
Related to this issue regarding comprehensibility were the comments
received objecting to the use of MSDSs under the rule (see, e.g., Exs.
11-74, 11-78, 11-108, 11-118, 11-142). Many of these employer comments
indicated that employees are not interested in the information on
MSDSs, or that it is not useful to them. ``The information contained on
these sheets is written by chemists and for chemists. They are much too
technical for everyday use. The average employee on a home improvement
job site already knows not to drink paint and not to apply hot tar to
his skin.'' Ex. 11-74.
Proper implementation of the HCS results in both employers and
employees being educated about the hazards of chemicals in their
workplaces. Statements such as these trivialize the importance of the
information conveyed. For example, many paints contain solvents that
are neurotoxins. Application can generate vapors that can impair a
worker's ability to function and may lead to accidents such as falling
off ladders. Unfortunately, some of the comments indicate that the
employers do not want more information about the chemicals they use.
For example, the Coalition submitted an analysis of label information
versus MSDS information for the same chemical products. Their
conclusion was that MSDSs include more information, but they don't want
or need it (Ex. 11-142).
This simply perpetuates the situation which necessitated the
promulgation of the rule, i.e., that employers do not know about the
chemicals in use in their workplaces, and therefore workers are not
able to learn about these materials either.
The effectiveness of a hazard communication program is directly
related to the attitude and ability of the person presenting the
information to the workers (see Ex. 4-75). If the trainer conveys the
impression that the information is trivial, or the message is
unnecessary, then the program will not be effective. (For example, a
trainer for the AGC testified that: ``You need to understand that the
interest level is low, the attention span is limited, and in some
cases, people showed up for class, shall we just say `under the
influence'.'' Tr. 6-33. OSHA recognizes that not every employee is
going to be interested in all of the information presented. However, it
appears to OSHA that approaching a class with the attitude that the
workers aren't interested and won't understand the information will not
result in an effective program.)
Employee representatives did not indicate that employees are not
interested in having access to MSDSs. In fact, the testimony and
comments were quite the opposite--employee representatives emphasized
that access to MSDSs is considered to be necessary. See, e.g., BCTD
testimony: ``* * * [L]et us repeat that the worksite is exactly where
the MSDS is needed, and it is used by our members.''
OSHA believes that the fact that MSDSs need to be improved is not
an indication that they should be discarded in favor of the limited
information on labels. The appropriate response to the problem is to
improve the MSDSs, not to remove protections from employees by limiting
the information that is available to them. Furthermore, labels simply
cannot provide all of the information that is required to be disclosed.
The label format is limited by size, and the effectiveness of a label
in serving its primary purpose--to provide an immediate visual
warning--will be impeded by information overload if all possible
information is required to be included on a label. Participants arguing
that MSDSs have information overload have missed the key difference in
the roles of labels and MSDSs. Labels are subject to the overload
argument because they are intended to provide an immediate warning--a
purpose that research has shown cannot be met if there is too much
information on the label. On the other hand, MSDSs are reference
documents, not an immediate warning mechanism.
Some of the comments on the role of labels versus data sheets
revealed a lack of information on the part of the participants
regarding available research on the role of labeling. For example, one
commenter indicated that there are ``hundreds'' of studies that
indicate labels are effective, and thus the preferred means of
transmitting information (Ex. 11-108). When asked during the hearing to
provide a bibliography of these studies (Tr. 3-182), the American
Dental Trade Association suggested that OSHA consult the ANSI labeling
standard for such a bibliography.
The ANSI labeling standard does not contain any such information.
The one study referenced is one on symbols that was conducted in
conjunction with the development of the standard. That study concluded
that many commonly used symbols are not well-recognized, and thus are
not effectively transmitting hazard information. Based on that study,
the ANSI committee decided not to include requirements for symbols in
the standard. Ex. 49.
The chairman of the ANSI committee testified on behalf of the
Chemical Manufacturers Association (Tr. 6-6-39). He is also chairman of
the Board of a professional society (formerly the American Conference
on Chemical Labeling but now the Society for Chemical Hazard
Communication) of experts on labeling and material safety data sheets.
OSHA asked him if he or the ANSI committee were aware of ``hundreds''
of studies regarding the effectiveness of labels, and he replied: ``No,
I am not aware of any studies of that nature.'' Tr. 6-29. Mr. Talcott
further indicated that ``a full hazard communication program really
includes the label, a properly constructed label, but it has other
parts. And the data sheet, as well as the hazard determination and
training programs serve very vital parts in that full hazard
communication program. And I think OSHA has properly recognized that
there are multiple parts, and a label alone is not going to be a full
hazard communication program.'' Tr. 6-28-29.
In fact, although there have been various labeling requirements and
practices for many years, there is little evidence that labeling
results in a change in behavior without the availability of other
information and communication mechanisms. See Ex. 71-23A, Handbook of
Chemical Industry Labeling: ``[T]he editors have found no published
research which clearly isolates the effect of a given label on a
specific chemical product from the effects of other factors including
inserts, training, general media information, advertising and promotion
or consumerist activities.''
It should also be noted that it was suggested that the labeling
requirements of the ANSI standard result in enough information for
workers. Yet the ANSI committee specifically addressed this issue in
the preamble to the standard: ``Precautionary labels are not intended
to include all information on the properties of a chemical nor the
complete details of its handling under all conditions. Such information
is more appropriately provided through other means, such as material
safety data sheets, technical bulletins, training, or other
communications intended to enhance and supplement the label.'' Ex. 49.
Clearly, the genesis of many of the comments received opposing the
MSDS requirements is simply that these commenters do not want to deal
with them, rather than any objective evidence that they are not
necessary. As has been discussed at length in previous HCS Federal
Register documents (see preambles to original NPRM and final rule), the
effectiveness of a hazard communication program relies on the three-
pronged approach in the HCS (labels, MSDSs, and training). Each serves
a different purpose, and they are all interdependent on each other. No
information provided during this rulemaking proceeding has altered that
finding.
Comments that MSDSs are intended for manufacturing and are only
useful there are not supported by evidence either (Ex. 11-104). MSDSs
were first created many years ago, and were used in many different
types of operations. (See Ex. 71-33, a paper on the history of the
development of data sheets: ``[B]y the middle of the nineteenth century
manufacturers were supplying their customers with some sort of data
sheet, either along with their product or on demand * * *. The earliest
example of an MSDS that I have ever seen is one by Valentine and
Company of 1906.'' The first Federal requirements for MSDSs were in the
maritime industries, ship building, breaking and repairing operations,
and were promulgated in 1968. MSDSs have been required by various state
laws in all industries for some years. International activities in the
area of hazard communication also indicate that there is widespread
recognition of the need for MSDS information to supplement labels (Ex.
71-12).
Thus MSDSs remain a key aspect of the regulatory approach in the
HCS. Activities to improve them will be encouraged by OSHA, and further
regulatory action may be taken to update the requirements at a later
date.
Some minor modifications have been made to the requirements to
clarify the provisions. It has come to OSHA's attention that the
requirement for MSDSs to be readily available to workers when they are
in their work areas during the workshift has been interpreted as
meaning the MSDSs can be located elsewhere, as long as they are
available through some means such as by telephone. This is not
permissible under the rule. The provisions in paragraph (g)(8) state
that ``the employer shall maintain copies of the required material
safety data sheets for each hazardous chemical in the workplace, and
shall ensure that they are readily accessible during each work shift to
employees when they are in their work areas.'' The incorrect
interpretations are apparently being reached by reading the phrase ``in
the workplace'' as a modifier to ``hazardous chemical'', rather than as
a designation as to where the MSDSs must be. In order to ensure that
such misinterpretations are not perpetuated, the phrase has been
reworded to indicate that ``the employer shall maintain in the
workplace copies of the required material safety data sheets for each
hazardous chemical * * *.'' In addition, paragraph (g)(1) which
requires an employer to have MSDSs has been modified to include the
phrase ``in the workplace.''
Paragraph (g)(8) has been further modified to indicate that
``electronic access, microfiche, and other alternatives to maintaining
paper copies of the material safety data sheets are permitted as long
as no barriers to ready employee access in each workplace are created
by such options.'' OSHA has always permitted such alternatives for
purposes of compliance, but did receive comments that indicated not all
employers were aware of these options (see, e.g., Ex. 35). (See also
Ex. 11-50: ``In keeping with the performance-oriented intent of the HCS
U S WEST expects OSHA to allow employers flexibility in meeting the
requirements of this section (e.g. allow the use of telefaxing or other
data transmission means for providing access to MSDS). A particular
need for flexibility must be recognized for service industries where
there is frequent and varied association with multi-employer workplaces
on a daily basis.'') This modification should help ensure that
employers know they can achieve compliance using these methods.
The MSDS requirements have always indicated that the documents must
be in English, paragraph (g)(2). However, this was to ensure that MSDSs
for imported products are not simply provided in the language of the
country of origin. It was not intended to prevent translation of MSDSs
into other appropriate languages. Thus this provision has been modified
to indicate that the MSDSs may be available in other languages as well.
One commenter noted that the change in the hazard determination
provisions regarding mixtures (changing ``hazard'' to ``risk''), needed
to be made in the MSDS requirements for disclosure of chemical identity
as well. Ex. 11-137. OSHA agrees, and the change has been made in
paragraph (g)(2)(i)(C)(2). In addition, paragraph (g)(2)(i)(C)(1) is
being technically amended to delete an inappropriate reference to
paragraph (d)(4) regarding carcinogenicity. All of the hazard
determination provisions apply to carcinogens, and the reference should
simply be to paragraph (d).
The mobile worksite provision, paragraph (g)(9) is also being
modified to take out the reference to a central location at the primary
workplace facility. The MSDSs may be kept wherever the employer deems
appropriate and accessible at that facility.
Employee Information and Training
OSHA did not propose to modify the information and training
requirements. However, a number of comments which have been received
regarding training, particularly in the construction industry, reveal a
continuing lack of understanding of the requirements. OSHA has
corrected these misperceptions in a number of forums, but the
misinterpretations persist. Thus the Agency is modifying the
requirements to ensure they are better understood.
Since 1983, the HCS has included the following provision:
``Employers shall provide employees with information and training on
hazardous chemicals in their work area at the time of their initial
assignment, and whenever a new hazard is introduced into their work
area.'' The provisions of the paragraph further elaborate the specific
information the employees must receive, and the elements to be
addressed in the training program.
A substantial portion of the comments received from the
construction industry maintain that the training is infeasible in their
industry. This claim of infeasibility is based upon their
interpretation that the employer must train each worker on the MSDS on
each chemical, and thus would have to stop the work on the job each
time a new contractor comes on the site with new chemicals to re-train
all employees on those chemicals. (See, e.g., Exs. 11-6, 11-15, 11-73,
11-98, 11-142.)
In fact, the information and training requirements are flexible,
and do not specify how the training is to be accomplished. If an
employer only has a few chemicals, it may be most useful to
individually review each one in the workplace. However, where there are
many chemicals, and the chemicals change frequently, it would be more
appropriate to train workers regarding all types of hazards, by
categories, rather than addressing each individual substance. The
chemical-specific information will always be available to the workers
on the labels and the data sheets.
The re-training required by the rule is when a new hazard is
brought into the workplace, not a new chemical. If a new chemical is
flammable, and the employer has already trained regarding flammability,
there is no re-training required. If a new chemical is carcinogenic,
and that type of hazard was not addressed in the employee's training,
then re-training is required.
As was noted in the NPRM, the construction industry is unique among
the non-manufacturing industries because there are long-standing
requirements for regular training regarding hazardous chemicals.
Relevant paragraphs of 29 CFR 1926.21 state that:
The employer shall instruct each employee in the recognition and
avoidance of unsafe conditions and the regulations applicable to his
work environment to control or eliminate any hazards or other
exposure to illness or injury.
Employees required to handle or use poisons, caustics, and other
harmful substances shall be instructed regarding the safe handling
and use, and be made aware of the potential hazards, personal
hygiene, and personal protective measures required * * *.
Employees required to handle or use flammable liquids, gases, or
toxic materials shall be instructed in the safe handling and use of
these materials and made aware of the specific requirements
contained in subparts D, F, and other applicable subparts of this
part.
OSHA would like to reiterate that employers who are in compliance with
these provisions as required are substantially in compliance with the
HCS training provisions as well. The HCS simply requires that
construction employers supplement these already established training
programs with the additional information required by the HCS, such as
the existence of the rule and the use and availability of labels and
MSDSs.
Coverage of construction employers under the HCS will enable them
to provide more effective training under the construction rules because
the HCS will ensure they are provided with necessary substance-specific
information upon which to base an appropriate training program. It will
also enable them to select more appropriate protective measures for the
hazardous chemicals on their sites. As has been previously cited, the
Advisory Committee on Construction Safety and Health has long
recognized the construction employers' decreased ability to properly
transmit hazard information and design appropriate protective measures
without the labels and MSDSs for the specific products (Ex. 4-4).
Effective date. The changes being promulgated in this final rule
are minor, and do not require any additional employer actions to
comply. Therefore, there is no need for an extended period for
compliance, and the changes will become effective 30 days after
publication of the rule.
Appendix A. This appendix has only been modified in one respect to
clarify the intent. The specific definitions of hazards which are
included in this appendix were never intended to be a categorization
scheme for hazards. If a substance meets one of these definitions, it
is definitely covered by the rule. However, if it does not, the
employer is still required to evaluate the validity of any other
available data in accordance with the requirements of the rule. This is
now stated in Appendix A as a clarification.
Appendix B. A statement regarding the need to evaluate all data on
carcinogenicity, besides the referenced sources, has also been added
for clarification to Appendix B. In addition, a statement regarding
short-term tests has been added. Short-term tests (i.e., in vitro
studies) were not specifically addressed in the final rule, but it is
OSHA's determination that they generally would not provide results
which can be analyzed for statistical significance, and thus would not
meet the requirements of the rule for such a finding.
Addition of Appendix E. OSHA published a new nonmandatory appendix
in the NPRM to provide additional guidance to employers complying with
the HCS, and is adopting it in this final rule. The appendix suggests
the steps an employer using chemicals should follow to achieve
compliance, and provides some information regarding how OSHA will be
enforcing the requirements of the HCS. A reference to Appendix E has
also been added to the scope and application (paragraph (b)(1)) to
direct employers to the guidance it provides. OSHA believes this
appendix will assist employers to design and implement effective
programs.
Although a number of comments received after the revised final rule
was published in 1987 stressed the need for guidance or outreach
materials (see, e.g., 11-74, 11-104, 11-123, 11-141), few of those
previously interested parties commented on the new appendix or its
contents. Those who did comment were generally supportive, and believed
it would be helpful to employers (Exs. 11-10, 11-34, 11-38, 11-40, and
11-90).
One chemical manufacturer suggested that OSHA should not encourage
employers to discard any MSDSs, whether the chemical is hazardous or
not (Ex. 11-10). Although OSHA agrees in a general sense that having
information regarding the absence of hazards is useful, the rule's
coverage is limited to hazardous chemicals to which employees are
potentially exposed. The proliferation of MSDSs on products for which
they are clearly not necessary (such as floor mats and hard hats)
dilutes the attention that should properly be paid to those products
that are covered.
There were suggestions that a reference to the American National
Standards Institute (ANSI) standard for labeling be included in
Appendix E (Exs. 11-51 and 11-90). As this appendix is intended for
employers who use chemicals, rather than employers who evaluate hazards
and prepare labels, this suggestion does not appear to be appropriate.
There was also a suggestion that a specific appendix is needed for
agriculture (Ex. 11-67). OSHA believes that the generic guidance can be
successfully used to assist all types of industries.
In order to make Appendix E more widely available, OSHA has
published it in a separate booklet, OSHA 3111, Hazard Communication
Guidelines for Compliance. A single copy may be obtained from OSHA's
Publications Office, (202) 523-9667.
IV. Analyses of Regulatory Impact, Regulatory Flexibility, and
Environmental Impact
Executive Order 12866 (58 FR 51735, Sept. 30, 1993) requires that a
regulatory impact analysis be conducted for any rule having major
economic consequences on the national economy, individual industries,
geographical regions, or levels of government. The Regulatory
Flexibility Act (5 U.S.C. 601 et seq.) similarly requires the
Occupational Safety and Health Administration (OSHA) to consider the
impact of a regulation on small entities.
The current final rule is merely a minor revision of the HCS which
already applies to all industrial sectors where workers are exposed to
hazardous chemicals. This revision is not a major or significant rule,
thus no additional regulatory impact analysis is necessary. As noted in
the NPRM (53 FR 29846-49), the analyses performed prior to publication
of the 1987 final rule, which is currently being enforced, are not
being revised. However, as comments were submitted concerning the costs
of the current provisions, OSHA is taking this opportunity to briefly
discuss some of the issues that have been raised.
As was the case with comments submitted subsequent to the
publication of the 1987 final rule, most of these comments either
provided no specific data or evidence regarding either the costs or the
analysis, or rather simply provided cost summaries with no indication
of methodology or substantiation of unit assumptions. Others provided
cost estimates that were clearly unrealistic or based on false premises
in terms of the actual requirements of the rule. OSHA maintains that
the economic methodology used in the analysis was appropriate, and the
costs were based on reasonable assumptions. Information submitted
subsequent to that analysis have not persuaded OSHA that the cost
analyses were unreasonable.
For example, as noted in the preamble to the NPRM, the Small
Business Administration (SBA) and others criticized the estimates of
products covered per firm. In particular, the use of the National
Occupational Exposures Survey (NOES) data was considered by some to be
inappropriate. Although OSHA has already shown that these criticisms
were not valid (53 FR 29846-49), a few more points on the subject are
in order.
As indicated previously, the data used from the NOES are averages.
OSHA expected that some establishments in the nonmanufacturing
industries will maintain more MSDSs than the average, just as some
establishments will maintain fewer. Consequently, examples of firms
with more than the average number of chemicals do not invalidate the
survey (see Ex. 5-93). Furthermore, it should be noted that OSHA's
estimates are for the number of hazardous chemical products at a
facility or site, not for an inventory of all the chemicals a firm may
have at multiple sites. The HCS also only requires that a firm maintain
one MSDS for a particular chemical--where multiple suppliers are used,
the chemical is only counted once.
The construction industry in particular claimed that the number of
chemical products used in the estimates was too low. In general,
estimates OSHA used varied by the size of the firm and the two-digit
SIC code, but were approximately 12 products per firm per site (and an
estimate of 3 ongoing sites for each firm at any given time). The
Coalition (Ex. 11-142) submitted an actual count of products at a home
building site per subcontractor. The average number per contractor per
site was 8 (4 less than the OSHA average), although the number varied
from 1 to 90. Only 5 of the 38 subcontractors had more than the average
of 12 estimated by OSHA. The total number of MSDSs for this site was
302 (763 pages), which could easily fit in one file drawer on the site.
The Coalition still maintains OSHA's numbers are faulty, but could
not explain why the data they submitted did not support their own
contention in this regard (Tr. 5-56-7).
Similarly, AGC surveyed their members and received responses
regarding number of MSDSs required (Ex. 11-135). The numbers varied
from 10 to 525. However, it appears that these product counts are for
the firm, and not for each job. And some of the commenters admitted
that they send MSDSs to the site for chemicals that are not there so
they do not have to sort the MSDSs in any fashion. In any event, even
the largest reported number (525) for a firm (not a site) is
substantially smaller than earlier claims of ``thousands'' (Ex. 5-76).
Although 525 is a substantial number of MSDSs, they will fit in a space
less than the size of a file drawer. This is also a quite smaller
volume than claims that construction firms would need a separate office
building to maintain MSDSs on a site (Ex. 5-76).
Actual community right-to-know reporting data from nonmanufacturing
firms in Los Angeles also confirm that OSHA's estimates of products per
firm are reasonable (Ex. 4-187).
The cost information submitted to the OSHA docket after the current
rule was published does not provide sufficient evidence for OSHA to
conclude that the Hazard Communication Standard that is currently being
enforced is infeasible in any industry. (In fact, much of it does not
include any information about how the costs were calculated.) As
described in the NPRM, there have been claims from the construction
industry that costs were underestimated by OSHA and the rule is
therefore infeasible for this industry to comply with (see, e.g., Exs.
5-65, 5-83, and 5-86). Additional comments were received in response to
the NPRM (see, e.g., 11-135, 11-142). However, many firms in the
construction industry have been subject to state hazard communication
laws for the last several years. Evidence on enforcement activities in
several of those states indicate that construction firms are able to
comply. The construction industry has also been subject for many years
to the requirements of 29 CFR 1926.21, which establishes the obligation
to train construction workers in the recognition and the safe handling
of hazardous substances. In this regard the Hazard Communication
Standard has added very few additional training responsibilities.
OSHA's cost estimates focus only on new duties, not on the burdens of
pre-existing standards. So the cost estimate for the expanded rule does
not assume the costs for training that should have been conducted to
comply with Sec. 1926.21. Employers who were not in compliance with
that rule, or with the requirements of the states they are operating
in, will have to spend more to comply than has been estimated. However,
that is not a cost that is attributable to the HCS.
As the Agency has indicated before, the cost estimates were based
on the best available information, and are averages. Firms will be
expected to have costs both above and below the figures estimated. As
long as estimates are based on reasonable assumptions and cost figures,
the Agency has satisfied its analysis requirements to assure the rule
is economically feasible. If OSHA were to rely on some or all of the
assertions in the record regarding estimates of time involved in
complying with the Standard, and estimates of the number of MSDSs which
would be generated by the imposition of the Standard, the Standard
would still be feasible in every SIC. Consequently, OSHA finds that
claims of infeasible costs are not substantiated by any analysis or
evidence, and that nothing in the record supports a conclusion of
infeasibility in any SIC regulated under the existing rule.
Many of the claimed costs were also based on misinterpretations of
the rule. As noted earlier in this preamble, for example, the Coalition
cost estimates for a firm were based largely on accomplishment of
activities that were not required to comply. Ex. 11-142. The results
were therefore unrealistically inflated from what costs might actually
be expected to occur.
OSHA expects that the limited modifications being promulgated in
this final rule will not eliminate protections of the rule, but may
make the standard more cost-effective. OSHA does not consider this NPRM
to be either a major or significant rule. In addition, the changes are
too subtle for the economic model to be able to reflect the decreases
in the costs. However, it is expected that if the proposed changes are
implemented the costs will be somewhat reduced.
With regard to criticisms of the cost methodology used by OSHA, the
GAO has reviewed it at the request of Congress and concluded that
OSHA's general approach to estimating the costs of compliance with the
HCS requirements is fundamentally sound. It noted that the cost
estimates derived would vary based on differences in assumptions
regarding parameters. (GAO/HRD-92-63BR).
Regulatory Flexibility Analysis
Under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., the
Assistant Secretary certifies that modifications to the existing HCS
contained in this final rule will not have a significant economic
impact on a substantial number of small entities. This final rule has
not substantively changed the HCS promulgated on August 24, 1987. The
changes do not eliminate protections already provided by the rule, but
simply clarify the rule to enhance compliance and thereby further
improve employee protections. As noted in the discussion above
regarding the regulatory impact analysis, the changes are too subtle to
be quantified by the economic model used to calculate compliance costs
of the HCS. It is expected, however, that if the proposed changes are
implemented, the compliance costs would be somewhat reduced for small
businesses.
A regulatory impact and regulatory flexibility analysis was
prepared by OSHA for the August 1987 revised HCS (Exs. 4-1 and 4-2).
See also 52 FR 31867-76 (summary of analyses). OSHA analyzed the impact
of expanding the coverage of the HCS from the manufacturing sector to
all employers within OSHA's jurisdiction. Economic impacts were
analyzed for each provision of the rule; for each of fifty business
classifications as indicated by their two-digit Standard Industrial
Classification Codes; and for four employment size classes (1-19; 20-
99; 100-249; and greater than 250). The majority of non-manufacturers
are small businesses with fewer than 20 employees, and the effects of
the HCS on small businesses were analyzed. Id. at 31869, 75-76 (tables
9 and 10). It should be noted, however, that although a particular
workplace may be considered a small business based upon the number of
employees at that site, many of these businesses are actually part of
large corporations with significant safety and health resources (e.g.,
fast food franchises, retail store chains). OSHA's analyses indicated
that the HCS's compliance costs would be a negligible percentage (less
than one-half of one percent) of the typical small business' average
annual revenue. Id. at 31869, 75 (table 9). In addition, no
disproportionate impact was foreseen for small businesses when compared
to large businesses. Id. at 31870, 75-76 (table 10).
OSHA believes that it has minimized the economic impact of the HCS
on small entities in accordance with the Regulatory Flexibility Act,
while accomplishing the objectives of the OSH Act. The HCS is a
performance-oriented rule which benefits small employers by allowing
them to choose compliance methods best suited for their individual
workplaces. The HCS is also tailored for some work operations found in
small businesses to ensure that the standard is practical and cost-
effective in communicating hazards to workers. See, e.g., 29 CFR
1910.1200(b)(3), (laboratories); (b)(4), (handling of sealed
containers); (b)(5), (container labeling exemptions); (b)(6), (products
totally exempted). See also 52 FR 31858. In addition, OSHA-developed
compliance guidelines, such as the new Appendix E to the rule, and the
compliance kit available from GPO (OSHA 3104), will directly benefit
small businesses by clarifying and simplifying compliance efforts.
Environmental Assessment--Finding of No Significant Impact
In accordance with the National Environmental Policy Act (42 U.S.C.
4321 et seq.), the Council on Environmental Quality guidelines (40 CFR
part 1500), and the Department of Labor regulations (29 CFR part 11),
the Assistant Secretary for OSHA has determined that this final rule
will not have a significant environmental impact. As concluded
previously, the current standard will not significantly affect the
quality of the human environment outside the workplace. 52 FR 31870; 48
FR 53333-34. Labeling of containers will not have a direct or
significant impact on air or water quality, land or energy use, or
solid waste disposal outside of the workplace. Similarly, the
requirements for preparation of a written compliance plan, provision
and maintenance of MSDSs, and provision of information and training
should not have an adverse environmental impact. Accordingly, this
document's modifications to the HCS also will not have a significant
impact on the environment outside the workplace.
V. Clearance of Information Collection Requirements
On March 31, 1983, the Office of Management and Budget (OMB)
published a new 5 CFR part 1320, implementing the information
collection provisions of the Paperwork Reduction Act of 1980, 44 U.S.C.
3501 et seq. (48 FR 13666). Part 1320, which became effective on April
30, 1983, sets forth procedures for agencies to follow in obtaining OMB
clearance for information collection requirements.
In accordance with the provisions of the Paperwork Act and the
regulations issued pursuant thereto, OSHA certifies that it submitted
the information collection requirements contained in the HCS to OMB for
review under section 3504(h) of that Act. In June 1991, OMB extended
its approval of the information collection requirements through April
1994. There are no changes in this modified final rule which affect
those requirements or change the burden of the requirements. The OMB
Control No. is 1218-0072.
VI. Federalism and State Plan Applicability
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 that 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 with respect to
which Federal OSHA has promulgated occupational safety or 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 as the Federal standards in providing safe and
healthful employment and places of employment.
Those States which have elected to participate under Section 18 of
the OSH Act would not be preempted by this regulation and would be able
to deal with special, local conditions within the framework provided by
this performance-oriented standard while ensuring that their standards
are at least as effective as the Federal standard.
The 25 States 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 States include: Alaska,
Arizona, California, Connecticut (for State and local government
employees only), Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan,
Minnesota, Nevada, New Mexico, New York (for State and local government
employees only), 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.
Although a State HCS becomes effective in accordance with State
promulgation provisions, and is enforceable upon promulgation, OSHA
must also review and approve the standard to assure that it is ``at
least as effective'' as the Federal standard. OSHA intends to closely
scrutinize State standards submitted under current or future State
plans to assure not only equal or greater effectiveness, but also that
any additional requirements do not conflict with, or adversely affect,
the effectiveness of the national application of OSHA's standard.
Because the HCS is ``applicable to products'' in that it permits the
distribution and use of hazardous chemicals in commerce only if they
are in labeled containers accompanied by material safety data sheets,
OSHA must determine in its review whether any State plan standard
provisions which differ from the Federal are ``required by compelling
local conditions and do not unduly burden interstate commerce.''
Section 18(c) of the Act, 29 U.S.C. 667(c).
VII. Authority, Signature, and the Final Rule
This document was prepared under the direction of Joseph A. Dear,
Assistant Secretary of Labor for Occupational Safety and Health, U.S.
Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210.
For the reasons set out in the preamble, and under the authority of
section 41 of the Longshore and Harbor Workers' Compensation Act (33
U.S.C. 941), section 107 of the Contract Work Hours and Safety
Standards Act (Construction Safety Act) (40 U.S.C. 333), sections 4, 6
and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653,
655, 657), Secretary of Labor's Order Nos. 12-71 (36 FR 8754), 8-76 (41
FR 25059), 9-83 (48 FR 35736), or 1-90 (55 FR 8033) as applicable, and
29 CFR part 1911, and 5 U.S.C. 553, the Occupational Safety and Health
Administration hereby amends parts 1910, 1915, 1917, 1918, 1926, and
1928 of Title 29 of the Code of Federal Regulations, as set forth
below.
List of Subjects in 29 CFR Parts 1910, 1915, 1917, 1918, 1926, and
1928
Hazard communication; Occupational safety and health; Right-to-
know; Labeling; Material safety data sheets; Employee training.
Signed at Washington, DC, this 26th day of January 1994.
Joseph A. Dear,
Assistant Secretary for Occupational Safety and Health.
OSHA is amending parts 1910, 1915, 1917, 1918, 1926, and 1928 of
title 29 of the Code of Federal Regulations as follows:
PART 1910--OCCUPATIONAL SAFETY AND HEALTH STANDARDS
PART 1915--OCCUPATIONAL SAFETY AND HEALTH STANDARDS FOR SHIPYARD
EMPLOYMENT
PART 1917--MARINE TERMINALS
PART 1918--SAFETY AND HEALTH REGULATIONS FOR LONGSHORING
PART 1926--SAFETY AND HEALTH REGULATIONS FOR CONSTRUCTION
PART 1928--OCCUPATIONAL SAFETY AND HEALTH STANDARDS FOR AGRICULTURE
PART 1910--[AMENDED]
1. The authority citation for subpart Z of part 1910 continues to
read as follows:
Authority: Secs. 6,8 Occupational Safety and Health Act, 29
U.S.C. 655, 657: Secretary of Labor's Order 12-71 (36 FR 8754), 9-76
(41 FR 25059), 9-83 (48 FR 35736) or 1-90 (55 FR 9033), as
applicable; and 29 CFR part 1911.
All of subpart Z issued under section 6(b) of the Occupational
Safety and Health Act, except those substances which have exposure
limits listed in Tables Z-1, Z-2 and Z-3 of 29 CFR 1910.1000. The
latter were issued under section 6(a) (29 U.S.C. 655(a)).
Section 1910.1000, Tables Z-1, Z-2 and Z-3 also issued under 5
U.S.C. 553. Section 1910.1000, Tables Z-1, Z-2 and Z-3 not issued
under 29 CFR part 1911 except for the arsenic (organic compounds),
benzene, and cotton dust listings.
Section 1910.1001 also issued under Sec. 107 of the Contract
Work Hours and Safety Standards Act, 40 U.S.C. 333.
Section 1910.1002 not issued under 29 U.S.C 655 or 29 CFR part
1911; also issued under 5 U.S.C. 553.
Section 1910.1025 also issued under 5 U.S.C. 553.
Section 1910.1043 also issued under 5 U.S.C. 551 et seq.
Sections 1910.1200, 1910.1499 and 1910.1500 also issued under 5
U.S.C. 553.
PART 1915--[AMENDED]
2. The authority citation for part 1915 continues to read as
follows:
Authority: Sec. 41, Longshore and Harbor Workers' Compensation
Act (33 U.S.C. 941); secs. 4, 6, 8, Occupational Safety and Health
Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order
Nos. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), or
1-90 (55 FR 9033), as applicable; 29 CFR part 1911.
Section 1915.99 also issued under 5 U.S.C. 553.
PART 1917--[AMENDED]
3. The authority citation for part 1917 continues to read as
follows:
Authority: Sec. 41, Longshore and Harbor Workers' Compensation
Act (33 U.S.C. 941); secs. 4, 6, 8, Occupational Safety and Health
Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order
Nos. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), or
1-90 (55 FR 9033), as applicable; 29 CFR part 1911.
Section 1917.28 also issued under 5 U.S.C. 553.
PART 1918--[AMENDED]
4. The authority citation for part 1918 continues to read as
follows:
Authority: Sec. 41, Longshore and Harbor Workers' Compensation
Act (33 U.S.C. 941); secs. 4, 6, 8, Occupational Safety and Health
Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order
Nos. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), or
1-90 (55 FR 9033), as applicable.
Section 1918.90 also issued under 5 U.S.C. 553 and 29 CFR part
1911.
5. The authority citation for subpart D of part 1926 continues to
read as follows:
Authority: Sec. 107, Contract Work Hours and Safety Standards
Act (Construction Safety Act) (40 U.S.C. 333); Secs. 4, 6, 8,
Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655,
657); Secretary of Labor's Order Nos. 12-71 (36 FR 8754), 8-76 (41
FR 25059), 9-83 (48 FR 35736), or 1-90 (55 FR 9033), as applicable.
Section 1926.59 also issued under 5 U.S.C. 553 and 29 CFR part
1911.
PART 1928--[AMENDED]
6. The authority citation for part 1928 continues to read as
follows:
Authority: Secs. 6 and 8, Occupational Safety and Health Act of
1970 (29 U.S.C. 655, 657); Secretary of Labor's Order Nos. 12-71 (36
FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), or 1-90 (55 FR
9033), as applicable; 29 CFR part 1911.
Section 1928.21 also issued under 5 U.S.C. 553.
7. Parts 1910, 1915, 1917, 1918, and 1926 are amended by revising
Secs. 1910.1200, 1915.1200, 1917.28 and 1918.90, and 1926.59 to contain
the identical text, including Appendices A, B, C, D, and E, to read as
follows:
Sec. ______ Hazard communication.
(a) Purpose. (1) The purpose of this section is to ensure that the
hazards of all chemicals produced or imported are evaluated, and that
information concerning their hazards is transmitted to employers and
employees. This transmittal of information is to be accomplished by
means of comprehensive hazard communication programs, which are to
include container labeling and other forms of warning, material safety
data sheets and employee training.
(2) This occupational safety and health standard is intended to
address comprehensively the issue of evaluating the potential hazards
of chemicals, and communicating information concerning hazards and
appropriate protective measures to employees, and to preempt any legal
requirements of a state, or political subdivision of a state,
pertaining to this subject. Evaluating the potential hazards of
chemicals, and communicating information concerning hazards and
appropriate protective measures to employees, may include, for example,
but is not limited to, provisions for: developing and maintaining a
written hazard communication program for the workplace, including lists
of hazardous chemicals present; labeling of containers of chemicals in
the workplace, as well as of containers of chemicals being shipped to
other workplaces; preparation and distribution of material safety data
sheets to employees and downstream employers; and development and
implementation of employee training programs regarding hazards of
chemicals and protective measures. Under section 18 of the Act, no
state or political subdivision of a state may adopt or enforce, through
any court or agency, any requirement relating to the issue addressed by
this Federal standard, except pursuant to a Federally-approved state
plan.
(b) Scope and application. (1) This section requires chemical
manufacturers or importers to assess the hazards of chemicals which
they produce or import, and all employers to provide information to
their employees about the hazardous chemicals to which they are
exposed, by means of a hazard communication program, labels and other
forms of warning, material safety data sheets, and information and
training. In addition, this section requires distributors to transmit
the required information to employers. (Employers who do not produce or
import chemicals need only focus on those parts of this rule that deal
with establishing a workplace program and communicating information to
their workers. Appendix E of this section is a general guide for such
employers to help them determine their compliance obligations under the
rule.)
(2) This section applies to any chemical which is known to be
present in the workplace in such a manner that employees may be exposed
under normal conditions of use or in a foreseeable emergency.
(3) This section applies to laboratories only as follows:
(i) Employers shall ensure that labels on incoming containers of
hazardous chemicals are not removed or defaced;
(ii) Employers shall maintain any material safety data sheets that
are received with incoming shipments of hazardous chemicals, and ensure
that they are readily accessible during each workshift to laboratory
employees when they are in their work areas;
(iii) Employers shall ensure that laboratory employees are provided
information and training in accordance with paragraph (h) of this
section, except for the location and availability of the written hazard
communication program under paragraph (h)(2)(iii) of this section; and,
(iv) Laboratory employers that ship hazardous chemicals are
considered to be either a chemical manufacturer or a distributor under
this rule, and thus must ensure that any containers of hazardous
chemicals leaving the laboratory are labeled in accordance with
paragraph (f)(1) of this section, and that a material safety data sheet
is provided to distributors and other employers in accordance with
paragraphs (g)(6) and (g)(7) of this section.
(4) In work operations where employees only handle chemicals in
sealed containers which are not opened under normal conditions of use
(such as are found in marine cargo handling, warehousing, or retail
sales), this section applies to these operations only as follows:
(i) Employers shall ensure that labels on incoming containers of
hazardous chemicals are not removed or defaced;
(ii) Employers shall maintain copies of any material safety data
sheets that are received with incoming shipments of the sealed
containers of hazardous chemicals, shall obtain a material safety data
sheet as soon as possible for sealed containers of hazardous chemicals
received without a material safety data sheet if an employee requests
the material safety data sheet, and shall ensure that the material
safety data sheets are readily accessible during each work shift to
employees when they are in their work area(s); and,
(iii) Employers shall ensure that employees are provided with
information and training in accordance with paragraph (h) of this
section (except for the location and availability of the written hazard
communication program under paragraph (h)(2)(iii) of this section), to
the extent necessary to protect them in the event of a spill or leak of
a hazardous chemical from a sealed container.
(5) This section does not require labeling of the following
chemicals:
(i) Any pesticide as such term is defined in the Federal
Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136 et seq.),
when subject to the labeling requirements of that Act and labeling
regulations issued under that Act by the Environmental Protection
Agency;
(ii) Any chemical substance or mixture as such terms are defined in
the Toxic Substances Control Act (15 U.S.C. 2601 et seq.), when subject
to the labeling requirements of that Act and labeling regulations
issued under that Act by the Environmental Protection Agency;
(iii) Any food, food additive, color additive, drug, cosmetic, or
medical or veterinary device or product, including materials intended
for use as ingredients in such products (e.g. flavors and fragrances),
as such terms are defined in the Federal Food, Drug, and Cosmetic Act
(21 U.S.C. 301 et seq.) or the Virus-Serum-Toxin Act of 1913 (21 U.S.C.
151 et seq.), and regulations issued under those Acts, when they are
subject to the labeling requirements under those Acts by either the
Food and Drug Administration or the Department of Agriculture;
(iv) Any distilled spirits (beverage alcohols), wine, or malt
beverage intended for nonindustrial use, as such terms are defined in
the Federal Alcohol Administration Act (27 U.S.C. 201 et seq.) and
regulations issued under that Act, when subject to the labeling
requirements of that Act and labeling regulations issued under that Act
by the Bureau of Alcohol, Tobacco, and Firearms;
(v) Any consumer product or hazardous substance as those terms are
defined in the Consumer Product Safety Act (15 U.S.C. 2051 et seq.) and
Federal Hazardous Substances Act (15 U.S.C. 1261 et seq.) respectively,
when subject to a consumer product safety standard or labeling
requirement of those Acts, or regulations issued under those Acts by
the Consumer Product Safety Commission; and,
(vi) Agricultural or vegetable seed treated with pesticides and
labeled in accordance with the Federal Seed Act (7 U.S.C. 1551 et seq.)
and the labeling regulations issued under that Act by the Department of
Agriculture.
(6) This section does not apply to: (i) Any hazardous waste as such
term is defined by the Solid Waste Disposal Act, as amended by the
Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C.
6901 et seq.), when subject to regulations issued under that Act by the
Environmental Protection Agency;
(ii) Any hazardous substance as such term is defined by the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA)(42 U.S.C. 9601 et seq.), when subject to regulations issued
under that Act by the Environmental Protection Agency;
(iii) Tobacco or tobacco products;
(iv) Wood or wood products, including lumber which will not be
processed, where the chemical manufacturer or importer can establish
that the only hazard they pose to employees is the potential for
flammability or combustibility (wood or wood products which have been
treated with a hazardous chemical covered by this standard, and wood
which may be subsequently sawed or cut, generating dust, are not
exempted);
(v) Articles (as that term is defined in paragraph (c) of this
section);
(vi) Food or alcoholic beverages which are sold, used, or prepared
in a retail establishment (such as a grocery store, restaurant, or
drinking place), and foods intended for personal consumption by
employees while in the workplace;
(vii) Any drug, as that term is defined in the Federal Food, Drug,
and Cosmetic Act (21 U.S.C. 301 et seq.), when it is in solid, final
form for direct administration to the patient (e.g., tablets or pills);
drugs which are packaged by the chemical manufacturer for sale to
consumers in a retail establishment (e.g., over-the-counter drugs); and
drugs intended for personal consumption by employees while in the
workplace (e.g., first aid supplies);
(viii) Cosmetics which are packaged for sale to consumers in a
retail establishment, and cosmetics intended for personal consumption
by employees while in the workplace;
(ix) Any consumer product or hazardous substance, as those terms
are defined in the Consumer Product Safety Act (15 U.S.C. 2051 et seq.)
and Federal Hazardous Substances Act (15 U.S.C. 1261 et seq.)
respectively, where the employer can show that it is used in the
workplace for the purpose intended by the chemical manufacturer or
importer of the product, and the use results in a duration and
frequency of exposure which is not greater than the range of exposures
that could reasonably be experienced by consumers when used for the
purpose intended;
(x) Nuisance particulates where the chemical manufacturer or
importer can establish that they do not pose any physical or health
hazard covered under this section;
(xi) Ionizing and nonionizing radiation; and,
(xii) Biological hazards.
(c) Definitions.
Article means a manufactured item other than a fluid or particle:
(i) which is formed to a specific shape or design during manufacture;
(ii) which has end use function(s) dependent in whole or in part upon
its shape or design during end use; and (iii) which under normal
conditions of use does not release more than very small quantities,
e.g., minute or trace amounts of a hazardous chemical (as determined
under paragraph (d) of this section), and does not pose a physical
hazard or health risk to employees.
Assistant Secretary means the Assistant Secretary of Labor for
Occupational Safety and Health, U.S. Department of Labor, or designee.
Chemical means any element, chemical compound or mixture of
elements and/or compounds.
Chemical manufacturer means an employer with a workplace where
chemical(s) are produced for use or distribution.
Chemical name means the scientific designation of a chemical in
accordance with the nomenclature system developed by the International
Union of Pure and Applied Chemistry (IUPAC) or the Chemical Abstracts
Service (CAS) rules of nomenclature, or a name which will clearly
identify the chemical for the purpose of conducting a hazard
evaluation.
Combustible liquid means any liquid having a flashpoint at or above
100 deg.F (37.8 deg.C), but below 200 deg.F (93.3 deg.C), except
any mixture having components with flashpoints of 200 deg.F (93.3
deg.C), or higher, the total volume of which make up 99 percent or more
of the total volume of the mixture.
Commercial account means an arrangement whereby a retail
distributor sells hazardous chemicals to an employer, generally in
large quantities over time and/or at costs that are below the regular
retail price.
Common name means any designation or identification such as code
name, code number, trade name, brand name or generic name used to
identify a chemical other than by its chemical name.
Compressed gas means:
(i) A gas or mixture of gases having, in a container, an absolute
pressure exceeding 40 psi at 70 deg.F (21.1 deg.C); or
(ii) A gas or mixture of gases having, in a container, an absolute
pressure exceeding 104 psi at 130 deg.F (54.4 deg.C) regardless of
the pressure at 70 deg.F (21.1 deg.C); or
(iii) A liquid having a vapor pressure exceeding 40 psi at 100
deg.F (37.8 deg.C) as determined by ASTM D-323-72.
Container means any bag, barrel, bottle, box, can, cylinder, drum,
reaction vessel, storage tank, or the like that contains a hazardous
chemical. For purposes of this section, pipes or piping systems, and
engines, fuel tanks, or other operating systems in a vehicle, are not
considered to be containers.
Designated representative means any individual or organization to
whom an employee gives written authorization to exercise such
employee's rights under this section. A recognized or certified
collective bargaining agent shall be treated automatically as a
designated representative without regard to written employee
authorization.
Director means the Director, National Institute for Occupational
Safety and Health, U.S. Department of Health and Human Services, or
designee.
Distributor means a business, other than a chemical manufacturer or
importer, which supplies hazardous chemicals to other distributors or
to employers.
Employee means a worker who may be exposed to hazardous chemicals
under normal operating conditions or in foreseeable emergencies.
Workers such as office workers or bank tellers who encounter hazardous
chemicals only in non-routine, isolated instances are not covered.
Employer means a person engaged in a business where chemicals are
either used, distributed, or are produced for use or distribution,
including a contractor or subcontractor.
Explosive means a chemical that causes a sudden, almost
instantaneous release of pressure, gas, and heat when subjected to
sudden shock, pressure, or high temperature.
Exposure or exposed means that an employee is subjected in the
course of employment to a chemical that is a physical or health hazard,
and includes potential (e.g. accidental or possible) exposure.
``Subjected'' in terms of health hazards includes any route of entry
(e.g. inhalation, ingestion, skin contact or absorption.)
Flammable means a chemical that falls into one of the following
categories:
(i) Aerosol, flammable means an aerosol that, when tested by the
method described in 16 CFR 1500.45, yields a flame projection exceeding
18 inches at full valve opening, or a flashback (a flame extending back
to the valve) at any degree of valve opening;
(ii) Gas, flammable means: (A) A gas that, at ambient temperature
and pressure, forms a flammable mixture with air at a concentration of
thirteen (13) percent by volume or less; or
(B) A gas that, at ambient temperature and pressure, forms a range
of flammable mixtures with air wider than twelve (12) percent by
volume, regardless of the lower limit;
(iii) Liquid, flammable means any liquid having a flashpoint below
100 deg.F (37.8 deg.C), except any mixture having components with
flashpoints of 100 deg.F (37.8 deg.C) or higher, the total of which
make up 99 percent or more of the total volume of the mixture.
(iv) Solid, flammable means a solid, other than a blasting agent or
explosive as defined in Sec. 1910.109(a), that is liable to cause fire
through friction, absorption of moisture, spontaneous chemical change,
or retained heat from manufacturing or processing, or which can be
ignited readily and when ignited burns so vigorously and persistently
as to create a serious hazard. A chemical shall be considered to be a
flammable solid if, when tested by the method described in 16 CFR
1500.44, it ignites and burns with a self-sustained flame at a rate
greater than one-tenth of an inch per second along its major axis.
Flashpoint means the minimum temperature at which a liquid gives
off a vapor in sufficient concentration to ignite when tested as
follows:
(i) Tagliabue Closed Tester (See American National Standard Method
of Test for Flash Point by Tag Closed Tester, Z11.24-1979 (ASTM D 56-
79)) for liquids with a viscosity of less than 45 Saybolt Universal
Seconds (SUS) at 100 deg.F (37.8 deg.C), that do not contain suspended
solids and do not have a tendency to form a surface film under test; or
(ii) Pensky-Martens Closed Tester (see American National Standard
Method of Test for Flash Point by Pensky-Martens Closed Tester, Z11.7-
1979 (ASTM D 93-79)) for liquids with a viscosity equal to or greater
than 45 SUS at 100 deg.F (37.8 deg.C), or that contain suspended
solids, or that have a tendency to form a surface film under test; or
(iii) Setaflash Closed Tester (see American National Standard
Method of Test for Flash Point by Setaflash Closed Tester (ASTM D 3278-
78)).
Organic peroxides, which undergo autoaccelerating thermal
decomposition, are excluded from any of the flashpoint determination
methods specified above.
Foreseeable emergency means any potential occurrence such as, but
not limited to, equipment failure, rupture of containers, or failure of
control equipment which could result in an uncontrolled release of a
hazardous chemical into the workplace.
Hazardous chemical means any chemical which is a physical hazard or
a health hazard.
Hazard warning means any words, pictures, symbols, or combination
thereof appearing on a label or other appropriate form of warning which
convey the specific physical or health hazard(s), including target
organ effects, of the chemical(s) in the container(s). (See the
definitions for ``physical hazard'' and ``health hazard'' to determine
the hazards which must be covered.)
Health hazard means a chemical for which there is statistically
significant evidence based on at least one study conducted in
accordance with established scientific principles that acute or chronic
health effects may occur in exposed employees. The term ``health
hazard'' includes chemicals which are carcinogens, toxic or highly
toxic agents, reproductive toxins, irritants, corrosives, sensitizers,
hepatotoxins, nephrotoxins, neurotoxins, agents which act on the
hematopoietic system, and agents which damage the lungs, skin, eyes, or
mucous membranes. Appendix A provides further definitions and
explanations of the scope of health hazards covered by this section,
and Appendix B describes the criteria to be used to determine whether
or not a chemical is to be considered hazardous for purposes of this
standard.
Identity means any chemical or common name which is indicated on
the material safety data sheet (MSDS) for the chemical. The identity
used shall permit cross-references to be made among the required list
of hazardous chemicals, the label and the MSDS.
Immediate use means that the hazardous chemical will be under the
control of and used only by the person who transfers it from a labeled
container and only within the work shift in which it is transferred.
Importer means the first business with employees within the Customs
Territory of the United States which receives hazardous chemicals
produced in other countries for the purpose of supplying them to
distributors or employers within the United States.
Label means any written, printed, or graphic material displayed on
or affixed to containers of hazardous chemicals.
Material safety data sheet (MSDS) means written or printed material
concerning a hazardous chemical which is prepared in accordance with
paragraph (g) of this section.
Mixture means any combination of two or more chemicals if the
combination is not, in whole or in part, the result of a chemical
reaction.
Organic peroxide means an organic compound that contains the
bivalent -O-O-structure and which may be considered to be a structural
derivative of hydrogen peroxide where one or both of the hydrogen atoms
has been replaced by an organic radical.
Oxidizer means a chemical other than a blasting agent or explosive
as defined in Sec. 1910.109(a), that initiates or promotes combustion
in other materials, thereby causing fire either of itself or through
the release of oxygen or other gases.
Physical hazard means a chemical for which there is scientifically
valid evidence that it is a combustible liquid, a compressed gas,
explosive, flammable, an organic peroxide, an oxidizer, pyrophoric,
unstable (reactive) or water-reactive.
Produce means to manufacture, process, formulate, blend, extract,
generate, emit, or repackage.
Pyrophoric means a chemical that will ignite spontaneously in air
at a temperature of 130 deg.F (54.4 deg.C) or below.
Responsible party means someone who can provide additional
information on the hazardous chemical and appropriate emergency
procedures, if necessary.
Specific chemical identity means the chemical name, Chemical
Abstracts Service (CAS) Registry Number, or any other information that
reveals the precise chemical designation of the substance.
Trade secret means any confidential formula, pattern, process,
device, information or compilation of information that is used in an
employer's business, and that gives the employer an opportunity to
obtain an advantage over competitors who do not know or use it.
Appendix D sets out the criteria to be used in evaluating trade
secrets.
Unstable (reactive) means a chemical which in the pure state, or as
produced or transported, will vigorously polymerize, decompose,
condense, or will become self-reactive under conditions of shocks,
pressure or temperature.
Use means to package, handle, react, emit, extract, generate as a
byproduct, or transfer.
Water-reactive means a chemical that reacts with water to release a
gas that is either flammable or presents a health hazard.
Work area means a room or defined space in a workplace where
hazardous chemicals are produced or used, and where employees are
present.
Workplace means an establishment, job site, or project, at one
geographical location containing one or more work areas.
(d) Hazard determination. (1) Chemical manufacturers and importers
shall evaluate chemicals produced in their workplaces or imported by
them to determine if they are hazardous. Employers are not required to
evaluate chemicals unless they choose not to rely on the evaluation
performed by the chemical manufacturer or importer for the chemical to
satisfy this requirement.
(2) Chemical manufacturers, importers or employers evaluating
chemicals shall identify and consider the available scientific evidence
concerning such hazards. For health hazards, evidence which is
statistically significant and which is based on at least one positive
study conducted in accordance with established scientific principles is
considered to be sufficient to establish a hazardous effect if the
results of the study meet the definitions of health hazards in this
section. Appendix A shall be consulted for the scope of health hazards
covered, and Appendix B shall be consulted for the criteria to be
followed with respect to the completeness of the evaluation, and the
data to be reported.
(3) The chemical manufacturer, importer or employer evaluating
chemicals shall treat the following sources as establishing that the
chemicals listed in them are hazardous:
(i) 29 CFR part 1910, subpart Z, Toxic and Hazardous Substances,
Occupational Safety and Health Administration (OSHA); or,
(ii) Threshold Limit Values for Chemical Substances and Physical
Agents in the Work Environment, American Conference of Governmental
Industrial Hygienists (ACGIH) (latest edition). The chemical
manufacturer, importer, or employer is still responsible for evaluating
the hazards associated with the chemicals in these source lists in
accordance with the requirements of this standard.
(4) Chemical manufacturers, importers and employers evaluating
chemicals shall treat the following sources as establishing that a
chemical is a carcinogen or potential carcinogen for hazard
communication purposes:
(i) National Toxicology Program (NTP), Annual Report on Carcinogens
(latest edition);
(ii) International Agency for Research on Cancer (IARC) Monographs
(latest editions); or
(iii) 29 CFR part 1910, subpart Z, Toxic and Hazardous Substances,
Occupational Safety and Health Administration.
Note: The Registry of Toxic Effects of Chemical Substances
published by the National Institute for Occupational Safety and
Health indicates whether a chemical has been found by NTP or IARC to
be a potential carcinogen.
(5) The chemical manufacturer, importer or employer shall determine
the hazards of mixtures of chemicals as follows:
(i) If a mixture has been tested as a whole to determine its
hazards, the results of such testing shall be used to determine whether
the mixture is hazardous;
(ii) If a mixture has not been tested as a whole to determine
whether the mixture is a health hazard, the mixture shall be assumed to
present the same health hazards as do the components which comprise one
percent (by weight or volume) or greater of the mixture, except that
the mixture shall be assumed to present a carcinogenic hazard if it
contains a component in concentrations of 0.1 percent or greater which
is considered to be a carcinogen under paragraph (d)(4) of this
section;
(iii) If a mixture has not been tested as a whole to determine
whether the mixture is a physical hazard, the chemical manufacturer,
importer, or employer may use whatever scientifically valid data is
available to evaluate the physical hazard potential of the mixture;
and,
(iv) If the chemical manufacturer, importer, or employer has
evidence to indicate that a component present in the mixture in
concentrations of less than one percent (or in the case of carcinogens,
less than 0.1 percent) could be released in concentrations which would
exceed an established OSHA permissible exposure limit or ACGIH
Threshold Limit Value, or could present a health risk to employees in
those concentrations, the mixture shall be assumed to present the same
hazard.
(6) Chemical manufacturers, importers, or employers evaluating
chemicals shall describe in writing the procedures they use to
determine the hazards of the chemical they evaluate. The written
procedures are to be made available, upon request, to employees, their
designated representatives, the Assistant Secretary and the Director.
The written description may be incorporated into the written hazard
communication program required under paragraph (e) of this section.
(e) Written hazard communication program. (1) Employers shall
develop, implement, and maintain at each workplace, a written hazard
communication program which at least describes how the criteria
specified in paragraphs (f), (g), and (h) of this section for labels
and other forms of warning, material safety data sheets, and employee
information and training will be met, and which also includes the
following:
(i) A list of the hazardous chemicals known to be present using an
identity that is referenced on the appropriate material safety data
sheet (the list may be compiled for the workplace as a whole or for
individual work areas); and,
(ii) The methods the employer will use to inform employees of the
hazards of non-routine tasks (for example, the cleaning of reactor
vessels), and the hazards associated with chemicals contained in
unlabeled pipes in their work areas.
(2) Multi-employer workplaces. Employers who produce, use, or store
hazardous chemicals at a workplace in such a way that the employees of
other employer(s) may be exposed (for example, employees of a
construction contractor working on-site) shall additionally ensure that
the hazard communication programs developed and implemented under this
paragraph (e) include the following:
(i) The methods the employer will use to provide the other
employer(s) on-site access to material safety data sheets for each
hazardous chemical the other employer(s)' employees may be exposed to
while working;
(ii) The methods the employer will use to inform the other
employer(s) of any precautionary measures that need to be taken to
protect employees during the workplace's normal operating conditions
and in foreseeable emergencies; and,
(iii) The methods the employer will use to inform the other
employer(s) of the labeling system used in the workplace.
(3) The employer may rely on an existing hazard communication
program to comply with these requirements, provided that it meets the
criteria established in this paragraph (e).
(4) The employer shall make the written hazard communication
program available, upon request, to employees, their designated
representatives, the Assistant Secretary and the Director, in
accordance with the requirements of 29 CFR 1910.20 (e).
(5) Where employees must travel between workplaces during a
workshift, i.e., their work is carried out at more than one
geographical location, the written hazard communication program may be
kept at the primary workplace facility.
(f) Labels and other forms of warning. (1) The chemical
manufacturer, importer, or distributor shall ensure that each container
of hazardous chemicals leaving the workplace is labeled, tagged or
marked with the following information:
(i) Identity of the hazardous chemical(s);
(ii) Appropriate hazard warnings; and
(iii) Name and address of the chemical manufacturer, importer, or
other responsible party.
(2)(i) For solid metal (such as a steel beam or a metal casting),
solid wood, or plastic items that are not exempted as articles due to
their downstream use, or shipments of whole grain, the required label
may be transmitted to the customer at the time of the initial shipment,
and need not be included with subsequent shipments to the same employer
unless the information on the label changes;
(ii) The label may be transmitted with the initial shipment itself,
or with the material safety data sheet that is to be provided prior to
or at the time of the first shipment; and,
(iii) This exception to requiring labels on every container of
hazardous chemicals is only for the solid material itself, and does not
apply to hazardous chemicals used in conjunction with, or known to be
present with, the material and to which employees handling the items in
transit may be exposed (for example, cutting fluids or pesticides in
grains).
(3) Chemical manufacturers, importers, or distributors shall ensure
that each container of hazardous chemicals leaving the workplace is
labeled, tagged, or marked in accordance with this section in a manner
which does not conflict with the requirements of the Hazardous
Materials Transportation Act (49 U.S.C. 1801 et seq.) and regulations
issued under that Act by the Department of Transportation.
(4) If the hazardous chemical is regulated by OSHA in a substance-
specific health standard, the chemical manufacturer, importer,
distributor or employer shall ensure that the labels or other forms of
warning used are in accordance with the requirements of that standard.
(5) Except as provided in paragraphs (f)(6) and (f)(7) of this
section, the employer shall ensure that each container of hazardous
chemicals in the workplace is labeled, tagged or marked with the
following information:
(i) Identity of the hazardous chemical(s) contained therein; and,
(ii) Appropriate hazard warnings, or alternatively, words,
pictures, symbols, or combination thereof, which provide at least
general information regarding the hazards of the chemicals, and which,
in conjunction with the other information immediately available to
employees under the hazard communication program, will provide
employees with the specific information regarding the physical and
health hazards of the hazardous chemical.
(6) The employer may use signs, placards, process sheets, batch
tickets, operating procedures, or other such written materials in lieu
of affixing labels to individual stationary process containers, as long
as the alternative method identifies the containers to which it is
applicable and conveys the information required by paragraph (f)(5) of
this section to be on a label. The written materials shall be readily
accessible to the employees in their work area throughout each work
shift.
(7) The employer is not required to label portable containers into
which hazardous chemicals are transferred from labeled containers, and
which are intended only for the immediate use of the employee who
performs the transfer. For purposes of this section, drugs which are
dispensed by a pharmacy to a health care provider for direct
administration to a patient are exempted from labeling.
(8) The employer shall not remove or deface existing labels on
incoming containers of hazardous chemicals, unless the container is
immediately marked with the required information.
(9) The employer shall ensure that labels or other forms of warning
are legible, in English, and prominently displayed on the container, or
readily available in the work area throughout each work shift.
Employers having employees who speak other languages may add the
information in their language to the material presented, as long as the
information is presented in English as well.
(10) The chemical manufacturer, importer, distributor or employer
need not affix new labels to comply with this section if existing
labels already convey the required information.
(11) Chemical manufacturers, importers, distributors, or employers
who become newly aware of any significant information regarding the
hazards of a chemical shall revise the labels for the chemical within
three months of becoming aware of the new information. Labels on
containers of hazardous chemicals shipped after that time shall contain
the new information. If the chemical is not currently produced or
imported, the chemical manufacturer, importers, distributor, or
employer shall add the information to the label before the chemical is
shipped or introduced into the workplace again.
(g) Material safety data sheets. (1) Chemical manufacturers and
importers shall obtain or develop a material safety data sheet for each
hazardous chemical they produce or import. Employers shall have a
material safety data sheet in the workplace for each hazardous chemical
which they use.
(2) Each material safety data sheet shall be in English (although
the employer may maintain copies in other languages as well), and shall
contain at least the following information:
(i) The identity used on the label, and, except as provided for in
paragraph (i) of this section on trade secrets:
(A) If the hazardous chemical is a single substance, its chemical
and common name(s);
(B) If the hazardous chemical is a mixture which has been tested as
a whole to determine its hazards, the chemical and common name(s) of
the ingredients which contribute to these known hazards, and the common
name(s) of the mixture itself; or,
(C) If the hazardous chemical is a mixture which has not been
tested as a whole:
(1) The chemical and common name(s) of all ingredients which have
been determined to be health hazards, and which comprise 1% or greater
of the composition, except that chemicals identified as carcinogens
under paragraph (d) of this section shall be listed if the
concentrations are 0.1% or greater; and,
(2) The chemical and common name(s) of all ingredients which have
been determined to be health hazards, and which comprise less than 1%
(0.1% for carcinogens) of the mixture, if there is evidence that the
ingredient(s) could be released from the mixture in concentrations
which would exceed an established OSHA permissible exposure limit or
ACGIH Threshold Limit Value, or could present a health risk to
employees; and,
(3) The chemical and common name(s) of all ingredients which have
been determined to present a physical hazard when present in the
mixture;
(ii) Physical and chemical characteristics of the hazardous
chemical (such as vapor pressure, flash point);
(iii) The physical hazards of the hazardous chemical, including the
potential for fire, explosion, and reactivity;
(iv) The health hazards of the hazardous chemical, including signs
and symptoms of exposure, and any medical conditions which are
generally recognized as being aggravated by exposure to the chemical;
(v) The primary route(s) of entry;
(vi) The OSHA permissible exposure limit, ACGIH Threshold Limit
Value, and any other exposure limit used or recommended by the chemical
manufacturer, importer, or employer preparing the material safety data
sheet, where available;
(vii) Whether the hazardous chemical is listed in the National
Toxicology Program (NTP) Annual Report on Carcinogens (latest edition)
or has been found to be a potential carcinogen in the International
Agency for Research on Cancer (IARC) Monographs (latest editions), or
by OSHA;
(viii) Any generally applicable precautions for safe handling and
use which are known to the chemical manufacturer, importer or employer
preparing the material safety data sheet, including appropriate
hygienic practices, protective measures during repair and maintenance
of contaminated equipment, and procedures for clean-up of spills and
leaks;
(ix) Any generally applicable control measures which are known to
the chemical manufacturer, importer or employer preparing the material
safety data sheet, such as appropriate engineering controls, work
practices, or personal protective equipment;
(x) Emergency and first aid procedures;
(xi) The date of preparation of the material safety data sheet or
the last change to it; and,
(xii) The name, address and telephone number of the chemical
manufacturer, importer, employer or other responsible party preparing
or distributing the material safety data sheet, who can provide
additional information on the hazardous chemical and appropriate
emergency procedures, if necessary.
(3) If no relevant information is found for any given category on
the material safety data sheet, the chemical manufacturer, importer or
employer preparing the material safety data sheet shall mark it to
indicate that no applicable information was found.
(4) Where complex mixtures have similar hazards and contents (i.e.
the chemical ingredients are essentially the same, but the specific
composition varies from mixture to mixture), the chemical manufacturer,
importer or employer may prepare one material safety data sheet to
apply to all of these similar mixtures.
(5) The chemical manufacturer, importer or employer preparing the
material safety data sheet shall ensure that the information recorded
accurately reflects the scientific evidence used in making the hazard
determination. If the chemical manufacturer, importer or employer
preparing the material safety data sheet becomes newly aware of any
significant information regarding the hazards of a chemical, or ways to
protect against the hazards, this new information shall be added to the
material safety data sheet within three months. If the chemical is not
currently being produced or imported the chemical manufacturer or
importer shall add the information to the material safety data sheet
before the chemical is introduced into the workplace again.
(6)(i) Chemical manufacturers or importers shall ensure that
distributors and employers are provided an appropriate material safety
data sheet with their initial shipment, and with the first shipment
after a material safety data sheet is updated;
(ii) The chemical manufacturer or importer shall either provide
material safety data sheets with the shipped containers or send them to
the distributor or employer prior to or at the time of the shipment;
(iii) If the material safety data sheet is not provided with a
shipment that has been labeled as a hazardous chemical, the distributor
or employer shall obtain one from the chemical manufacturer or importer
as soon as possible; and,
(iv) The chemical manufacturer or importer shall also provide
distributors or employers with a material safety data sheet upon
request.
(7)(i) Distributors shall ensure that material safety data sheets,
and updated information, are provided to other distributors and
employers with their initial shipment and with the first shipment after
a material safety data sheet is updated;
(ii) The distributor shall either provide material safety data
sheets with the shipped containers, or send them to the other
distributor or employer prior to or at the time of the shipment;
(iii) Retail distributors selling hazardous chemicals to employers
having a commercial account shall provide a material safety data sheet
to such employers upon request, and shall post a sign or otherwise
inform them that a material safety data sheet is available;
(iv) Wholesale distributors selling hazardous chemicals to
employers over-the-counter may also, as an alternative to keeping a
file of material safety data sheets for all hazardous chemicals they
sell, provide material safety data sheets upon the request of the
employer at the time of the over-the-counter purchase, and shall post a
sign or otherwise inform such employers that a material safety data
sheet is available;
(v) If an employer without a commercial account purchases a
hazardous chemical from a retail distributor not required to have
material safety data sheets on file (i.e., the retail distributor does
not have commercial accounts and does not use the materials), the
retail distributor shall provide the employer, upon request, with the
name, address, and telephone number of the chemical manufacturer,
importer, or distributor from which a material safety data sheet can be
obtained;
(vi) Wholesale distributors shall also provide material safety data
sheets to employers or other distributors upon request; and,
(vii) Chemical manufacturers, importers, and distributors need not
provide material safety data sheets to retail distributors that have
informed them that the retail distributor does not sell the product to
commercial accounts or open the sealed container to use it in their own
workplaces.
(8) The employer shall maintain in the workplace copies of the
required material safety data sheets for each hazardous chemical, and
shall ensure that they are readily accessible during each work shift to
employees when they are in their work area(s). (Electronic access,
microfiche, and other alternatives to maintaining paper copies of the
material safety data sheets are permitted as long as no barriers to
immediate employee access in each workplace are created by such
options.)
(9) Where employees must travel between workplaces during a
workshift, i.e., their work is carried out at more than one
geographical location, the material safety data sheets may be kept at
the primary workplace facility. In this situation, the employer shall
ensure that employees can immediately obtain the required information
in an emergency.
(10) Material safety data sheets may be kept in any form, including
operating procedures, and may be designed to cover groups of hazardous
chemicals in a work area where it may be more appropriate to address
the hazards of a process rather than individual hazardous chemicals.
However, the employer shall ensure that in all cases the required
information is provided for each hazardous chemical, and is readily
accessible during each work shift to employees when they are in in
their work area(s).
(11) Material safety data sheets shall also be made readily
available, upon request, to designated representatives and to the
Assistant Secretary, in accordance with the requirements of 29 CFR
1910.20(e). The Director shall also be given access to material safety
data sheets in the same manner.
(h) Employee information and training. (1) Employers shall provide
employees with effective information and training on hazardous
chemicals in their work area at the time of their initial assignment,
and whenever a new physical or health hazard the employees have not
previously been trained about is introduced into their work area.
Information and training may be designed to cover categories of hazards
(e.g., flammability, carcinogenicity) or specific chemicals. Chemical-
specific information must always be available through labels and
material safety data sheets.
(2) Information. Employees shall be informed of:
(i) The requirements of this section;
(ii) Any operations in their work area where hazardous chemicals
are present; and,
(iii) The location and availability of the written hazard
communication program, including the required list(s) of hazardous
chemicals, and material safety data sheets required by this section.
(3) Training. Employee training shall include at least:
(i) Methods and observations that may be used to detect the
presence or release of a hazardous chemical in the work area (such as
monitoring conducted by the employer, continuous monitoring devices,
visual appearance or odor of hazardous chemicals when being released,
etc.);
(ii) The physical and health hazards of the chemicals in the work
area;
(iii) The measures employees can take to protect themselves from
these hazards, including specific procedures the employer has
implemented to protect employees from exposure to hazardous chemicals,
such as appropriate work practices, emergency procedures, and personal
protective equipment to be used; and,
(iv) The details of the hazard communication program developed by
the employer, including an explanation of the labeling system and the
material safety data sheet, and how employees can obtain and use the
appropriate hazard information.
(i) Trade secrets. (1) The chemical manufacturer, importer, or
employer may withhold the specific chemical identity, including the
chemical name and other specific identification of a hazardous
chemical, from the material safety data sheet, provided that:
(i) The claim that the information withheld is a trade secret can
be supported;
(ii) Information contained in the material safety data sheet
concerning the properties and effects of the hazardous chemical is
disclosed;
(iii) The material safety data sheet indicates that the specific
chemical identity is being withheld as a trade secret; and,
(iv) The specific chemical identity is made available to health
professionals, employees, and designated representatives in accordance
with the applicable provisions of this paragraph.
(2) Where a treating physician or nurse determines that a medical
emergency exists and the specific chemical identity of a hazardous
chemical is necessary for emergency or first-aid treatment, the
chemical manufacturer, importer, or employer shall immediately disclose
the specific chemical identity of a trade secret chemical to that
treating physician or nurse, regardless of the existence of a written
statement of need or a confidentiality agreement. The chemical
manufacturer, importer, or employer may require a written statement of
need and confidentiality agreement, in accordance with the provisions
of paragraphs (i) (3) and (4) of this section, as soon as circumstances
permit.
(3) In non-emergency situations, a chemical manufacturer, importer,
or employer shall, upon request, disclose a specific chemical identity,
otherwise permitted to be withheld under paragraph (i)(1) of this
section, to a health professional (i.e. physician, industrial
hygienist, toxicologist, epidemiologist, or occupational health nurse)
providing medical or other occupational health services to exposed
employee(s), and to employees or designated representatives, if:
(i) The request is in writing;
(ii) The request describes with reasonable detail one or more of
the following occupational health needs for the information:
(A) To assess the hazards of the chemicals to which employees will
be exposed;
(B) To conduct or assess sampling of the workplace atmosphere to
determine employee exposure levels;
(C) To conduct pre-assignment or periodic medical surveillance of
exposed employees;
(D) To provide medical treatment to exposed employees;
(E) To select or assess appropriate personal protective equipment
for exposed employees;
(F) To design or assess engineering controls or other protective
measures for exposed employees; and,
(G) To conduct studies to determine the health effects of exposure.
(iii) The request explains in detail why the disclosure of the
specific chemical identity is essential and that, in lieu thereof, the
disclosure of the following information to the health professional,
employee, or designated representative, would not satisfy the purposes
described in paragraph (i)(3)(ii) of this section:
(A) The properties and effects of the chemical;
(B) Measures for controlling workers' exposure to the chemical;
(C) Methods of monitoring and analyzing worker exposure to the
chemical; and,
(D) Methods of diagnosing and treating harmful exposures to the
chemical;
(iv) The request includes a description of the procedures to be
used to maintain the confidentiality of the disclosed information; and,
(v) The health professional, and the employer or contractor of the
services of the health professional (i.e. downstream employer, labor
organization, or individual employee), employee, or designated
representative, agree in a written confidentiality agreement that the
health professional, employee, or designated representative, will not
use the trade secret information for any purpose other than the health
need(s) asserted and agree not to release the information under any
circumstances other than to OSHA, as provided in paragraph (i)(6) of
this section, except as authorized by the terms of the agreement or by
the chemical manufacturer, importer, or employer.
(4) The confidentiality agreement authorized by paragraph
(i)(3)(iv) of this section:
(i) May restrict the use of the information to the health purposes
indicated in the written statement of need;
(ii) May provide for appropriate legal remedies in the event of a
breach of the agreement, including stipulation of a reasonable pre-
estimate of likely damages; and,
(iii) May not include requirements for the posting of a penalty
bond.
(5) Nothing in this standard is meant to preclude the parties from
pursuing non-contractual remedies to the extent permitted by law.
(6) If the health professional, employee, or designated
representative receiving the trade secret information decides that
there is a need to disclose it to OSHA, the chemical manufacturer,
importer, or employer who provided the information shall be informed by
the health professional, employee, or designated representative prior
to, or at the same time as, such disclosure.
(7) If the chemical manufacturer, importer, or employer denies a
written request for disclosure of a specific chemical identity, the
denial must:
(i) Be provided to the health professional, employee, or designated
representative, within thirty days of the request;
(ii) Be in writing;
(iii) Include evidence to support the claim that the specific
chemical identity is a trade secret;
(iv) State the specific reasons why the request is being denied;
and,
(v) Explain in detail how alternative information may satisfy the
specific medical or occupational health need without revealing the
specific chemical identity.
(8) The health professional, employee, or designated representative
whose request for information is denied under paragraph (i)(3) of this
section may refer the request and the written denial of the request to
OSHA for consideration.
(9) When a health professional, employee, or designated
representative refers the denial to OSHA under paragraph (i)(8) of this
section, OSHA shall consider the evidence to determine if:
(i) The chemical manufacturer, importer, or employer has supported
the claim that the specific chemical identity is a trade secret;
(ii) The health professional, employee, or designated
representative has supported the claim that there is a medical or
occupational health need for the information; and,
(iii) The health professional, employee or designated
representative has demonstrated adequate means to protect the
confidentiality.
(10)(i) If OSHA determines that the specific chemical identity
requested under paragraph (i)(3) of this section is not a bona fide
trade secret, or that it is a trade secret, but the requesting health
professional, employee, or designated representative has a legitimate
medical or occupational health need for the information, has executed a
written confidentiality agreement, and has shown adequate means to
protect the confidentiality of the information, the chemical
manufacturer, importer, or employer will be subject to citation by
OSHA.
(ii) If a chemical manufacturer, importer, or employer demonstrates
to OSHA that the execution of a confidentiality agreement would not
provide sufficient protection against the potential harm from the
unauthorized disclosure of a trade secret specific chemical identity,
the Assistant Secretary may issue such orders or impose such additional
limitations or conditions upon the disclosure of the requested chemical
information as may be appropriate to assure that the occupational
health services are provided without an undue risk of harm to the
chemical manufacturer, importer, or employer.
(11) If a citation for a failure to release specific chemical
identity information is contested by the chemical manufacturer,
importer, or employer, the matter will be adjudicated before the
Occupational Safety and Health Review Commission in accordance with the
Act's enforcement scheme and the applicable Commission rules of
procedure. In accordance with the Commission rules, when a chemical
manufacturer, importer, or employer continues to withhold the
information during the contest, the Administrative Law Judge may review
the citation and supporting documentation in camera or issue
appropriate orders to protect the confidentiality of such matters.
(12) Notwithstanding the existence of a trade secret claim, a
chemical manufacturer, importer, or employer shall, upon request,
disclose to the Assistant Secretary any information which this section
requires the chemical manufacturer, importer, or employer to make
available. Where there is a trade secret claim, such claim shall be
made no later than at the time the information is provided to the
Assistant Secretary so that suitable determinations of trade secret
status can be made and the necessary protections can be implemented.
(13) Nothing in this paragraph shall be construed as requiring the
disclosure under any circumstances of process or percentage of mixture
information which is a trade secret.
(j) Effective dates. Chemical manufacturers, importers,
distributors, and employers shall be in compliance with all provisions
of this section by March 11, 1994.
Appendix A to Sec. --Health Hazard Definitions (Mandatory)
Although safety hazards related to the physical characteristics
of a chemical can be objectively defined in terms of testing
requirements (e.g. flammability), health hazard definitions are less
precise and more subjective. Health hazards may cause measurable
changes in the body--such as decreased pulmonary function. These
changes are generally indicated by the occurrence of signs and
symptoms in the exposed employees--such as shortness of breath, a
non-measurable, subjective feeling. Employees exposed to such
hazards must be apprised of both the change in body function and the
signs and symptoms that may occur to signal that change.
The determination of occupational health hazards is complicated
by the fact that many of the effects or signs and symptoms occur
commonly in non-occupationally exposed populations, so that effects
of exposure are difficult to separate from normally occurring
illnesses. Occasionally, a substance causes an effect that is rarely
seen in the population at large, such as angiosarcomas caused by
vinyl chloride exposure, thus making it easier to ascertain that the
occupational exposure was the primary causative factor. More often,
however, the effects are common, such as lung cancer. The situation
is further complicated by the fact that most chemicals have not been
adequately tested to determine their health hazard potential, and
data do not exist to substantiate these effects.
There have been many attempts to categorize effects and to
define them in various ways. Generally, the terms ``acute'' and
``chronic'' are used to delineate between effects on the basis of
severity or duration. ``Acute'' effects usually occur rapidly as a
result of short-term exposures, and are of short duration.
``Chronic'' effects generally occur as a result of long-term
exposure, and are of long duration.
The acute effects referred to most frequently are those defined
by the American National Standards Institute (ANSI) standard for
Precautionary Labeling of Hazardous Industrial Chemicals (Z129.1-
1988)--irritation, corrosivity, sensitization and lethal dose.
Although these are important health effects, they do not adequately
cover the considerable range of acute effects which may occur as a
result of occupational exposure, such as, for example, narcosis.
Similarly, the term chronic effect is often used to cover only
carcinogenicity, teratogenicity, and mutagenicity. These effects are
obviously a concern in the workplace, but again, do not adequately
cover the area of chronic effects, excluding, for example, blood
dyscrasias (such as anemia), chronic bronchitis and liver atrophy.
The goal of defining precisely, in measurable terms, every
possible health effect that may occur in the workplace as a result
of chemical exposures cannot realistically be accomplished. This
does not negate the need for employees to be informed of such
effects and protected from them. Appendix B, which is also
mandatory, outlines the principles and procedures of hazard
assessment.
For purposes of this section, any chemicals which meet any of
the following definitions, as determined by the criteria set forth
in Appendix B are health hazards. However, this is not intended to
be an exclusive categorization scheme. If there are available
scientific data that involve other animal species or test methods,
they must also be evaluated to determine the applicability of the
HCS.
1. Carcinogen: A chemical is considered to be a carcinogen if:
(a) It has been evaluated by the International Agency for
Research on Cancer (IARC), and found to be a carcinogen or potential
carcinogen; or
(b) It is listed as a carcinogen or potential carcinogen in the
Annual Report on Carcinogens published by the National Toxicology
Program (NTP) (latest edition); or,
(c) It is regulated by OSHA as a carcinogen.
2. Corrosive: A chemical that causes visible destruction of, or
irreversible alterations in, living tissue by chemical action at the
site of contact. For example, a chemical is considered to be
corrosive if, when tested on the intact skin of albino rabbits by
the method described by the U.S. Department of Transportation in
appendix A to 49 CFR part 173, it destroys or changes irreversibly
the structure of the tissue at the site of contact following an
exposure period of four hours. This term shall not refer to action
on inanimate surfaces.
3. Highly toxic: A chemical falling within any of the following
categories:
(a) A chemical that has a median lethal dose (LD50) of 50
milligrams or less per kilogram of body weight when administered
orally to albino rats weighing between 200 and 300 grams each.
(b) A chemical that has a median lethal dose (LD50) of 200
milligrams or less per kilogram of body weight when administered by
continuous contact for 24 hours (or less if death occurs within 24
hours) with the bare skin of albino rabbits weighing between two and
three kilograms each.
(c) A chemical that has a median lethal concentration
(LC50) in air of 200 parts per million by volume or less of gas
or vapor, or 2 milligrams per liter or less of mist, fume, or dust,
when administered by continuous inhalation for one hour (or less if
death occurs within one hour) to albino rats weighing between 200
and 300 grams each.
4. Irritant: A chemical, which is not corrosive, but which
causes a reversible inflammatory effect on living tissue by chemical
action at the site of contact. A chemical is a skin irritant if,
when tested on the intact skin of albino rabbits by the methods of
16 CFR 1500.41 for four hours exposure or by other appropriate
techniques, it results in an empirical score of five or more. A
chemical is an eye irritant if so determined under the procedure
listed in 16 CFR 1500.42 or other appropriate techniques.
5. Sensitizer: A chemical that causes a substantial proportion
of exposed people or animals to develop an allergic reaction in
normal tissue after repeated exposure to the chemical.
6. Toxic. A chemical falling within any of the following
categories:
(a) A chemical that has a median lethal dose (LD50) of more
than 50 milligrams per kilogram but not more than 500 milligrams per
kilogram of body weight when administered orally to albino rats
weighing between 200 and 300 grams each.
(b) A chemical that has a median lethal dose (LD50) of more
than 200 milligrams per kilogram but not more than 1,000 milligrams
per kilogram of body weight when administered by continuous contact
for 24 hours (or less if death occurs within 24 hours) with the bare
skin of albino rabbits weighing between two and three kilograms
each.
(c) A chemical that has a median lethal concentration
(LC50) in air of more than 200 parts per million but not more
than 2,000 parts per million by volume of gas or vapor, or more than
two milligrams per liter but not more than 20 milligrams per liter
of mist, fume, or dust, when administered by continuous inhalation
for one hour (or less if death occurs within one hour) to albino
rats weighing between 200 and 300 grams each.
7. Target organ effects.
The following is a target organ categorization of effects which
may occur, including examples of signs and symptoms and chemicals
which have been found to cause such effects. These examples are
presented to illustrate the range and diversity of effects and
hazards found in the workplace, and the broad scope employers must
consider in this area, but are not intended to be all-inclusive.
a. Hepatotoxins: Chemicals which produce liver damage
Signs & Symptoms: Jaundice; liver enlargement
Chemicals: Carbon tetrachloride; nitrosamines
b. Nephrotoxins: Chemicals which produce kidney damage
Signs & Symptoms: Edema; proteinuria
Chemicals: Halogenated hydrocarbons; uranium
c. Neurotoxins: Chemicals which produce their primary toxic effects
on the nervous system
Signs & Symptoms: Narcosis; behavioral changes; decrease in
motor functions
Chemicals: Mercury; carbon disulfide
d. Agents which act on the blood or hemato-poietic system: Decrease
hemoglobin function; deprive the body tissues of oxygen
Signs & Symptoms: Cyanosis; loss of consciousness
Chemicals: Carbon monoxide; cyanides
e. Agents which damage the lung: Chemicals which irritate or damage
pulmonary tissue
Signs & Symptoms: Cough; tightness in chest; shortness of breath
Chemicals: Silica; asbestos
f. Reproductive toxins: Chemicals which affect the reproductive
capabilities including chromosomal damage (mutations) and effects on
fetuses (teratogenesis)
Signs & Symptoms: Birth defects; sterility
Chemicals: Lead; DBCP
g. Cutaneous hazards: Chemicals which affect the dermal layer of the
body
Signs & Symptoms: Defatting of the skin; rashes; irritation
Chemicals: Ketones; chlorinated compounds
h. Eye hazards: Chemicals which affect the eye or visual capacity
Signs & Symptoms: Conjunctivitis; corneal damage
Chemicals: Organic solvents; acids
Appendix B to Sec. --Hazard Determination (Mandatory)
The quality of a hazard communication program is largely dependent
upon the adequacy and accuracy of the hazard determination. The hazard
determination requirement of this standard is performance-oriented.
Chemical manufacturers, importers, and employers evaluating chemicals
are not required to follow any specific methods for determining
hazards, but they must be able to demonstrate that they have adequately
ascertained the hazards of the chemicals produced or imported in
accordance with the criteria set forth in this Appendix.
Hazard evaluation is a process which relies heavily on the
professional judgment of the evaluator, particularly in the area of
chronic hazards. The performance-orientation of the hazard
determination does not diminish the duty of the chemical manufacturer,
importer or employer to conduct a thorough evaluation, examining all
relevant data and producing a scientifically defensible evaluation. For
purposes of this standard, the following criteria shall be used in
making hazard determinations that meet the requirements of this
standard.
1. Carcinogenicity: As described in paragraph (d)(4) of this
section and Appendix A of this section, a determination by the National
Toxicology Program, the International Agency for Research on Cancer, or
OSHA that a chemical is a carcinogen or potential carcinogen will be
considered conclusive evidence for purposes of this section. In
addition, however, all available scientific data on carcinogenicity
must be evaluated in accordance with the provisions of this Appendix
and the requirements of the rule.
2. Human data: Where available, epidemiological studies and case
reports of adverse health effects shall be considered in the
evaluation.
3. Animal data: Human evidence of health effects in exposed
populations is generally not available for the majority of chemicals
produced or used in the workplace. Therefore, the available results of
toxicological testing in animal populations shall be used to predict
the health effects that may be experienced by exposed workers. In
particular, the definitions of certain acute hazards refer to specific
animal testing results (see Appendix A).
4. Adequacy and reporting of data. The results of any studies which
are designed and conducted according to established scientific
principles, and which report statistically significant conclusions
regarding the health effects of a chemical, shall be a sufficient basis
for a hazard determination and reported on any material safety data
sheet. In vitro studies alone generally do not form the basis for a
definitive finding of hazard under the HCS since they have a positive
or negative result rather than a statistically significant finding.
The chemical manufacturer, importer, or employer may also report
the results of other scientifically valid studies which tend to refute
the findings of hazard.
Appendix C to Sec. ________--Information Sources (Advisory)
The following is a list of available data sources which the
chemical manufacturer, importer, distributor, or employer may wish to
consult to evaluate the hazards of chemicals they produce or import:
--Any information in their own company files, such as toxicity testing
results or illness experience of company employees.
--Any information obtained from the supplier of the chemical, such as
material safety data sheets or product safety bulletins.
--Any pertinent information obtained from the following source list
(latest editions should be used):
Condensed Chemical Dictionary
Van Nostrand Reinhold Co., 135 West 50th Street, New York, NY
10020.
The Merck Index: An Encyclopedia of Chemicals and Drugs
Merck and Company, Inc., 126 E. Lincoln Ave., Rahway, NJ 07065.
IARC Monographs on the Evaluation of the Carcinogenic Risk of Chemicals
to Man
Geneva: World Health Organization, International Agency for
Research on Cancer, 1972-Present. (Multivolume work). Summaries are
available in supplement volumes. 49 Sheridan Street, Albany, NY
12210.
Industrial Hygiene and Toxicology, by F.A. Patty
John Wiley & Sons, Inc., New York, NY (Multivolume work).
Clinical Toxicology of Commercial Products
Gleason, Gosselin, and Hodge.
Casarett and Doull's Toxicology; The Basic Science of Poisons
Doull, Klaassen, and Amdur, Macmillan Publishing Co., Inc., New
York, NY.
Industrial Toxicology, by Alice Hamilton and Harriet L. Hardy
Publishing Sciences Group, Inc., Acton, MA.
Toxicology of the Eye, by W. Morton Grant
Charles C. Thomas, 301-327 East Lawrence Avenue, Springfield,
IL.
Recognition of Health Hazards in Industry
William A. Burgess, John Wiley and Sons, 605 Third Avenue, New
York, NY 10158.
Chemical Hazards of the Workplace
Nick H. Proctor and James P. Hughes, J.P. Lipincott Company, 6
Winchester Terrace, New York, NY 10022.
Handbook of Chemistry and Physics
Chemical Rubber Company, 18901 Cranwood Parkway, Cleveland, OH
44128.
Threshold Limit Values for Chemical Substances and Physical Agents in
the Work Environment and Biological Exposure Indices with Intended
Changes
American Conference of Governmental Industrial Hygienists
(ACGIH), 6500 Glenway Avenue, Bldg. D-5, Cincinnati, OH 45211.
Information on the physical hazards of chemicals may be found in
publications of the National Fire Protection Association, Boston,
MA.
Note: The following documents may be purchased from the
Superintendent of Documents, U.S. Government Printing Office,
Washington, DC 20402.
Occupational Health Guidelines
NIOSH/OSHA (NIOSH Pub. No. 81-123).
NIOSH Pocket Guide to Chemical Hazards
NIOSH Pub. No. 90-117.
Registry of Toxic Effects of Chemical Substances
(Latest edition)
Miscellaneous Documents published by the National Institute for
Occupational Safety and Health:
Criteria documents.
Special Hazard Reviews.
Occupational Hazard Assessments.
Current Intelligence Bulletins.
OSHA's General Industry Standards (29 CFR Part 1910)
NTP Annual Report on Carcinogens and Summary of the Annual Report
on Carcinogens.
National Technical Information Service (NTIS), 5285 Port Royal
Road, Springfield, VA 22161; (703) 487-4650.
------------------------------------------------------------------------
Bibliographic data bases service
provider File name
------------------------------------------------------------------------
Bibliographic Retrieval Services Biosis Previews
(BRS), 1200 Route 7, Latham, NY
12110.
CA Search
Medlars
NTIS
Hazardline
American Chemical Society
Journal
Excerpta Medica
IRCS Medical Science Journal
Pre-Med
Intl Pharmaceutical Abstracts
Paper Chem
Lockheed-DIALOG Information Biosis Prev. Files
Service, Inc., 3460 Hillview
Avenue, Palo Alto, CA 94304.
CA Search Files
CAB Abstracts
Chemical Exposure
Chemname
Chemsis Files
Chemzero
Embase Files
Environmental Bibliographies
Enviroline
Federal Research in Progress
IRL Life Science Collection
NTIS
Occupational Safety and Health
(NIOSH)
Paper Chem
SDC-ORBIT, SDC Information Service, CAS Files
2500 Colorado Avenue, Santa
Monica, CA 90406.
Chemdex, 2, 3
NTIS
National Library of Medicine....... Hazardous Substances Data Bank
(NSDB)
Department of Health and Human Medline Files
Services, Public Health Service,
National Institutes of Health,
Bethesda, MD 20209.
Toxline Files
Cancerlit
RTECS
Chemline
Pergamon International Information Laboratory Hazard Bulletin
Corp., 1340 Old Chain Bridge Rd.,
McLean, VA 22101.
Questel, Inc., 1625 Eye Street, NW, CIS/ILO
Suite 818, Washington, DC 20006.
Cancernet
Chemical Information System ICI Structure and Nomenclature Search
(ICIS), Bureau of National System (SANSS)
Affairs, 1133 15th Street, NW,
Suite 300, Washington, DC 20005.
Acute Toxicity (RTECS)
Clinical Toxicology of Commercial
Products
Oil and Hazardous Materials
Technical Assistance Data System
CCRIS
CESARS
Occupational Health Services, 400 MSDS
Plaza Drive, Secaucus, NJ 07094.
Hazardline
------------------------------------------------------------------------
Appendix D to Sec. ________--Definition of ``Trade Secret''
(Mandatory)
The following is a reprint of the Restatement of Torts section
757, comment b (1939):
b. Definition of trade secret. A trade secret may consist of any
formula, pattern, device or compilation of information which is used
in one's business, and which gives him an opportunity to obtain an
advantage over competitors who do not know or use it. It may be a
formula for a chemical compound, a process of manufacturing,
treating or preserving materials, a pattern for a machine or other
device, or a list of customers. It differs from other secret
information in a business (see s759 of the Restatement of Torts
which is not included in this Appendix) in that it is not simply
information as to single or ephemeral events in the conduct of the
business, as, for example, the amount or other terms of a secret bid
for a contract or the salary of certain employees, or the security
investments made or contemplated, or the date fixed for the
announcement of a new policy or for bringing out a new model or the
like. A trade secret is a process or device for continuous use in
the operations of the business. Generally it relates to the
production of goods, as, for example, a machine or formula for the
production of an article. It may, however, relate to the sale of
goods or to other operations in the business, such as a code for
determining discounts, rebates or other concessions in a price list
or catalogue, or a list of specialized customers, or a method of
bookkeeping or other office management.
Secrecy. The subject matter of a trade secret must be secret.
Matters of public knowledge or of general knowledge in an industry
cannot be appropriated by one as his secret. Matters which are
completely disclosed by the goods which one markets cannot be his
secret. Substantially, a trade secret is known only in the
particular business in which it is used. It is not requisite that
only the proprietor of the business know it. He may, without losing
his protection, communicate it to employees involved in its use. He
may likewise communicate it to others pledged to secrecy. Others may
also know of it independently, as, for example, when they have
discovered the process or formula by independent invention and are
keeping it secret. Nevertheless, a substantial element of secrecy
must exist, so that, except by the use of improper means, there
would be difficulty in acquiring the information. An exact
definition of a trade secret is not possible. Some factors to be
considered in determining whether given information is one's trade
secret are: (1) The extent to which the information is known outside
of his business; (2) the extent to which it is known by employees
and others involved in his business; (3) the extent of measures
taken by him to guard the secrecy of the information; (4) the value
of the information to him and his competitors; (5) the amount of
effort or money expended by him in developing the information; (6)
the ease or difficulty with which the information could be properly
acquired or duplicated by others.
Novelty and prior art. A trade secret may be a device or process
which is patentable; but it need not be that. It may be a device or
process which is clearly anticipated in the prior art or one which
is merely a mechanical improvement that a good mechanic can make.
Novelty and invention are not requisite for a trade secret as they
are for patentability. These requirements are essential to
patentability because a patent protects against unlicensed use of
the patented device or process even by one who discovers it properly
through independent research. The patent monopoly is a reward to the
inventor. But such is not the case with a trade secret. Its
protection is not based on a policy of rewarding or otherwise
encouraging the development of secret processes or devices. The
protection is merely against breach of faith and reprehensible means
of learning another's secret. For this limited protection it is not
appropriate to require also the kind of novelty and invention which
is a requisite of patentability. The nature of the secret is,
however, an important factor in determining the kind of relief that
is appropriate against one who is subject to liability under the
rule stated in this Section. Thus, if the secret consists of a
device or process which is a novel invention, one who acquires the
secret wrongfully is ordinarily enjoined from further use of it and
is required to account for the profits derived from his past use.
If, on the other hand, the secret consists of mechanical
improvements that a good mechanic can make without resort to the
secret, the wrongdoer's liability may be limited to damages, and an
injunction against future use of the improvements made with the aid
of the secret may be inappropriate.
Appendix E to Sec. ________(Advisory)--Guidelines for Employer
Compliance
The Hazard Communication Standard (HCS) is based on a simple
concept--that employees have both a need and a right to know the
hazards and identities of the chemicals they are exposed to when
working. They also need to know what protective measures are
available to prevent adverse effects from occurring. The HCS is
designed to provide employees with the information they need.
Knowledge acquired under the HCS will help employers provide
safer workplaces for their employees. When employers have
information about the chemicals being used, they can take steps to
reduce exposures, substitute less hazardous materials, and establish
proper work practices. These efforts will help prevent the
occurrence of work-related illnesses and injuries caused by
chemicals.
The HCS addresses the issues of evaluating and communicating
hazards to workers. Evaluation of chemical hazards involves a number
of technical concepts, and is a process that requires the
professional judgment of experienced experts. That's why the HCS is
designed so that employers who simply use chemicals, rather than
produce or import them, are not required to evaluate the hazards of
those chemicals. Hazard determination is the responsibility of the
producers and importers of the materials. Producers and importers of
chemicals are then required to provide the hazard information to
employers that purchase their products.
Employers that don't produce or import chemicals need only focus
on those parts of the rule that deal with establishing a workplace
program and communicating information to their workers. This
appendix is a general guide for such employers to help them
determine what's required under the rule. It does not supplant or
substitute for the regulatory provisions, but rather provides a
simplified outline of the steps an average employer would follow to
meet those requirements.
1. Becoming Familiar With The Rule.
OSHA has provided a simple summary of the HCS in a pamphlet
entitled ``Chemical Hazard Communication,'' OSHA Publication Number
3084. Some employers prefer to begin to become familiar with the
rule's requirements by reading this pamphlet. A copy may be obtained
from your local OSHA Area Office, or by contacting the OSHA
Publications Office at (202) 523-9667.
The standard is long, and some parts of it are technical, but
the basic concepts are simple. In fact, the requirements reflect
what many employers have been doing for years. You may find that you
are already largely in compliance with many of the provisions, and
will simply have to modify your existing programs somewhat. If you
are operating in an OSHA-approved State Plan State, you must comply
with the State's requirements, which may be different than those of
the Federal rule. Many of the State Plan States had hazard
communication or ``right-to-know'' laws prior to promulgation of the
Federal rule. Employers in State Plan States should contact their
State OSHA offices for more information regarding applicable
requirements.
The HCS requires information to be prepared and transmitted
regarding all hazardous chemicals. The HCS covers both physical
hazards (such as flammability), and health hazards (such as
irritation, lung damage, and cancer). Most chemicals used in the
workplace have some hazard potential, and thus will be covered by
the rule.
One difference between this rule and many others adopted by OSHA
is that this one is performance-oriented. That means that you have
the flexibility to adapt the rule to the needs of your workplace,
rather than having to follow specific, rigid requirements. It also
means that you have to exercise more judgment to implement an
appropriate and effective program.
The standard's design is simple. Chemical manufacturers and
importers must evaluate the hazards of the chemicals they produce or
import. Using that information, they must then prepare labels for
containers, and more detailed technical bulletins called material
safety data sheets (MSDS).
Chemical manufacturers, importers, and distributors of hazardous
chemicals are all required to provide the appropriate labels and
material safety data sheets to the employers to which they ship the
chemicals. The information is to be provided automatically. Every
container of hazardous chemicals you receive must be labeled,
tagged, or marked with the required information. Your suppliers must
also send you a properly completed material safety data sheet (MSDS)
at the time of the first shipment of the chemical, and with the next
shipment after the MSDS is updated with new and significant
information about the hazards.
You can rely on the information received from your suppliers.
You have no independent duty to analyze the chemical or evaluate the
hazards of it.
Employers that ``use'' hazardous chemicals must have a program
to ensure the information is provided to exposed employees. ``Use''
means to package, handle, react, or transfer. This is an
intentionally broad scope, and includes any situation where a
chemical is present in such a way that employees may be exposed
under normal conditions of use or in a foreseeable emergency.
The requirements of the rule that deal specifically with the
hazard communication program are found in this section in paragraphs
(e), written hazard communication program; (f), labels and other
forms of warning; (g), material safety data sheets; and (h),
employee information and training. The requirements of these
paragraphs should be the focus of your attention. Concentrate on
becoming familiar with them, using paragraphs (b), scope and
application, and (c), definitions, as references when needed to help
explain the provisions.
There are two types of work operations where the coverage of the
rule is limited. These are laboratories and operations where
chemicals are only handled in sealed containers (e.g., a warehouse).
The limited provisions for these workplaces can be found in
paragraph (b) of this section, scope and application. Basically,
employers having these types of work operations need only keep
labels on containers as they are received; maintain material safety
data sheets that are received, and give employees access to them;
and provide information and training for employees. Employers do not
have to have written hazard communication programs and lists of
chemicals for these types of operations.
The limited coverage of laboratories and sealed container
operations addresses the obligation of an employer to the workers in
the operations involved, and does not affect the employer's duties
as a distributor of chemicals. For example, a distributor may have
warehouse operations where employees would be protected under the
limited sealed container provisions. In this situation, requirements
for obtaining and maintaining MSDSs are limited to providing access
to those received with containers while the substance is in the
workplace, and requesting MSDSs when employees request access for
those not received with the containers. However, as a distributor of
hazardous chemicals, that employer will still have responsibilities
for providing MSDSs to downstream customers at the time of the first
shipment and when the MSDS is updated. Therefore, although they may
not be required for the employees in the work operation, the
distributor may, nevertheless, have to have MSDSs to satisfy other
requirements of the rule.
2. Identify Responsible Staff
Hazard communication is going to be a continuing program in your
facility. Compliance with the HCS is not a ``one shot deal.'' In
order to have a successful program, it will be necessary to assign
responsibility for both the initial and ongoing activities that have
to be undertaken to comply with the rule. In some cases, these
activities may already be part of current job assignments. For
example, site supervisors are frequently responsible for on-the-job
training sessions. Early identification of the responsible
employees, and involvement of them in the development of your plan
of action, will result in a more effective program design.
Evaluation of the effectiveness of your program will also be
enhanced by involvement of affected employees.
For any safety and health program, success depends on commitment
at every level of the organization. This is particularly true for
hazard communication, where success requires a change in behavior.
This will only occur if employers understand the program, and are
committed to its success, and if employees are motivated by the
people presenting the information to them.
3. Identify Hazardous Chemicals in the Workplace.
The standard requires a list of hazardous chemicals in the
workplace as part of the written hazard communication program. The
list will eventually serve as an inventory of everything for which
an MSDS must be maintained. At this point, however, preparing the
list will help you complete the rest of the program since it will
give you some idea of the scope of the program required for
compliance in your facility.
The best way to prepare a comprehensive list is to survey the
workplace. Purchasing records may also help, and certainly employers
should establish procedures to ensure that in the future purchasing
procedures result in MSDSs being received before a material is used
in the workplace.
The broadest possible perspective should be taken when doing the
survey. Sometimes people think of ``chemicals'' as being only
liquids in containers. The HCS covers chemicals in all physical
forms--liquids, solids, gases, vapors, fumes, and mists--whether
they are ``contained'' or not. The hazardous nature of the chemical
and the potential for exposure are the factors which determine
whether a chemical is covered. If it's not hazardous, it's not
covered. If there is no potential for exposure (e.g., the chemical
is inextricably bound and cannot be released), the rule does not
cover the chemical.
Look around. Identify chemicals in containers, including pipes,
but also think about chemicals generated in the work operations. For
example, welding fumes, dusts, and exhaust fumes are all sources of
chemical exposures. Read labels provided by suppliers for hazard
information. Make a list of all chemicals in the workplace that are
potentially hazardous. For your own information and planning, you
may also want to note on the list the location(s) of the products
within the workplace, and an indication of the hazards as found on
the label. This will help you as you prepare the rest of your
program.
Paragraph (b) of this section, scope and application, includes
exemptions for various chemicals or workplace situations. After
compiling the complete list of chemicals, you should review
paragraph (b) of this section to determine if any of the items can
be eliminated from the list because they are exempted materials. For
example, food, drugs, and cosmetics brought into the workplace for
employee consumption are exempt. So rubbing alcohol in the first aid
kit would not be covered.
Once you have compiled as complete a list as possible of the
potentially hazardous chemicals in the workplace, the next step is
to determine if you have received material safety data sheets for
all of them. Check your files against the inventory you have just
compiled. If any are missing, contact your supplier and request one.
It is a good idea to document these requests, either by copy of a
letter or a note regarding telephone conversations. If you have
MSDSs for chemicals that are not on your list, figure out why. Maybe
you don't use the chemical anymore. Or maybe you missed it in your
survey. Some suppliers do provide MSDSs for products that are not
hazardous. These do not have to be maintained by you.
You should not allow employees to use any chemicals for which
you have not received an MSDS. The MSDS provides information you
need to ensure proper protective measures are implemented prior to
exposure.
4. Preparing and Implementing a Hazard Communication Program
All workplaces where employees are exposed to hazardous
chemicals must have a written plan which describes how the standard
will be implemented in that facility. Preparation of a plan is not
just a paper exercise--all of the elements must be implemented in
the workplace in order to be in compliance with the rule. See
paragraph (e) of this section for the specific requirements
regarding written hazard communication programs. The only work
operations which do not have to comply with the written plan
requirements are laboratories and work operations where employees
only handle chemicals in sealed containers. See paragraph (b) of
this section, scope and application, for the specific requirements
for these two types of workplaces.
The plan does not have to be lengthy or complicated. It is
intended to be a blueprint for implementation of your program--an
assurance that all aspects of the requirements have been addressed.
Many trade associations and other professional groups have
provided sample programs and other assistance materials to affected
employers. These have been very helpful to many employers since they
tend to be tailored to the particular industry involved. You may
wish to investigate whether your industry trade groups have
developed such materials.
Although such general guidance may be helpful, you must remember
that the written program has to reflect what you are doing in your
workplace. Therefore, if you use a generic program it must be
adapted to address the facility it covers. For example, the written
plan must list the chemicals present at the site, indicate who is to
be responsible for the various aspects of the program in your
facility, and indicate where written materials will be made
available to employees.
If OSHA inspects your workplace for compliance with the HCS, the
OSHA compliance officer will ask to see your written plan at the
outset of the inspection. In general, the following items will be
considered in evaluating your program.
The written program must describe how the requirements for
labels and other forms of warning, material safety data sheets, and
employee information and training, are going to be met in your
facility. The following discussion provides the type of information
compliance officers will be looking for to decide whether these
elements of the hazard communication program have been properly
addressed:
A. Labels and Other Forms of Warning
In-plant containers of hazardous chemicals must be labeled,
tagged, or marked with the identity of the material and appropriate
hazard warnings. Chemical manufacturers, importers, and distributors
are required to ensure that every container of hazardous chemicals
they ship is appropriately labeled with such information and with
the name and address of the producer or other responsible party.
Employers purchasing chemicals can rely on the labels provided by
their suppliers. If the material is subsequently transferred by the
employer from a labeled container to another container, the employer
will have to label that container unless it is subject to the
portable container exemption. See paragraph (f) of this section for
specific labeling requirements.
The primary information to be obtained from an OSHA-required
label is an identity for the material, and appropriate hazard
warnings. The identity is any term which appears on the label, the
MSDS, and the list of chemicals, and thus links these three sources
of information. The identity used by the supplier may be a common or
trade name (``Black Magic Formula''), or a chemical name (1,1,1,-
trichloroethane). The hazard warning is a brief statement of the
hazardous effects of the chemical (``flammable,'' ``causes lung
damage''). Labels frequently contain other information, such as
precautionary measures (``do not use near open flame''), but this
information is provided voluntarily and is not required by the rule.
Labels must be legible, and prominently displayed. There are no
specific requirements for size or color, or any specified text.
With these requirements in mind, the compliance officer will be
looking for the following types of information to ensure that
labeling will be properly implemented in your facility:
1. Designation of person(s) responsible for ensuring labeling of
in-plant containers;
2. Designation of person(s) responsible for ensuring labeling of
any shipped containers;
3. Description of labeling system(s) used;
4. Description of written alternatives to labeling of in-plant
containers (if used); and,
5. Procedures to review and update label information when
necessary.
Employers that are purchasing and using hazardous chemicals--
rather than producing or distributing them--will primarily be
concerned with ensuring that every purchased container is labeled.
If materials are transferred into other containers, the employer
must ensure that these are labeled as well, unless they fall under
the portable container exemption (paragraph (f)(7) of this section).
In terms of labeling systems, you can simply choose to use the
labels provided by your suppliers on the containers. These will
generally be verbal text labels, and do not usually include
numerical rating systems or symbols that require special training.
The most important thing to remember is that this is a continuing
duty--all in-plant containers of hazardous chemicals must always be
labeled. Therefore, it is important to designate someone to be
responsible for ensuring that the labels are maintained as required
on the containers in your facility, and that newly purchased
materials are checked for labels prior to use.
B. Material Safety Data Sheets
Chemical manufacturers and importers are required to obtain or
develop a material safety data sheet for each hazardous chemical
they produce or import. Distributors are responsible for ensuring
that their customers are provided a copy of these MSDSs. Employers
must have an MSDS for each hazardous chemical which they use.
Employers may rely on the information received from their suppliers.
The specific requirements for material safety data sheets are in
paragraph (g) of this section.
There is no specified format for the MSDS under the rule,
although there are specific information requirements. OSHA has
developed a non-mandatory format, OSHA Form 174, which may be used
by chemical manufacturers and importers to comply with the rule. The
MSDS must be in English. You are entitled to receive from your
supplier a data sheet which includes all of the information required
under the rule. If you do not receive one automatically, you should
request one. If you receive one that is obviously inadequate, with,
for example, blank spaces that are not completed, you should request
an appropriately completed one. If your request for a data sheet or
for a corrected data sheet does not produce the information needed,
you should contact your local OSHA Area Office for assistance in
obtaining the MSDS.
The role of MSDSs under the rule is to provide detailed
information on each hazardous chemical, including its potential
hazardous effects, its physical and chemical characteristics, and
recommendations for appropriate protective measures. This
information should be useful to you as the employer responsible for
designing protective programs, as well as to the workers. If you are
not familiar with material safety data sheets and with chemical
terminology, you may need to learn to use them yourself. A glossary
of MSDS terms may be helpful in this regard. Generally speaking,
most employers using hazardous chemicals will primarily be concerned
with MSDS information regarding hazardous effects and recommended
protective measures. Focus on the sections of the MSDS that are
applicable to your situation.
MSDSs must be readily accessible to employees when they are in
their work areas during their workshifts. This may be accomplished
in many different ways. You must decide what is appropriate for your
particular workplace. Some employers keep the MSDSs in a binder in a
central location (e.g., in the pick-up truck on a construction
site). Others, particularly in workplaces with large numbers of
chemicals, computerize the information and provide access through
terminals. As long as employees can get the information when they
need it, any approach may be used. The employees must have access to
the MSDSs themselves--simply having a system where the information
can be read to them over the phone is only permitted under the
mobile worksite provision, paragraph (g)(9) of this section, when
employees must travel between workplaces during the shift. In this
situation, they have access to the MSDSs prior to leaving the
primary worksite, and when they return, so the telephone system is
simply an emergency arrangement.
In order to ensure that you have a current MSDS for each
chemical in the plant as required, and that employee access is
provided, the compliance officers will be looking for the following
types of information in your written program:
1. Designation of person(s) responsible for obtaining and
maintaining the MSDSs;
2. How such sheets are to be maintained in the workplace (e.g.,
in notebooks in the work area(s) or in a computer with terminal
access), and how employees can obtain access to them when they are
in their work area during the work shift;
3. Procedures to follow when the MSDS is not received at the
time of the first shipment;
4. For producers, procedures to update the MSDS when new and
significant health information is found; and,
5. Description of alternatives to actual data sheets in the
workplace, if used.
For employers using hazardous chemicals, the most important
aspect of the written program in terms of MSDSs is to ensure that
someone is responsible for obtaining and maintaining the MSDSs for
every hazardous chemical in the workplace. The list of hazardous
chemicals required to be maintained as part of the written program
will serve as an inventory. As new chemicals are purchased, the list
should be updated. Many companies have found it convenient to
include on their purchase orders the name and address of the person
designated in their company to receive MSDSs.
C. Employee Information and Training
Each employee who may be ``exposed'' to hazardous chemicals when
working must be provided information and trained prior to initial
assignment to work with a hazardous chemical, and whenever the
hazard changes. ``Exposure'' or ``exposed'' under the rule means
that ``an employee is subjected to a hazardous chemical in the
course of employment through any route of entry (inhalation,
ingestion, skin contact or absorption, etc.) and includes potential
(e.g., accidental or possible) exposure.'' See paragraph (h) of this
section for specific requirements. Information and training may be
done either by individual chemical, or by categories of hazards
(such as flammability or carcinogenicity). If there are only a few
chemicals in the workplace, then you may want to discuss each one
individually. Where there are large numbers of chemicals, or the
chemicals change frequently, you will probably want to train
generally based on the hazard categories (e.g., flammable liquids,
corrosive materials, carcinogens). Employees will have access to the
substance-specific information on the labels and MSDSs.
Information and training is a critical part of the hazard
communication program. Information regarding hazards and protective
measures are provided to workers through written labels and material
safety data sheets. However, through effective information and
training, workers will learn to read and understand such
information, determine how it can be obtained and used in their own
workplaces, and understand the risks of exposure to the chemicals in
their workplaces as well as the ways to protect themselves. A
properly conducted training program will ensure comprehension and
understanding. It is not sufficient to either just read material to
the workers, or simply hand them material to read. You want to
create a climate where workers feel free to ask questions. This will
help you to ensure that the information is understood. You must
always remember that the underlying purpose of the HCS is to reduce
the incidence of chemical source illnesses and injuries. This will
be accomplished by modifying behavior through the provision of
hazard information and information about protective measures. If
your program works, you and your workers will better understand the
chemical hazards within the workplace. The procedures you establish
regarding, for example, purchasing, storage, and handling of these
chemicals will improve, and thereby reduce the risks posed to
employees exposed to the chemical hazards involved. Furthermore,
your workers' comprehension will also be increased, and proper work
practices will be followed in your workplace.
If you are going to do the training yourself, you will have to
understand the material and be prepared to motivate the workers to
learn. This is not always an easy task, but the benefits are worth
the effort. More information regarding appropriate training can be
found in OSHA Publication No. 2254 which contains voluntary training
guidelines prepared by OSHA's Training Institute. A copy of this
document is available from OSHA's Publications Office at (202) 219-
4667.
In reviewing your written program with regard to information and
training, the following items need to be considered:
1. Designation of person(s) responsible for conducting training;
2. Format of the program to be used (audiovisuals, classroom
instruction, etc.);
3. Elements of the training program (should be consistent with
the elements in paragraph (h) of this section); and,
4. Procedure to train new employees at the time of their initial
assignment to work with a hazardous chemical, and to train employees
when a new hazard is introduced into the workplace.
The written program should provide enough details about the
employer's plans in this area to assess whether or not a good faith
effort is being made to train employees. OSHA does not expect that
every worker will be able to recite all of the information about
each chemical in the workplace. In general, the most important
aspects of training under the HCS are to ensure that employees are
aware that they are exposed to hazardous chemicals, that they know
how to read and use labels and material safety data sheets, and
that, as a consequence of learning this information, they are
following the appropriate protective measures established by the
employer. OSHA compliance officers will be talking to employees to
determine if they have received training, if they know they are
exposed to hazardous chemicals, and if they know where to obtain
substance-specific information on labels and MSDSs.
The rule does not require employers to maintain records of
employee training, but many employers choose to do so. This may help
you monitor your own program to ensure that all employees are
appropriately trained. If you already have a training program, you
may simply have to supplement it with whatever additional
information is required under the HCS. For example, construction
employers that are already in compliance with the construction
training standard (29 CFR 1926.21) will have little extra training
to do.
An employer can provide employees information and training
through whatever means are found appropriate and protective.
Although there would always have to be some training on-site (such
as informing employees of the location and availability of the
written program and MSDSs), employee training may be satisfied in
part by general training about the requirements of the HCS and about
chemical hazards on the job which is provided by, for example, trade
associations, unions, colleges, and professional schools. In
addition, previous training, education and experience of a worker
may relieve the employer of some of the burdens of informing and
training that worker. Regardless of the method relied upon, however,
the employer is always ultimately responsible for ensuring that
employees are adequately trained. If the compliance officer finds
that the training is deficient, the employer will be cited for the
deficiency regardless of who actually provided the training on
behalf of the employer.
D. Other Requirements
In addition to these specific items, compliance officers will
also be asking the following questions in assessing the adequacy of
the program:
Does a list of the hazardous chemicals exist in each work area
or at a central location?
Are methods the employer will use to inform employees of the
hazards of non-routine tasks outlined?
Are employees informed of the hazards associated with chemicals
contained in unlabeled pipes in their work areas?
On multi-employer worksites, has the employer provided other
employers with information about labeling systems and precautionary
measures where the other employers have employees exposed to the
initial employer's chemicals?
Is the written program made available to employees and their
designated representatives?
If your program adequately addresses the means of communicating
information to employees in your workplace, and provides answers to
the basic questions outlined above, it will be found to be in
compliance with the rule.
5. Checklist for Compliance
The following checklist will help to ensure you are in
compliance with the rule:
Obtained a copy of the rule. ________
Read and understood the requirements. ________
Assigned responsibility for tasks. ________
Prepared an inventory of chemicals. ________
Ensured containers are labeled. ________
Obtained MSDS for each chemical. ________
Prepared written program. ________
Made MSDSs available to workers. ________
Conducted training of workers. ________
Established procedures to maintain current program. ________
Established procedures to evaluate effectiveness. ________
6. Further Assistance
If you have a question regarding compliance with the HCS, you
should contact your local OSHA Area Office for assistance. In
addition, each OSHA Regional Office has a Hazard Communication
Coordinator who can answer your questions. Free consultation
services are also available to assist employers, and information
regarding these services can be obtained through the Area and
Regional offices as well.
The telephone number for the OSHA office closest to you should
be listed in your local telephone directory. If you are not able to
obtain this information, you may contact OSHA's Office of
Information and Consumer Affairs at (202) 219-8151 for further
assistance in identifying the appropriate contacts.
8. In Sec. 1928.21, paragraph (a)(5) is republished for the
convenience of the user to read as follows:
Sec. 1928.21 Applicable standards in 29 CFR Part 1910.
(a) * * *
(5) Hazard communication--Sec. 1910.1200.
* * * * *
[FR Doc. 94-2273 Filed 2-8-94; 8:45 am]
BILLING CODE 4510-26-P