[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



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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. 

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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