[Federal Register Volume 63, Number 85 (Monday, May 4, 1998)]
[Proposed Rules]
[Pages 24501-24515]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-11797]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1910

[Docket No. H-71]
RIN 1218-AA95


Methylene Chloride; Notice of Motion for Reconsideration; 
Proposed Rule

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

ACTION: Notice of motion for reconsideration; proposed rule.

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SUMMARY: The Occupational Safety and Health Administration (OSHA) has 
received a motion for reconsideration of certain provisions of its 
standard regulating occupational exposure to methylene chloride (MC), 
62 FR 1494 (Jan. 10, 1997). The motion, filed jointly by the 
International Union, United Automobile, Aerospace and Agricultural 
Implement Workers of America, UAW, the Halogenated Solvents Industry 
Alliance, Inc., and others asks OSHA to amend the methylene chloride 
standard by adding to the medical surveillance provisions of the 
standard a provision for temporary medical removal protection benefits 
for employees who are temporarily removed or transferred to another job 
because of a medical determination that exposure to methylene chloride 
may aggravate or contribute to the employee's existing skin, heart, 
liver, or neurological disease; and modifying certain startup dates for 
employers in certain identified application groups, i.e., who use MC in 
certain work operations. The standard currently requires employers with 
fewer than 20 employees to complete installation of engineering 
controls by April 10, 2000 and larger employers to do so by earlier 
dates. The motion asks that the April 10, 2000 startup date for 
engineering controls be applied to some additional small- and medium-
sized employers in the identified application groups. Shorter startup 
date extensions are requested for the larger employers in those same 
application groups. The parties to the motion further request that 
respirator use to achieve the 8-hour time-weighted-average permissible 
exposure limit not be required before the engineering control startup 
dates for the employers covered by the motion.
    OSHA tentatively concludes that the amendments are appropriate and 
are supported by the rulemaking record. Accordingly, OSHA is hereby 
proposing to amend the MC standard with the

[[Page 24502]]

modifications the parties have recommended. OSHA is reopening the 
rulemaking record for the methylene chloride standard for 30 days for 
the limited purpose of receiving public comment on the proposed 
amendments.

DATES: Comments concerning the proposed rule must be postmarked or 
transmitted by fax on or before June 3, 1998. Comments concerning the 
collection of information requirements must be postmarked or 
transmitted by fax on or before July 6, 1998.

ADDRESSES: Comments are to be submitted in quadruplicate to: The Docket 
Office, Docket No. H-71, Room N-2625, United States Department of 
Labor, 200 Constitution Avenue, NW., Washington, DC 20210, telephone 
(202) 219-7894. Comments of 10 pages or fewer may be transmitted by fax 
to (202) 219-5046, provided the original and three copies are sent to 
the Docket Office thereafter. The hours of operation of the Docket 
Office are 10:00 a.m. to 4:00 p.m.

FOR FURTHER INFORMATION CONTACT:
Bonnie Friedman, Director, OSHA Office of Public Affairs, U.S. 
Department of Labor, Room N3647, 200 Constitution Avenue, NW., 
Washington, DC 20210, telephone (202) 219-8151.

SUPPLEMENTARY INFORMATION: 

INFORMATION COLLECTION REQUIREMENTS: This proposed rule contains 
collection of information requirements in 29 CFR 1910.1052, ``Methylene 
Chloride,'' in paragraphs (j)(11)(B) and (j)(14)(i), (ii), and (iv). 
Under these requirements employers must provide certain employees with 
additional medical examinations beyond those now required under the 
standard. The proposed rule would not change the requirement in the 
existing standard that employers provide the employee with a copy of 
the written medical opinion for each medical examination required by 
the standard. Because it requires additional medical examinations than 
does the current rule and, for some of those examinations, the 
provision of more information about the results, the proposed rule 
imposes additional collection of information requirements on employers 
than the current standard. The Paperwork Reduction Act of 1995, 44 
U.S.C. 3507(d), and 5 CFR 1320.11 require Federal agencies to submit 
collections of information contained in proposed rules to the Office of 
Management and Budget (OMB) for review. OSHA has submitted the 
appropriate request to OMB for approval. OSHA currently has approval 
for the collection of information requirements in the existing 
Methylene Chloride standard under OMB Control Number 1218-0179.
    OSHA invites comments on whether the proposed collection of 
information:
    1. Ensures that the collection of information is necessary for the 
proper performance of the functions of OSHA, including whether the 
information will have practical utility;
    2. Estimates the projected burden accurately, including whether the 
methodology and assumptions used are valid;
    3. Enhances the quality, utility and clarity of the information to 
be collected; and
    4. Minimizes the burden of the collection of information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques, 
or other forms of information technology, e.g., permitting electronic 
submission of responses.
    Title: Methylene Chloride (MC) (29 CFR 1910.1052).
    Description: The purpose of this standard and its information 
collection requirements is to protect employees from adverse health 
effects associated with occupational exposure to MC. The current 
standard requires employers to monitor employee exposure to MC, inform 
employees of monitoring results, and notify employees of corrective 
action to be taken. Employers are also required to provide medical 
surveillance to employees who are exposed to MC above the action level. 
Employers must also provide information and training to employees on 
the following: health effects of MC, specifics regarding use of MC in 
the workplace, the content of the standard, and means the employees can 
take to protect themselves from overexposure to MC.
    In response to a motion for reconsideration by the United Auto 
Workers (UAW), the Halogenated Solvents Industry Alliance, Inc., and 
others, the Agency is proposing to add paragraphs (j)(9)(i) (A) and 
(B), (j)(10), (j)(11), (j)(12), (j)(13), and (j)(14), dealing with 
medical removal protection, medical removal protection benefits, 
voluntary removal or restriction of an employee, and multiple health 
care professional review to the MC standard.
    Respondents: The respondents are employers whose employees have 
occupational exposure to MC, Chemical Abstracts Service Registry Number 
75-09-2, in general industry, construction and shipyard employment, 
approximately 92,000 respondents.
    Estimate of Burden Hours: OSHA estimates that the total burden for 
the proposed MC collection of information provision will be 619 burden 
hours.
    Estimate of Costs: OSHA estimates that the total cost for the first 
year will be $60,515 for the collection of information provision.
    Interested parties are requested to send comments regarding this 
information collection to the Office of Information and Regulatory 
Affairs, Attn. OSHA Desk officer, OMB New Executive Office Building, 
725 17th Street, NW, Room 10235, Washington, DC 20503. Commenters are 
encouraged to send a copy of their comments on the collection of 
information to OSHA along with their other comments.
    Comments submitted in response to this notice will be summarized 
and/or included in the request for Office of Management and Budget 
approval of the final information collection request: They will also 
become a matter of public record. Copies of the referenced information 
collection request are available for inspection and copying in the OSHA 
Docket office and will be mailed immediately to any person who requests 
copies by telephoning Adrian Corsey at (202) 219-7075 extension 105. 
For electronic copies of the MC information collection request, contact 
OSHA's WebPage on the Internet at http://www.osha.gov/ and click on 
``Federal Register Notices''. Then click on ``Type of Publication'', 
then ``Notices'', and lastly ``1998''. Copies of the request are also 
available at the OMB docket office.

I. Background

    On January 10, 1997, OSHA issued a standard regulating occupational 
exposure to methylene chloride (MC). 62 FR 1494. The standard was 
designed to reduce both the risk that worker exposure to MC will cause 
cancer and the risk that MC will cause or aggravate certain other 
adverse health effects. The standard reduced the prior 8-hour time-
weighted-average permissible exposure limit (8-hour TWA PEL) to MC from 
500 parts per million (ppm) to 25 ppm. It also set a short term 
exposure limit (STEL) of 125 ppm averaged over a 15 minute period.
    The 8-hour TWA PEL was set at 25 ppm to reduce, to the extent 
feasible, the risk that workers exposed to MC would contract cancer. 
Data showing that MC exposure presents a risk of cancer included animal 
bioassay data, studies detailing the metabolism of MC to carcinogenic 
products in humans, and epidemiological studies suggesting an elevated 
risk of biliary cancer and astrocytic brain cancer in MC-exposed 
workers. The agency used a physiologically-based pharmacokinetic

[[Page 24503]]

(PBPK) model to estimate the cancer risk. OSHA's final risk assessment 
estimated that, at the prior 8-hour TWA PEL of 500 ppm (a level that 
the Agency found was considerably higher than the level at which most 
affected workers were currently exposed, see 62 FR 1565), lifetime 
occupational exposure to MC could result in approximately 125 cancer 
deaths per 1000 exposed workers. 62 FR 1563, Table VII. At the new 8-
hour TWA PEL of 25 ppm, OSHA estimated that the excess cancer risk 
would be reduced to approximately 3.6 deaths per 1000 workers. Id. OSHA 
concluded that a significant risk to workers remains at an exposure 
level of 25 ppm but set the 8-hour TWA PEL at that level because it was 
the lowest level for which OSHA could document feasibility across all 
the affected application groups. 62 FR 1575.
    The STEL was set at 125 ppm to minimize the adverse health effects 
caused by acute exposure to MC. Central nervous system (CNS) depression 
has been observed at MC concentrations as low as 175 ppm. CNS 
depression is characterized by fatigue, difficulty in maintaining 
concentration, dizziness, and headaches. These consequences of MC 
exposure constitute material impairments of health and, by reducing 
workers' coordination and concentration, can lead to workplace 
accidents. Also, MC is metabolized to carbon monoxide (CO) and 
therefore causes health impairment similar to that caused by direct 
exposure to CO. Carbon monoxide blocks the oxygen binding site on 
hemoglobin, producing carboxyhemoglobin, or COHb. Elevated COHb levels 
reduce the supply to oxygen to the heart and can aggravate pre-existing 
heart disease and lead to heart attacks. Physical exertion increases 
the concentration of COHb in MC-exposed workers and thus increases the 
risk of a heart attack, particularly to persons with silent or 
symptomatic cardiac disease, who may be susceptible to very small 
increases in COHb due to an already impaired blood supply to the heart.
    The liver and skin are also susceptible to acute effects from MC 
exposure. Chlorinated hydrocarbons as a class (of which MC is a member) 
are generally toxic to the liver. However, animal studies indicate that 
MC is among the least hepatotoxic of this class of compounds. The 
limited amount of human data that are available is inconclusive but 
supports the hypothesis that MC is toxic to the liver. 62 FR at 1515. 
Prolonged skin contact with MC also causes irritation and skin burns. 
62 FR at 1609.
    Employers must achieve the 8-hour TWA PEL and the STEL, to the 
extend feasible, by engineering and work practice controls. If such 
controls are unable to achieve the exposure limits, and during the time 
they are being implemented, employers must provide, at no cost to 
employees, and ensure that employees use, appropriate respirators. The 
standard does not permit the use of air-purifying respirators to 
protect against MC exposure because MC 1uickly penetrates all currently 
available organic vapor cartridges, rendering air-purifying respirators 
ineffective after a relatively brief period of time. Therefore, when 
respiratory protection is required, the standard provides that 
atomsphere-supplying respirators must be used.
    The standard requires employers to provide medical surveillance to 
employees who are exposed to MC either (1) at or above the action level 
on 30 or more days per year or at or above the 8-hour TWA PEL or STEL 
on 10 or more days per year; (2) at or above the 8-hour TWL Pel or STEL 
for any time period where an employee who has been identified by a 
physician or other licensed health care professional as being at risk 
from cardiac disease or from some other serious MC-related health 
condition requests inclusion in the medical surveillance program; or 
(3) during an emergency. The medical surveillance must include a 
comprehensive medical and work history that emphasizes neurological 
symptoms, skin conditions, history of hematologic or liver disease, 
signs or symptoms suggestive of heart disease (angina, coronary artery 
disease), risk factors for cardiac disease, MC exposures, and work 
practices and personal protective equipment used during such exposures. 
The standard's medical surveillance procedures focus on MC's 
noncarcinogenic health effects because a medical surveillance program 
cannot detect cancer at a preneoplastic state. 62 FR at 1589. However, 
the standard's medical surveillance provisions can lead to early 
detection of cancer and to higher survival rates from early treatment.
    OSHA found that the standard was both technologically and 
economically feasible in all of the industrial applications that use 
MC. However, the Agency recognizes that larger employers are better 
able than smaller ones to absorb or pass through the costs associated 
with compliance with the standard. To avoid placing an undue economic 
burden on small businesses, OSHA provided for later startup dates for 
small employers. Larger employers were given until April 10, 1998 (one 
year after the standard's effective date) to complete installation of 
engineering controls to achieve the PEL and STEL, while employers with 
fewer than 20 employees were given a total of three years, or until 
April 10, 2000, to do so. Employers with fewer than 20 employees were 
also given more time than larger employers to comply with the other 
provisions of the standard. In addition, intermediate startup dates 
were established for polyurethane foam manufacturers with 20-99 
employees because OSHA anticipated that firms in that group could have 
somewhat higher capital expenditures to meet the requirements of the 
standard.

II. The Motion for Reconsideration

    The motion filed by the parties asks OSHA to reconsider two aspects 
of the standard: (1) The agency's decision not to include medical 
removal protection benefits in the medical surveillance provisions of 
the standard; and (2) the start-up dates for engineering controls and 
for use of respirators to achieve the 8-hour TWA PEL for employers 
using MC in certain specific applications.
    Those applications are:
     Polyurethane foam manufacturing;
     Foam fabrication;
     Furniture refinishing;
     General aviation aircraft stripping;
     Formulation of products containing methylene chloride;
     Boat building and repair;
     Recreational vehicle manufacture;
     Van conversion;
     Upholstery; and
     Use of methylene chloride in construction work for 
restoration and preservation of buildings, painting and paint removal, 
cabinet making and/or floor refinishing and resurfacing.
    The motion requests that the standard's current final engineering 
control startup date of April 10, 2000, which now applies to employers 
with fewer than 20 employees, be applied also to employers in the 
specified application groups with 20-49 employees and to foam 
fabricators with 20-149 employees. (In referring to an employer's 
number of employees, the parties to the motion explain that they intend 
for the number of employees to refer to the total number or workers 
employed by the particular employer, not the number who work at a 
particular facility or the number that use methylene chloride in their 
work.) The motion requests shorter extensions of the engineering 
control dates for larger employers in these application groups. The 
parties further request that respirator use to achieve the 8-hour TWA 
PEL not be required before the

[[Page 24504]]

engineering control startup dates for the employers covered by the 
motion.
    In evaluating the motion, OSHA notes that the parties are not 
seeking to modify the fundamental protections provided to workers by 
the standard. They are not challenging the 8-hour TWA PEL or the STEL 
or the requirement that those limits be met, to the extent feasible, 
through engineering and work practice controls. Nor are the parties 
seeking modifications of the provisions in the standard for regulated 
areas, protective work clothing and equipment, hygiene facilities, 
hazard communication, employee information and training, and 
recordkeeping. Moreover, the extensions of the startup dates that they 
seek would not change the standard's current final compliance deadline 
of April 10, 2000 but would merely give additional employers the 
benefit of that startup date. The parties suggest that their proposed 
changes to startup dates will enhance long-term worker protection by 
enabling employers to use their resources effectively and efficiently 
in developing permanent engineering solutions to reduce MC exposures in 
their workplaces. The parties' proposed addition to the medical 
surveillance provisions of the standard--a provision for medical 
removal protection benefits--is also designed to enhance worker 
protection by encouraging worker participation in medical surveillance. 
Thus, the parties believe that the amendments they seek will promote 
worker protection while minimizing employers' compliance burdens.

III. Medical Removal Protection Benefits

    OSHA set the permissible exposure limits for methylene chloride to 
eliminate significant risk, to the extent feasible, to workers exposed 
to MC. However, individuals vary in their response to chemical 
exposures. Some may see their health impaired, or preexisting medical 
conditions aggravated, at an exposure level that does not provoke such 
effects in most workers. Medical surveillance can identify those 
workers who exhibit signs or symptoms of illnesses that could be 
aggravated by exposure to a toxic substance and lead to treatment or 
reduction in exposure. OSHA has therefore provided for medical 
surveillance whenever it has issued a new standard for a single toxic 
substance.
    Medical surveillance can result in a medical opinion that 
particular workers should be removed from their present jobs have their 
work activities otherwise restricted. This can lead to concern among 
workers that participation in medical surveillance could cost them 
their jobs. A worker who fear that medical surveillance may endanger 
his or her livelihood may be reluctant to consent to medical tests or 
to provide complete and accurate information during a medical 
examination. If employees whose health could be significantly impaired 
by continued MC exposure withhold their full cooperation, they might 
continue to be exposed to MC without being aware that such exposure 
poses a risk to their health. To avoid having the potential loss of a 
job act as a disincentive to workers participating in the standard's 
medical surveillance program, OSHA has, in certain of its toxic 
chemical standards, provided for medical removal protection benefits 
(MRPB). MRPB provisions require that an employer who must remove an 
employee from continued exposure to a chemical or otherwise restrict an 
employee's exposure to that chemical must maintain the employee's 
earnings and other employment rights and benefits for a specified time.
    When it has included MRPB provisions in earlier standards, OSHA has 
delineated as specifically as possible the medical conditions that 
trigger removal. Where possible, the Agency has specified objective 
removal criteria. For example, the lead standard (29 CFR 1910.1025) 
requires that an employee be removed from exposure above the action 
level when an employee's blood lead concentration exceeds a certain 
value. Similarly, the cadmium standard (29 CFR 1910.1047) lists 
objective biological monitoring criteria that trigger medical removal.
    OSHA has also, however, recognized that medical removal is 
sometimes appropriate without regard to specific biological markers 
when, in the judgment of a physician or other licenses health care 
professional, removal is necessary to protect the health of the 
employee. Thus, in addition to objective removal criteria, the lead and 
cadmium standards provide for medical removal based on the discretion 
of a health care professional. The lead standard requires medical 
removal ``on each occasion that a final medical determination results 
in a medical finding, determination, or opinion that the employee has a 
detected medical condition which places the employee at increased risk 
of material impairment to health from exposure to lead.'' Under the 
cadmium standard, an employee must be removed if a written medical 
opinion determines that removal is justified by ``biological monitoring 
results, inability to wear a respirator, evidence of illness, other 
signs or symptoms of cadmium-related dysfunction or disease, or any 
other reason deemed medically sufficient * * *.'' The formaldehyde 
standard (29 CFR 1910.1048) contains no objective criteria for medical 
removal but provides for removal ``if the physician finds that 
significant irritation of the mucosa of the eyes or of the upper 
airways, respiratory sensitization, dermal irritation, or dermal 
sensitization result from workplace formaldehyde exposure and 
recommends restrictions or removal.''
    In the proposed MC rule, OSHA solicited comment on whether it 
should provide for medical removal protection benefits in the final 
rule. 56 FR at 57043 (Nov. 7, 1991). A number of commenters urged the 
Agency to do so on the basis that MRPB would encourage employee 
participation in medical surveillance. In the final rule, OSHA found, 
as it had in the earlier standards discussed above, that MRPB would 
increase employee participation in medical surveillance. However, the 
Agency declined to include such a provision in the standard because it 
did not believe it could offer substantive guidance to medical 
professionals as to when it would be appropriate to remove an employee 
from further MC exposure or to return a removed employee to the 
workplace. 62 FR at 1595.
    The parties to the motion for reconsideration believe they have 
drafted a provision that is narrowly tailored to diseases that MC 
exposure may aggravate and that limits the scope of the provision in a 
way that avoids any undue economic burden on small employers. Under 
their proposal, MRPB would be required only when a physician or other 
licensed health care professional (PLHCP) determines that the 
employee's exposure to MC would contribute to or aggravate the 
employee's existing cardiac, hepatic, neurological (including stroke), 
or skin disease. The parties note that the heart, liver, central 
nervous system, and skin are the organs and systems that OSHA 
identified in the standard as being particularly susceptible to MC-
induced noncarcinogenic health effects. They believe that physicians 
and other licensed health care professionals will be able to render an 
informed judgment as to whether MC exposure will contribute to or 
aggravate an existing disease affecting these systems or organs.
    The parties further propose, in paragraph (j)(10), that the 
standard require the PLHCP to presume that MC exposure below the 8-hour 
TWA PEL

[[Page 24505]]

will not aggravate an existing disease of the heart, liver, central 
nervous system, or skin. Under the proposal, a PLHCP who recommends 
removal of an employee who is exposed below the 8-hour TWA PEL must 
cite specific medical evidence to support the recommendation. Absent 
such evidence, the employer need not remove the employee.
    When a medical determination indicates removal, the parties' 
proposal requires the employer to either transfer the employee to 
comparable work where MC exposures are below the action level or remove 
the employee from MC exposure. For each employee thus removed or 
transferred, the employer must maintain the employee's earnings, 
seniority, and other employment rights and benefits for up to six 
months. The employer may cease paying MRP benefits before the end of 
the six-month period upon receipt of a medical determination that the 
employee's exposure to MC will no longer aggravate any existing 
cardiac, hepatic, neurological, or dermal disease, or upon receipt of a 
medical determination concluding that the employee can never return to 
MC exposure above the action level.
    The parties also propose inclusion of provisions that OSHA has 
routinely included in previous standards that provided for MRPB. These 
provisions (1) allow an employer to condition an employee's receipt of 
MRPB on participation in follow-up medical surveillance; (2) provide 
for a diminution of MRP benefits to offset any workers' compensation 
indemnity payments the employee receives for the same period of time; 
(3) provide an offset of such benefits against compensation from a 
publicly or employer-funded compensation program or income the employee 
receives from other employment that is made possible by virtue of the 
employee's removal, and (4) require the employer to pay MRP benefits if 
it voluntarily removes or restricts an employee due to the effects of 
MC exposure on the employee's medical condition.
    The current standard provides for the employer to select the PLHCP 
who conducts medical surveillance. Under the parties' proposal, the 
health care professional selected by the employer would make the 
medical determination whether to recommend that an employee be removed. 
The parties also, propose to include a provision that allows employees 
the option to have the recommendation of the employer-selected health 
care professional reviewed by a health care professional or the 
employee's choice. If the two health care professionals disagree, they 
jointly designate a third, who must be a specialist in the field at 
issue and whose written opinion is the definitive medical determination 
under the standard. The parties note that, in previous standards that 
have provided for MRPB, OSHA has included similar provisions for multi-
step review to strengthen the basis for medical removal determinations 
and to increase employee confidence in those determinations.
    The parties have also recommended a provision designed to avoid an 
undue burden that could result if a small business would need to 
provide medical removal protection benefits to more than one employee 
at the same time. Paragraph (j)(11)(i)(B) of their proposal states that 
if the employer receives a recommendation for medical removal of an 
additional employee and comparable work that does not involve exposure 
to MC at or above the action level is not available, the employer need 
not remove the additional employee if the employer can demonstrate that 
removal and the costs of MRP benefits to that employee, considering 
feasibility in relation to the size of the employer's business and the 
other requirements of this standard, make further reliance on MRP an 
inappropriate remedy. In such a case, the employer may retain the 
additional employee in the existence job until transfer or removal 
becomes appropriate, provided: (i) The employer or the PLHCP informs 
the additional employee of the risk to the employee's health from 
continued MC exposure; and (ii) the employer ensures that the employee 
receives medical surveillance, including a physical examination, at 
least every 60 days.
    OSHA has carefully considered the parties' proposal in light of its 
earlier concern that a MRPB provision must provide sufficient guidance 
to licensed health care professionals as to when medical removal is 
indicated. OSHA concludes that the MRPB provision recommended by the 
parties delineates with sufficient specificity the circumstances that 
can trigger medical removal protection benefits. First, the provision 
requires MRPB only if the PLHCP finds that the employee has an 
identifiable disease of one or more specific organs that are known to 
be susceptible to MC exposure. Second, by providing for a rebuttable 
presumption that such a disease will not be aggravated by exposure to 
MC below the 8-hour TWA PEL, the parties' proposal ensures that the 
physician or other health care professional will take into account the 
level of methylene chloride to which the worker is exposed. OSHA 
believes that, with these constraints, the parties' proposal will 
improve employee confidence and participation in medical surveillance 
while providing adequate guidance to the physicians and other licensed 
health care professionals who will be conducting medical surveillance 
and making recommendations for medical removal under the standard.
    OSHA also believes that the ancillary provisions of the MRPB 
program recommended by the parties are appropriate. The parties have 
patterned their recommendation on the existing OSHA standards that 
provide for MRPB. OSHA agrees that provisions it has routinely included 
as part of a MRPB program, including those providing for a multi-step 
review process, should be included in the methylene chloride standard. 
OSHA continues to believe that multi-step review is vital to ensuring 
employee confidence in medical removal determinations and is a 
necessary part of any standard that provides for medical removal 
protection benefits.
    The one provision in the parties' proposal with no direct 
counterpart in earlier standards that provide for MRPB is the provision 
in proposed paragraph (j)(11)(i)(B) that would allow an employer who 
has already removed one or more employees under paragraph (j)(11) to 
retain an additional employee in the existing job despite a removal 
recommendation if removal would result in undue economic burden. In 
such a situation, the parties propose that the employer must provide 
enhanced medical surveillance to the employee and must ensure that the 
employee who is not removed is fully informed of the health risk 
presented by continued MC exposure.
    OSHA agrees with the parties that, in the limited circumstances 
specified in this provision, it is appropriate to allow an employer to 
retain an employee in his or her present job, even when the PLHCP has 
recommended removal, provided the employer ensures that the employee 
receives the more frequent medical surveillance specified in the 
proposed provision and is fully aware of the health risk. Frequent 
medical surveillance and full information will enable the employer and 
employee to take steps to minimize the risk under exiting workplace 
conditions, by, for example, implementing those controls that are in 
place and strictly following work practices that are designed to 
minimize the employee's MC exposure. Thus, the parties' proposal 
provides additional protection to those workers who would be retained 
in their current jobs under paragraph (j)(11)(i)(B).

[[Page 24506]]

IV. Extensions of Startup Dates

    The motion for reconsideration requests that the standard's current 
final engineering control startup date of April 10, 2000, which is 
limited in the final standard to employers with fewer than 20 
employees, also apply to employers in the specified application groups 
who have 20-49 employees and to foam fabricators who have 20-149 
employees. According to the parties employers in these application 
groups and size categories, like those with fewer than 20 employees, 
have limited resources with which to develop and implement engineering 
controls and will be able to use those resources more efficiently if 
given additional time to develop and install effective controls and to 
take advantage of the compliance assistance that OSHA plans to offer. 
The motion requests shorter extensions of the engineering control dates 
for larger employers in these application groups.
    The parties further request that respirator use to achieve the 8-
hour TWA PEL (currently required by Aug. 31, 1998 under a partial stay 
issued by OSHA on Dec. 18, 1997, 62 FR 66275) not be required before 
the engineering control startup dates for those employers covered by 
the motion. They contend that workers would be better protected if 
these employers can concentrate their limited resources on implementing 
effective engineering controls rather than diverting part of those 
resources to interim and expensive respiratory protection that would no 
longer be needed a short time later, once full compliance with the 8-
hour TWA PEL and STEL is achieved by engineering controls.
    The following chart shows the startup dates requested by the motion 
for reconsideration. Where the startup date for a provision has already 
passed, the chart lists that provision as being ``in effect.'' For the 
reasons discussed below, OSHA is now proposing to adopt the startup 
dates requested by the parties to the motion.

                                                                 Proposed Startup Dates                                                                 
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                            Selected applications                       
                                                                                     Selected applications   \1\ with 50 or more                        
                                      Employers with fewer      Polyurethane foam        \1\ with 1-49        employees and foam    All other employers 
                                        than 20 employees     mfrs. with 20 or more    employees and foam    fabricators with 150     with 20 or more   
                                                                    employees         fabricators with 1-     or more employees          employees      
                                                                                         149 employees                                                  
--------------------------------------------------------------------------------------------------------------------------------------------------------
Engineering controls to achieve 8-   April 10, 2000          October 10, 1999 \2\..  April 10, 2000 \2\...  April 10, 1999 \2\...  In effect.           
 hour TWA PEL and STEL.               (unchanged from                                                                                                   
                                      current standard).                                                                                                
Respirators to achieve 8-hour TWA    April 10, 2000 \2\....  October 10, 2000 \2\..  April 10, 2000 \2\...  April 10, 1999 \2\...  In effect.           
 PEL.                                                                                                                                                   
Respirators to achieve STEL........  In effect.............  In effect.............  In effect............  In effect............  In effect.           
All other provisions...............  In effect.............  In effect.............  In effect............  In effect............  In effect.           
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ As described earlier, the selected applications are furniture refinishing; general aviation aircraft stripping; product formulation; use of MC-based
  adhesive for boat building and repair, recreational vehicle manufacture, van conversion, or upholstery; and use of MC in construction work for        
  restoration and preservation of buildings, painting and paint removal, cabinet making, or floor refinishing and resurfacing.                          
\2\ Under a partial stay issued on December 18, 1997 (62 FR 66275) these dates are now December 10, 1998 for engineering controls and August 31, 1998   
  for respirators to achieve the 8-hour TWA PEL.                                                                                                        

    OSHA generally agrees that worker protection against MC exposure 
will best be achieved if employers develop and install effective 
engineering controls as soon as practicable. OSHA has long recognized 
that engineering controls are superior to respiratory protection as a 
means of protecting workers against inhalation of toxic chemicals. 
Engineering controls protect workers by reducing the airborne 
concentrations of methylene chloride to or below permitted limits. 
Their effectiveness does not, unlike respirator use, depend on the 
respiratory protection functioning as designed or on employers 
effectively supervising employees to ensure that they use and maintain 
respiratory equipment consistently and properly. Respirators also may 
present safety hazards by limiting workers' mobility, vision, and 
ability to communicate.
    The agency also recognizes that employers require a reasonable 
amount of time to develop and install engineering controls. Engineering 
controls, such as local exhaust ventilation, must be properly designed 
and installed if they are to work efficiently. The parties request that 
OSHA help employers in the application groups for which relief is 
sought to develop effective engineering controls by offering compliance 
assistance that will give those employers guidance as to appropriate 
engineering controls and avoid the uncertainty and expense that would 
result if each employer were to attempt to design and implement its own 
controls. OSHA agrees that compliance assistance would help employers 
use their resources more efficiently and plans to offer such 
assistance. Already, OSHA has developed Fact Sheets for a number of 
applications that identify engineering controls and work practices that 
employers can use to protect their employees against MC exposure. OSHA 
has also developed a small entity compliance guide and has started 
conducting a series of outreach seminars on the MC standard in various 
cities around the country. OSHA intends to add to this information base 
to further help employers to develop engineering controls that would be 
both effective and feasible to implement in their facilities.
    Although OSHA has long recognized the superiority of engineering 
controls, respirator use is necessary when engineering and work 
practice controls cannot achieve the required exposure levels. The 
Agency has consistently required that respirators be used when feasible 
engineering and work practice controls cannot achieve permissible 
exposure limits. OSHA also requires the use of respirators for interim 
protection while engineering controls are being developed and 
installed. For most toxic chemicals, air-purifying respirators, which 
are relatively inexpensive, provide effective protection at most 
workplace exposure levels. However, air-purifying respirators do not 
provide effective protection against MC exposure because MC quickly 
penetrates all currently available organic vapor cartridges. Therefore, 
when respirators are required under the MC standard,

[[Page 24507]]

atmosphere-supplying respirators must be used.
    Atmosphere-supplying respirators are a relatively expensive type of 
respiratory equipment, requiring the employer not only to purchase the 
respiratory equipment itself but also to install an air compressor and 
associated ductwork or rent cylinders containing breathing air. In 
light of the relatively high cost associated with the atmosphere-
supplying respirators required by the MC standard, OSHA agrees with the 
parties that the standard should permit employers in the identified 
application groups to concentrate their limited resources on developing 
permanent engineering solutions rather than diverting part of those 
resources to interim respiratory protection to achieve the 8-hour TWA 
PEL.
    OSHA further notes that the parties' proposal will provide workers 
with significant interim protection before the final compliance 
deadline of April 10, 2000 or by whatever earlier date controls are 
required. First, under the parties' proposal, the STEL will go into 
effect as scheduled, and employers will be required to ensure that some 
combination of engineering controls, work practice controls, and 
respiratory protection reduce exposures below that level. Workers will 
therefore be protected against acute health effects associated with 
high short-term exposure to MC. Moreover, reduction of short-term 
exposures to below the STEL will, in many cases, help reduce 8-hour 
time-weighted average exposures as well and will thereby provide 
workers with some interim protection against the chronic effects of MC 
exposure.
    The parties' proposal will also not delay compliance with the 
requirement that employers implement feasible work practices to reduce 
MC exposures. Such controls can achieve significant reductions in MC 
exposures in many workplaces at low cost. Early implementation of work 
practice controls will also enable employers to evaluate the extent to 
which exposures can be reduced by such controls and will enable them to 
better determine the nature and extent of the engineering controls they 
will need to achieve the 8-hour TWA PEL and STEL. Furthermore, the 
remaining protections of the standard (regulated areas, protective work 
clothing and equipment, hygiene facilities, hazard communication, 
employee information and training, and recordkeeping) will take effect 
as currently scheduled for all employers.
    In many workplace situations, adherence to careful work practices 
will achieve substantial reductions in MC exposures. In its Fact 
Sheets, OSHA has identified feasible work practices for several of the 
application groups (furniture refinishing, polyurethane foam 
manufacturing, construction work) for which the parties seek relief. 
Many of the identified work practices would be feasible for and useful 
to facilities in other application groups as well. To facilitate 
widespread dissemination of the information on work practices in the 
Fact Sheets, OSHA is listing them below.

A. Furniture Refinishers

Keep MC Vapors Contained
     Keep the door to mixing/storage areas closed at all times.
     Store and transport MC only in approved safety containers.
     Properly label all MC containers to indicate their 
contents, hazards, and proper use, storage and disposal. Read these 
labels and follow the directions.
     Keep solution containers closed tightly when not in use.
     Avoid unnecessary transfer or movement of stripping 
solutions.
     Keep dip tanks and reservoir tanks covered when not in 
use.
     Keep the stripping solution at the appropriate temperature 
(often around 70 deg. F). At this temperature, wax in the solution will 
form a vapor barrier that prevents the solution from evaporating too 
quickly. If the temperature is too high or too low, the wax will not 
form a vapor barrier.
     Do not let sludge dry on the stripping table. Place the 
wet sludge in sealed containers for later recovery or disposal, or dry 
it using proper engineering controls (e.g., local exhaust ventilation) 
to capture the MC vapors.
Avoid Breathing MC Vapors
     Turn on the dip tank or stripping table ventilation system 
at least an hour before work begins or leave it on overnight.
     Avoid breathing air directly above the stripping solution 
and dip tank. Do not lean over the tank when working.
     Avoid breathing the air directly above the furniture 
during manual stripping. Do not lean over an area covered with 
stripper.
     Do not work or stand between solution-covered furniture 
and the exhaust system.
     Turn the solution-recycling system off when it is not 
being used.
     Do not rely on the odor of MC to warn you of overexposure. 
People cannot smell MC until vapor concentrations are above 300 ppm, 
which is 12 times higher than the 8-hour time-weighted-average 
permissible exposure limit of 25 ppm. Also, you sense of smell can 
quickly get used to the odor of MC so that you stop noticing it.
     If you become dizzy, light-headed, or have other symptoms 
of MC exposure, go immediately to an area with fresh air.
Minimize the Chance of Spills and Leaks
     Develop and follow your facility's procedures for 
detecting MC leaks from process equipment, holding tanks, and spill 
control devices.
     Frequently inspect process equipment, holding tanks, and 
spill control devices for cracks, loose parts, and other possible 
sources of leaks.
     Where spills occur, follow procedures for containing them.
     Clean up all spills and leaks as quickly as possible.
     Place rags, waste, paper towels, or absorbent used to 
clean spills in a closed container (preferably a non-aluminum, all 
metal safety container) immediately after use.
     Make sure that leaks are repaired and spills cleaned up by 
employees who are trained in proper cleanup methods. These employees 
should wear appropriate personal protective equipment.
Take Extra Precautions in Low and Confined Spaces
    MC vapors are heavier than air, so they tend to move to low, 
unventilated spaces such as tanks and maintenance pits.
     Do not enter or lean into a storage tank, dip tank, or 
low-lying confined area until it has been completely aired out and 
tested. Wear proper PPE and follow the appropriate confined space entry 
procedures outlined in OSHA's Permit Required Confined Spaces standard 
(29 CFR 1910.146).
     Use a long-handled tool to pick up items that you drop 
into a confined space or low-lying area.

B. Polyurethane Foam Manufacturers

Keep MC Vapors Contained
     Keep the doors to the pouring and cooling areas closed at 
all times.
     Store and transport MC only in approved safety containers.
     Properly label all MC containers to indicate their 
contents, hazards, and proper use, storage and disposal. Read these 
labels and follow the directions.
     Keep MC containers closed tightly when not in use.
     Avoid unnecessary transfer or movement of MC.
     Keep the openings on the sides of the tunnel closed when 
it is not in use.

[[Page 24508]]

This keeps MC vapors from escaping and ensures that the makeup air 
system at the end of the tunnel runs well.
Avoid Breathing MC Vapors
     Turn on local exhaust ventilation systems in the tunnel 
and cooling rooms at least an hour before work begins or leave them on 
overnight.
     Turn on the general ventilation system in the cooling room 
at least an hour before work beings or leave it on overnight.
     Avoid breathing air directly above cooling foam.
     When possible, minimize the amount of time spent near the 
cooling foam and tunnel openings because these areas are likely to have 
the highest levels of MC vapors.
     Do not work or stand between cooling foam and the exhaust 
system.
     Do not rely on the odor of MC to warn you of overexposure. 
People cannot smell MC until vapor concentrations are above 300 ppm, 
which is 12 times higher than the 8-hour time-weighted-average 
permissible exposure limit of 25 ppm. Also, you sense of smell can 
quickly get used to the odor of MC so that you stop noticing it.
     If you become dizzy, light-headed, or have other symptoms 
of MC exposure, go immediately to an area with fresh air.
Minimize the Chance of Spills and Leaks
     Develop and follow your facility's procedures for 
detecting MC leaks from process equipment, holding tanks, and spill 
control devices.
     Frequently inspect the tunnel and other equipment for 
cracks, loose parts, and other possible sources of leaks.
     Clean up all spills and leaks as quickly as possible.
     Place rags, waste, paper towels, or absorbent used to 
clean spills in a closed container (preferably a non-aluminum, all 
metal safety container) immediately after use.
     Make sure that leaks are repaired and spills cleaned up by 
employees who are trained in proper cleanup methods. These employees 
should wear appropriate personal protective equipment.
Take Extra Precautions in Low and Confined Spaces
    MC vapors are heavier than air, so they tend to move to low, 
unventilated spaces.
     Do not enter or lean into a low-lying confined area until 
it has been completely aired out and tested. Wear proper PPE and follow 
the appropriate confined space entry procedures outlined in OSHA's 
Permit Required Confined Spaces standard (29 CFR 1910.146).
     Use a long-handled tool to pick up items that you drop 
into a confined space or low-lying area.

C. Construction Work

Keep MC Vapors Contained
     Store and transport MC products only in approved safety 
containers.
     Properly label all MC containers to indicate their 
contents, hazards, and proper use, storage and disposal. Read these 
labels and follow the directions.
     Keep MC product containers closed tightly when not in use.
     Avoid unnecessary transfer or movement of MC products.
Avoid Breathing MC Vapors
     Avoid breathing the air directly above areas covered with 
MC. Do not lean over an area covered with MC.
     Do not work or stand between MC-covered areas and the 
exhaust system.
     Do not rely on the odor of MC to warn you of overexposure. 
People cannot smell MC until vapor concentrations are above 300 ppm, 
which is 12 times higher than the 8-hour time-weighted-average 
permissible exposure limit of 25 ppm.
    Also, your sense of smell can quickly get used to the odor of MC so 
that you stop noticing it.
     If you become dizzy, light-headed, or have other symptoms 
of MC exposure, go immediately to an area with fresh air.
Minimize the Chance of Spills and Leaks
     Develop and follow procedures for containing MC spills or 
leaks.
     Frequently inspect MC product containers for cracks or 
other possible sources of leaks.
     Clean up all spills and leaks as quickly as possible.
     Place rags, waste, paper towels, or absorbent used to 
clean spills in a closed container (preferably a non-aluminum, all 
metal safety container) immediately after use.
     Make sure that leaks are repaired and spills cleaned up by 
employees who are trained in proper cleanup methods. These employees 
should wear appropriate personal protective equipment.
Take extra Precautions in Low and Confined Spaces
    MC vapors are heavier than air, so they tend to move to low, 
unventilated spaces.
     Do not enter or lean into a low-lying confined area until 
it has been completely aired out and tested. Wear proper PPE and follow 
the appropriate confined space entry procedures outlined in OSHA's 
Permit Required Confined Spaces standard (29 CFR 1910.146).
     Use a long-handled tool to pick up items that you drop in 
area where MC is being used.

V. Preliminary Economic and Regulatory Flexibility Analysis

    OSHA is proposing to revise paragraph (j), Medical Surveillance, of 
the final rule governing occupational exposure to methlylene chloride 
(MC) (29 CFR 1910.1052) to add medical removal protection benefits to 
the rule. This preliminary economic analysis estimates the costs of 
complying with the proposed MRP provisions and then assesses the 
economic feasibility and potential economic impacts of these costs on 
firms in the affected sectors. The information used in this analysis is 
taken from the exposure profile, industry profile, and economic impacts 
analysis presented in the Final Economic Analysis (Ex. 129) that 
accompanied OSHA's final rule for methylene chloride (Federal Register 
Vol. 62, 7, pp. 1494 to 1619). Relying on the data developed for the 
analysis to support this proposed revision to the final rule ensures 
analytical consistency and comparability across the two economic 
analysis documents.
    OSHA's final MC rule did not contain medical removal protection 
provisions. The revisions being proposed today respond to a motion for 
reconsideration filed by the United Auto Workers (UAW), the Halogenated 
Solvents Industry Alliance, Inc., and others. As requested in that 
motion, OSHA is proposing to add paragraphs (j)(9)(i) (A) and (B), 
(j)(10), (j)(11), (j)(12), (j)(13), and (j)(14), dealing with medical 
removal protection, medical removal protection benefits, voluntary 
removal or restriction of an employee, and multiple health care 
professional review, respectively, to the final rule. Medical removal 
protection (MRP) would apply only under certain limited circumstances, 
i.e., medical removal protection would be required only if a physician 
or other licensed health care professional finds that exposure to MC 
may contribute to or aggravate the employee's existing cardiac, 
hepatic, neurological (including stroke), or dermal disease. The 
proposed rule instructs the physician or other licensed health care 
professional to presume that a medical condition is unlikely to require 
removal form exposure to MC,

[[Page 24509]]

unless medical evidence indicates to the contrary, if the employee is 
not exposed to MC at concentrations above the 8-hour TWA PEL of 25 ppm. 
The physician or other licensed health care professional may also 
recommend removal from exposure to MC for any other condition that 
would, in the health care professional's opinion, place the employee's 
health at risk of material impairment from exposure to MC, but MRP 
would only be triggered by a finding that exposure to MC may contribute 
to or aggravate the employee's existing cardiac, hepatic, neurological 
(including stroke), or dermal disease.
    Any employee medically removed must (1) be provided with comparable 
work where MC exposures are below the action level, or (2) be 
completely removed from MC exposure. The employee's total pay, benefits 
and seniority must be maintained throughout the period of medical 
removal protection, even if the only way to remove the employee from MC 
exposure is to send him or her home for the duration of the medical 
removal protection period. The employer may reduce the amount paid to 
the removed worker to the extent that the worker's previous pay has 
been offset by other compensation (such as worker's compensation 
payments) or by wages from another job made possible by the medical 
removal.
    The proposal would require employers to maintain medical removal 
protection benefits for up to six months. Medical removal protection 
may be terminated in less than 6 months if a medical determination 
shows that the employee may return to MC exposure, or a medical 
determination is made that the employee can never return to MC 
exposure.
    In situations in which no comparable work is available for the 
medically removed employee, the proposal would allow the employer to 
demonstrate that the medical removal and the costs of medical removal 
protection benefits, considering feasibility in relation to the size of 
the employer's business and the other requirements of this standard, 
make reliance on medical removal protection an inappropriate remedy. In 
such a situation, the employer may retain the employee in the existing 
job until transfer or removal becomes appropriate, provided that the 
employer ensures that the employee receives additional medical 
surveillance, including a physical examination at least every 60 days 
until removal or transfer occurs, and that the employer or PLHCP 
informs the employee of the risk to the employee's health from 
continued MC exposure.
    In conducting this economic analysis, OSHA has estimated the number 
of workers with the four listed types of conditions (neurological, 
hepatic, cardiac, and dermal disease) that can trigger MRP. OSHA has 
assumed that medical removal protection would be extended only to 
employees exposed above the PEL, as reflected by the presumption. This 
analysis also assumes that all employers will provide medical removal 
protection whenever a physician or other licensed health care provider 
recommends removal, i.e., OSHA has not quantified the number of times 
small firms may retain an employee for whom a removal recommendation 
has been made in the employee's existing job due to the employer's 
financial inability to remove the employee. Because some very small 
firms may find that medical removal protection is infeasible in their 
circumstances but this cost analysis assumes that all such employees 
will be removed, OSHA believes that this analysis is likely to 
overestimate the costs associated with MRP.

Cost of Medical Removal Protection Provisions

    OSHA's estimates of the costs of the proposed medical removal 
protection provisions are calculated based on the number of workers 
eligible for medical removal protection times the frequency of the 
medical conditions that would trigger medical removal protection in the 
exposed population times the costs of medical removal protection for 
each type of medical condition.
Number of Workers Eligible for Medical Removal Protection Under the 
Proposal
    Because of the presumption stated explicitly in the proposed 
revisions, medical removal protection will be limited in almost all 
cases to employees exposed to MC at concentrations above the PEL of 25 
PPM as an 8-hour TWA. The Final Economic Analysis (Ex. 129) estimated 
that approximately 55,000 employees in all affected application groups 
are currently exposed above 25 ppm. This estimate is used here to 
calculate the number of employees potentially eligible for medical 
removal protection during the year in which medical removal protection 
would be in effect but the engineering control requirements of the rule 
would not yet be in effect for some of the application groups. Once the 
implementation of engineering controls is required, OSHA assumes, for 
the purposes of this analysis, that 10 percent of those employees 
previously exposed to an 8-hour TWA above 25 ppm (5,500 employees) 
would continue to be exposed to an 8-hour TWA above 25 ppm.
    OSHA believes that reliance on these assumptions will lead to an 
overestimate of the number of employees eligible for medical removal 
protection because some firms will have implemented controls and lower 
the exposure of their employees well before the final standard requires 
them to do so. Once the standard requires employers to implement 
engineering controls, OSHA's Final Economic Analysis (Ex. 129) 
estimated that the exposure of almost all employees would be reduced to 
MC levels below 25 ppm as a 8-hour TWA. To capture all costs 
potentially associated with the proposed medical removal protection 
provisions, OSHA has assumed for this analysis that some employees will 
continue to be exposed above 25 ppm.
Frequency of Medical Removal Protection Under the Proposed Provisions
    The proposed changes to the occupational exposure to methylene 
chloride standard allow for medical removal protection in the event 
that exposure to methylene chloride ``may contribute to or aggravate 
existing cardiac, hepatic, neurological (including stroke), or skin 
disease.'' Medical removal protection does not apply if the condition 
is such that removal from MC exposure must be permanent.
    OSHA believes that MC-induced or aggravated neurological symptoms 
(other than stoke) occur infrequently and that when such protection is 
triggered by neurological manifestations (other than stroke), the 
period of time involved in the removal will be relatively brief. OSHA 
also believes that MC-induced or aggravated heart conditions or strokes 
are likely to result in permanent medical removal, and thus that 
employers will not incur the costs of medical removal protection in 
these cases. This analysis therefore focuses on medical removal 
protection for MC-induced or aggravated dermatitis or abnormal hepatic 
conditions. Each of these conditions is likely to resolve with time, 
proper treatment, or both, and these are therefore the conditions 
likely to result in a determination that temporary medical removal 
protection, rather than permanent removal, is needed.
    Because the proposal would provide for medical removal protection 
in situations where exposure to MC contributes to or aggravates the 
listed condition, this analysis focuses on the frequency with which 
each covered

[[Page 24510]]

condition occurs in the working population, and not simply on the 
frequency with which MC causes these conditions. For the first year 
after the MRP provisions are in effect, OSHA has no evidence that 
hepatic conditions are more prevalent in workplaces that use MC than in 
the general working age population and therefore assumes that the 
prevalence of hepatic conditions will be the same as in the general 
working age population (18-65). OSHA estimates that 5 percent of the 
working population will be found on evaluation to have hepatic 
conditions sufficiently abnormal to trigger medical removal.
    For dermatitis, which is seldom a lasting condition, OSHA similarly 
assumes, in the absence of evidence to the contrary, that the 
prevalence in the MC-exposed workforce is the same as the rate in the 
general working age population. For dermatitis, Vital and Health 
Statistics (National Center for Health Statistics, 1995) reports that, 
in 1993, the prevalence of dermatitis was 2.93 percent for persons 
between 18 and 45 and 2.18 percent for persons between 45 and65. 
Weighting using the BLS data cited above, OSHA finds that 2.7 percent 
of the MC-exposed workforce will be found on the first required medical 
evaluation to have dermatitis and will be medically removed.
    After the proposed standard has been in effect for the first year, 
OSHA assumes that the prevalence of dermatitis will continue at the 
same rate. For liver conditions, OSHA assumes that most of the 
conditions that triggered removal in the first year will have been 
resolved and that the number of older cases that flare up and have to 
be treated again, combined with new cases that trigger medical removal, 
will occur at a combined rate \1/5\ that of the initial rate.
Costs of Medical Removal Protection
    Employers incur three kinds of costs for medical removal 
protection: costs for medical evaluations not already required; costs 
resulting from changing the employee's job, such as those related to 
retraining and lost productivity; and, where alternative jobs that do 
not involve MC exposure are not available, the costs of keeping a 
worker who is not working on the payroll.
    Employers may incur costs for medical evaluations (over and above 
those already required for medical surveillance) for two reasons: to 
determine if the employee can return to work, and to determine, using 
multiple PLHCP review, whether the initial medical determination was 
correct. Because the proposal allows employees to be removed from 
medical removal protection status only on the basis of a new medical 
determination, every instance of medical removal protection will 
require one additional examination. OSHA estimated the cost of a 
medical examination at $130 in the Final Economic Analysis (Ex. 129). 
Every case of medical removal protection would require at least one 
additional medical evaluation. In addition, OSHA estimates that 10 
percent of all removed cases will require a second medical evaluation 
either for the purpose of multiple health care professional review or 
because the first examination showed that the employee could not yet be 
returned to normal duty.
    The largest MRP-related costs in almost all cases will be the cost 
of paying for time away from work for the removed employee. OSHA 
estimates that the typical dermatitis case will involve 6 days away 
from work. BLS (BLS, Occupational Injuries and Illnesses: Counts, 
Rates, and Characteristics, 1994) reports that, in 1994, the typical 
lost worktime case of dermatitis involved 3 days away from work. OSHA 
allowed an additional three days to allow time for a return-to-work 
determination to be made. For medical removal for hepatic conditions, 
OSHA estimates that a 4-week period of medical removal will normally be 
sufficient to provide for stabilization and a return to the normal 
range for the typical case of elevated liver enzymes. Because almost no 
cases will be resolved in less than 4 weeks and a small number of cases 
(such as those involving serious liver disease) may take much longer to 
resolve, OSHA's cost estimate estimates 5 weeks as the average period 
of medical removal for these cases.
    For the short-term medical removal associated with dermatitis, OSHA 
has conservatively assumed that the employee will be paid full wages 
and benefits even though not at work. For the longer term medical 
removal associated with hepatic conditions, OSHA estimates that, in 
firms with more than 20 employees, alternative jobs not involving 
exposure to MC will be found for affected employees. OSHA estimates the 
costs of moving employees to alternative jobs as equivalent to the loss 
of 20 person hours in lost productivity and/or retraining expenses. For 
firms with fewer than 20 employees, OSHA expects that there may be more 
difficulty finding alternative positions both because fewer alternative 
positions are available and because more positions in the establishment 
are likely to involve exposure to MC.
    For the very small firms in furniture stripping, where all jobs may 
involve exposure to MC, OSHA has assumed that all cases of medical 
removal will involve removing employees from work entirely, and thus 
that employers will incur the full costs of the employee's wages and 
benefits for the five weeks the employee is medically removed. Firms 
with fewer than 20 employees in other application groups tend to be 
somewhat larger than in furniture stripping and will therefore be more 
likely to have work that does not involve exposure to MC at levels 
above the action level. For example, in such small-business-dominated 
application groups as printing shops, and in small cold cleaning and 
paint stripping operations, exposure to MC tends to involve only a 
single employee and is commonly intermittent even for that employee. 
For establishments with fewer than 20 employees in application groups 
other than furniture stripping, OSHA estimates that 50% will be able to 
find alternative employment and 50% will need to send the employee home 
because alternative jobs without MC exposure cannot be found.
Annualized Cost Estimates
    Table 1 shows OSHA's estimated annualized costs for firms in each 
application group. The total annualized costs for medical removal 
protection are estimated to be $920,387 per year for all affected 
employers. The greatest costs are in the cold cleaning application 
group, the all other industrial paint stripping application group, the 
construction application group, and the furniture stripping application 
group. All of these application groups have annualized MRP costs in 
excess of $100,000 per year.

  Table 1.--Annualized Costs of MRP for Methylene Chloride Application  
                                 Groups                                 
------------------------------------------------------------------------
                                                              Annualized
                     Application group                        costs ($) 
------------------------------------------------------------------------
Methylene Chloride Manufacturing...........................           70
Distribution/Formulation of Solvents.......................        6,597
Metal Cleaning:                                                         
    Cold Degreasing and Other Cold Cleaning................      307,216
    Open-Top Vapor Degreasing..............................        2,709
    Conveyorized Vapor Degreasing..........................          378
    Semiconductors.........................................        1,147
    Printed Circuit Boards.................................            0
Aerosol Packaging..........................................        2,875
Paint Remover Manufacturing................................          593
Paint Manufacturing........................................          823
Paint Stripping:                                                        
    Aircraft Stripping.....................................        9,662

[[Page 24511]]

                                                                        
    Furniture Stripping....................................       80,579
    All Other Industrial Paint Stripping...................      206,619
Flexible Polyurethane Foam Manufacturing...................        4,296
Plastics and Adhesives Manufacturing and Use...............       52,639
Ink and Ink Solvent Manufacturing..........................          182
Ink Solvent Use............................................       53,298
Pesticide Manufacturing and Formulation....................          541
Pharmaceutical Manufacturing...............................        3,576
Solvent Recovery...........................................            0
Film Base Manufacturing....................................            0
Polycarbonate Manufacturing................................            0
Construction...............................................      115,297
Shipyards..................................................       18,652
                                                            ------------
    Total, All Application Groups..........................      920,387
------------------------------------------------------------------------
Source: Office of Regulatory Analysis; OSHA; Department of Labor.       


Table 2.--Screening Analysis To Identify Possible Economic Impacts of the Proposed MC Standard's Medical Removal
                                                   Provisions                                                   
----------------------------------------------------------------------------------------------------------------
                                                                                  Annualized costs of compliance
                                                                     Number of   -------------------------------
                        Application group                            affected      as percent of   as percent of
                                                                  establishments       sales          profit    
----------------------------------------------------------------------------------------------------------------
Manufacture of MC...............................................               4          0.0000          0.0004
Distribution/Formulation of Solvents............................             320          0.0003          0.0046
Metal Cleaning:                                                                                                 
    Cold Degreasing and Other Cold Cleaning.....................          23,717          0.0001          0.0021
    Open-Top Vapor Degreasing...................................             278          0.0001          0.0016
    Conveyorized Vapor Degreasing...............................              45          0.0001          0.0014
    Semiconductors..............................................             239          0.0000          0.0002
    Printed Circuit Boards......................................             141          0.0000          0.0000
Aerosol Packaging...............................................              50          0.0001          0.0012
Paint Remover Manufacturing.....................................              80          0.0001          0.0015
Paint Manufacturing.............................................              49          0.0001          0.0027
Paint Remover Use (Paint Stripping):                                                                            
    Aircraft Stripping..........................................             300          0.0001          0.0017
    Furniture Stripping.........................................           6,152          0.0154          0.2977
    All Other Industrial Paint Stripping........................          35,041          0.0000          0.0010
Flexible Polyurethane Foam Manufacturing........................             100          0.0003          0.0093
Plastics and Adhesives Manufacturing and Use....................           3,487          0.0000          0.0000
Ink and Ink Solvent Manufacturing...............................              15          0.0000          0.0003
Ink Solvent Use.................................................          11,869          0.0004          0.0098
Pesticide Manufacturing and Formulation.........................              60          0.0001          0.0018
Pharmaceutical Manufacturing....................................             108          0.0000          0.0004
Solvent Recovery................................................              35          0.0000          0.0000
Film Base.......................................................               1          0.0000          0.0000
Polycarbonates..................................................               4          0.0000          0.0000
Construction....................................................           9,504          0.0027          0.0705
Shipyards.......................................................              25          0.0025          0.0655
                                                                 -----------------------------------------------
      All Application Groups....................................          91,624          0.0014          0.0296
----------------------------------------------------------------------------------------------------------------
Source: Office of Regulatory Analysis; OSHA; Department of Labor                                                

Economic Impacts

    Table 2 combines the cost data from Table 1 and the economic 
profile information provided in the Final Economic Analysis for the 
Methylene Chloride rule (Ex. 129) to provide estimates of the potential 
impacts of these compliance costs on firms in affected application 
groups. The proposed medical removal protection is clearly economically 
feasible: on average, annualized compliance costs amount only to 0.0014 
percent of estimated sales and 0.03 percent of profits. For all but one 
application group--furniture stripping--compliance costs are less than 
0.07 percent of profits, and less than 0.003 percent of the value of 
sales. Even in furniture stripping, the annualized costs of medical 
removal protection are still only 0.015 percent of sales and 0.3 
percent of profits. Impacts of this magnitude do not threaten the 
economic feasibility of firms in any affected application group. If 
highly unusual circumstances were to arise that pose such a threat, the 
proposed standard allows specifically for the cost impact to be 
considered on a case-by-case basis.
    OSHA's cost methodology for this proposal tends to overestimate the 
costs and economic impacts of the standard for several reasons. First, 
OSHA has not taken into account cost savings that employers will 
realize from the extended startup dates that are being proposed. As 
discussed above, by extending the startup date for the use of 
respirators to achieve the 8-hour TWA PEL, this proposal will enable 
some employers to avoid using respirators at all because they will 
achieve the 8-hour TWA PEL by means of engineering controls before the 
date that respirator

[[Page 24512]]

use is required. Such employers will achieve significant cost savings 
as compared to the current standard. OSHA has not, however, attempted 
to quantify those savings.
    Other aspects of OSHA's methodology also tend to result in cost 
overestimates. OSHA's use of general population prevalence data to 
estimate the prevalence of conditions that might lead to medical 
removal overestimates costs by ignoring the possibility that workers in 
MC establishments may be healthier than the general population, i.e., 
it ignores the ``healthy worker'' effect. OSHA has also assumed that 
all unusual hepatic conditions will lead to medical removal, when in 
many cases no medical removal protection will be necessary. Finally, 
OSHA has also included in its cost estimate all cases involving medical 
removal, when it is in fact likely that some smaller firms would be 
able to argue that the cost of extending MRP benefits to an additional 
employee would make reliance on MRP an inappropriate remedy and thereby 
avoid removing that additional employee, as allowed by the proposal.

Regulatory Flexibility Screening Analysis and Certification

    Tables 3 and 4 provide a regulatory flexibility screening analysis. 
As in the analysis for all firms in Table 2, OSHA used the cost data 
presented in Table 1 in combination with the data on small firms 
presented in the Final Economic Analysis (Ex. 129). Table 3 shows 
annualized compliance costs as a percentage of revenues and profits 
using SBA definitions of small firms for each relevant SIC code within 
each application group. This analysis shows that costs as a percentage 
of revenues and profits are slightly greater than is the case for all 
firms in the SIC, but still average only 0.0017 percent of revenues and 
0.035 percent of profits. The most heavily impacted industry is 
furniture stripping, but the impacts in this group are the same for all 
firms in the group because all furniture stripping firms are small 
using the SBA definition.

 Table 3.--Screening Analysis of Potential Economic Impacts on Smaller Firms (Small Establishments and Firms as 
                            Defined by SBA Under Section 3 of The Small Business Act)                           
----------------------------------------------------------------------------------------------------------------
                                                                     Number of      Costs as a      Costs as a  
                                                                       small       percentage of   percentage of
                        Application group                         establishments    profits for      sales for  
                                                                     affected       small firms     small firms 
----------------------------------------------------------------------------------------------------------------
Manufacture of MC...............................................               0              NA              NA
Distribution/Formulation of Solvents............................             278          0.0005          0.0072
Metal Cleaning:                                                                                                 
    Cold Degreasing and Other Cold Cleaning.....................          22.365          0.0003          0.0067
    Open-Top Vapor Degreasing...................................             262          0.0003          0.0051
    Conveyorized Vapor Degreasing...............................              42          0.0002          0.0044
    Semiconductors..............................................             185          0.0000          0.0002
    Printed Circuit Boards......................................             109          0.0000          0.0000
Aerosol Packaging...............................................              47          0.0002          0.0019
Paint Remover Manufacturing.....................................              77          0.0001          0.0026
Paint Manufacturing.............................................              62          0.0002          0.0045
Paint Remover Use (Paint Stripping).............................              77          0.0001          0.0026
    Aircraft Stripping..........................................             173          0.0004          0.0088
    Furniture Stripping.........................................           6,152          0.0154          0.2977
    All Other Industrial Paint Stripping........................          33,044          0.0001          0.0029
Flexible Polyurethane Foam Manufacturing........................              49          0.0001          0.0034
Plastics and Adhesives Manufacturing and Use....................           3,281          0.0002          0.0031
Ink and Ink Solvent Manufacturing...............................              11          0.0000          0.0004
Ink Solvent Use.................................................           9,210          0.0005          0.0106
Pesticide Manufacturing and Formulation.........................              49          0.0001          0.0034
Pharmaceutical Manufacturing....................................              15              NA              NA
Solvent Recovery................................................              24          0.0000          0.0000
Film Base.......................................................               0              NA              NA
Polycarbonates..................................................               0              NA              NA
Construction....................................................           9,086          0.0033          0.0866
Shipyards.......................................................               0              NA             0NA
      All Application Groups....................................          84,573          0.0017          0.0352
----------------------------------------------------------------------------------------------------------------
NA=No small firms in this application group.                                                                    
Source: Office of Regulatory Analysis; OSHA; Department of Labor.                                               


        Table 4.--Screening Anaylsis of Potential Economic Impacts on Firms With Fewer Than 20 Employees        
----------------------------------------------------------------------------------------------------------------
                                                                     Number of      Costs as a      Costs as a  
                                                                       small       percentage of   percentage of
                        Application group                         establishments    profits for      sales for  
                                                                     affected       small firms     small firms 
----------------------------------------------------------------------------------------------------------------
Manufacture of MC...............................................               0              NA              NA
Distribution/Formulation of Solvents............................             139         0.0018%         0.0322%
Metal Cleaning:                                                                                                 
    Cold Degreasing and Other Cold Cleaning.....................           9,223          0.0005          0.0110
    Open-Top Vapor Degreasing...................................               0              NA              NA
    Conveyorized Vapor Degreasing...............................              11          0.0005          0.0132
    Semiconductors..............................................               0              NA              NA
    Printed Circuit Boards......................................              20          0.0000          0.0000
Aerosal Packaging...............................................              10          0.0006          0.0072
Paint Remover Manufacturing.....................................              34          0.0003          0.0114

[[Page 24513]]

                                                                                                                
Paint Manufacturing.............................................               7          0.0006          0.0194
Paint Remover Use (Paint Stripping).............................              34          0.0003          0.0114
    Aircraft Stripping..........................................              75          0.0011          0.0335
    Furniture Stripping.........................................           5.900          0.0155          0.3034
    All Other Industrial Paint Stripping........................          25,441          0.0002          0.0042
Flexible Polyurethane Foam Manufacturing........................               8          0.0010          0.0386
Plastics and Adhesives Manufacturing and Use....................             498          0.0013          0.0264
Ink and Ink Solvent Manufacturing...............................               3          0.0002          0.0022
Ink Solvent Use.................................................           5,395          0.0011          0.0237
Pesticide Manufacturing and Formulation.........................              40          0.0010          0.0386
Pharmaceutical Manufacturing....................................               0              NA              NA
Solvent Recovery................................................              17          0.0000          0.0000
Film Base.......................................................               0              NA              NA
Polycarbonates..................................................               0              NA              NA
Construction....................................................           9,085          0.0044          0.1596
Shipyards.......................................................               0              NA              NA
                                                                 -----------------------------------------------
      All Application Groups....................................          55,907          0.0026          0.0644
----------------------------------------------------------------------------------------------------------------
NA=No small firms in this application group.                                                                    
Source: Office of Regulatory Analysis: OSHA; Department of Labor.                                               

    As noted in the discussion of costs, firms with fewer than 20 
employees are much more likely to incur greater costs for medical 
removal protection because such firms may have difficulty in finding a 
job that does not involve exposure to MC at levels above the action 
level. OSHA therefore examined annualized compliance costs as a 
percentage of sales and profits for firms with fewer than 20 employees.
    Table 4 shows the results of this analysis. For the typical 
affected firm with fewer than 20 employees, the annualized costs of 
medical removal protection represent 0.0026 percent of sales and 0.064 
percent of profits. Furniture stripping has the greatest potential 
impacts--annualized costs are 0.016 percent of sales and 0.3 percent of 
profits for firms in this application group. These impacts do not 
constitute significant impacts, as envisioned by the Regulatory 
Flexibility Act. However, because unusually prolonged medical removal 
without an alternative job within the establishment might present 
problems for these very small firms, the proposed standard includes a 
provision requiring special consideration of the economic burden 
imposed by medical removal protection when an employer would otherwise 
need to provide MRP benefits to more than one employee. This provision 
ensures that impacts are not unduly burdensome even in rare and unusual 
circumstances. Therefore, based on its analyses both of impacts and 
small firms using the SBA definitions, and of very small firms with 
fewer than 20 employees, OSHA certifies that the proposed MRP 
provisions will not have a significant impact on a substantial number 
of small entities.

VI. Public Participation

    Comments should be submitted to the OSHA Docket Office by June 3, 
1998.
    Note: OSHA is only reopening the record for comments on the two 
issues raised in the Motion for Reconsideration: the compliance dates 
and medical removal protection. It is not reopening the record or 
requesting comments on any other issues pertaining to the methylene 
chloride standard.
    Authority and Signature: This document was prepared under the 
direction of Charles N. Jeffress, Assistant Secretary of Labor for 
Occupational Safety and Health, U.S. Department of Labor, 200 
Constitution Avenue, NW., Washington, DC 20210.

List of Subjects in 29 CFR Part 1910

    Chemicals, Hazardous substances, Occupational safety and health.

    Signed at Washington, DC, this 29th day of April, 1998.
Charles N. Jeffress,
Assistant Secretary of Labor.

    Part 1910 of title 29 of the Code of Federal Regulations is 
proposed to be amended as follows:

PART 1910--[AMENDED]

    1. The general authority citation for subpart Z of CFR 29 part 1910 
continues to read, in part, as follows:

    Authority: Sections 4, 6, and 8 of the Occupational Safety and 
Health Act of 1970 (29 U.S.C. 653, 655, and 657); Secretary of 
Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 
FR 35736), 1-90 (55 FR 9033), or 6-96 (62 FR 111), as applicable; 
and 29 CFR Part 1911.
* * * * *
    2. Section 1910.1052 would be amended by revising paragraphs 
(j)(9)(i) (A) and (B) and paragraph (n)(2), and by adding paragraphs 
(j)(10), (j)(11), (j)(12), (j)(13), and (j)(14) as follows:


Sec. 1910.1052  Methylene Chloride.

* * * * *
    (j) Medical surveillance.
* * * * *
    (9) Written medical opinions.
    (i) * * *
    (A) The physician or other licensed health care professional's 
opinion concerning whether exposure to MC may contribute to or 
aggravate the employee's existing cardiac, hepatic, neurological 
(including stroke) or dermal disease or whether the employee has any 
other medical condition(s) that would place the employee's health at 
increased risk of material impairment from exposure to MC.
    (B) Any recommended limitations upon the employee's exposure to MC, 
including removal from MC exposure, or upon the employee's use of 
respirators, protective clothing, or other protective equipment.
* * * * *
    (10) Medical Presumption. For purposes of this paragraph (j) of 
this section, the physician or other licensed health care professional 
shall presume,

[[Page 24514]]

unless medical evidence indicates to the contrary, that a medical 
condition is unlikely to require medical removal from MC exposure if 
the employee is not exposed to MC above the 8-hour TWA PEL. If the 
physician or other licensed health care professional recommends removal 
for an employee exposed below the 8-hour TWA PEL, the physician or 
other licensed health care professional shall cite specific medical 
evidence, sufficient to rebut the presumption that exposure below the 
8-hour TWA PEL is unlikely to require removal, to support the 
recommendation. If such evidence is cited by the physician or other 
licensed health care professional, the employer must remove the 
employee. If such evidence is not cited by the physician or other 
licensed health care professional, the employer is not required to 
remove the employee.
    (11) Medical Removal Protection (MRP). (i) Temporary medical 
removal and return of an employee.
    (A) Except as provided in paragraph (j)(10) of this section, when a 
medical determination recommends removal because the employee's 
exposure to MC may contribute to or aggravate the employee's existing 
cardiac, hepatic, neurological (including stroke), or skin disease, the 
employer must provide medical removal protection benefits to the 
employee and either:
    (1) Transfer the employee to comparable work where methylene 
chloride exposure is below the action level; or
    (2) Remove the employee from MC exposure.
    (B) If comparable work is not available and the employer is able to 
demonstrate that removal and the costs of extending MRP benefits to an 
additional employee, considering feasibility in relation to the size of 
the employer's business and the other requirements of this standards, 
make further reliance on MRP an inappropriate remedy, the employer may 
retain the additional employee in the existing job until transfer or 
removal becomes appropriate, provided:
    (1) The employer ensures that the employee receives additional 
medical surveillance, including a physical examination at least every 
60 days until transfer or removal occurs; and
    (2) The employer or PLHCP informs the employee of the risk to the 
employee's health from continued MC exposure.
    (C) The employer shall maintain in effect any job-related 
protective measures or limitations, other than removal, for as long as 
a medical determination recommends them to be necessary.
    (ii) End of MRP benefits and return of the employee to former job 
status.
    (A) The employer may cease providing MRP benefits at the earliest 
of the following:
    (1) Six months;
    (2) Return of the employee to the employee's former job status 
following receipt of a medical determination concluding that the 
employee's exposure to MC no longer will aggravate any cardiac, 
hepatic, neurological (including stroke), or dermal disease;
    (3) Receipt of a medical determination concluding that the employee 
can never return to MC exposure.
    (B) For the purposes of this paragraph (j), the requirement that an 
employer return an employee to the employee's former job status is not 
intended to expand upon or restrict any rights an employee has or would 
have had, absent temporary medical removal, to a specific job 
classification or position under the terms of a collective bargaining 
agreement.
    (12) Medical Removal Protection Benefits. (i) For purposes of this 
paragraph (j), the term medical removal protection benefits means that, 
for each removal, an employer must maintain for up to six months the 
earnings, seniority, and other employment rights and benefits of the 
employee as though the employee had not been removed from MC exposure 
or transferred to a comparable job.
    (ii) During the period of time that an employee is removed from 
exposure to MC, the employer may condition the provision of medical 
removal protection benefits upon the employee's participation in 
follow-up medical surveillance made available pursuant to this section.
    (iii) If a removed employee files a workers' compensation claim for 
an MC-related disability, the employer shall continue the MRP benefits 
required by this paragraph until either the claim is resolved or the 6-
month period for payment of MRP benefits has passed, whichever occurs 
first. To the extent the employee is entitled to indemnity payments for 
earnings lost during the period of removal, the employer's obligation 
to provide medical removal protection benefits to the employee shall be 
reduced by the amount of such indemnity payments.
    (iv) The employer's obligation to provide medical removal 
protection benefits to a removed employee shall be reduced to the 
extent that the employee receives compensation for earnings lost during 
the period of removal from either a publicly or an employer-funded 
compensation program, or receives income from employment with another 
employer made possible by virtue of the employee's removal.
    (13) Voluntary Removal or Restriction of an Employee. Where an 
employer, although not required by this section to do so, removes an 
employee from exposure to MC or otherwise places any limitation on an 
employee due to the effects of MC exposure on the employee's medical 
condition, the employer shall provide medical removal protection 
benefits to the employee equal to those required by paragraph (j)(12) 
of this section.
    (14) Multiple Health Care Professional Review Mechanism. (i) If the 
employer selects the initial physician or licensed health care 
professional (PLHCP) to conduct any medical examination or consultation 
provided to an employee under this paragraph (j)(11), the employer 
shall notify the employee of the right to seek a second medical opinion 
each time the employer provides the employee with a copy of the written 
opinion of that PLHCP.
    (ii) If the employee does not agree with the opinion of the 
employer-selected PLHCP, notifies the employer of that fact, and takes 
steps to make an appointment with a second PLHCP within 15 days of 
receiving a copy of the written opinion of the initial PLHCP, the 
employer shall pay for the PLHCP chosen by the employee to perform at 
least the following:
    (A) Review any findings, determinations or recommendations of the 
initial PLHCP; and
    (B) Conduct such examinations, consultations, and laboratory tests 
as the PLHCP deems necessary to facilitate this review.
    (iii) If the findings, determinations or recommendations of the 
second PLHCP differ from those of the initial PLHCP, then the employer 
and the employee shall instruct the two health care professional to 
resolve the disagreement.
    (iv) If the two health care professionals are unable to resolve 
their disagreement within 15 days, then those two health care 
professionals shall jointly designate a PLHCP who is a specialist in 
the field at issue. The employer shall pay for the specialist to 
perform at least the following:
    (A) Review the findings, determinations, and recommendations of the 
first two PLHCPs; and
    (B) Conduct such examinations, consultations, laboratory tests and 
discussions with the prior PLHCPs as the specialist deems necessary to 
resolve the disagreements of the prior health care professionals.

[[Page 24515]]

    (v) The written opinion of the specialist shall be the definitive 
medical determination. The employer shall act consistent with the 
definitive medical determination, unless the employer and employee 
agree that the written opinion of one of the other two PLHCPs shall be 
the definitive medical determination.
    (vi) The employer and the employee or authorized employee 
representative may agree upon the use of any expeditious alternate 
health care professional determination mechanism in lieu of the 
multiple health care professional review mechanism provided by this 
paragraph so long as the alternate mechanism otherwise satisfies the 
requirements contained in this paragraph.
* * * * *
    (n) Dates.
* * * * *
    (2) Start-up dates.
    (i) Initial Monitoring required by paragraph (d)(2) of this section 
shall be completed according to the following schedule:
    (A) For employers with fewer than 20 employees, within 300 days 
after the effective date of this section.
    (B) For polyurethane foam manufacturers with 20 to 99 employees, 
within 255 days after the effective date of this section.
    (C) For all other employers, within 150 days after the effective 
date of this section.
    (ii) Engineering controls required under paragraph (f)(1) of this 
section shall be implemented according to the following schedule:
    (A) For employers with fewer than 20 employees: within three (3) 
years after the effective date of this section.
    (B) For employers with fewer than 150 employees engaged in foam 
fabrication; for employers with fewer than 50 employees engaged in 
furniture refinishing, general aviation aircraft stripping, and product 
formulation; for employers with fewer than 50 employees using MC-based 
adhesives for boat building and repair, recreational vehicle 
manufacture, van conversion, and upholstering; for employers with fewer 
than 50 employees using MC in construction work for restoration and 
preservation of buildings, painting and paint removal, cabinet making 
and/or floor refinishing and resurfacing: within three (3) years after 
the effective date of this section.
    (C) For employers engaged in polyurethane foam manufacturing with 
20 employees or more: within thirty (30) months after the effective 
date of this section.
    (D) For employers with 150 or more employees engaged in foam 
fabrication; for employers with 50 or more employees engaged in 
furniture refinishing, general aviation aircraft stripping, and product 
fabrication; for employers with 50 or more employees using MC-based 
adhesives in boat building and repair, recreational vehicle 
manufacture, van conversion and upholstering; and for employers with 50 
or more employees using MC in construction work for restoration and 
preservation of buildings, painting and paint removal, cabinet making 
and/or floor refinishing and resurfacing: within two (2) years after 
the effective date of this section.
    (E) For all other employers: within one (1) year after the 
effective date of this section.
    (iii) Employers identified in paragraphs (n)(2)(ii) (B), (C), and 
(D) of this section shall comply with the following requirements listed 
in this paragraph by the dates indicated:
    (A) Use of respiratory protection whenever an employee's exposure 
to MC exceeds or can reasonably be expected to exceed the 8-hour TWA 
PEL, in accordance with paragraphs (c)(1), (e)(3), (f)(1) and (g)(1) of 
this section: by the applicable dates set out in paragraphs (n)(2)(ii) 
(B), (C) and (D) of this section for the installation of engineering 
controls.
    (B) Use of respiratory protection whenever an employee's exposure 
to MC exceeds or can reasonably be expected to exceed the STEL in 
accordance with paragraphs (e)(3), (f)(1), and (g)(1) of this section: 
by the applicable dates indicated in paragraph (n)(2)(iv) of this 
section.
    (C) Implementation of work practices (such as leak and spill 
detection, cleanup and enclosure of containers) required by paragraph 
(f)(1) of this section: by the applicable dates indicated in paragraph 
(n)(2)(iv) of this section.
    (D) Notification of corrective action under paragraph (d)(5)(ii) of 
this section: no later than (90) days before the compliance date 
applicable to such corrective action.
    (iv) Unless otherwise specified in this paragraph (n), all other 
requirements of this section shall be complied with according to the 
following schedule:
    (A) For employers with fewer than 20 employees, within one (1) year 
after the effective date of this section.
    (B) For employers engaged in polyurethane foam manufacturing with 
20 to 99 employees, within 270 days after the effective date of this 
section.
    (C) For all other employers, within 255 days after the effective 
date of this section.
* * * * *
[FR Doc. 98-11797 Filed 5-1-98; 8:45 am]
BILLING CODE 4510-26-M