[Federal Register Volume 67, Number 120 (Friday, June 21, 2002)]
[Rules and Regulations]
[Pages 42314-42389]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-15396]



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Part II





Department of Labor





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Mine Safety and Health Administration



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30 CFR Part 42 et al.



Hazard Communication (HazCom); Final Rule and Withdrawal of Interim 
Final Rule

  Federal Register / Vol. 67, No. 120 / Friday, June 21, 2002 / Rules 
and Regulations  

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DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Parts 42, 46, 47, 48, 56, 57, and 77

RIN 1219-AA47


Hazard Communication (HazCom)

AGENCY: Mine Safety and Health Administration (MSHA), Labor.

ACTION: Final rule and withdrawal of interim final rule.

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SUMMARY: We (MSHA) are establishing this final rule on ``Hazard 
Communication (HazCom)'' to reduce injuries and illnesses related to 
chemicals in the mining industry. HazCom requires mine operators to 
evaluate the hazards of chemicals they produce or use and provide 
information to miners concerning chemical hazards by means of a written 
hazard communication program; labeling containers of hazardous 
chemicals; providing access to material safety data sheets (MSDSs); and 
initial miner training. While most of the requirements in this final 
rule are substantially the same as in the proposed and interim final 
rules, portions have been revised in response to public comments. The 
most significant revision involves the HazCom training requirements. 
Initial HazCom training for current miners will be conducted under the 
HazCom final rule. Conforming amendments with requirements for 
subsequent HazCom training have been added to existing training 
standards. With the publication of this final rule, the mining industry 
joins other industry groups in requiring that chemical hazard 
information be offered to employees.

DATES: This rule is effective on September 23, 2002. This rule is 
applicable at mines that employ five or fewer miners on March 21, 2003. 
The interim final rule published on October 3, 2000 (65 FR 59048) and 
delayed on August 28, 2001 (66 FR 45167) is withdrawn as of June 21, 
2002.

FOR FURTHER INFORMATION CONTACT: Marvin W. Nichols, Director, Office of 
Standards, Regulations, and Variances, MSHA, 1100 Wilson Boulevard, 
Arlington, Virginia 22209-3939. Mr. Nichols can be reached at [email protected] (internet e-mail), 202-693-9440 (voice), or 202-693-
9441 (fax). You may obtain copies of the final rule in alternative 
formats by calling this number. The alternative formats available are 
either a large print version of the final rule or the final rule in an 
electronic file on computer disk. The final rule also is available on 
the Internet at http://www.msha.gov/hazcom.

SUPPLEMENTARY INFORMATION: The following is an outline of this HazCom 
preamble to help you find information more quickly.

I. Introduction
    A. Overview of Rulemaking
    B. Need for HazCom
    C. OSHA's HCS and MSHA's HazCom Final Rule
    D. Reasons for Not Exempting Aggregate Producers
    E. Reasons for Staggering the Compliance Dates
    F. Regulatory History
II. Discussion of the Final Rule
    A. Subpart A--Purpose, Scope, Applicability, and Initial Miner 
Training
    B. Subpart B--Definitions
    C. Subpart C--Hazard Determination
    D. Subpart D--HazCom Program
    E. Subpart E--Container Labels and Other Forms of Warning
    F. Subpart F--Material Safety Data Sheet (MSDS)
    G. Conforming Amendments: HazCom Training Requirements under 30 
CFR Parts 46 and 48
    H. Subpart H--Making HazCom Information Available
    I. Subpart I--Trade Secrets
    J. Subpart J--Exemptions
    K. Appendices
III. Legal Authority and Feasibility
    A. HazCom as a Sec. 101(a)(6)(A) standard
    B. Finding of Significant Risk
    C. Finding of Feasibility
    D. Petitions for Modification
IV. The Regulatory Flexibility Act, the Small Business Regulatory 
Enforcement Fairness Act, and Executive Order 12866
    A. Alternatives Considered
    B. Consultation with SBA
    C. Compliance Costs
    D. Regulatory Flexibility Certification and Factual Basis
    E. Benefits
V. Paperwork Reduction Act
VI. Other Regulatory Considerations
    A. The National Environmental Policy Act of 1969
    B. Unfunded Mandates Reform Act of 1995
    C. Executive Order 12630: Government Actions and Interference 
with Constitutionally Protected Property Rights
    D. Executive Order 12988: Civil Justice Reform
    E. Executive Order 13045: Protection of Children from 
Environmental Health Risks and Safety Risks
    F. Executive Order 13084: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13132: Federalism
    H. Executive Order 13211: Energy
VII. Addendum: Health Effects of Physical and Chemical Substances 
Normally Used by Miners

I. Introduction

    We refer to our hazard communication standard as ``HazCom'' to help 
distinguish it from the Occupational Safety and Health Administration's 
(OSHA's) Hazard Communication Standard (HCS). In this final rule, 
``you'' refers to production operators and independent contractors, who 
have the primary responsibility for complying with our standards. Where 
needed, we use the terms ``operator'' or ``independent contractor'' to 
avoid confusion. ``We'' and ``us'' refers to MSHA.
    Also, for the purpose of simplicity, we continue to use the term 
``written'' or ``writing'' in the regulatory language to include 
electronic transmission of information. Operators are expected to 
exercise reasonable judgment. A label can be a sign, placard, process 
sheet, batch ticket, operating procedure, or other alternative. A label 
must be in a form that can be clearly and quickly associated with the 
hazardous chemical. A label in a computer, for example, will be 
inadequate as a way of labeling a truckload of lime. The purpose of an 
MSDS, on the other hand, can be readily achieved through an electronic 
access to the information.
    Some of HazCom's provisions differ from the proposed and interim 
final rules in response to commenters' concerns and suggestions. These 
changes clarify the rule's intent, reduce the operator's burden to 
comply without reducing protections afforded by the interim final rule, 
and eliminate unnecessary language and needless repetition. We have 
tailored provisions to fit the mining industry. Despite these changes, 
the substance of most requirements remains the same as in the proposed 
and interim final rules. We have organized the rule to optimize the 
reader's ability to understand the rule's requirements.
    This final rule reflects comments received during the entire 
rulemaking process including the advance notice of proposed rulemaking, 
the proposed rule, the limited re-opening of the record in 1999, the 
interim final rule comment periods, and the public hearings. All 
comments and testimony became part of the rulemaking record.

A. Overview of Rulemaking

    HazCom is based on two safety and health principles: miners have a 
right to know about the chemical hazards where they work; and you have 
a responsibility to know about the chemical hazards at your mine.
    Chemically related injuries and illnesses in the mining industry 
indicate that many operators and miners are not as aware of the 
presence and nature of hazardous chemicals as they should be.

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Injury and illness reports sent to us describe instances where miners--
     Were using inadequate or improper personal protective 
equipment,
     Did not know what they had been exposed to that caused 
their symptoms,
     Failed to follow instructions because they misunderstood 
or were unaware of the consequences, and
     Inadvertently misused a chemical from an unlabeled 
container.
    Our existing standards already require you to train miners in 
occupational health, hazard recognition, and the safety and health 
aspects of tasks, among other subjects. Except at underground coal 
mines, you are also currently required to label hazardous materials. 
The intent of HazCom is to ensure that your mine has a program 
emphasizing chemical hazards by requiring you to take certain actions. 
Current regulations do not require you to collect material safety data 
sheets (MSDSs), give copies of hazard information to miners, or keep a 
list of the hazardous chemicals at the mine.
    HazCom requires you to inform miners about chemical hazards. This 
information is important because miners are at risk of harm in the 
absence of such knowledge. We expect HazCom, by increasing both 
knowledge and awareness, to bolster good work procedures and safer 
behavior, thus reducing injuries and illnesses related to chemicals. 
When put into effect at a mine, HazCom should result in better hazard 
identification and assessment; more consistent use of personal 
protective equipment; and greater awareness and care when working near 
hazardous chemicals.
    Communicating the hazards of chemicals can be difficult because it 
requires using unfamiliar technical terms, scientific symbols, and 
complex physical laws. For the training to be effective, it must 
balance scientific precision with the practical needs of miners to 
understand chemical hazards and protect themselves in their daily work. 
When miners understand the chemical hazards of mine processes and 
recognize the job elements that can lead to chemical exposures, they 
will be more successful in reducing accidents and injuries.
    The final rule requires operators of mines initially to instruct 
each miner with information about the physical and health hazards of 
chemicals in the miner's work area, the protective measures a miner can 
take against these hazards, and the contents of the mine's HazCom 
program. Subsequent HazCom training must be conducted in accordance 
with 30 CFR parts 46 and 48. This modification of the HazCom training 
requirements is a result of comments received during the last reopening 
of the rulemaking record, as well as testimony presented at the public 
hearings. Accordingly, the HazCom final rule modifies the interim final 
rule by removing Subpart F--HazCom Training and adding conforming 
amendments to the training requirements of 30 CFR parts 46 and 48 to 
include instruction about the physical and health hazards of chemicals 
in the miner's work area, the protective measures a miner can take 
against these hazards, and the contents of the mine's HazCom program. 
The conforming amendments to parts 46 and 48 apply to new miner 
training, new experienced miner training, task training, and annual 
refresher training.
    The major provisions of HazCom are as follows:
    Hazard determination. You must identify the chemicals at your mine 
and determine if they can present a physical or health hazard to 
miners. If you produce a chemical, such as gold, molybdenum sulfide, 
calcium oxide (lime), sand, and phosphates, among others, you must 
review available scientific evidence to determine if it is hazardous. 
Some of the chemicals you produce that result from a chemical reaction, 
such as nitrogen oxides from blasting or an intermediate chemical 
formed during mineral processing, may already be addressed on the MSDS 
for the original chemical. For a chemical or mixture brought to your 
mine, such as diesel fuel, lubricants, solvents, and paints, you can 
rely on the evaluation performed by the chemical's manufacturer or 
supplier. Although you do not need to modify the MSDS or label that 
comes from the chemical's manufacturer or supplier, you must review the 
label and MSDS to learn what hazards the chemical can present to your 
miners.
    HazCom program. You must develop, implement, and maintain a written 
comprehensive plan to formalize a HazCom program. The program must 
include provisions for container labeling, collection and availability 
of MSDSs, and training of miners, among other requirements. It also 
must contain a list of the hazardous chemicals known to be at the mine. 
If a mine has more than one operator on site, such as an independent 
contractor and a primary operator, each HazCom program must describe 
how you will inform the other operator(s) about the chemical hazards 
you produce or bring to the mine and the protective measures needed.
    Container labeling. A label is an immediate warning about a 
chemical's most serious hazards. You must ensure that containers of 
hazardous chemicals are marked, tagged, or labeled with the identity of 
the hazardous chemical and appropriate hazard warnings. The label must 
be in English and prominently displayed. We are not requiring you to 
label mine products that go off mine property, though you must provide 
the hazard information if a customer asks for it.
    Material safety data sheet (MSDS). A chemical's MSDS provides 
comprehensive technical and emergency information. It serves as a 
reference document for operators, exposed miners, health professionals 
providing services to exposed miners, and firefighters or other public 
safety workers. You must have an MSDS for each hazardous chemical at 
your mine. The MSDS must be accessible in the work area where the 
chemical is present or in an alternate location readily available to 
miners in an emergency.
    Initial HazCom training. You must initially instruct each miner 
about the physical and health hazards of chemicals in the miner's work 
area, the protective measures a miner can take against those hazards, 
and the contents of the mine's HazCom program by the effective date of 
this final HazCom rule. Subsequent HazCom training must be conducted in 
accordance with 30 CFR parts 46 and 48.
    Making HazCom information available. You must provide miners, their 
designated representatives, MSHA, and NIOSH with access to the 
materials that are part of the HazCom program. These include the HazCom 
program, the list of hazardous chemicals, labeling information, MSDSs, 
some training materials, and any other material associated with the 
HazCom program. You do not have to disclose the identity of a trade 
secret chemical except when there is a compelling medical need or as 
specified in this rule.

B. Need for HazCom

    Chemicals in the mining industry pose a range of hazards, from mild 
health effects, such as irritation, to death. Some chemicals cause or 
contribute to chronic diseases, such as heart disease, kidney disease, 
sterility, or cancer. The relationship between these injuries and 
illnesses and exposure to a chemical can be obscured by years of 
latency between the exposure and the onset of symptoms. Many chemicals 
cause acute injuries or illnesses such as dermatitis, burns, and 
poisonings. Some chemicals pose hazards by contributing to fires and 
explosions.
    Even relatively harmless substances can pose a hazard under certain

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conditions. If mixed or heated, for example, some chemicals give off 
toxic fumes. Calcium chloride is generally considered a relatively 
harmless chemical, however, the MSDS for the compound lists its toxic 
decomposition products as chlorine fumes or hydrogen chloride. An 
ammonia based window cleaner mixed with common household bleach can 
produce deadly fumes. Miners must be made aware of these potential, 
life-threatening hazards.
    Also pre-existing conditions, such as respiratory or central 
nervous system diseases, can be aggravated by exposure to some 
chemicals. For example, open wounds, skin disorders, and chronic 
respiratory disease can be aggravated by exposure to unleaded gasoline. 
Miners with existing health conditions need to be aware of the 
potential additional hazard that exposure to chemicals presents.
1. Chemical Injuries and Illnesses
    In considering a HazCom standard, we reviewed reports of chemically 
related injuries and illnesses reported to MSHA. From January 1990 
through December 1999, the mining industry reported over 2,500 chemical 
burns. More than 1,200 of these burns were lost work time cases, 
involving over 50 commodities, more than 60 job classifications, and 
exposures to chemicals at all sizes and types of mines. Bituminous coal 
mines reported the most chemical burns for that industry. Crushed and 
broken limestone mines reported the most chemical burns in the metal 
and nonmetal industry. This same accident and injury data indicated 
more than 400 poisonings. This data takes into account only some of the 
acute effects reported as a result of chemical exposures and does not 
include the chronic effects that we know also occur. MSHA believes that 
injuries, illnesses, and accidents reported to us understate the extent 
of the health and safety problems caused by chemicals in the workplace.
    Reporting injuries and illnesses. Lack of knowledge about chronic 
health effects associated with chemical exposures contributes to the 
under-reporting of occupational illnesses. Employers, such as mine 
operators, and doctors often lack information to link occupational 
illnesses with exposures to chemical hazards.\1\ Symptoms of chemically 
related, chronic, occupational illnesses are often treated without 
realizing that the cause is an occupational exposure. The Bureau of 
Labor Statistics (BLS) made note of this reporting disparity in one of 
their annual reports.\2\

    \1\ Rosenstock, L., ``Occupational Medicine: Too Long 
Neglected'', Annals of Internal Medicine, Vol. 95, No. 6, December 
1981, pp. 774-776.
    American Lung Assn., ``Diagnosis and Treatment, Taking the 
Occupational History'', Annals of Internal Medicine, Vol. 99, No. 5, 
November 1983, pp. 641-651.
    \2\ U.S. Department of Labor, Bureau of Labor Statistics, 
Occupational Injuries and Illneses: Counts, Rates, and 
Characteristics, 1994, Bulletin 2485 (April 1997), page 7.
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    * * * Some conditions (e.g., long-term latent illnesses caused 
by exposure to carcinogens) are often difficult to link to the 
workplace and, therefore, may not be recognized and reported. 
Because of this, these long-term latent illnesses are believed to be 
understated in the survey's illness measures. * * *

    Worker turnover also increases the likelihood that the link between 
a workplace chemical exposure and subsequent illness will be overlooked 
and will not be reported. MSHA's experience under part 50 reveals that 
occupational illnesses are frequently unreported because the miner has 
retired or taken a job in another industry. This is particularly true 
for long-term health effects which develop over time or after repeated 
exposures. Many chronic diseases are characterized by latency periods 
of 20-30 years or longer.
    In addition, health effects of some chemicals may contribute to the 
occurrence of injuries that are reported but are not causatively linked 
to chemical exposures. Part of the purpose of the hazard communication 
standard is to increase awareness regarding these potential effects.
    Although MSHA's frequent presence at mines tends to minimize under-
reporting, we believe the reporting is still incomplete. Our experience 
indicates that reporting of injuries and illnesses increases when we 
systematically audit operator reporting. For example, a nationwide 
audit of operator accident and injury reporting in the late 1970's 
produced a 13% increase in reported injuries. During MSHA's ``part 50 
grace period'' for chronic illnesses in the late 1990's, industry 
reported an additional 3900 cases of silicosis, pneumoconiosis, hearing 
loss, and chronic musculoskeletal injuries. This increase strongly 
suggests that there is under-reporting. We expect improved reporting of 
occupational illnesses and injuries caused by chemical exposures to be 
one of the positive effects of this standard.
    Hazards to miners working with chemicals. Between 1984 and 1989, 
the National Institute for Occupational Safety and Health (NIOSH) 
surveyed almost 500 individual mines covering 70 commodities and about 
60,000 miners for the National Occupational Health Survey of Mining 
(NOHSM). NOHSM documented over 10,000 individual hazardous chemicals 
and mixtures of hazardous chemicals to which miners could be exposed.
    Comments to the proposed and interim final rules suggested that 
HazCom apply only to those chemicals posing a risk to miners. We 
decided against limiting the application of HazCom to the chemicals 
NIOSH identified as most commonly posing a risk to miners because--
     New hazardous chemicals would not be covered,
     There are likely to be some hazardous chemicals used or 
produced at mines that are not on NIOSH's list, and
     NIOSH did not survey all mines.
    In September of 1996, NIOSH published Results from the National 
Occupational Health Survey of Mining (NOHSM) [DHHS(NIOSH) Publication 
No. 96-136]. NOHSM's Appendix O listed ``100 Chemical Substances with 
the Highest Projected Number of Workers Potentially Exposed.'' This 
appendix projected only potential exposure to chemical substances 
purchased and used at mines. The NOHSM report is in the rulemaking 
record. The addendum to this preamble (VII. Addendum: Physical and 
Health Effects of Chemical Substances Normally Used by Miners) lists 
the health effects of chemicals for which NIOSH projects more than 1000 
miners to be potentially exposed.
    We listed the health effects for these substances to illustrate the 
acute and chronic effects of exposures to substances common in mining. 
It is apparent that many of these chemicals have serious acute health 
effects, as well as life-shortening chronic health effects. Diesel fuel 
and kerosene are examples of such chemicals. We found the listed health 
effects for most of these substances on material safety data sheets 
(MSDSs) available free on the internet. The NIOSH Pocket Guide to 
Chemical Hazards, a copy of which is in the rulemaking record, also 
lists health effects.
    Current hazard communication programs in mining. Some operators 
began complying with OSHA's HCS requirements in 1983 when it was first 
promulgated. Others began complying when the scope of OSHA's HCS was 
extended to cover general industry. In anticipation of a similar MSHA 
standard, some began complying after MSHA published its proposed HazCom 
rule, using the unregulated interval as a time to assimilate the 
requirements into

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their mines' standard operating procedures. Although some operators on 
their own initiative have established programs that meet HazCom's 
provisions and goals, and have integrated OSHA's HCS requirements into 
the cultures of their mines, many have not made that effort or fully 
met those objectives.
    Some operators have a comprehensive HazCom program in place, while 
others have some elements of a HazCom program. This HazCom rule 
requires that operators give all miners the information, initial 
training, and access needed to protect themselves from chemically 
related injuries and illnesses. HazCom unifies, focuses, and clarifies 
existing requirements.
2. Existing Parts 46 and 48 Training
    The principal training standards that apply at your mine are found 
in parts 46 or 48, depending on the commodity you produce and the type 
of mine you have. Under existing parts 46 and 48, you must provide new 
miner training, newly hired or experienced miner training, new task 
training, and annual refresher training and, for those less exposed, 
hazard awareness training.
    An issue throughout this rulemaking has been whether the training 
under parts 46 and 48 negates the need for the HazCom standard. Several 
commenters to the interim final rule said that the existing training 
requirements under parts 46 and 48 already cover hazard recognition and 
prevention. The HazCom standard would be, in their view, needlessly 
duplicative and burdensome. As a few commenters pointed out, parts 56 
and 57 already have standards for labeling toxic substances. Others 
said that, in their part 48 training, they endeavor to fully encompass 
the health and safety aspects of working with hazardous chemicals at 
their operations. Still others said that part 46, effective only 
recently, has not been given a chance to show that it can work for 
purposes of hazard communication.
    By contrast, several commenters stressed the need for the HazCom 
standard. They said that the important job of educating people within 
the mining industry on the dangers of chemicals in the workplace was 
not being done. Misuse of chemicals at the mines was a significant 
concern to them. Not only are miners left uninformed about hazardous 
chemicals, but according to many of these commenters, the operators, 
who are expected to know about these hazards, often need help 
themselves and provide little guidance to miners, even about elementary 
precautions to take when working around hazardous chemicals. Some 
operators may not be familiar with basic sources of information such as 
MSDSs. These commenters maintained that a more effective means of 
getting the information out and increasing the awareness of chemical 
hazards is vital so people can avoid misuse and make intelligent 
decisions to safeguard their health.
    In the interim final rule we stated that although we have standards 
for labeling toxic substances under parts 56 and 57, these standards do 
not contain any training requirements on hazardous chemicals. With 
regard to the existing training under parts 46 and 48, we stated that 
these training regulations were insufficient for purposes of HazCom 
training because they do not specify the training content. They 
basically require instruction in hazard recognition and the health and 
safety aspects of new work tasks.
    After carefully reviewing all comments, and testimony presented at 
all the HazCom hearings, however, we have determined that subsequent 
HazCom training requirements, after initial training, can be eliminated 
from the HazCom rule, but effectively provided under existing parts 46 
and 48 by adding language to the training subjects of these parts. 
Accordingly, the HazCom final rule requires operators of mines 
initially to instruct each miner with information about the physical 
and health hazards of chemicals in the miner's work area, the 
protective measures a miner can take against these hazards, and the 
contents of the mine's HazCom program. While initial training is 
required under Sec. 47.2(b) of the final HazCom rule, subsequent HazCom 
training must be conducted in accordance with the conforming amendments 
added under 30 CFR parts 46 and 48. We believe that this modification 
of the training requirements of the HazCom standard and parts 46 and 48 
is responsive to commenters' concerns regarding training and, at the 
same time, ensures that parts 46 and 48 training requirements 
concerning hazard recognition specifically includes instruction on the 
physical and health hazards of chemicals in the miner's work area, the 
protective measures a miner can take against these hazards, and the 
contents of the mine's HazCom program.

C. OSHA's HCS and MSHA's HazCom Final Rule

    In addition to the requirements in the Mine Act and our experience 
in the mining industry, we based our final rule on--
     The comments received in response to the advance notice of 
proposed rulemaking (ANPRM), the notice of proposed rulemaking, the 
limited re-opening, and the interim final rule;
     The testimony presented at the public hearings on the 
proposed and interim final rules; and
     The related standards of other federal agencies, such as 
OSHA and EPA.
    To the extent practical, the substance of MSHA's HazCom 
requirements is the same as that in OSHA's HCS. Also, we have expressly 
stated that if a HazCom program meets OSHA's HCS requirements, it will 
satisfy MSHA's requirements except for the coverage of EPA-regulated 
hazardous waste (OSHA has a separate standard for hazardous waste 
operations). We will publish a Compliance Guide to help you understand 
the application of this rule.
    Hazardous waste. The treatment of hazardous waste in MSHA's HazCom 
standard differs from OSHA's HCS. OSHA exempts hazardous waste because 
its Hazardous Waste Operations and Emergency Response rule (Hazwoper, 
29 CFR 1910.120) addresses these hazards. Because we do not have 
similar standards that address miners' exposures to hazardous waste, we 
needed supplemental requirements to ensure that miners understand the 
hazards and take precautions.
    HazCom fills an important gap in protecting the health and safety 
of miners who may be exposed to hazardous waste. HazCom does not 
require you to determine the components of the hazardous waste, 
research the components' health and safety effects, or prepare an MSDS. 
HazCom requires you to--
     Label the hazardous waste, if it is not already labeled;
     Inform miners about hazardous waste in their work areas, 
its hazards, and safe work procedures; and
     Provide miners access to any information about the 
hazardous waste that addresses its components or their health and 
safety effects.
    We addressed the subject of hazardous waste at all stages of the 
rulemaking process. MSHA is confident that the coverage of hazardous 
waste in HazCom provides essential protection for miners and avoids 
unnecessary burden on mine operators.
    Temporary, portable containers. Labeling of temporary, portable 
containers is another area where MSHA and OSHA standards differ. In 
response to comments, HazCom allows more flexibility and compliance 
options than OSHA's HCS with respect to labeling temporary, portable 
containers. OSHA's

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HCS does not require the employer to label a temporary, portable 
container into which a hazardous chemical is transferred from a labeled 
container for the immediate use of the employee who performs the 
transfer. MSHA's HazCom provides the following choice of compliance 
methods:
     You do not have to label the container if your miners know 
the identity, hazards, and protective measures for the chemical in the 
container, and leave the container empty at the end of the shift; or
     You must label the container, at least with the common 
name of its contents.
    Although OSHA's requirements for portable containers are 
sufficiently protective, HazCom's differences from HCS are deliberate 
and appropriate to mining conditions. The HazCom provision provides a 
flexible and practical alternative for mining operations.
    Labels for customers. HazCom does not specifically require you to 
label hazardous chemical products that go off mine property. Your 
customers, however, may have to comply with the OSHA HCS which requires 
hazardous chemicals to be labeled. For this reason, HazCom requires you 
to provide the label information (and MSDS) if a customer asks for one.

D. Reasons for Not Exempting Aggregate Producers

    An aggregates industry commenter to the interim final rule argued 
that his industry should be exempt from HazCom. The commenter stated 
that--

    * * * an overwhelming number of entries [injuries and illnesses 
associated with chemical exposures] would most likely not have been 
prevented if HazCom were in place. * * * In nearly all cases, 
regulations already in place apply and would have prevented the 
incidents from occurring in the first place.

    The commenter asserted that other existing standards would provide 
the safety and health protection afforded by HazCom. The commenter also 
downplayed the number of injuries and illnesses reported to MSHA.
    The existing MSHA safety and health regulations cannot be equated 
with or replace the HazCom standard. The HazCom rules are not 
duplicative of existing standards and, in fact, encompass a broader 
scope of activities than the other regulations. For example, the 
requirements for a chemical inventory and current, accessible MSDSs are 
not included in other existing regulations, but are integral parts of 
HazCom. Under HazCom, operators are responsible for disseminating 
accurate safety and health information to miners, and in a timely 
manner to best accomplish the goal of accident, injury, and illness 
``prevention.'' Miners, in turn, have a right to know the identity of 
chemicals with which they are working, the hazards of these chemicals, 
and how to properly protect themselves. This right has been afforded 
for years to other workers in the United States, and to many workers in 
other countries.
    HazCom is not dependent on a risk analysis. We conducted a general 
finding of risk to help operators appreciate the need for the standard. 
This general finding of risk determined that--
     Hazardous chemicals are at all sizes and types of mines,
     Miners are exposed to these hazardous chemicals, and
     Miners get injuries and illnesses from exposure to 
hazardous chemicals at the mine.
    MSHA examined 14,505 incidents of injuries or illnesses reported to 
the Agency between 1983 and 2000. Commenters' review of the MSHA data 
indicated that there was an average of 50 chemical burns in the 
aggregates industry per year that would be addressed by HazCom. The 
preponderance of these chemical burns are the result of acids (e.g., in 
batteries) and alkalis (e.g., lime) present in the aggregates industry. 
The commenter also estimates that \3/4\ of the HazCom-covered chemical 
burns are related to eyes. We agree with the commenter that these are 
valuable findings about eye injuries and that some corrective action is 
needed to prevent such injuries. The continuing reports of chemical 
burns, particularly involving the eyes, represent a serious problem and 
the possible loss of a miner's sight requires the immediate attention 
of mine operators.
    After separating the eye injuries from the data and excluding cases 
for which the commenter had concerns (e.g., applicability of HazCom, 
verification), the commenter concluded that there were an average of 20 
cases (injuries and illnesses) per year in the aggregates industry over 
the 17-year period. The commenter then went on to say, `` * * * this 
figure hardly seems to us to justify imposition of a multi-million 
dollar regulation.'' The commenter presumably was referring to the 
entire metal and nonmetal and coal mining industry. MSHA disagrees with 
this statement. Given the benefits of this rule to the mining industry 
as a whole and miners in particular, MSHA believes that the cost of 
this rule is reasonable.
    The data presented by the commenter, that was also analyzed by 
MSHA, emphasize the need for the HazCom rule and for better compliance 
with existing regulations. On the basis of these numerous and 
continuing chemically related burns alone, it appears that there is a 
need for more specific information and training given to miners. In 
addition, we estimated that the long-term health effects of the HazCom 
rule include a reduction of 11.4 cancer deaths every year. Some of 
these health benefits would surely accrue to miners in the aggregates 
industry, in which carcinogens, such as benzene, respirable crystalline 
silica, and diesel fuel, as well as various solvents are used or 
produced. We cannot justify the exclusion of a group of miners from the 
requirements for hazard communication, when all other miners and 
workers in other industries will be given this protection from chemical 
injuries and illnesses.
    MSHA believes that there is a significant risk of numerous adverse 
health outcomes for miners who work with hazardous materials 
(chemicals); these outcomes may be manifested over a long period of 
time. The commenter has attempted to refute the risk by pointing to the 
absolute number of chemical burns and poisonings over the past 17 
years, using a database with known concerns for under-reporting. The 
commenter has neglected to consider the number and potency of chemicals 
used in mines; the possible interactions between chemicals; the 
duration, number, and frequency of exposures; the large gamut of 
adverse outcomes and their severity; and the role of the miner himself. 
These factors indicate that miners, including miners who work in the 
aggregates industry, are at risk of uncertain and undesirable outcomes 
when working with hazardous chemicals. HazCom, through implementation 
of and compliance with its various components, will serve to reduce the 
factors that contribute to injury and illness.
    A miner's risk of injury or illness will be reduced by providing 
the miner with information and initial training regarding exposures and 
potential adverse effects related to hazardous chemicals. It is 
possible to anticipate, recognize, evaluate, and control the exposures 
once the presence of a hazardous chemical is known. For example, if 
miners understand that they will be working with batteries containing 
sulfuric acid, then they may anticipate exposure to this acid. 
Information may be provided regarding chemical burns and the emergency 
procedures to be followed if an

[[Page 42319]]

inhalation, eye, or skin exposure should occur. As a second example, if 
miners know that they will be welding with rods made of cadmium or zinc 
oxide, they can anticipate the generation of toxic welding fumes. These 
fumes are invisible and provide no warning of their presence (i.e., no 
burning of the eyes, nose, throat). If miners know this, they may take 
appropriate precautions and protective measures, such as the use of 
personal protective equipment or a welding booth with proper 
ventilation, to keep the fumes out of their breathing zone.
    We did not analyze our accident and injury data to determine 
whether or not an injured miner had been trained. Such analysis would 
not have been helpful because, even if the miner was trained, there is 
no record as to whether that training included the health and safety 
hazards and safe work procedures for working with the hazardous 
chemical.
    With a better understanding of chemical hazards from the HazCom 
program at a mine, an operator may limit the array of chemicals kept at 
the mine and may establish criteria to decide which chemicals will be 
brought onto the property.
    OSHA initially estimated that its HCS would reduce chemically 
related injuries and illnesses by 20%. As noted by the commenters, this 
was an educated guess at the time OSHA developed HCS. In the GAO report 
submitted to members of the United States Senate and House of 
Representatives (1992), a summary of employers' experiences in 
complying with OSHA's HCS was presented. Seventeen percent (17%) of 
surveyed employers reported fewer work-related injuries and 16% of 
these employers reported fewer work-related illnesses. Because of HCS, 
29% of these employers stated that they use a less hazardous chemical 
in the workplace. OSHA's experience and findings indicate that there 
also should be reductions in injuries and illnesses at mining 
operations once HazCom is implemented.
    In conclusion, there is no reason to exempt a large subset of mines 
from the HazCom rule. The under-reporting of our accident and injury 
data and the broader scope of the HazCom standard, when considered in 
connection with the potency of chemicals used in mining, the duration 
and frequency of exposure, and the possibility of long term health 
effects being manifested over time, provide reasons why the aggregates 
industry should not be exempt from the rule.

E. Reasons for Staggering the Compliance Dates

    The final HazCom rule becomes effective 3 months from the date of 
publication in the Federal Register. At mines that employ five or fewer 
miners, it will become applicable 9 months from the date of publication 
in the Federal Register.
    The data in our rulemaking record indicates that approximately 50% 
of all coal and M/NM mining operations consist of five or fewer 
employees. The record also indicates that exposure to chemical hazards 
occurs in every type of mine, including small mines, with miners 
typically experiencing multiple exposures to different chemical hazards 
at one point of time, or over a long period of employment.
    We have determined that small mines will be able to comply with the 
HazCom final rule. However, we recognize that mine operations with five 
or fewer employees, because of their size, have special needs that 
justify providing them with more time to become familiar with the 
requirements of the HazCom rule. For example, it is our experience that 
many of these small mines--
     Are unfamiliar with OSHA's HCS, the basis of HazCom, and 
may need more time to comply;
     Do not have personnel knowledgeable about chemical 
hazards, the use of computers to access MSDSs, or the resources to 
implement the final rule within 3 months;
     Are family-owned, employing only family members; and
     Operate intermittently.
    Additionally, MSHA needs time to provide extensive outreach to help 
the industry comply, particularly these small operations.
    By contrast, certain segments of the mining industry have had 
extensive experience with the OSHA HCS, and therefore, will be able to 
comply with our standard with minimal effort. For example, some 
independent contractors who work in both mining and general industry 
are already familiar with the OSHA HCS requirements, and may be able to 
comply with both OSHA's HCS and our HazCom standard using a single 
HazCom program.
    While we cannot exempt these small operations from the HazCom 
standard for reasons stated elsewhere in this preamble, we can delay 
its application to provide them with more time to prepare for 
compliance. Accordingly, the final rule's compliance date for 
operations with five or fewer employees will be 9 months after 
publication in the Federal Register. For operations with six or more 
employees, the compliance date is 3 months after publication in the 
Federal Register, which is the same as the effective date of the final 
rule.
    MSHA wants to emphasize that we are committed to providing 
compliance assistance to all mine operations, regardless of size. In 
fact, there are many HazCom aids already available. MSHA has developed 
an instruction guide, PowerPoint presentations, videos, model HazCom 
programs, a brochure, and generic MSDSs, and plans extensive compliance 
assistance. Also, OSHA has developed training materials for its 
industries, such as a generic MSDS form, a model hazard communication 
program, and the HCS Compliance Guide. Many are available from OSHA's 
Web site at http://www.osha.gov and can be adapted for use at mining 
operations. You can use these as models for your own program.

F. Regulatory History

    Since it was originally promulgated in 1983, OSHA's HCS has evolved 
to apply to all industries under OSHA's jurisdiction. Mining was the 
only industry segment not required to provide employees with access to 
MSDSs and other information about hazardous chemicals in their work 
areas.
1. Program Information Bulletin 86-2-M
    Several commenters to the interim final rule stated that a final 
standard addressing hazard communication is unnecessary. To support 
their position, these commenters referenced MSHA's Program Information 
Bulletin No. 86-2M (April 7, 1986) (PIB). These commenters claimed 
that, in the PIB, MSHA stated that a standard addressing hazard 
communication was not necessary for mining because existing standards 
addressed the labeling and storage of toxic materials, and warning 
signs.
    The 1986 PIB on hazard communication was issued only to metal and 
nonmetal MSHA inspectors in response to a jurisdictional issue with 
OSHA. The purpose of the PIB was to clarify that mining operations 
under our jurisdiction do not have to comply with the OSHA HCS. In 
establishing the fact that OSHA lacked jurisdiction under Sec. 4(b)(1) 
of the Occupational Safety and Health Act (OSH Act) to apply their HCS 
at mining operations, MSHA personnel were requested by OSHA and the 
mining industry to attach to the PIB a list of MSHA standards 
addressing some of the same hazards which the OSHA HCS was intended to 
address. In developing the PIB, we were not seeking to establish that 
our existing standards offered the same protection as the

[[Page 42320]]

OSHA HCS, but that there was the requisite minimum MSHA coverage 
necessary to justify continuing MSHA jurisdiction. HazCom supplements 
existing MSHA safety and health standards by specifically addressing 
chemical hazards from a different perspective using different methods.
2. Petition for Rulemaking
    On November 2, 1987, the United Mine Workers of America (UMWA) and 
the United Steelworkers of America (USWA) jointly petitioned us to 
adapt OSHA's HCS in both coal and metal and nonmetal mines and to 
propose it for the mining industry. They based their petition on the 
need for miners to be better informed about chemical hazards.
    In their petition, the UMWA and USWA argued that miners deserve 
protection equal to that of other workers. To support their position, 
the petition cited an incident in which miners at an iron ore mine were 
experiencing adverse health effects. These miners asked the operator 
for MSDSs for the flotation chemicals used at the mine to determine the 
identity of the chemical causing their symptoms. Although the state in 
which the mine was located had a right-to-know law, this law did not 
cover mines. Because we did not have a standard to require the operator 
to provide MSDSs to miners, the operator refused several times to 
provide the requested MSDSs. The operator finally provided the MSDSs 
after lengthy negotiations. The local union used the information 
provided in the MSDSs to discuss safety procedures with the company.
    The petition also specifically noted that work at both surface and 
underground coal and metal and nonmetal mines exposes miners to a 
variety of hazardous chemicals. For example, the petition stated that 
explosives contain organic nitrates that produce nitrogen oxides and 
ammonia when detonated; roof bolting systems contain plastic resins and 
reactants; solvents used in equipment maintenance are both toxic and 
flammable; and mill reagents can release hydrogen sulfide, cyanide, or 
other dangerous chemicals.
3. Preliminary Rulemaking
    In response to this petition, we issued an advance notice of 
proposed rulemaking (ANPRM) on hazard communication on March 30, 1988 
(53 FR 10256). In the ANPRM, we indicated that we would use the OSHA 
HCS as a basis for our standard and requested specific comments on a 
number of related issues. A number of written comments and testimony at 
public hearings in response to the ANPRM defined industry and labor 
concerns. We published a notice of proposed rulemaking on hazard 
communication for the mining industry on November 2, 1990 (55 FR 
46400), held three public hearings in October 1991, and closed the 
record on January 31, 1992.
    Public response to preliminary rulemaking. We received a wide 
variety of comments on our ANPRM and proposed rule. Commenters included 
both small and large mining companies; a variety of trade associations, 
including those representing specific minerals; state mining 
associations; chemical and equipment manufacturers; national and local 
labor unions; a member of Congress; and two federal agencies.
4. 1999 Limited Re-opening of the Record
    While HazCom was being developed, Congress passed several laws and 
the President issued several Executive Orders which affected our 
rulemaking procedures. These statutory mandates and related Executive 
Orders had required us to evaluate the impact of a regulatory action on 
small mines; \3\ the expenditures of state, local, and tribal 
governments (Unfunded Mandates); \4\ and the health and safety of 
children.\5\ In addition, we requested comments on the information 
collection and paperwork requirements of certain provisions of the 
proposed rule, now considered as an information collection burden under 
the expanded definition of information under the Paperwork Reduction 
Act of 1995.\6\ We re-opened the rulemaking record on March 30, 1999 
(64 FR 15144) to receive comments on the impact of the proposed rule in 
accordance with these regulatory mandates and Executive Orders. The 
record closed on June 1, 1999.
---------------------------------------------------------------------------

    \3\ The Small Business Regulation Enforcement Fairness Act of 
1996 (SBREFA) Amendments to the Regulatory Flexibility Act of 1980, 
Pub. L. No. 96-354, 94 Stat. 864 (1980) (codified as amended at 5 
U.S.C. 601-612.
    \4\ The unfunded Mandates from Act of 1995 (2 U.S.C. 1501 et 
seq.); and Executive Order 13084, Consultation and Coordination with 
Tribal Governments.
    \5\ Executive Order 13045, Protection and Children from 
Environmental Health Risks and Safety Risks.
    \6\ Pub. L. No. 104-13, 109 Stat. 163 (1995) (codified as 
amended at 4 U.S.C. Secs. 3501-3520). When we published the HazCom 
proposed rule, the information collection and paperwork requirements 
were not an information collection burden under the 1980 Paperwork 
Reduction Act because they were third-party disclosures. Under the 
Paperwork Reduction Act of 1995, agency rules that require 
businesses or individuals to maintain information for the benefit of 
a third-party or the public, rather than the government, are covered 
by the Act under the definition of ``information.''
---------------------------------------------------------------------------

    Most MSHA regulations do not require an evaluation of their impact 
on the environment. Health standards do, however. This was brought to 
our attention and we took this opportunity to remedy the oversight. We 
requested comments on the effect of the proposed rule on the 
environment because the proposed rule had not.\7\
---------------------------------------------------------------------------

    \7\ The National Environmental Policy Act (NEPA) of 1969 (42 
U.S.C. 4321 et seq.).
---------------------------------------------------------------------------

    Public Response to Limited Re-opening. We received seven comments, 
mostly from trade associations and labor organizations, on this limited 
re-opening of the rulemaking record. Some commenters urged us to re-
open the rulemaking record in its entirety because they asserted that 
the information in the record was outdated. They claimed this action 
would improve the effectiveness and quality of the HazCom standard 
because sectors of the mining industry that have incorporated OSHA's 
HCS can provide us with their experience under that program. A large 
mining company stated that we need to address in the HazCom standard 
recent changes in the OSHA HCS regarding electronic access to MSDSs and 
microfiche maintenance of these documents. Some commenters disputed the 
need to promulgate a HazCom standard in light of our new miner training 
regulations applicable to surface aggregate mines. Finally, a major 
labor organization objected to the delay in promulgating a final 
standard.
    We disagreed with commenters on the need to re-open the rulemaking 
record in its entirety. Unlike general industry, the mining industry is 
narrowly composed of two sectors, coal and metal and nonmetal. Through 
our frequent presence on mine properties, we determined that there are 
no substantial changes in the mining industry which would require 
changes in the provisions of the standard. Changes experienced by the 
mining industry since the publication of the HazCom proposed rule in 
1990 did not rise to a level of change in ``core'' circumstances so 
material in nature as to entail a modification of the standard. 
Substantive rulemaking issues and regulatory alternatives have not 
changed since the record closed in 1992 and, consequently, the evidence 
in the rulemaking record at that time continues to be applicable now.
    We understood commenters' desire to provide more information 
regarding their experience under the OSHA HCS standard. Our rulemaking 
record, however, contains numerous comments concerning the mining 
industry's experience with OSHA's HCS. The record also contains 
numerous background documents, such as the

[[Page 42321]]

report of the hazard communication workgroup of the National Advisory 
Committee on Occupational Safety and Health, expressing OSHA's 
experience with its HCS. We have considered the comments and background 
information, and the final standard reflects the public's 
recommendations where they do not undermine HazCom's purpose in 
protecting the safety and health of miners. For example, some 
commenters indicated their experience regarding OSHA's MSDS 
requirements and suggested that we include a provision on electronic 
access to MSDSs; simplify the proposed rule regarding the content of 
MSDSs; use terms that are consistent with the Mine Act instead of the 
OSH Act; simplify the requirements regarding inclusion of MSDSs with 
initial shipment of product; and require retention of MSDSs for a 
period of less than 30 years.
    In response to these comments, the interim final rule provided for 
electronic access to MSDSs; used terms such as ``miner'' and ``mine 
operator'' instead of ``employee'' and ``employer'' to be more 
consistent with the language of the Federal Mine Safety and Health Act 
of 1977 (Mine Act); streamlined and clarified the provisions on the 
format and content of MSDSs; and required the operator to keep the MSDS 
at the mine for as long as the chemical is known to be present at the 
mine, instead of 30 years as OSHA requires. While MSHA's HazCom 
standard is generally consistent with OSHA's HCS, we made changes to 
the interim final rule from the proposed rule in recognition of 
comments received from the mining industry concerning its experience 
under OSHA's HCS. These changes also recognize that the affected 
regulated community is smaller and more homogeneous than the industries 
regulated by OSHA.
5. Interim Final Rule
    Although we disagreed with commenters on the need to re-open the 
rulemaking record in its entirety, in an effort to be further 
responsive to the public, we decided to publish an interim final rule 
to provide an additional opportunity for comment. The interim final 
rule was published on October 3, 2000, and gave commenters until 
November 17, 2000, to submit comments on the entire rule, on their 
experience under the OSHA HCS, and on the new ``plain language'' format 
of the rule. We were particularly interested in receiving comments 
addressing any new developments in the mining industry since the 
proposed rule that we were unaware of. In response to requests from 
commenters, we also held a public hearing in Washington, DC, on 
December 14, 2000. The record closed on December 19, 2000.
    Public response to interim final rule. We received 22 comments on 
the interim final rule, and six persons spoke at the December 2000 
public hearing. None of the comments received or testimony presented 
raised new substantive issues. In fact, most of the issues raised by 
commenters were already addressed in the preambles to the proposed rule 
and interim final rule.
    Several commenters at the public hearing objected to our short 
comment period and our short notice of the public hearing. These 
commenters stated that they were denied sufficient time to fully 
analyze the interim final rule and provide meaningful comment because 
the public hearing took place 3 days after the notice of the hearing 
was published in the Federal Register on December 11, 2000 (65 FR 
77292).
    MSHA acknowledges that notice was short, but contends that notice 
was adequate. At the end of the comment period, we had received two 
requests for a public hearing. We made arrangements for a public 
hearing, prepared a notice of the hearing for publication in the 
Federal Register, personally notified all commenters and other 
interested persons on December 7, 2000, and put our hearing notice on 
our website on Friday, December 8, 2000.
    Several parties (FMC Corporation, General Chemical Group, Inc., OCI 
of Wyoming, Solvay Minerals, and NAA-NSA) have challenged the interim 
final rule in the U.S. Circuit Court for the District of Columbia 
Circuit. The United Mine Workers and the National Mining Association 
are interveners in the lawsuit. The petitioners have indicated that 
they will argue that affected parties were not provided an adequate 
opportunity to participate in the rulemaking, and that the HazCom rule 
is arbitrary, capricious, and contrary to law because of the following, 
among other things:
     HazCom will not significantly reduce a risk to miners.
     HazCom is unnecessary because it duplicates other MSHA 
rules, including the parts 46 and 48 training rules.
     HazCom unlawfully delegates the Secretary's rulemaking 
responsibilities to ACGIH, alleging it violates the Federal Advisory 
Committee Act.
     HazCom unlawfully incorporates by reference future actions 
of non-government entities, such as ACGIH, without prior notice and 
opportunity for comment.
    The matter is in abeyance awaiting issuance of the final rule.
6. 2001 Re-opening of the record
    As stated previously, commenters to the interim final rule objected 
to what they perceived as MSHA's failure to provide adequate notice and 
opportunity to comment. Over the following months, industry trade 
associations sent MSHA several letters asserting they had new 
information and reiterating their request to re-open the record. In 
response, MSHA re-opened the HazCom record for public comment on August 
28, 2001 (66 FR 45167); delayed the effective date of the interim final 
rule until June 30, 2002; and announced seven public hearings to be 
held across the country from September 25 through October 10, 2001. The 
record closed on October 17, 2001.
    Public response to 2001 re-opening. In this most recent re-opening 
of the HazCom record, MSHA received 30 written comments. In addition, 
52 individuals presented testimony at the public hearings. All 
commenters agreed with the principle of informing miners about chemical 
hazards, but there was wide disagreement on the need for a HazCom rule, 
the effectiveness of some of the rule's requirements, and the magnitude 
of the burden on mine operators. The substance of the comments, 
especially those relating operators' experiences with their own hazard 
communication programs, convinced us that some additional changes to 
the interim final rule were needed.
    In sum, we are confident that we have considered all comments in 
the rulemaking record in the development of this final standard. While 
it conforms to the primary purpose of protecting the safety and health 
of miners, the final standard reflects the public's recommendations to 
the extent practical, is performance oriented, and minimizes the 
compliance burden on operators.

II. Discussion of the Final Rule

    In preparing this final rule, we considered the concerns and 
suggestions of all commenters, while balancing the need of miners to 
have the information necessary to work in a safe and healthful 
environment.
    Commenters to both the proposed and interim final rules supported 
widely different ideas about a HazCom rule for the mining industry. 
Some said we do not need one because existing standards require hazard 
training and labeling; others said it is vital to allow miners to 
exercise their right-to-know. Some said the rule would be a great 
burden; others said that they already have such a program. Some said 
they want a rule

[[Page 42322]]

just like OSHA's; others said we should resist the temptation to 
duplicate OSHA's HCS. Some wanted a separate standard for the coal 
mining industry; others recommended that we establish separate 
standards for mine operators and independent contractors; others wanted 
a single federal standard. Some urged us to include specific language 
to ensure that individual states do not promulgate or enforce any 
requirements related to hazard communication that conflict with the 
federal standard. Commenters recommended that the final rule be 
practical, strike a balance between providing too much information and 
too little, and allow for global harmonization with international 
standards.
    In response to the different needs for hazard communication in the 
mining industry, and the broad range of comments, the provisions of the 
final rule are performance oriented and flexible enough that operators, 
including contractors, can comply using a single program to meet OSHA's 
HCS and our HazCom standard. We considered adopting the OSHA HCS in its 
entirety, but some requirements of OSHA's HCS are not relevant to 
mining. As another consideration, OSHA's HCS is supplemented by other 
OSHA standards for which we have no parallel. OSHA, for example, has 
comprehensive standards specifically covering hazardous waste 
operations, laboratories, and medical records. To the extent practical, 
the substance of our final rule is the same as that in OSHA's HCS. We 
added provisions where needed, however, to give miners the same 
protection as employees in general industry.

A. Subpart A--Purpose, Scope, Applicability, and Initial Miner Training

    The proposed rule included a ``scope and application'' section 
stating where HazCom applied and listing exemptions from coverage. In 
the interim final rule, we renamed this section ``operators and 
chemicals covered.'' We moved the exemptions, which were a part of the 
scope in the proposed rule, to the end of the HazCom interim final rule 
so that the substantive requirements would be up front where they are 
more accessible. This placement is unchanged in the final rule. (See 
Secs. 47.91 and 47.92.) We will discuss exemptions later in the 
preamble, consistent with their placement in the final rule.
1. Section 47.1  Purpose of a HazCom Standard; Applicability
    A few commenters to the proposed rule suggested that we include a 
``purpose and intent'' section in our HazCom final rule, in addition to 
the ``scope and application'' section. In response, the final rule adds 
language to specify that the purpose of HazCom is to reduce chemically 
related injuries and illnesses by ensuring that you--
     Know what chemicals are at your mine;
     Determine which are hazardous and the nature of their 
hazards;
     Establish a HazCom program; and
     Provide each miner with initial HazCom training.
    This section of the final rule also includes the compliance dates 
for application of the rule. For mines employing five or fewer miners, 
the rule is applicable 9 months from its date of publication in the 
Federal Register. For mines employing six or more miners, the rule is 
applicable 3 months from its date of publication.
2. Section 47.2  Operators and Chemicals Covered; Initial Training
    Operators and chemicals covered. The scope of the final rule 
remains unchanged from that of the interim final rule. Paragraph (a) of 
Sec. 47.2 of the final rule states that the standard ``applies to any 
operator producing or using a hazardous chemical to which a miner can 
be exposed under normal conditions of use or in a foreseeable 
emergency.'' This language is consistent with the purpose of HazCom and 
OSHA's HCS.
    The proposed rule specified that the rule would apply ``to all 
operators who produce or use hazardous chemicals in their workplace'' 
and to ``any chemical which is known to be present in the workplace in 
such a manner that employees are exposed * * *.'' Although the proposed 
rule seemed to apply only where there was an actual exposure, the 
proposed rule defined exposed as ``subjected, or potentially subjected, 
to a hazardous chemical * * *.'' The preamble to the proposed rule 
further explained that this definition included ``current and potential 
(accidental and possible) exposures.''
    In the interim final rule we clarified the language of the proposal 
by stating that HazCom applies ``to any operator producing or using a 
hazardous chemical to which a miner can be exposed * * *.'' By 
modifying the language in the interim final rule, we clarified our 
intent that you must know what hazardous chemicals are present at your 
mine and evaluate whether it is possible for miners to be exposed under 
normal conditions of use or in a foreseeable emergency.
    The potential for exposure to a hazardous chemical, such as diesel 
fuel, motor or hydraulic oils, lubricants, paints, or solvents, occurs 
at every known mining operation. While considering HazCom, we reviewed 
data and documents from inspections and investigations, chemical 
inventories, technical reports, accident and injury data, and sampling 
data confirming that exposure to chemicals occurs in all types and 
sizes of mines.
    Potential exposure. The final rule retains the same concept of the 
term ``exposed'' as in the proposed and interim final rules. In HazCom, 
``exposed'' means subjected or potentially subjected to a chemical 
hazard. In the context of potential exposure, we intend that you 
interpret the term ``foreseeable'' broadly as ``anticipated'' or 
``expected'' eventually. A potential exposure to a hazardous chemical 
is foreseeable if the miner is in the same work area as the chemical; 
spills and leaks are commonplace. However, we also intend HazCom to be 
practical. We do not intend that you interpret ``foreseeable'' to 
include situations that are highly remote or speculative.
    NIOSH commented on our HazCom proposed rule and interim final rule 
stating that the scope should not limit coverage of HazCom only to 
hazardous chemicals ``under normal conditions of use or in a 
foreseeable emergency.'' NIOSH stated that HazCom should cover all 
hazardous chemicals present on mine property, regardless of intended or 
expected exposures. Specifically, NIOSH stated in comments to the 
proposed rule that:

    All workers should be informed about the nature of the risks 
associated with the hazardous materials found in their workplace. 
``When working in the presence of a hazardous material, hazards are 
always present even under work situations most carefully designed to 
eliminate risk'' (NIOSH 1974a). The informed worker is prepared to 
minimize the impact of a hazardous materials incident. The 
uninformed worker is at risk of causing a hazardous materials 
incident or contributing to adverse health effects.

    In response to the interim final rule, NIOSH wrote:

    Hazard communication programs should include all workers at the 
worksite for all possible exposures including unplanned catastrophic 
occurrences that often involve hazardous materials and may result in 
exposure to any persons at the worksite.

    We partly agree with NIOSH's comments. But we also agree with those 
commenters who expressed concern that by addressing remote or trivial 
hazards, the purpose of HazCom would be defeated and its effectiveness 
diluted. If miners are flooded with warnings about all chemical 
hazards, including

[[Page 42323]]

those they perceive as remotely possible, they may be more likely to 
ignore warnings for the more probable hazards. We also believe that it 
would be unnecessarily burdensome to require you to address every 
conceivable chemical hazard, regardless of how unlikely that hazard is 
to materialize.
    For example, suppose a caustic chemical is only present in a 
certain area of your bauxite mill and you have miners in this area 
working near pipes carrying the caustic. You have other miners who work 
in a remote area of your operation who never go near the mill or the 
caustic. Although you could conceive of circumstances where the miner 
who does not work near the pipes can be exposed, it would not be 
reasonably foreseeable. On the other hand, you can conceive of 
circumstances where the miner who works daily near the pipes can be 
exposed. The caustic can eat through a pipe; a truck can back into a 
pipe; pressure can cause joints to leak. Exposure is foreseeable under 
these circumstances.
    Almost all miners are exposed to crystalline silica, but the 
potential for illness is related to their exposure to the respirable 
fraction of dust. For example, suppose your miners work on a concrete 
floor and there is silica in the concrete. If no cutting, grinding, or 
other activities occur on the floor that would release the respirable 
fraction, the potential for exposure to respirable crystalline silica 
is remote, and the miners are not potentially exposed to a hazard. If 
you must remove the floor through grinding, cutting, or crushing, the 
potential for exposure is foreseeable and the concrete would become a 
hazardous chemical subject to HazCom. Base your decision to include a 
chemical in your HazCom program on its hazards and the potential for 
miner exposure.
    The final rule sets boundaries on the chemicals and operators 
covered by HazCom. It is our judgment that these boundaries provide 
miners the protections intended by the Mine Act without causing you to 
expend resources on remote possibilities.
    Significance of exposures. One of the most frequent suggestions 
received on both the proposed and interim final rules was that the rule 
should apply only where significant exposure to a chemical occurs. 
These commenters asserted that a significant exposure involved a 
likelihood of material impairment of health to a miner, such as when a 
miner was overexposed to a hazardous chemical. Miners are frequently 
and seriously harmed by chemicals in their work area, but HazCom is not 
a risk-based health standard for measuring exposures, requiring 
controls, or providing personal protective equipment. Other standards 
address the problems of significant risk and the methods of controlling 
it. HazCom is an information standard intended to diminish risk by 
ensuring that operators provide miners with a level of knowledge and 
awareness that allows them to reduce their exposures and prevent harm 
by recognizing potential hazards and by following safe work practices.
    HazCom is based on the premise that chemicals can have inherent 
characteristics that pose hazards and miners have a right to know what 
those hazards are and what their employer is doing to protect them. 
Many chemicals are considered to be hazardous because evidence 
indicates that they can threaten a person's physical well-being. 
Determining that a chemical is hazardous is not the same as determining 
that there is a significant risk of any specific physical or health 
effect occurring from its use under a particular set of circumstances 
at the mine.
    HazCom is being promulgated to anticipate the possibility of harm 
from chemical exposures and provide information on ways to avoid it. It 
is not intended to regulate chemical use. It does not prohibit or limit 
the use of chemicals in the mining industry or prescribe controls to 
reduce exposures. HazCom's effectiveness is dependent on the operator's 
and miner's knowledge and awareness of hazards. Like any information 
standard, it is through hazard identification and awareness that HazCom 
addresses hazardous chemical exposure and prevents injuries and 
illnesses.
    Initial HazCom training. Paragraph (b) of Sec. 47.2 of the final 
rule is a new paragraph. It requires operators of mines to initially 
instruct each current miner about the physical and health hazards of 
chemicals in the miner's work area, the protective measures a miner can 
take against these hazards, and the contents of the mine's HazCom 
program within certain time periods.
    Subpart F of the HazCom interim final rule contained all of the 
requirements for miner training which were, for the most part, the same 
as the proposed rule. The interim final rule required operators to 
train each miner about the hazardous chemicals in his work area before 
the miner's first assignment to that area, when the operator introduced 
a new hazardous chemical into the miner's work area, and when the 
operator became aware of significant, new information about a 
chemical's hazards. Although the interim final rule did not specify a 
format for this training, it stated that the HazCom training must 
include instruction on the physical and health hazards of chemicals in 
the work area; the requirements of HazCom; the mine's HazCom program; 
the location and availability of the written HazCom program; the 
operations or locations where hazardous chemicals are present in the 
miner's work area; the methods and observations that can be used to 
detect the presence or release of a hazardous chemical in the work 
area; the measures that a miner can take to protect himself or herself 
from these hazards; and specific procedures in place at the mine to 
protect miners from hazardous chemical exposure.
    The training requirements of both the proposed HazCom standard and 
the interim final rule have been an issue throughout this rulemaking. A 
number of commenters to the proposed and interim final rules 
anticipated administrative problems both in conducting and documenting 
the training. Some urged us to fully integrate HazCom training with 
existing requirements. Some suggested that language be included to 
permit operators to satisfy the HazCom training provisions by 
incorporating HazCom training requirements into parts 46 and 48. Some 
suggested that we not promulgate training requirements under HazCom, 
asking us to amend parts 46 and 48 to specify HazCom contents instead. 
Other commenters felt that HazCom training duplicated EPA training and 
requested that we avoid needless duplication. Some commenters 
recommended that we require qualified or certified trainers to conduct 
the training. A commenter objected to the burden created by having to 
hire trainers and personnel to perform chemical identifications.
    In the interim final rule we stated that although we have standards 
for labeling toxic substances under parts 56 and 57, these standards do 
not contain any training requirements on hazardous chemicals. With 
regard to the existing training under parts 46 and 48, we stated that 
these training regulations were insufficient for purposes of HazCom 
training because they do not specify the training content. Parts 46 and 
48 basically require instruction in hazard recognition and the health 
and safety aspects of new work tasks.
    After carefully reviewing all comments, and testimony presented at 
the HazCom hearings, we have decided to create a unified training 
approach for hazardous chemicals by eliminating all but the initial 
training requirements from the final rule and adding

[[Page 42324]]

conforming amendments to parts 46 and 48 for subsequent HazCom 
training.
    Accordingly, this final rule eliminates the training requirements 
enumerated under Subpart F of the interim final rule. We believe that 
the conforming amendments to 30 CFR parts 46 and 48 will maintain the 
level of safety presented by the interim final rule. The final rule 
initially requires mine operators to instruct each miner about the 
physical and health hazards of chemicals in the miner's work area, the 
protective measures a miner can take against these hazards, and the 
contents of the mine's HazCom program, under new paragraph (b) of 
Sec. 47.2. We have also added amendments to the training subjects of 
existing 30 CFR parts 46 and 48 to address the subject of hazardous 
chemicals. This means that subsequent training on HazCom topics after 
the initial HazCom training required under Sec. 47.2(b) will be 
conducted under parts 46 and 48. We believe that these conforming 
amendments to parts 46 and 48 are necessary to ensure that training on 
hazardous chemicals is provided under these parts.
    Hazardous waste. The final rule, consistent with the interim final 
rule, does not exempt EPA-regulated hazardous waste from training. 
Miners that have this type of hazardous material in their work area 
need all the information available to protect themselves from chemical 
hazards and from inadvertent exposure that could cause or contribute to 
an injury or illness.
    There are a number of cement operations under MSHA jurisdiction 
which EPA licenses to burn hazardous waste. These operations typically 
use the waste as a supplemental fuel for their kilns. In addition, EPA 
regulates a number of mining operations that dispose of hazardous solid 
or liquid wastes on mine property. In the proposed rule, we 
specifically requested comments on the appropriateness of requiring 
HazCom training for miners who are exposed to EPA-regulated hazardous 
wastes.
    One commenter supported our proposed hazardous waste training 
requirements. Another stated that we should use Resource Conservation 
and Recovery Act (RCRA) information for training purposes and copy 
OSHA's HCS. One commenter recommended that we not require HazCom 
training unless a miner is exposed to the hazardous waste. Another 
commenter stated that HazCom training in addition to EPA training may 
be redundant.
    We believe that HazCom's provisions for hazardous waste will not 
result in duplication because MSHA standards do not fully address 
hazardous waste operations. OSHA can exempt hazardous waste from its 
HCS because they have a separate standard that covers hazardous waste 
operations. HazCom fills an important gap in protecting the health and 
safety of miners who may be exposed to hazardous waste. HazCom requires 
operators to label hazardous waste, if it is not already labeled, and 
provide miners access to any information about the hazardous waste that 
addresses its components, their health and safety effects, or how to 
prevent exposure.
    As discussed earlier in this preamble, we addressed the issue of 
how to handle EPA-regulated hazardous waste at all stages of the 
rulemaking process. We are confident that the coverage of EPA-regulated 
hazardous waste in the HazCom rule eliminates potential duplicate 
training and minimizes burden on mine operators while providing 
protection for miners. EPA reviewed MSHA's HazCom interim final rule 
and saw no errors or omissions or other issues of concern to them.
    Administration of training and compliance assistance. Some 
commenters to the proposed and interim final rules recommended that 
MSHA administer the HazCom training because it could result in a higher 
level of consistency and quality in the training. One commenter to the 
interim final rule suggested that MSHA cite ANSI Z490.1 Criteria for 
Best Practices in Safety, Health, and Environmental Training, in the 
final rule for you to follow.
    Although we do not intend to conduct the initial HazCom training 
for you, we will provide information and assistance to trainers through 
our Mine Safety and Health Academy, Educational Field Services, and the 
MSHA district offices, and state grantees. We have developed a number 
of aids for the mining industry to use in implementing a successful 
HazCom program. You can visit our Web site at http://www.msha.gov to 
find out what is available. We intend to publish a Compliance Guide, a 
Toolbox, and other information as warranted, apart from HazCom, to 
assist the industry in complying with the standard. We encourage you to 
use the ANSI document as a guide for your initial HazCom training or 
subsequent HazCom training under 30 CFR parts 46 and 48.
    Like MSHA, OSHA has developed training materials for its 
industries, some of which may be helpful to you in developing your 
initial HazCom training or subsequent training. The training materials 
are available from OSHA's Web site at http://www.osha.gov. 
Additionally, over the past 15 years, various organizations have 
developed informational materials, training aids, and model training 
programs to assist industry in complying with OSHA's HCS. You should be 
able to use some of this material in developing and conducting HazCom 
training.
    Content of initial miner training. As explained above, Sec. 47.2(b) 
of the final rule requires operators to initially instruct each miner 
about the physical and health hazards of chemicals in the miner's work 
area, the protective measures a miner can take against these hazards, 
and the contents of the mine's HazCom program. Consistent with the 
proposed and interim final rules, this new provision does not specify 
the format for this training. The rule allows you to determine the best 
way to instruct your miners about the physical and health hazards of 
chemicals in the miner's work area, the protective measures a miner can 
take against these hazards, and the contents of the mine's HazCom 
program. If miners are exposed to a large number of hazardous 
chemicals, you could conduct the initial HazCom training by categories 
of hazards and by referring miners to the substance specific 
information on the labels and MSDSs and the locations or operations 
within their work areas where such chemicals are used. If miners are 
exposed to a small number of hazardous chemicals, you could conduct 
their initial HazCom training specifically on each hazardous chemical.
    The interim final rule specified the content of the HazCom training 
by stating that the HazCom training must include instruction on the 
physical and health hazards of chemicals in the work area; the 
requirements of HazCom; the mine's HazCom program; the location and 
availability of the written HazCom program; the operations or locations 
where hazardous chemicals are present in the miner's work area; the 
methods and observations that can be used to detect the presence or 
release of a hazardous chemical in the work area; the measures that a 
miner can take to protect himself or herself from these hazards; and 
specific procedures in place at the mine to protect miners from 
hazardous chemical exposure. Final Sec. 47.2(b), along with the 
conforming amendments to existing parts 46 and 48, contains equivalent 
protection to the interim final rule. We believe that this modification 
of the HazCom training requirements does not represent a reduction in 
safety to miners because the specific training elements of the interim 
final rule are already integrated in other sections of the final rule, 
final

[[Page 42325]]

Sec. 47.2(b) and the conforming amendments to parts 46 and 48.
    Accordingly, consistent with Sec. 47.52(a), (c) and (g) of the 
interim final rule, final Sec. 47.2(b) requires mine operators 
initially to instruct each miner about the physical and health hazards 
of chemicals in the miner's work area, the protective measures a miner 
can take against these hazards, and the contents of the mine's HazCom 
program. Additionally, subsequent HazCom training under parts 46 and 48 
will include instruction on the physical and health hazards of 
chemicals in the miner's work area, the protective measures a miner can 
take against these hazards, and the contents of the mine's HazCom 
program.
    For example, miners will continue to have information regarding the 
requirements of the HazCom standard under paragraph (a) of Sec. 47.32 
and Sec. 47.71 of the final rule. Paragraph (a) of Sec. 47.32, HazCom 
program contents, requires mine operators to specify in the written 
HazCom program how the requirements of the HazCom standard are put into 
practice at the mine. Section 47.2 requires operators to instruct each 
miner about the HazCom program. Section 47.71, Access to HazCom 
materials, requires mine operators to provide all miners, upon request, 
with access to all HazCom materials required by the rule. Consequently, 
both Secs. 47.32 and 47.71 will ensure that information about the 
HazCom standard is provided to each miner.
    With regards to the interim final rule's requirement to train 
miners on the location and availability of the written HazCom program, 
the operations and locations where hazardous chemicals are present in 
the miner's work area, and the specific procedures in place at the mine 
to protect miners from hazardous chemical exposure, we believe that the 
final rule, as well as the conforming amendments to parts 46 and 48, 
include these. Final Sec. 47.2(b), Operators and chemicals covered; 
initial training, requires mine operators to train miners on the 
protective measures they can take against the physical and health 
hazards of chemical's in their work area. It also requires mine 
operators to train miners on the contents of the mine's HazCom program. 
Section 47.32 of the final rule, HazCom program content, requires mine 
operators to include in the written HazCom program, among other things, 
a list of hazardous chemicals known to be at the mine. As with the 
interim final rule, this list may be compiled by individual areas of 
the mine or the mine as a whole. Access to all HazCom materials, 
including the HazCom final rule, is provided under Sec. 47.71.
    When you train miners on the physical and health hazards of 
chemicals in the miners' work areas, the training must include the 
operations and locations where hazardous chemicals are present. In 
addition, as part of the information provided to each miner regarding 
protective measures and the content of the HazCom program, you must 
inform miners about the location and availability of the written HazCom 
program, as well as the specific procedures in place at the mine to 
protect them from hazardous chemical exposure. Final Secs. 47.2(b), 
47.32, and 47.71, together, will ensure that miners are provided with 
the appropriate information that will provide protection against 
chemical hazards at the mine.
    Instructor qualifications. Some commenters to the proposed and 
interim final rules recommended that we require you to conduct HazCom 
training using only qualified or certified trainers. One of these 
commenters stated that we should require OSHA qualification for HazCom 
instructors in mining and that we should require your hazard 
coordinators to maintain their qualifications by attending formal 
education or training courses. A commenter expressed concern that 
unqualified mine supervisors may be conducting HazCom training. Another 
commenter objected to the burden created by having to hire trainers and 
personnel to perform chemical identifications.
    Consistent with the proposed and interim final rules, the final 
HazCom standard does not specifically require you to use qualified 
instructors to conduct the initial HazCom training. We expect, however, 
that you will use the trainers on your staff to train miners about 
chemical hazards. The hazardous chemicals brought to your mine will 
have MSDSs and labels. These will provide information for hazard 
identification and you should not have to hire or train additional 
persons to conduct the initial HazCom training.
    Mine operators must be aware that, even though final Sec. 47.2(b) 
does not require the use of a qualified instructor for the initial 
HazCom training, the final HazCom standard amends existing parts 46 and 
48 so that subsequent HazCom training is conducted under those training 
regulations. All subsequent HazCom training, therefore, must be 
provided in accordance with the applicable training requirements of 
parts 46 and 48. Existing part 46 requires that the training be 
conducted by a competent person designated by the mine operator. 
Existing part 48 requires the use of an MSHA-approved instructor for 
the administration of part 48 training.
    HazCom training records. MSHA and many commenters have a common 
concern about paperwork requirements and the recordkeeping burden this 
places on them. Congress requires us to reduce the amount of paperwork 
you must keep or submit to us. That requirement is balanced against our 
need to function effectively in meeting the goals of the Agency.
    In view of those factors, and to alleviate mine operator's 
recordkeeping burden, this final rule does not require mine operators 
to maintain a record of the initial HazCom training required under 
Sec. 47.2(b). We believe that this modification provides mine operators 
with relief from their paperwork burden. We also believe that this 
change does not represent a reduction of miner safety because we will 
be able to determine through our compliance assistance and inspection 
activities whether miners received their initial HazCom training.
    MSHA inspectors will be providing compliance assistance at every 
mine. At the times that inspectors visit the mines, the inspectors can 
easily determine whether or not the miners have been initially trained 
in accordance with Sec. 47.2. Discovering whether or not such initial 
training has occurred should be a focus of the compliance assistance 
which inspectors will be offering. This determination can be easily 
made by asking the miners if they have received the training outlined 
in the rule. Miners will be aware of their rights through the outreach 
programs planned by MSHA. Mine operators will be aware of their 
responsibilities based on the information which will be provided by 
MSHA inspectors and MSHA education and training personnel.
    Mine operators are reminded that, even though the HazCom final rule 
does not contain a recordkeeping requirement for initial training, 
existing training regulations under parts 46 and 48 contain 
recordkeeping requirements. Subsequent HazCom training conducted under 
existing parts 46 and 48 must comply with the recordkeeping 
requirements of those training regulations.

B. Subpart B--Definitions

    HazCom is an information standard focused on developing awareness 
of chemical hazards. Table 47.11 defines the terms needed for 
understanding the concepts and requirements in the standard. We defined 
some terms to have a special meaning for this

[[Page 42326]]

standard, but tried to stay consistent with the ordinary meaning of the 
terms.
1. Using MSHA and OSHA terms
    The Mine Act defines the terms miner and mine operator to identify 
employees and employers on mine properties and we use those terms in 
the final rule as they were defined in the statute.
    Miners/workers/employees. We used the term employee in the proposed 
rule to identify a person ``working in a mine who may be exposed to a 
hazardous chemical.'' The proposed rule included a sentence to clarify 
that the standard did not apply to individuals, such as office workers, 
who encounter hazardous chemicals only in non-routine instances.
    Commenters to the proposed rule recommended that we use the term 
miner instead of employee. Many commenters pointed out that miner is 
defined in the Mine Act, and that using this term would be consistent 
with our statute. Because the term miner, as defined in the Mine Act, 
means any individual working in a coal or other mine, including office 
workers, some suggested that we could add an exemption for office 
workers in a separate section.
    The example of office workers in the proposed rule was an attempt 
to clarify that HazCom does not apply to individuals exposed to a 
hazardous chemical in extraordinary, non-routine situations. We 
intended this statement in the proposed rule to complement the scope 
and emphasize that individuals exposed to a hazardous chemical under 
normal conditions of use or in a foreseeable emergency, regardless of 
their job category, are covered by HazCom.
    You must ensure that hazardous chemicals normally used in or around 
an office are labeled appropriately and that you have an MSDS for them. 
You also must inform exposed office workers about the physical and 
health hazards of chemicals in their work area, the protective measures 
they can take against these hazards, and the contents of the mine's 
HazCom program.
    For example, some toner cartridges for copying machines come 
labeled and have MSDSs with them because they contain a hazardous 
chemical. The label and MSDS will comply with OSHA's HCS. Under HazCom, 
you must make potentially exposed workers aware of the hazards.
    In response to comments, we replaced the term employee with the 
term miner in the interim final rule. There were a few instances where 
employee was more appropriate because it made the meaning clearer. 
There were no comments to those revisions and they were unchanged in 
the final rule.
    Operator/independent contractor/employer. We defined employer in 
the proposed rule as a person engaged in a business where chemicals are 
either used, distributed, or are produced for use or distribution, 
including a contractor or subcontractor. We intended the term to 
describe independent contractors on-site, as well as downstream or OSHA 
jurisdiction customers. In response to the general comment that we 
should rely on definitions familiar to the mining community, we 
replaced the term employer with the term operator in the interim final 
rule. We retained a few instances where employer was more appropriate 
because it made the meaning clearer. There were no comments to those 
revisions and they are unchanged in the final rule.
    In the final rule, consistent with the interim final rule, we use 
operator to mean both the mine operator and independent contractor as 
defined in the Mine Act. In the preamble, we often use the term you 
instead of operator. We use the separate terms mine operator and 
independent contractor when we want to differentiate between the mine 
operator responsible for the whole operation and the contractors and 
subcontractors who have the responsibilities of an operator for 
specific aspects of the mining operation.
    Customer. We determined that a definition was not necessary for 
customer because we use the term as it is commonly understood to mean 
the downstream users who purchase your products.
    Mine/workplace. We defined workplace in the proposed rule to mean a 
mine, establishment, job site, or project at one geographical location 
containing one or more work areas. The term mine is defined by the Mine 
Act and, like miner, is more familiar to the mining industry. Mine 
means the same thing as workplace for purposes of HazCom. Accordingly, 
we substituted the term mine for workplace throughout the interim final 
rule. There were no comments to those revisions and they are unchanged 
in the final rule.
    Other terms. Some commenters to the proposed rule suggested that we 
add definitions for terms not proposed. Several commenters requested 
that coal mine be defined. The definition for mine in the Mine Act 
includes coal mines and coal preparation facilities. A number of 
commenters wanted independent contractor defined. We believe this term 
is well understood by the mining industry. It is used in Sec. 3 of the 
Mine Act in the definition of operator; 30 CFR part 45-Independent 
Contractors defines this term and it is used in other MSHA standards; 
and it has been clarified in case law. Separate definitions for these 
terms are unnecessary. No additional comments were made to the interim 
final rule and the meanings are unchanged in the final rule.
2. Material Impairment and Significant Risk
    Commenters to the proposed rule suggested revising definitions for 
exposed, hazardous chemical, and health hazard, among others, so the 
terms would include the concepts of material impairment and significant 
risk. They suggested deleting the phrase ``or potentially subjected'' 
from the definition of exposed. (The definition would then read: 
``Being subjected to a hazardous chemical in the course of employment * 
* *.'') Commenters also objected to the proposed rule's definition of 
hazardous chemical because it addressed ``any chemical, in any 
quantity, at any time.'' A health hazard, according to a commenter, 
should be a health hazard only under conditions of intended use.
    We did not change the definitions for exposed, hazardous chemical, 
and health hazard in the interim final or final rules to include the 
concepts of material impairment or significant risk. If these changes 
were made in HazCom, the final rule would have taken a significant 
departure from its intended purpose. A fuller discussion of material 
impairment and significant risk is found under Purpose and Scope in 
this preamble.
3. Section 47.11  Definitions of Terms Used in This Part
    A number of the terms defined in HazCom are commonly used by 
chemists, physicists, and health and safety professionals to identify 
and describe specific types of physical and health hazards or physical 
properties of chemicals. We have defined these terms in the clearest 
way we could, sometimes balancing technical precision with general 
clarity. For clarity and ease of reference, the final rule also 
includes the meanings of the abbreviations CPSC, EPA, and OSHA in the 
table of definitions. We believe this subpart provides you with the 
information you need to understand what HazCom requires and how to 
comply with it.
    Access. The final rule, like the proposed and interim final rules, 
defines access as the right to examine and copy records. One commenter 
to the proposed rule wanted this definition to

[[Page 42327]]

specify that you must provide access without cost to the miner. Another 
commenter to the proposal did not want the definition to include the 
right to copy records. Other commenters to the proposal suggested that 
we consolidate the access provisions in a single subpart rather than 
repeat them for each subpart.
    HazCom's final rule is organized consistent with the interim final 
rule and uses the term access principally in the subpart ``Making 
HazCom Information Available''. We believed the creation of this would 
make the requirements clearer and easier to use as well as respond to 
those commenters who asked us to consolidate provisions from several 
sections of the proposed rule. Because of the amount of detailed, 
technical HazCom material, particularly MSDSs, we believe that the 
intent to provide information to miners is best served if miners have 
the right to a copy of the material. The cost for providing free copies 
is a condition for providing access and not appropriate in a 
definition.
    Article. The proposed rule defined article to mean a manufactured 
item other than a fluid or a particle that--
    (a) Is formed to a specific shape or design during manufacture;
    (b) Has end-use functions dependent upon its shape or design; and
    (c) Under normal conditions of use, releases no more than small 
quantities (that is, minute or trace amounts) of a hazardous chemical, 
such as the off-gassing of plastic pipes, and does not pose a physical 
or health risk to employees.
    Numerous commenters to the proposed rule agreed with the definition 
in the proposed rule, except for paragraph (c). They claimed that 
paragraph (c) was unclear about how much of a hazardous chemical 
released from a manufactured item under normal conditions of use would 
constitute either small, minute, trace, or de minimis quantities. They 
also asked that we clarify that article means conveyor belts, repair 
steel, and other equipment and supplies commonly found at mines. To 
determine when an article is a hazardous chemical, some commenters 
suggested that the definition include a de minimis provision, while 
other commenters wanted a significant risk provision. One commenter to 
the proposed rule wanted the term ``under normal conditions of use'' 
deleted from the definition because it would limit the scope of the 
standard.
    Another commenter expressed concern that iron ore pellets would be 
considered a hazardous chemical under HazCom. Iron ore pellets, like 
bricks, are manufactured articles. Before they are pellets, however, 
the iron ore is a raw material which contains respirable crystalline 
silica. Both the respirable dusts of iron ore and silica are inhalation 
hazards because they can cause lung damage. When they can pose a hazard 
to exposed workers, these raw materials are covered by HazCom. As raw 
material, iron ore is exempt from labeling under HazCom while on mine 
property. The pellets are exempt from HazCom when they are formed into 
articles, provided that they do not release more than insignificant or 
trace amounts of a hazardous chemical and do not pose a physical or 
health hazard.
    We agreed with those commenters to the proposal that the definition 
created confusion. We believe that the confusion arose because the 
defined term also included the criteria for exemption, which was 
contrary to the ordinary understanding of the word. An article is first 
of all a class of material things. An item manufactured to a shape or 
design that determines its end-use functions will be an article, in the 
ordinary sense of the word, whether it gives off trace amounts of a 
hazardous chemical or larger amounts. The exemption of an article, 
however, is dependent on how the article is used.
    To clarify the standard's intent, we moved proposed paragraph (c) 
from Definitions to Exemptions to indicate that only articles that give 
off no more than insignificant or trace amounts of a hazardous 
chemical, and are neither a physical nor a health hazard, are exempt. 
The definition in the final rule describes manufactured goods, other 
than a fluid or particle, without regard to the chemical hazard 
produced. The Exemptions subpart now addresses the distinction between 
exempt and non-exempt articles. We believe that this change is non-
substantive, and clarifies the final rule. The final rule, like the 
interim final rule, uses the same language as the proposed rule except 
for the movement of the last provision to Exemptions.
    To illustrate the intent of the change, suppose you purchase a tire 
and use it on a haul truck. While on the truck, the tire may give off a 
trace amount of a hazardous chemical. Under this use, the tire is an 
article exempt from HazCom. When the tire is worn out and can no longer 
be safely used on the truck, you may send it to a mine that uses tires 
to supplement the fuel for a kiln. While burning, the tire gives off 
significant amounts of hazardous chemicals. The tire is still an 
article, but no longer exempt from HazCom. If they are exposed, the 
miners working at the kiln must be trained about the chemical hazards 
associated with the burning tire.
    Chemical. The final rule, like the proposed and interim final 
rules, defines chemical as any element, chemical compound, or mixture 
of these. One commenter to the proposed rule assumed that, for the 
purposes of HazCom, the definition of chemical could be interpreted 
broadly to include the by-products of chemical reactions. We agree. A 
by-product of chemical reactions is a separate chemical and may have 
different hazards than the chemicals used to produce it. We intend that 
you address any by-products as you address other chemicals you produce.
    Chemical name. The proposed rule defined chemical name as the 
scientific designation of a chemical in accordance with the 
nomenclature system developed by the International Union of Pure and 
Applied Chemistry (IUPAC) or the Chemical Abstracts Service (CAS) rule 
of nomenclature, or a name that will clearly identify the chemical for 
the purpose of conducting a hazard evaluation. A commenter to the 
proposed rule recommended that the definition specify Registry of Toxic 
Effects of Chemical Substances (RTECS) numbers, as well as CAS numbers. 
Although RTECS numbers are not as widely accepted as CAS numbers as a 
means of identifying a specific chemical, they are unique and precise 
and may be used, as well as IUPAC numbers. HazCom's interim final and 
final rules retain the proposed rules definition for chemical name. 
There were no subsequent comments received concerning the definitions 
or this discussion in the interim final or final rules.
    Common name. In the proposed rule, we defined common name as any 
designation or identification, such as a code name, code number, trade 
name, brand name, or generic name, used to identify a chemical other 
than by its chemical name. Commenters generally supported the proposed 
definition for the term common name, which remains the same in the 
final rule. This definition is consistent with the OSHA HCS.
    Consumer product; food; food additive; color additive. We exempted 
consumer products, foods, food additives, and color additives in the 
proposed rule, but we did not define them. The exemptions, however, 
referred to the definitions of these terms in the Consumer Product 
Safety Act (CPSA) and the Federal Food, Drug, and Cosmetic Act. 
Commenters to the proposed rule asked us to clarify the meaning of 
these terms, although the

[[Page 42328]]

concerns appeared to center on consumer products.
    We did not define food, food additive, or color additive in the 
interim final or final rules because we use these terms as they are 
commonly understood and we believe the public knows what they mean. We 
received no comments about the use of these terms in response to the 
interim final rule.
    We defined consumer product in the interim final rule, in part, by 
developing it from the exemption in the proposed rule and referring to 
the CPSA. The proposed rule would have exempted consumer products as 
defined in the Consumer Product Safety Act (15 U.S.C. 2051) when they 
are subject to consumer product safety standards or labeling 
requirements issued under this Act. The interim final rule required you 
to consider ``the manufacturer's intent,'' ``the level and duration of 
exposure,'' and its labeling under the CPSA. Commenters to the interim 
final rule asked that we provide a definition for consumer product that 
would serve as a practical guide, rather than refer to CPSA. One 
commenter suggested that ``EPA's consumer products definition [in SARA] 
is more practical than MSHA's and achieves the result MSHA intended.''
    In response to comments, we revised the definition for consumer 
product in the final rule to be easier to understand by keying it to 
packaging, labeling, and distribution rather than referencing another 
federal statute. We decided to use the Consumer Products Safety 
Commission's (CPSC's) concept of consumer product, rather than SARA's, 
because both HazCom and OSHA's HCS refer to CPSC's definition. The 
CPSC's definition clarifies the exemption, is compatible with HazCom 
and OSHA's use of the term, and provides the necessary protections for 
miners. Even so, we intend that the definition and exemption cover the 
same chemical products and uses as the proposed and interim final rules 
and OSHA's HCS. We believe that by defining consumer product as being 
packaged, labeled, and distributed in the same form and concentration 
as it is sold for use by the general public, the definition is simpler 
and easier to understand. A full discussion of consumer products can be 
found in Subpart J, Exemptions, later in this preamble.
    Container. As in the proposed and interim final rules, the final 
rule defines container as any bag, barrel, bottle, box, can, cylinder, 
drum, reaction vessel, storage tank, or the like that contains a 
hazardous chemical. The definition further states that pipes or piping 
systems; conveyors; and engines, fuel tanks, or other operating systems 
or parts on a motor vehicle (such as tires) are not considered to be 
containers.
    One commenter to the proposed rule wanted pipes that contain 
hazardous chemicals to be considered containers. We consider it 
impractical to label pipes and piping systems containing hazardous 
chemicals. In numerous cases, these systems are used for different 
chemicals at different times, depending upon the needs of the 
operation. Our existing training standards require you to train miners 
about the hazardous chemicals to which they may be exposed in their 
work area. These are the same chemicals that would be transported in 
pipes and piping systems. In addition, the initial HazCom training 
requirements of this final rule cover the hazards of chemicals 
contained in pipes or piping systems in the miners' work areas.
    Designated representative. The final rule, like the proposed and 
interim final rules, defines designated representative as any 
individual or organization to whom a miner gives written authority to 
exercise that miner's right of access to records. A miner's 
representative, to contrast the two terms, is any individual or 
organization representing two or more miners.
    Many commenters to the proposed rule wanted to limit the miner's 
choice of a designated representative to the duly selected collective 
bargaining representative, a member of a safety and health committee 
chosen by the miners, or an individual miner selected as the walkaround 
representative by the miners at the same mine. We feel that if we had 
adopted any of these suggestions, we would have restricted a miner's 
options.
    Consistent with the proposed and interim final rules, the 
definition of designated representative in the final rule allows the 
miner to choose anyone as his or her designated representative, 
including the collective bargaining or miners' representative. We 
anticipate that in most instances, the designated representative will 
be one of those, but it could also be a miner's personal physician, 
attorney, or other person or organization of the miner's choosing.
    Employee; employer. The proposed rule defined employee as any 
individual working in a mine who may be exposed to a hazardous 
chemical. Individuals such as office workers who encounter hazardous 
chemicals in non-routine instances were not covered. Consistent with 
the interim final rule, we use the term miner in the final rule rather 
than employee and HazCom, therefore, does not include a definition for 
employee.
    The proposed rule defined employer as a person engaged in a 
business where chemicals are either used, distributed, or are produced 
for use or distribution, including a contractor or subcontractor. We 
use the term operator in the final rule rather than employer and 
HazCom, therefore, does not include a definition for employer. A fuller 
discussion of OSHA and MSHA terms is found in the preamble just before 
this section on Definitions.
    Exposed. The proposed rule defined exposed as being subjected, or 
potentially subjected, to a hazardous chemical in the course of 
employment through any route of entry, such as inhalation, ingestion, 
or skin absorption, during normal operating conditions or in a 
foreseeable emergency.
    A number of commenters to the proposed rule wanted the phrase ``or 
potentially subjected'' deleted from the definition of exposed because 
it is vague and open to interpretation. Other commenters wanted to 
modify the definition to read ``reasonably foreseeable emergency,'' and 
several commenters wanted to delete the entire phrase. Another 
commenter to the proposed rule wanted the term exposed to be defined as 
being subjected, or potentially subjected, to exposure equal to or 
above the MSHA limit for a hazardous chemical.
    Excluding potential exposure to a hazardous chemical, when the 
chemical does not have an MSHA limit or when the exposure may be below 
the limit, would circumvent the intent of HazCom to have miners aware 
of potential problems and take action to avoid them. In addition, other 
MSHA standards set requirements for controlling the miner's exposure to 
hazardous chemicals. The final rule, consistent with the interim final 
rule, does not incorporate these suggested changes, nor does it retain 
the phrase ``during normal operating conditions or in a foreseeable 
emergency'' in the definition of exposed. As with the changes in the 
definition of article, this phrase addressed a condition of use and 
confused the normal understanding of the term exposed. The phrase 
``potentially subjected'' covers those situations where the threat of 
exposure to hazardous chemicals exists. We employ the phrase ``during 
normal operating conditions or in a foreseeable emergency'' with the 
term exposed in Sec. 47.2 to describe when HazCom applies. We intend 
this definition to cover the same mine conditions as the proposed rule 
and, therefore, this revision has no reduction in protections for 
miners.

[[Page 42329]]

    Foreseeable emergency. The proposed rule defined foreseeable 
emergency as any potential occurrence for which you would normally 
plan, such as equipment failure, rupture or spill of containers, or 
failure of control equipment, that could result in an uncontrolled 
release of a hazardous chemical into the work area. Many commenters to 
the proposed rule stated that the phrase ``for which operators would 
normally plan'' is vague and open to interpretation and abuse and 
should be removed from the definition. Several of these commenters 
wanted to substitute ``reasonably plan'' for ``normally plan.''
    The phrase, ``for which you would normally plan,'' was intended to 
clarify the scope of ``foreseeable'' emergencies to provide some 
guidance that HazCom does not apply to remotely possible and 
speculative emergencies. In response to the commenters, the final rule, 
unlike the proposed and interim final rules, does not include the 
phrase ``for which you would normally plan,'' in its definition of 
foreseeable emergency. We believe operators know about normal planning 
for emergencies because of the mining industry's history of planning to 
prevent disasters, particularly explosions and cave-ins. We will 
consider an emergency to be foreseeable if we can reasonably expect you 
to know that it could occur due to the nature of the mining operation.
    Hazard warning. The proposed rule defined hazard warning as any 
word, picture, or symbol appearing on a label or other appropriate form 
of warning that conveys the specific physical and health hazards of the 
chemical in the container, including target organ effects. (See the 
definitions for physical hazard and health hazard for examples of the 
hazards that must be communicated.)
    One commenter to the proposed rule suggested that appropriate 
protective measures should be required as part of hazard warnings. 
Although giving information about protective measures is a vital part 
of HazCom, we already address this information in the provisions for 
MSDSs, and initial HazCom training. Additionally, we are also including 
this subject as a training subject under parts 46 and 48. The purpose 
of the hazard warning in labeling is to convey critical information 
immediately. We believe that the most critical information for labeling 
is the name of the chemical and its hazards.
    Consistent with the interim final rule, the final rule defines 
hazard warning as any words, pictures, symbols, or other forms of 
warning that convey the specific hazards of the chemical. We removed 
the text specifically referencing target organ effects or containers 
from the definition for hazard warning in the final rule because it was 
redundant. Labeling requirements in subpart D of HazCom address 
containers, and the definitions of health hazard and physical hazard 
address the effects of hazardous chemicals, including target organs.
    Hazardous chemical. To be consistent with changes in the 
definitions of health hazard and physical hazard, we changed the 
definition of hazardous chemical in the final rule to mean any chemical 
that can present a physical hazard or a health hazard. We included the 
criteria for determining whether a chemical is hazardous in Sec. 47.11, 
Identifying hazardous chemicals. In the proposed rule, we had defined 
hazardous chemical as any chemical that is a physical hazard or a 
health hazard.
    One commenter to the proposed rule suggested that the definition of 
hazardous chemical convey the concept that a chemical be considered 
hazardous based on whether it exists in a quantity or is used in a 
manner that could present a reasonable risk of overexposure to a miner. 
Several other commenters to the proposed rule suggested that the 
definition exempt coal and related raw materials and consumer products. 
Another wanted hazardous material to be substituted for hazardous 
chemical, stating that it would be more readily understood. As an 
example, this commenter stated that asbestos and gasoline are highly 
hazardous, yet they are not commonly referred to as chemicals.
    If we based the application of HazCom on the quantity of a chemical 
present, it would allow you to ignore chemicals with known hazards if 
they are in small quantities. Some hazardous chemicals are not evenly 
dispersed in a mixture of dusts, liquids, or gases, and pockets of high 
concentration can pose a hazard even if the quantity is low. We believe 
that it is far more protective, and necessary to prevent injury or 
illness, to train miners about the presence of the chemical, signs and 
symptoms of exposure, safe work practices, precautionary measures, and 
the need to keep engineering controls in proper working order, rather 
than argue about what level of risk is reasonable or significant and 
then wait until there is a risk to inform the miners about it.
    Exemptions of coal, raw materials, and consumer products from the 
definition of hazardous chemical would, in effect, exempt these 
substances from HazCom. In conjunction with the definition of chemical 
in this final rule, the definition of hazardous chemical adequately 
addresses our intent that common hazardous substances, such as 
gasoline, are to be considered hazardous chemicals.
    Hazardous substance. Both EPA and CPSC regulate hazardous 
substances. We borrowed the term hazardous substance from those 
agencies to identify chemicals regulated by them and exempt from HazCom 
or its labeling provisions. We define the term hazardous substance in 
this final rule specifically to clarify which hazardous substances are 
exempt from HazCom or HazCom labeling because they are regulated by 
CPSC under the Federal Hazardous Substance Act (15 U.S.C. 1261 et seq.) 
and which are exempt from labeling because they are regulated by EPA as 
defined in the Comprehensive Environmental Response, Compensation, and 
Liability Act (CERCLA) (42 U.S.C. 9601 et seq.).
    The proposed rule did not define the term hazardous substance, but 
used it in the provisions for exemptions. A number of commenters to the 
proposed rule felt that hazardous substance should be defined because 
it is used in the rule. We did not define hazardous substance in the 
interim final rule; however, its meaning and use was the same as in the 
proposed rule and consistent with OSHA's HCS.
    Hazardous waste. The final rule uses the same definition of 
hazardous waste as in the proposed and interim final rules. We intend 
that our use of the term hazardous waste be consistent with both OSHA's 
and EPA's use of this term. HazCom defines hazardous waste as any 
chemical regulated by the Environmental Protection Agency (EPA) as a 
hazardous waste, as such term is defined by the Solid Waste Disposal 
Act, as amended by the Resource Conservation and Recovery Act of 1976, 
as amended (42 U.S.C. 6901 et seq.).
    Many commenters to the proposed rule wanted hazardous waste re-
defined to include only those chemical wastes which, because of their 
quantity, concentration, or physical, chemical, or infectious 
characteristics, may result in death or serious illness or pose a 
substantial hazard to human health or the environment when improperly 
treated, stored, transported, disposed of, or otherwise managed. One 
commenter to the proposed rule requested that HazCom include an 
operational definition for hazardous waste.
    We believe that an operational definition of hazardous waste 
specifically for mining operations would cause confusion for you in 
complying with other federal and state standards. Other wastes from the 
mining

[[Page 42330]]

operation or brought to the mine that are not regulated by EPA also can 
contain hazardous chemicals. The primary difference between the 
hazardous waste regulated by EPA from those unregulated by EPA is the 
amount of information that you can expect from the supplier. Although 
HazCom exempts EPA-regulated hazardous wastes from labels and MSDSs, 
the final rule, consistent with the interim final rule, requires you to 
instruct miners who can be exposed about their hazards. We are 
especially concerned that you obtain enough information to instruct 
miners about those wastes that are brought to mine property, the 
content and hazards of which may be unknown to you.
    Health hazard. The term health hazard in the final rule is 
substantively the same as the proposed and interim final rules. It 
describes those chemicals that can present a risk of disease or other 
harmful health effect to an exposed miner. The proposed rule defined 
health hazard as ``[a] chemical for which acute or chronic health 
effects may occur in exposed employees.'' The proposed rule then listed 
the types of illness or injury that we consider to be health hazards 
and also included Appendices A and B to provide more detailed 
explanations of these hazards.
    A few commenters to the proposed rule wanted health hazard defined 
(as in OSHA's HCS) as a chemical for which there is statistically 
significant evidence of significant risk based on at least one valid 
study. Another of the proposed rule's commenters stated that much of 
the information in the definition was overwhelming and that the 
inclusion of Appendix A and Appendix B as part of the definition was 
inappropriate and confusing. Some suggested that the final rule 
reference 30 CFR parts 56, 57, 70, 71, and 75 instead of Appendices A 
and B.
    We agreed with the commenters that the terms were somewhat obscure 
and drafted the definition in the interim final rule to be clearer. We 
also deleted the appendices to eliminate that potential source of 
confusion. In response to comments and for the sake of clarity, we 
added that there must be statistically significant evidence that the 
chemical can do harm and described the types of illness and injury in 
plain language.
    In response to comments to the interim final rule, we clarified the 
definition in two additional ways. First, we deleted the phrase 
``psychological and behavioral problems'' from the listing for nervous 
system disorders. Commenters to the interim final rule had objected to 
its inclusion, pointing out that operators may be unable to distinguish 
between psychological disorders and abnormal behavior caused by 
occupational exposure to a chemical. By deleting those terms, however, 
we do not mean to suggest that some abnormal behaviors may not be 
linked to chemical exposures. A number of chemical exposures can result 
in the appearance of a psychological or behavioral disorder. For this 
reason, miners need to know when they are working with a chemical that 
can cause them to act in an apparently abnormal manner and what those 
symptoms might be. If the MSDS or label lists behavioral or mood 
changes as a result of exposure to the hazardous chemical, it needs to 
be addressed in your HazCom program. We deleted this phrase from the 
rule, but not from the preamble because psychological and behavioral 
problems, such as mood swings or abnormal behavior, can be a 
manifestation of central nervous system damage or poisoning.
    Our second change adds a category for toxic and highly toxic 
agents, clarifying that HazCom covers hazardous chemicals that can 
cause harm not specifically listed in the definition. ``Toxic'' and 
``highly toxic'' are technical terms used to describe two levels of 
danger (virulence).
    We believe that the final rule clarifies the intent, meaning, and 
use of the proposed and interim final rule definitions of health 
hazard, making them more consistent with OSHA's HCS while not reducing 
protections for miners.
    Health professional. We use the term health professional in the 
subpart on Trade Secrets in addressing two situations: an emergency 
situation when the trade secret information may be needed to save a 
life, and a non-emergency situation when the information may be needed, 
but not immediately. The term was undefined in the proposed rule, but, 
consistent with OSHA, cited examples, referring to a treating physician 
or nurse. We received comments to the proposal that others, such as 
emergency medical technicians, may need access to this information in 
an emergency and should be included.
    In the interim final rule, we defined health professional as a 
``physician, nurse physician's assistant, emergency medical technician, 
industrial hygienist, toxicologist, epidemiologist, or other person 
qualified to provide medical or occupational health services.''
    One commenter to the interim final rule asked that ``occupational'' 
not be used restrictively to limit the term health professional. 
Another commenter to the interim final rule asked that health 
professionals be licensed individuals. This would eliminate industrial 
hygienists, for example, who may be board certified, as well as some 
otherwise qualified nurses and technicians.
    Some commenters to the proposed and interim final rules asked that 
we include ``safety professionals'' among those who must be given trade 
secret information that may otherwise be withheld. They stated that it 
is necessary to add safety professionals to the definition of health 
professional because many mines do not have industrial hygienists; 
their safety professionals monitor, review, and make corrective 
recommendations about the health hazards present at the mine.
    In response to comments to the interim final rule, we re-defined 
health professional in the final rule to include a physician, nurse, 
physician's assistant, emergency medical technician, or other person 
qualified to provide medical or occupational health services. Rather 
than listing many professionals which could be misinterpreted as 
exhaustive, we edited the definition, leaving the ``other person 
qualified'' to include other individuals, such as those who are 
qualified by their position or training. Thus, all persons qualified to 
provide occupational health service are covered. We also discuss this 
issue under Subpart I, Trade Secrets.
    This definition is intentionally flexible to allow you to make 
decisions that focus first on the needs of the miner. The phrase ``or 
other person qualified'' allows industrial hygienists, toxicologists, 
epidemiologists, and safety professionals to obtain trade secret 
information under the trade secret provisions of this final rule if 
needed to provide medical or occupational health services to miners.
    HazCom does not require that the health professional be licensed. 
We believe that the definition in the final rule is restrictive enough 
to protect trade secret information about the chemical composition of a 
material, but broad enough to give access to those who need it.
    We expect that trade secret chemical information may be needed when 
a miner is being treated as a result of a chemically related injury or 
illness. Only persons involved in treatment, researchers looking into 
the causes of injuries or illnesses, or the exposed miners or their 
designated representatives must be given access to this critical 
information when it is needed.
    Identity; specific chemical identity. The final rule, as did the 
interim final

[[Page 42331]]

rule, retains the proposed definition of identity as a chemical's 
common or chemical name, which must permit cross-references among the 
required list of hazardous chemicals, the label, and the MSDS. The 
proposed rule defined specific chemical identity as the chemical name, 
CAS number, or any other designation that precisely identifies the 
chemical. One commenter suggested that the definition of specific 
chemical identity duplicate that of identity.
    For purposes of HazCom, we determined that specific chemical 
identity was an unnecessary term because the final rule, consistent 
with both the proposed and interim final rules, defines the terms 
identity, chemical name, and common name which duplicate its 
definition. The proposed rule had defined chemical name to include CAS 
numbers, common name to include other designations, and identity to 
include the chemical name and common name. We do not use or define the 
term specific chemical identity in the final rule because the character 
of the chemical identity will already be known throughout other 
definitions and, therefore, there is no reduction of protections for 
miners.
    Immediate use. The term immediate use in the proposed rule 
clarified under what conditions it would be appropriate to use an 
unlabeled, temporary, portable container. In the proposed rule, 
immediate use meant that the miner who transferred the substance from a 
labeled container into a temporary, portable, unlabeled container must 
use it during the same work shift. We removed this term from the 
Definitions subpart in the interim final rule and, instead, 
incorporated the proposed definition in the standard. The final rule, 
the same as the interim final rule, does not include a definition for 
this term.
    Label. The proposed rule defined label as ``any written, printed, 
or graphic material, displayed on or affixed to containers of hazardous 
chemicals.'' We define label in the final rule in essentially the same 
way. For the final HazCom rule, consistent with the interim final rule, 
however, we added the phrase ``to identify its contents and convey 
other relevant information'' and deleted the phrase ``of hazardous 
chemicals'' in an effort to make this definition consistent with the 
common understanding of this term. A label on a container usually 
identifies its contents, whether or not it contains a hazardous 
chemical.
    Material safety data sheet (MSDS). We defined material safety data 
sheet (MSDS) in the proposed rule as written or printed material that 
an operator prepares in accordance with HazCom's requirements, or which 
the manufacturer or supplier prepares under OSHA's HCS for hazardous 
chemicals brought to the mine. One commenter to the proposed rule urged 
us to include an operational definition for MSDS rather than reference 
HazCom's requirements or OSHA's HCS. An operational definition, without 
reference to the standards, misses the purpose we intend for an MSDS, 
that is, to be an information fact sheet that conforms to the cited 
regulatory requirements.
    A commenter to the interim final rule suggested we allow other data 
sheets, or allow the operator to use any source so long as that data 
sheet conveyed comparable information to what was required.
    Although HazCom does not require a specific format, we do encourage 
you to use an established format for consistency within the mining 
industry and to be in accord with other industries, your customers. 
Consistent with the interim final rule, in the final rule, we revised 
the definition of MSDS without changing its requirements. We also 
expanded the reference beyond OSHA standards to include other reliable, 
authoritative sources of chemical information, such as a workplace 
hazardous material information sheet (WHMIS) and an international 
chemical safety card (ICSC), and by referencing Table 47.52 describing 
the contents.
    Mixture. The final rule, as did the interim final rule, retains the 
proposed definition of mixture as ``any combination of two or more 
chemicals which is not the result of a chemical reaction.'' We intend 
that the definition of mixture be applied broadly to include both 
solutions of chemicals and combinations of chemical solids. A 
characteristic of any mixture is that its individual components could 
be separated by mechanical or physical methods.
    One commenter felt that this definition would include those 
chemical by-products or impurities in trace amounts that are contained 
in otherwise pure chemicals and that we should clarify the definition. 
We intend that you treat pure compounds or elements as individual 
chemicals, rather than as mixtures, even when they contain small 
amounts of other chemicals as impurities. This treatment is similar to 
our treatment of trace releases from articles and is consistent with 
OSHA's HCS.
    Operator; miner. As discussed above, and in response to commenters 
to the proposed rule, the final rule uses the mining terms operator and 
miner, as defined in the Mine Act, instead of employer and employee, as 
we did in the interim final rule. Section 3 of the Mine Act defines 
operator as--

    * * * any owner, lessee, or other person who operates, controls, 
or supervises a coal or other mine or any independent contractor 
performing services or construction at such mine * * *

and miner as ``any individual working in a coal or other mine.''

    Ordinary consumer use. The final rule defines ordinary consumer use 
as ``[h]ousehold, family, school, recreation, or other personal use or 
enjoyment, as opposed to business use.'' The interim final rule had 
defined the term as ``a product or article packaged by the manufacturer 
or retailer for ordinary household, family school, recreation, or other 
personal use or enjoyment, as opposed to business use, and the miner's 
exposure is not more than it would be for an ordinary consumer using 
the product as the manufacturer intended. The proposed rule did not 
define the term, but the underlying idea was used to explain the 
consumer product exemption. A consumer product was exempt when ``used 
in the workplace in the same manner as in normal consumer use and the 
use results in a duration and frequency of exposure which is not 
greater than exposures experienced by consumers.''
    In response to comments to the proposed and interim final rules, 
the definition for ordinary consumer use in the final rule differs from 
the interim final rule. Commenters suggested that the definition in the 
interim final rule was vague and too subjective. For the purpose of 
HazCom and to make the definition easier to understand, we define the 
phrase ordinary consumer use in the final rule to mean ``household, 
family, school, or other personal use or enjoyment, as opposed to 
business use.''
    To be considered ordinary consumer use, the miner cannot be exposed 
to the product at more than the same concentration, frequency, and 
duration of time than an ordinary consumer would. For example, using an 
organic solvent that is an ingredient in a hand soap in a washroom 
would be considered ordinary consumer use. Using that same solvent as a 
detergent in a flotation reagent is not.
    Pesticide. The term pesticide appears in the final rule, as it did 
in the interim final rule, to clarify that pesticides are regulated by 
another federal agency and are exempt from HazCom. We do not define 
this term.

[[Page 42332]]

    Physical hazard. The term physical hazard is used to describe those 
chemicals with properties that can present a risk of injury to a miner. 
The proposal defined physical hazard as a ``chemical which is a 
combustible liquid, a compressed gas, an explosive, flammable, an 
organic peroxide, an oxidizer, a pyrophoric, unstable (reactive) or 
water-reactive.'' Each component comprising the definition of physical 
hazard was then defined as a separate term under the definitions. The 
interim final and final rules define physical hazard in the same terms, 
but include the definition for each component within the definition of 
physical hazard. The significant comments to the definition in the 
proposed, interim final, and final rules are discussed below in the 
sections for each component.
    (1) Combustible liquid. We defined combustible liquid in the 
proposed rule as a liquid with a flashpoint at or above 100 deg.F (100 
degrees Fahrenheit) which is 37.8 deg.C (37.8 degrees centigrade). The 
proposed rule listed the following three classes of combustible 
liquids:
    (a) Class II liquids--those having flashpoints at or above 
100 deg.F (37.8 deg.C) and below 140 deg.F (60 deg.C).
    (b) Class III A liquids--those having flashpoints at or above 
140 deg.F (60 deg.C) and below 200 deg.F (93.4 deg.C).
    (c) Class III B liquids--those having flashpoints at or above 
200 deg.F (93.4 deg.C).
    OSHA's HCS had defined a combustible liquid as a liquid having a 
flashpoint at or above 100 deg.F but below 200 deg.F, except any 
mixture having components with flashpoints of 200 deg.F or higher, the 
total volume of which make up 99% or more of the total volume of the 
mixture. Commenters to the proposed rule stated that it would be 
preferable to have our definition of combustible liquid coincide with 
OSHA's definition, because many facilities are covered by both rules.
    We believe that the proposed definition of combustible liquid is 
compatible with OSHA's definition. We had proposed the list of the 
various classes of combustible liquids to match the definition in other 
MSHA standards. In response to proposed rule commenters, however, the 
interim final rule did not list these classes of combustible liquids. 
The interim final and the final rules, consistent with OSHA's HCS, 
define combustible liquid as a liquid having a flashpoint at or above 
100 deg.F (37.8 deg.C) and below 200 deg.F (93.3 deg.C) or a liquid 
mixture having components with flashpoints of 200 deg.F (93.3 deg.C) or 
higher, the total volume of which make up 99% or more of the mixture.
    (2) Compressed gas. We defined compressed gas to mean a contained 
gas or mixture of gases with an absolute pressure exceeding 40 psi 
(pounds per square inch) [276 kPa (kiloPascals)] at 70 deg.F 
(21.1 deg.C) or 104 psi (717 kPa) at 130 deg.F (54.4 deg.C) regardless 
of pressure at 70 deg.F (21.1 deg.C). In the final rule, we consider a 
liquid to be a compressed gas when its vapor pressure exceeds 40 psi 
(276 kPa) at 100 deg.F (37.8 deg.C), as determined by ASTM D-323-82.
    The proposed and interim final rules had incorrectly referenced 
ASTM D-323-72, as did the OSHA HCS. We found that this was in error; 
ASTM D-323-72 does not exist. OSHA's docket for its HCS contains the 
ASTM D-323-82 standard. Although we corrected the designation for the 
ASTM standard to D-323-82 in our final rule, the substance of this 
definition is consistent with OSHA's HCS and the intent of the proposed 
and interim final rules.
    One commenter to the proposed rule stated that the definition of 
compressed gas includes compressed air in motor vehicle tires and air 
compressors. Although compressed air meets the definition in HazCom for 
a compressed gas, an inflated tire is an article and exempt from 
HazCom. Also, an inflated tire is part of a motor vehicle and, thus, is 
not a container under HazCom. Neither do we consider compressed air in 
a tire or compressor to be a hazardous chemical under HazCom. A shop 
compressor contains compressed, ambient air and, unlike compressed gas 
cylinders, it is equipped with a safety valve to release excess 
pressure. We recognize that serious hazards exist when working with 
inflated tires and compressed air receivers, but we address these 
hazards in our safety standards. We do not require an MSDS or a label 
for compressors or compressed air.
    (3) Explosive. We defined explosive in the proposed rule in the 
same way as it is defined in OSHA's HCS and added a reference to 
Department of Transportation (DOT) requirements. There were a number of 
comments that objected to the reference to DOT in the standard. In 
response to proposed rule commenters, we eliminated this reference in 
the interim final rule, and because we received no significant 
comments, left the definition unchanged in the final rule. We rely on 
the more common definition of explosive as a substance that undergoes a 
rapid chemical change causing a sudden, almost instantaneous release of 
pressure, gas, and heat when subjected to sudden shock, pressure, or 
high temperature. Consistent with the interim final rule, we intend 
this definition to cover the same substances in the final rule that 
were covered in the proposed rule and, therefore, there will be no 
reduction of protections to miners. We believe the term will be better 
understood by the mining industry.
    (4) Flammable. We defined flammable in the proposed rule as a 
chemical that is an aerosol, a gas, a Class I liquid, or a solid that 
would meet specific criteria relating to its capability to ignite, to 
burn, and to sustain a flame. The proposed rule referenced testing 
methods in 16 CFR and classifications of explosives in 49 CFR, but did 
not include a specific publication date. A proposed rule commenter 
requested that we include the dates of publication for references in 
the definition of flammable. This commenter also stated that unless--

    * * * operational definitions are included in the rule, it is 
difficult to understand, and becomes a deterrent to compliance. The 
mine supervisor should be able to look at the definition and 
determine if an item such as a conveyor belt is flammable.

    As with the term explosive, we recognize that the proposed 
definition was highly technical and that a simpler, more generally 
understood definition would better serve the industry. Accordingly, and 
in response to comments, the final rule, like the interim final rule, 
defines a flammable chemical as one that will readily ignite and, when 
ignited, will burn persistently at ambient temperature and pressure in 
the normal concentration of oxygen in the air. We intend that this 
definition include the same chemicals as would have been included under 
the proposed definition and under OSHA's HCS.
    We did not define flashpoint in the interim final and the final 
rules. We believe that qualified persons who already know the meaning 
of the term will be determining a chemical's flashpoint.
    (5) Organic peroxide. The proposed and interim final rules defined 
organic peroxide as an ``explosive, shock sensitive compound or an 
oxide that contains a high proportion of oxygen-superoxide.'' We 
received no specific comments on this definition. It is unchanged in 
the final rule except for the addition of the word ``organic'' to 
clarify the description of the chemical to read ``An explosive, shock 
sensitive, organic compound or an oxide that contains a high proportion 
of oxygen-superoxide''. Because it is a clarification, this will not 
reduce protection for miners. We intend the definition in HazCom to be 
essentially

[[Page 42333]]

the same as in OSHA's HCS. OSHA defined organic peroxide as--

    * * * an organic compound that contains the bivalent--
O[verbarrm]O structure and which may be considered to be a 
structural derivative of hydrogen peroxide where one or both of the 
hydrogen atoms has been replaced by an organic radical.

    (6) Oxidizer. The proposed rule defined oxidizer as a chemical 
other than a blasting agent or explosive as classified in 49 CFR 
173.53, 173.88, 173.100 or 173.114(a) that initiates or promotes 
combustion in other materials, thereby causing fire by itself or 
through the release of oxygen or other gases. This definition is 
consistent with the definition for oxidizer in OSHA's HCS. A commenter 
to the proposed rule objected to our referencing 49 CFR in our 
definition of this term. We simplified the definition to make it more 
understandable, eliminating the reference from the interim final and 
final rules. This change is not a substantive one and, therefore, does 
not reduce miner safety and health protections.
    (7) Pyrophoric. The final rule, as did the interim final rule, 
retains the proposed definition of pyrophoric. We made minor editorial 
changes for clarity. This definition is consistent with that in OSHA's 
HCS.
    (8) Unstable (reactive). The final rule incorporates the language 
of the proposed and interim final rules. It defines the term as a 
chemical which in the pure state, or as produced or transported, will 
vigorously polymerize, decompose, condense, or become self-reactive 
under conditions of shock, pressure, or temperature. No comments were 
received concerning the definition of this term. This definition is 
consistent with OSHA's HCS.
    (9) Water-reactive. We defined water-reactive in the proposed and 
interim final rules as a chemical that reacts with water to release a 
gas that is either flammable or a health hazard. The final rule uses 
this same language. No comments were received concerning the definition 
of this term. This definition is consistent with OSHA's HCS.
    Produce. We defined produce in the proposed rule to mean 
``manufacture, process, formulate, or repackage.'' This definition, 
together with the definition for use, is intentionally broad to include 
any situation where a hazardous chemical is present in such a way that 
a miner may be exposed.
    We received a few comments supporting the proposed definition and 
no comments specifically opposing it. Other comments, however, are 
applicable to this issue. For example, one commenter to the proposed 
rule suggested that we exempt certain mine emissions, such as diesel 
exhaust and welding fumes, from the MSDS requirements of HazCom. This 
commenter stated that the composition of these produced chemicals can 
vary so much that not even ``* * * generic MSDSs, created by MSHA as 
assistance to mine operators, will be very useful.'' Another commenter 
to the proposed rule writing about the definition of chemical also 
assumed that it included the by-products of mining activities, such as 
diesel exhausts. This commenter stated that ``constituent ingredients 
in diesel exhaust--nitrogen, carbon, and sulfur oxides, organic vapor, 
diesel particulate matter--would have to be the subject of this 
standard also.''
    The final rule, consistent with the interim final rule, defines 
produce to mean ``manufacture, process, formulate, generate, or 
repackage.'' We added the term ``generate'' to the definition of 
produce in the interim final rule to clarify our intent that HazCom 
apply to by-products of mining activities. For example, HazCom would 
apply to diesel emissions, the inadvertent generation of cyanide in a 
storage tank, welding fumes from construction or repair of machinery, 
or waste discarded in a tailings pond or solid waste site. As explained 
under the definition for chemical, the by-products of mining activities 
may be covered in the MSDS for the initial chemical or separately for 
the hazardous chemical by-product itself. Also, you may develop an MSDS 
for a process if that is more relevant to the chemical hazard.
    For the most part, solid waste sites and tailings ponds are covered 
by other MSHA, federal, or state standards. These standards address the 
health and safety hazards to the environment and nearby inhabitants and 
structures. We know of no other standards that specifically require you 
to train miners about the physical and health hazards from exposure to 
these mixtures and protective measures to take.
    Raw material. In the proposed rule, we defined raw material as a 
mineral, or combination of minerals, that is extracted from natural 
deposits by mining or is upgraded through milling. The proposed 
definition added that the term applied to the ore and valuable minerals 
extracted, as well as to the worthless material, gangue, or overburden 
removed during the mining or milling process. One commenter to the 
proposal agreed that this definition correctly includes the tailings 
from crushed stone, and sand and gravel operations. Another commenter 
to the proposal wanted to substitute the word ``material'' for 
``mineral'' in the definition of raw material, stating that--

    The term ``mineral'' has different uses in different areas of 
mining and geology that imply different definitions. The term 
``material'' should be substituted in this definition as a more 
generic and less restrictive term for ``mineral.''

    The final rule, as did the interim final rule, does not incorporate 
this suggestion, but retains the proposed definition of raw material 
with minor editorial changes. Our intent is that raw material be 
limited to minerals.
    Trade secret. Like the proposed and interim final rules, the final 
rule defines trade secret as any confidential formula, pattern, 
process, device, information, or compilation of information that is 
used by the operator to give him or her an opportunity to obtain an 
advantage over competitors who do not know or use it. This definition 
is taken from the Restatement of Torts Sec. 757, comment b (1939). 
HazCom allows you to withhold the identity of the chemical declared a 
trade secret under certain conditions. It requires that you provide the 
miners with all other pertinent HazCom information, though not process 
or percentage of mixture information.
    One commenter was concerned that trade secret, as defined in the 
proposed rule, would allow you to arbitrarily restrict access. This 
commenter also recommended that the final rule include Appendix D from 
OSHA's HCS, which would reprint the entire Restatement of Torts 
comment, to guide you in applying the trade secret definition. Another 
commenter to the proposal saw extremely limited utility and could find 
no reason to include this appendix.
    We do not believe that this appendix is necessary. As stated in the 
preamble to the proposed rule, the Restatement of Torts indicates that 
there are at least six well accepted factors in establishing a trade 
secret claim. Those six factors are--
    (1) The extent to which the information is known outside of the 
business;
    (2) The extent to which information is known by employees and 
others involved in the business;
    (3) The extent of measures taken by the business to guard the 
secrecy of the information;
    (4) The value of the information to the business and its 
competitors;
    (5) The amount of effort and money expended in developing the 
information; and
    (6) The ease or difficulty with which the information could be 
properly acquired or duplicated by others.

[[Page 42334]]

    We believe these principles provide sufficient guidance in 
determining the legitimacy of a trade secret claim without publishing 
an appendix. We intend to publish a Compliance Guide, a Toolbox, and 
other information as warranted, apart from HazCom, to assist the 
industry with compliance.
    Use. We defined use in the proposed rule as ``to package, handle, 
react, or transfer.'' OSHA has defined use as ``to package, handle, 
react, emit, extract, generate as a by-product, or transfer.'' We did 
not include the terms ``extract, emit, or generate as a by-product'' 
because we believe they are already covered under the definition for 
produce. The final rule is the same as the proposed and interim final 
rules in this respect. We intend this definition to be broad enough to 
include any situation where a hazardous chemical is present in such a 
way that a miner may be exposed. We received no comments on our 
definition of use.
    Work area. We defined work area in the proposed rule as a room or 
defined space in a workplace (now a mine) where hazardous chemicals are 
produced or used and where employees (now miners) are present. To make 
HazCom's definition more consistent with ordinary usage and retain its 
application to the presence of chemicals, the interim final rule 
changed the definition of work area to mean any place in or about a 
mine where a miner works and eliminated the language from the proposed 
rule ``* * * where hazardous chemicals are used or produced.'' The 
definition is consistent with the intent of the proposed rule, but 
clarifies the conditions that must be present for a work area and 
coincides with more common usage of the term. The final rule retains 
this definition.
    Workplace. The proposed rule defined workplace as a mine, 
establishment, job site, or project at one geographical location 
containing one or more work areas. The term was deleted in the interim 
final rule of HazCom to use the term mine instead of workplace. The 
final rule also did not use the term.

C. Subpart C--Hazard Determination

    A hazardous chemical is any chemical whose properties can pose a 
physical or health hazard. It can be a pure substance (an element or 
chemical compound), a mixture, or an ingredient in a mixture. A 
hazardous chemical can be in any physical form: solid, liquid, or gas. 
The likelihood of harm may be greater under some circumstances than 
others, but the potential to do harm is inherent in the chemical's 
properties.
    Some commenters to the interim final rule were concerned about what 
we meant by the availability of the harmful element. An example of how 
a hazard can be made available is concrete at mines sites. Concrete, a 
common construction material at mine sites, is made by mixing gravel or 
crushed stone with sand, cement, and water. The sand and gravel and 
stone contain silica. When mixing the concrete for a floor, it is a 
hazardous chemical: dust from the aggregate contains respirable silica; 
cement can burn abraded skin. When placing the wet mixture, it is a 
hazardous chemical: the wet cement will burn unprotected skin; the sand 
and crushed stone are not hazardous components because the silica is 
unlikely to become respirable when it is wet. The concrete floor, once 
set, is not a hazardous chemical. Years later, however, when breaking 
or cutting the floor into small pieces so it can be removed, it is a 
hazardous chemical again because the silica can once more become 
respirable. We discuss exposure and its significance under ``purpose 
and scope'' in this preamble.
    HazCom's definition of hazardous chemical in the final rule is 
consistent with the proposed rule, the interim final rule, and OSHA's 
HCS. We arranged the criteria for determining whether a chemical is 
hazardous in Table 47.21 and re-stated the proposed rule's language in 
a simpler way.
1. Section 47.21  Identifying Hazardous Chemicals
    To clarify our intent in the final rule, we made several editorial 
changes to Sec. 47.21.
     We deleted the sentence ``A hazardous chemical is any 
chemical that is a physical or health hazard'' from the introduction to 
Table 47.21.
     We added ``or health'' to the first criteria for 
determining the hazards of chemicals produced at the mine so it would 
read ``available evidence concerning its physical or health hazards.''
     We also deleted reference to hazardous waste under ``(a) 
Chemicals brought to the mine'' in Table 47.21.
    Generally, we consider a chemical to be a physical hazard when 
there is scientifically valid evidence that it is combustible; a 
compressed gas or liquid; an explosive; a flammable aerosol, gas, 
liquid, or solid; an organic peroxide; an oxidizer; a pyrophoric 
(capable of spontaneously igniting); unstable and reactive; or water-
reactive. Scientifically valid evidence means that a study was 
conducted or data obtained in a highly reliable manner that takes into 
consideration the margin of accuracy and consistency.
    We consider a chemical to be a health hazard when there is 
statistically significant evidence that it can cause acute or chronic 
health effects. Statistically significant evidence supports a 
conclusion with a high level of confidence, typically 90% to 95%. This 
means that there is only a 5% to 10% probability that the observed 
results are due to chance. Health hazards include chemicals that cause 
cancer or are irritants, corrosives, or sensitizers. The term also 
includes chemicals that damage the reproductive system, the liver, the 
kidneys, the nervous system, the blood or lymphatic system, the 
digestive system, or the lungs, skin, eyes, or mucous membranes, or are 
toxic or highly toxic agents.
    Most physical hazards of elements and compounds are well known and 
can be verified in a laboratory through testing. Physical hazards of 
mixtures can be determined the same way. Health hazards, however, are 
generally more complex, requiring studies of living systems, and can 
take much longer. Most health hazards of chemicals are determined 
through animal studies by extrapolating data from the effects on 
animals to predict the effects on humans. Even so, many chemicals are 
identified as hazardous based on the relationship between exposure and 
known illnesses and injuries. A chemical can be a physical hazard, a 
health hazard, both, or neither. For example, many organic solvents are 
both toxic and flammable.
    In response to comments to the interim final rule, we modified the 
definition of health hazard in the final rule to clarify our intent. 
The interim final rule used the phrase ``including psychological or 
behavioral problems'' to explain nervous system damages. We deleted 
this phrase from the final HazCom standard after commenters pointed out 
the difficulty of attributing these conditions to hazardous chemicals. 
The interim final rule also used the term irritate to describe the 
action of irritants and corrode to describe corrosives. We modified 
these terms in the final rule to make them consistent with OSHA's HCS.
    Hazard determination methods. The final HazCom rule, like the 
proposed and interim final rules, includes two basic ways for 
determining whether or not a chemical is hazardous: one for chemicals 
brought to the mine and the other for chemicals produced at the mine. 
In every instance we reviewed, operators producing chemicals also 
brought chemicals to their mines. We intend that the hazard 
determination provisions of HazCom apply to all

[[Page 42335]]

hazardous chemicals produced at the mine or brought onto mine property, 
whether or not they are covered under other MSHA standards.
    A number of commenters to the proposed rule wanted the hazard 
determination requirement in the proposed rule changed to read--

    Operators who ship chemicals shall determine the chemicals' 
hazards under conditions of intended use based on our standards in 
30 CFR parts 56, 57, 71, and 75.

    A number of commenters to the proposal wanted operators who 
received chemicals to determine their hazards based solely on whether 
the chemical is regulated by us and whether it presents a physical or 
health hazard under conditions of intended use.
    The final rule, like the interim final rule, does not use the word 
``ship'' instead of ``produce''; does not add the phrase ``under 
conditions of intended use''; and does not limit the chemicals covered 
to those listed in our existing standards. We enforce exposure limits 
for chemicals listed by the American Conference of Governmental 
Industrial Hygienists (ACGIH) in its 1972 list of Threshold Limit 
Values (TLV[supreg]) for coal mines and its 1973 list for metal and 
nonmetal mines. These lists do not address all chemicals known to be 
present on mine property. The commenters' suggested language to the 
proposed rule would have significantly changed the intent and scope of 
HazCom by emphasizing the hazards associated with the manner or process 
in which chemicals are used by persons off mine property, instead of 
emphasizing the hazards to miners.
2. Chemicals Brought to the Mine
    The final rule is substantively the same as the proposed and 
interim final rules in its requirements for a chemical brought to a 
mine. Under the final rule, you must review the chemical's label for 
any hazard warning and its MSDS for more detailed information. If the 
label or MSDS indicates a hazard, consider it hazardous. You must then 
include the chemical on the list of hazardous chemicals at the mine; 
keep a copy of the MSDS accessible to miners; and train miners about 
the physical and health hazards, the protective measures they can take 
against these hazards, and the content of the HazCom program. If you do 
not want to rely on the chemical manufacturer or supplier, you may 
evaluate the chemical yourself. If you do, we will require you to 
demonstrate that you have conducted a thorough evaluation of the 
available evidence.
    The number and types of different hazardous chemicals brought to 
the mine depends on the size and type of the operation. These chemicals 
can range from bulk raw materials, such as ammonium nitrate for use in 
blasting agents, to small quantities of highly hazardous chemicals used 
in quality control laboratories. Diesel fuel, antifreeze, motor or 
hydraulic oil, brake fluid, lubricants, adhesives, paints, and solvents 
are a few of the materials commonly brought to mining operations that 
would require you to ask the question: Is this a hazardous chemical?
    The written HazCom program requires you to document how you 
determined the hazards of the chemicals at your mine and to make a list 
of those found to be hazardous. For a chemical brought to the mine, you 
need to review its label and MSDS. The final rule, consistent with the 
interim final rule, requires you to make a hazard determination for 
each chemical at your mine to which miners can be exposed regardless of 
how the chemical is used.
3. Chemicals Produced at the Mine
    The final rule, as in the proposed rule and interim final rule, 
defines a chemical as any element, chemical compound, or mixture of 
these and requires you to identify what chemicals you produce at your 
mine. Chemicals produced at your mine include--
     Those that you mine or process to sell, such as coal or 
crushed stone;
     The mixtures you create, such as flotation reagents or 
blasting agents;
     The by-products of mining and milling, such as diesel 
exhaust, hydrogen sulfide, or gases from combustion or blasting; and
     The materials discarded from mining operations, such as 
tailings.
    Every mine product is a chemical, but not all are hazardous for the 
purposes of HazCom. You must determine if the chemical has any harmful 
properties that could pose a physical or health hazard. You must 
determine what the hazards and protective measures are so that you can 
prepare an appropriate label and MSDS. Again, HazCom does not require 
you to take additional protective action, as might be required by a 
risk-based rule. HazCom requires you to inform miners about a 
chemical's hazards that are based on scientifically valid evidence from 
either your own testing or the published results of other testing or 
studies.
    For example, if your product is sand and gravel or crushed 
limestone, respirable crystalline silica is likely to be the only 
hazardous component, and you are already training your miners about its 
hazards. Because respirable crystalline silica is so prevalent in mine 
products, we expect that you will be required to produce an MSDS for 
your product. You will have to ensure that your label identifies the 
product as containing silica and that crushing or grinding may produce 
respirable crystalline silica, which is a human carcinogen.
    Sources for identifying hazardous chemicals. The proposed and 
interim final rules were essentially identical to each other and OSHA's 
HCS. In the proposed and interim final rules, the primary difference 
with OSHA's HCS was the use of MSHA's list of substances in place of 
OSHA's. The final rule requires that, if you produce a chemical, you 
must determine its physical hazards based on available evidence or 
testing. You must consider the chemical to be a health hazard if it is 
listed in any one of the following five recognized authorities or 
sources:
     Title 29 Code of Federal Regulations (29 CFR) part 1910, 
subpart Z, Toxic and Hazardous Substances.
     Title 30 Code of Federal Regulations (30 CFR) chapter I.
     ACGIH[supreg] Worldwide (American Conference of 
Governmental Industrial Hygienists), 2001 TLV[supreg]s and 
BEI[supreg]s, Threshold Limit Values for Chemical Substances and 
Physical Agents & Biological Exposure Indices.
     National Toxicology Program (NTP), Ninth Annual Report on 
Carcinogens (January 2001).
     International Agency for Research on Cancer (IARC), 
Monographs and related supplements, Volumes 1 through 77.
    In the final rule, we have responded to comments to the interim 
final rule by removing ACGIH's TLV[supreg] list as a reference for 
determining if a mixture produced at the mine would have been 
considered carcinogenic. It remains as a source in determining whether 
a chemical is hazardous. While ACGIH provides valuable, it is not 
recognized as a special authority on carcinogens in the same way that 
NTP and IARC are. We believe that NTP and IARC have current and 
comprehensive lists of carcinogens and that miners would lose no 
protections by our deletion of ACGIH as a reference for determining 
carcinogenicity. We also have added OSHA's list of substances to ease 
the burden of mine operators who have operations in both OSHA and MSHA 
jurisdiction and who would prefer to use a single source (OSHA) in 
their HazCom program for all their operations.
    In response to comments to the interim final rule, that you should 
not be held accountable for the future actions of these referenced 
organizations, we also revised the final

[[Page 42336]]

rule so you only need to refer to the chemical lists compiled by ACGIH, 
NTP, and IARC as of 2001.
    Reference to these documents in HazCom does not set exposure 
limits, does not define criteria for determining the chemical's 
hazards, and does not otherwise set standards for mine operator 
behavior. This final rule does not require you to determine whether the 
concentration of the chemical in the mine environment or whether the 
exposure of a miner exceeds a limit recommended by one or more of these 
five sources. If there is a potential for harm and a potential for 
exposure, the chemical is hazardous for the purposes of HazCom. You 
must tell your miners about the hazards that are known and give them 
information relevant to the safe performance of their tasks.
    Using ACGIH, NTP, and IARC to determine if a chemical is hazardous. 
Some commenters to the interim final rule recommended that we rewrite 
this provision to require that ``operators who produce chemicals must 
determine the chemicals'' hazards' and not specify the basis for the 
determination. These commenters felt that this language would make the 
requirement more performance oriented, would avoid incorporation by 
reference, and would allow operators to choose the best methods for 
this assessment based on the best available sources at the time of the 
assessment.
    Referencing these sources in HazCom complies with the requirements 
of Sec. 101(a)(6)(A) of the Mine Act, which requires the agency, when 
developing mandatory standards, to consider ``the latest scientific 
evidence in the field.'' Our references in HazCom are not 
``incorporations-by-reference'' because they are merely used as 
screening and identification aids. You can conduct chemical testing as 
an alternative.
    The American Conference of Governmental Industrial Hygienists 
(ACGIH), the National Toxicology Program (NTP), and the International 
Agency for Research on Cancer (IARC) publish authoritative documents 
that are recognized worldwide for the high quality of their impartial, 
science-based assessments of chemical hazards. Their committees are 
composed of experts known and esteemed in their fields. The IARC 
Monographs and related supplements, the ACGIH TLV[supreg]s, and the NTP 
Annual Report on Carcinogens consider large numbers of studies and take 
into account the conclusions of other groups who peer review data about 
a chemical's hazards.
    Our 1990 proposed rule and the 2000 interim final rule would have 
required mine operators to refer to MSHA standards and the latest 
editions of publications by the ACGIH, NTP, and IARC when deciding if a 
chemical produced at the mine was to be considered hazardous. For 
mixtures produced at the mine, we set 1% of a mixture's concentration 
for health hazards and 0.1% for carcinogenic hazards as the cut-off or 
trigger points for the mixture's inclusion under HazCom using these 
same organizations' documents.
    In response to comments to the interim final rule, the final rule 
requires operators to use MSHA and OSHA standards, the 2001 edition of 
the ACGIH TLV[supreg]s; NTP's Ninth Annual Report on Carcinogens, 
January 2001; and IARC Monographs and related supplements, Volumes 1 
through 77. We have also added OSHA standards 29 CFR part 1910, subpart 
Z, Toxic and Hazardous Substances as a reference for initiating a 
chemical's inclusion in the mine's HazCom program.
    Many commenters to the proposed and interim final rules strongly 
opposed including ACGIH, NTP, or IARC in the hazard determination 
section of a final rule. These commenters also objected to our use of 
IARC and NTP publications as authoritative sources for identifying 
certain chemicals as carcinogens. Some of these commenters felt that 
these organizations may identify a substance as a possible human 
carcinogen based upon the results of a single animal study and that 
animal studies alone should not be relied on to identify human 
carcinogens. Others felt that these organizations only considered 
positive studies (those showing an adverse health effect) and not 
negative studies (those that were inconclusive or did not show a health 
effect) when determining that a chemical is a carcinogen or a suspected 
carcinogen.
    Some commenters opposed our reliance on an automatic trigger, such 
as a hazard determination made by one of these organizations, to deem a 
chemical as hazardous without considering the risk posed in a given 
situation. One commenter stated that any reference to ACGIH, NTP, or 
IARC in the rule is inappropriate because these institutions make 
determinations based on ``strength of evidence analysis'' and defer 
``weight of evidence determinations'' to regulatory authorities. This 
commenter felt that, as in our proposed air quality rule, we should 
adhere to the guidelines of the Office of Science and Technology Policy 
(OSTP) because HazCom ultimately would reference our final air quality 
standard. OSTP guidelines address the use of ``strength of evidence'' 
and ``weight of evidence'' analysis in quantitative risk assessment.
    Most commenters on our use of these publications opposed such use, 
stating that including references to these would be an incorporation-
by-reference without following the proper rulemaking procedures. They 
stated that ACGIH's, NTP's, and IARC's decision-making processes are 
deficient because they restrict public or peer input. They further 
stated that the absence of public comment and external peer review 
raises significant questions regarding the quality of any science-based 
decision-making process. These commenters added that our rulemaking, 
because it goes through an established process, provides the only basis 
for establishing valid references for hazard determination purposes.
    Some commenters also strongly objected to referencing either the 
latest edition or subsequent monographs or supplements of these sources 
because such references fail to advise the regulated community of the 
standard of conduct to which they are expected to conform. They 
commented further that we may only incorporate-by-reference materials 
in existence at the time we promulgate a final rule.
    Several commenters to the interim final rule asserted that the 
incorporation by reference of NTP, IARC, and ACGIH constitutes an 
impermissible delegation of authority and a violation of the 
Administrative Procedure Act, and relying on these standards 
organizations constitutes an illegal federal advisory committee. 
Finally, these commenters claim that our participation in these 
entities' committees and our subsequent incorporation of their 
standards constitute a conflict of interest.
    We acknowledge that the final rule refers to IARC, ACGIH, and NTP 
documents. We disagree with those commenters that assert that 
referencing these sources in the rule constitutes a delegation of 
authority. As stated in the preamble to the interim final rule, as well 
as the proposed rule, the inclusion of these sources in the HazCom 
standard rule aids in the identification of hazardous chemicals.
    As stated previously, we wrote HazCom so its substance would be 
similar to OSHA's HCS. We wanted to provide the same protections to 
miners that employees under OSHA's jurisdiction have and make 
enforcement predictable (to the extent possible) for operators who have 
operations under both OSHA's and MSHA's jurisdiction. OSHA requires 
that--

Chemical manufacturers, importers or employers evaluating chemicals 
shall identify and consider the available scientific evidence 
concerning such hazards. For health hazards, evidence which is

[[Page 42337]]

statistically significant and which is based on at least one 
positive study conducted in accordance with established scientific 
principles, is considered to be sufficient to establish a hazardous 
effect if the results of the study meet the definitions of health 
hazards in this section.

    We believe that the referenced organizations are recognized as 
authorities on hazardous chemicals and knowledgeable about established 
scientific principles. Their decision-making committees are composed of 
noted, credentialed experts in their fields. Documents such as the IARC 
Monographs and related supplements, the ACGIH TLV[supreg]s, and the NTP 
Annual Report on Carcinogens, do not attempt to quantify the degree of 
risk. Their findings summarize large numbers of studies and include 
conclusions made by groups that peer review the data submitted as 
evidence about a chemical's hazards. We believe that the findings of 
these groups provide sufficient evidence to warrant informing miners of 
the hazard, even though in some cases the data may not be sufficient to 
support further regulatory action, such as establishing specific 
exposure levels and requiring use of control technology to limit 
exposure. Using these lists as a screening tool reduces the resources 
an operator would otherwise have to use to determine if a chemical is 
hazardous. Including these sources in the HazCom standard does not 
increase compliance obligations for mine operators.
    If the commenters objecting to the use of these references meant to 
address whether or not the chemicals are known to be hazardous, the 
chemicals are listed in the five sources (MSHA, OSHA, NTP, IARC, ACGIH) 
because scientific studies have indicated that they are hazardous. 
Although mines use a large number and variety of hazardous chemicals, 
mines produce only a limited number. We expect most hazardous chemicals 
produced at mines to be listed.
    The alternative to using these five sources as a screening tool 
would be for an operator to conduct a thorough search of available 
literature to determine if the chemical is hazardous, in addition to 
finding any statistically significant, scientifically valid studies 
that report the chemical's hazards. This may involve locating a 
document that could be outdated or out of print, or operators 
conducting their own chemical testing. We believe that listing these 
sources aids many smaller operators, in particular, who otherwise would 
not know what sources they could rely on to determine if a chemical is 
truly hazardous.
    OSHA's HCS defines a health hazard as--

    * * * a chemical for which there is statistically significant 
evidence based on at least one study conducted in accordance with 
established scientific principles that acute or chronic health 
effects may occur in exposed employees. (Emphasis added)

    By using these five sources as a screening tool, we intend to 
minimize the number of literature searches and, thus, the compliance 
burden.
    As stated previously in the preamble to the interim final rule, we 
expect most hazardous chemicals produced at mines to be listed in these 
sources. Other sources not cited in the proposed, interim final, or 
final rules also can provide valuable information. Other reputable 
sources of scientific information can be referred to, such as the NIOSH 
Registry of Toxic Effects of Chemical Substances, the NIOSH Pocket 
Guide to Chemical Hazards, or chemical databases on the internet.
    We disagree with comments that MSHA personnel participating on 
ACGIH committees or with other private standards-setting groups 
(consensus standards) is, inherently, a conflict of interest. The U.S. 
Office of Management and Budget (OMB) encourages scientists, engineers, 
and other professionals in federal service to work with such 
organizations knowing that the opportunities for improved understanding 
can be achieved by exchanges of information with industry, labor, and 
representatives of other federal agencies.
    In summary, if evidence exists that a chemical is hazardous, the 
HazCom final rule requires a mine operator to inform potentially 
exposed miners about these hazards whether they are listed by ACGIH or 
not. The actions of ACGIH to adopt a different or additional exposure 
limit do not change the hazards of a chemical. ACGIH actions, 
therefore, do not create additional compliance obligations under 
HazCom.
    We have other regulations that incorporate-by-reference ACGIH 
publications as well as those of other national standards setting 
groups, such as American National Standards Institute (ANSI) and the 
American Society for Testing and Materials (ASTM). The incorporation of 
these standards into our regulations has been done in accordance with 
the standard-setting requirements of Sec. 101 of the Mine Act, the 
rulemaking requirements of the Administrative Procedures Act, and the 
procedures established by the Federal Register. For example, 
referencing these sources in HazCom complies with the requirements, of 
Sec. 101(a)(6)(A) of the Mine Act, which requires the agency, when 
developing mandatory standards, to consider ``the latest scientific 
evidence in the field.'' Our references in HazCom are not 
``incorporations-by-reference'' because they are simply used as 
identification aids. A chemical can be hazardous and not be listed in 
one of these documents. If listed, however, experts have found the 
chemical to be hazardous and you do not have to make your own 
determination.
    Using ACGIH, NTP, and IARC to determine a chemical's hazards. If 
the commenters objecting to the use of the references meant to address 
the nature of the harm, the circumstances under which the chemical can 
cause harm, or the level of exposure at which harm becomes likely, we 
recognize that there may be conflicting information in the scientific 
literature. For example--
     NTP classifies carcinogens as either ``known to be 
carcinogenic to humans'' or ``reasonably anticipated to be carcinogenic 
to humans'';
     IARC classifies carcinogens as either ``carcinogenic to 
humans'', ``probably carcinogenic to humans'', or ``possibly 
carcinogenic to humans''; and
     NIOSH classifies carcinogens as either a ``potential 
occupational carcinogen'' or not.
    We agree that relying solely on the information from any of these 
sources may not be sufficient to determine the types of health hazards 
of a chemical for the purpose of developing an MSDS. That is because, 
except for identifying certain chemicals as either carcinogens or 
suspected carcinogens, these sources contain little specific 
information on the types of health hazards posed or the other 
information required on the MSDS.
    Some commenters to the proposed rule stated that it would be a 
great burden on the mining community to find out if recent scientific 
studies show their product to be a carcinogen or other type of chemical 
hazard. Although determining the hazards of a chemical you produce 
could be more time consuming, we do not believe that it is overly 
burdensome, infeasible, or impractical. An entire segment of the 
publishing industry, the trade press, exists to inform the mining 
industry about new production equipment, legislative and regulatory 
affairs, commodity pricing, changes in construction specifications, bid 
proposals, and scientific studies that can affect the commercial value 
of mining products. We expect that the media, trade associations, or 
unions will also provide the mining industry with any significant new 
information

[[Page 42338]]

concerning the hazards of their products.
    Table 1: Removed from Proposed Rule. To simplify your access to the 
information from these sources, we compiled a table of all the 
chemicals listed in them and included this table in the proposed rule. 
The table indicated which of the four sources (MSHA, NTP, IARC, ACGIH) 
would give you more information about a chemical's health hazards and 
carcinogenicity. Operators could use the proposed table to determine 
quickly if the chemical they produced was a health hazard rather than 
having to refer to the sources. We thought this would save resources if 
the chemical was not hazardous. We intended to spare operators from 
looking beyond this table to determine whether a chemical posed a 
health hazard. We had intended to update the table as needed.
    Several commenters to the proposed rule agreed that we should allow 
operators to use Table 1 to determine if the chemicals they produce are 
hazardous. One of these commenters felt that we should publish this 
table as an appendix to the rule and that it should state explicitly 
that operators may use this table to determine whether a chemical is a 
health hazard rather than having to refer to the four sources. Another 
of these commenters suggested that we include Chemical Abstract Service 
(CAS) registry numbers in the table to help operators identify the 
chemical.
    Some commenters to the proposed rule asked that we not include the 
table in the final rule. One commenter felt that the average person 
would find this list of hazardous chemicals difficult and impractical 
to use. Others expressed concern that the list may not indicate all the 
potentially hazardous materials produced or used at the mine and 
favored the OSHA HCS's one-study approach.
    One commenter objected to the proposed rule's reference to a table 
in the proposed air quality standard before we published the air 
quality standards as a final rule. Some commenters supported our 
intention to reference the final air quality standards in the hazard 
determination provision. That support, however, was contingent upon our 
establishing permissible exposure limits (PELs) at levels that prevent 
material impairment of health or functional capacity. These commenters 
further stated:

PEL's and carcinogens validated through the rulemaking process will 
enable operators who ship chemicals to evaluate whether those 
chemicals present a health hazard under conditions of intended use. 
When proposed 30 CFR Parts 58 and 72 are validly promulgated, MSHA 
should amend proposed 30 CFR Part 46.3(a) to incorporate those 
provisions.

    Although the final rule continues to reference NTP, IARC, and 
ACGIH, it does not include a table of hazardous chemicals. We deleted 
the list from the interim final and final rules because it would have 
required continual updating to be relevant and timely for miners and 
mine operators. Instead, we decided to put a list of chemicals known to 
be hazardous in the MSHA Toolbox for this final rule. We intend to 
place both of these references on our website and provide links to 
other websites, such as NIOSH and university collections of MSDSs. 
Access to the MSHA web site, internet news services, libraries, and 
databases will allow you to obtain the most recent and reliable 
information soon after it becomes available.
4. Mixtures Produced at the Mine
    The best way to determine the hazards of a mixture is to test the 
mixture as a whole. You would then use the results of that testing to 
make a determination as to whether or not the mixture poses a hazard 
and the nature of the hazard. We recognize that most operators do not 
have the facilities and equipment to conduct this testing.
    For mixtures not tested as a whole, the final rule establishes the 
same criteria as the OSHA HCS and as the proposed and interim final 
rules for determining the hazards of the mixture based on its 
ingredients. You must use available scientifically valid evidence to 
determine the mixture's physical hazards and rely on available health 
hazard information for the mixture's ingredients to determine its 
health hazards.
     You must conclude that the mixture is a health hazard if 
at least 1% of the mixture is a chemical that is a health hazard.
     You must conclude that the mixture is a carcinogenic 
hazard, a special class of health hazard, if at least 0.1% of the 
mixture is a chemical that is a known or suspected carcinogen.
    Determining the hazards of mixtures. Hazardous mixtures are 
commonly created at mines to capture the valuable components of an ore 
and produce a mining commodity. In writing HazCom's requirements for 
mixtures, we needed to ensure that operators would inform miners about 
the potential hazards of chemicals in mixtures before they reached an 
unsafe concentration. Setting a cutoff point had to account for a broad 
band of chemical toxicity from the mildly hazardous to the mortally 
dangerous. Carcinogens posed such a serious potential harm that they 
needed to be treated separately. We also recognized that we needed a 
simple threshold that would help operators to decide when to include a 
chemical mixture in their HazCom program.
    A number of commenters to the proposed rule wanted the final rule 
to allow you to determine the hazards of mixtures of chemicals in the 
same way you would determine the hazards of individual chemical 
compounds or elements, i.e., under conditions of intended use. They 
believed that mixtures should not be treated differently from other 
chemicals, although they may present additional health or physical 
hazards. These commenters stated that you should--
     Test the mixture as a whole;
     If not tested as a whole, determine whether a component of 
the mixture presents a health hazard under conditions of intended use 
and if it constitutes a physical hazard; or
     Assume that a component presents a health hazard under 
conditions of intended use and that the mixture presents the same 
hazard, and use whatever scientifically valid evidence is available on 
the components of the mixture to determine the mixture's physical 
hazards.
    Several commenters to the proposed rule objected to the requirement 
that if a mixture has not been tested as a whole, you must assume that 
it will pose the same health hazards and carcinogenic hazards as each 
of its components. Other commenters to the proposed and interim final 
rules recommended that the health hazards of mixtures be based on 
either experimental evidence or weight of experience and, if known, 
dosage and exposure. Others argued that the concentration levels of 
1.0% for hazardous components of a mixture, and 0.1% for carcinogenic 
components, had been chosen arbitrarily and that there are no studies 
showing relevance to these levels with regard to health hazards.
    We believe that a concentration of 1.0% of a hazardous chemical's 
mixture and 0.1% of a carcinogen's mixture will set a reasonable 
trigger or cutoff point that will provide enough notice to miners that 
they will be able to protect themselves while giving clear guidance to 
operators that they will know when they must include a chemical in 
their HazCom program.
    OSHA had determined that 1.0% of the mixture was a reasonable 
concentration to include a hazardous chemical in an employer's HCS 
program. Like OSHA, we found that the commenters who objected to these

[[Page 42339]]

levels did not suggest an alternative. We believe that common criteria 
for hazard determination with other industries is beneficial. Uniform 
criteria allow for the free flow of hazard information among all 
industry sectors regardless of which agency promulgates the 
regulations. This reduces burden. The final rule sets concentration 
levels of 1.0% for hazardous components of a mixture and 0.1% for 
carcinogenic components to absolve the operator from having to evaluate 
and list chemicals present in small quantities, which are not likely to 
result in substantial exposures to known hazards.
    We added language to the final rule to clarify that carcinogenicity 
is a subset of health hazard. The 1.0% level refers to non-carcinogenic 
health hazards and the 0.1% level refers to carcinogenic health 
hazards. This provision is substantively the same as the proposed and 
interim final rules and OSHA's HCS. As discussed above, ACGIH has been 
dropped as one of the carcinogenic references.
    Trace ingredients. The proposed rule stated that, if you have 
evidence indicating that a component of the mixture could be released 
in concentrations that would exceed an established MSHA PEL or ACGIH 
TLV[supreg], or could present a health risk to miners, you must assume 
that the mixture presents the same hazard. A number of commenters 
opposed the proposed rule's reference to the ACGIH TLV[supreg]s and 
suggested that the final rule reference only MSHA health standards. 
Commenters to the proposed rule expressed concern that the resources 
spent on determining the potential release of a hazardous trace 
component of a mixture dilutes the resources available to address real 
hazards. We contend, however, that if a trace ingredient can be 
released from the mixture at concentrations that can pose a health risk 
to miners, such as concentrations exceeding its PEL or TLV[supreg], 
this trace component is properly considered a hazard.
    Another commenter to the proposed rule recommended that the final 
rule be more performance oriented and suggested that we reword this 
section to state:

    If the operator has reason to believe that lesser amounts than 
listed in item (2) could reasonably present a health risk they will 
be assumed to present the same hazard.

    In response to these comments, we used more performance-oriented 
language in the interim final and final rules. HazCom requires you to 
assume that a mixture presents the same hazard as a component if you 
have evidence that the component could be released from the mixture in 
a concentration that could present a health risk to miners. For 
example, the MSDS may indicate that a particular trace component reacts 
with other components, diffuses into the packaging, or evaporates over 
time. In this example, if the trace component is hazardous, you must 
inform miners about this information and its implications for them, and 
comply with the applicable HazCom provisions.
    We do not intend that you conduct research for chemicals brought to 
the mine; however, you must obtain an MSDS for them to determine 
whether or not a trace component can be released from the mixture in a 
hazardous concentration. Our intent is that, if you determine the trace 
ingredient can present a hazard, then you must include this information 
in your initial HazCom training, as well as in parts 46 and 48 
training. Similarly, you must determine potential hazards from trace 
ingredients in hazardous chemicals you produce, including mixtures and 
by-products of mining activities. This requirement is consistent with 
MSHA's HazCom proposed and interim final rules and OSHA's HCS, and 
provides consistency in the level of protection for miners.
    The final rule eliminates unnecessary language but retains 
generally the same requirement as the proposed and the interim final 
rules. This provision recognizes that even trace components of a 
mixture could cause harm if a sufficient quantity is released from the 
mixture.
    Respirable crystalline silica. A number of commenters to the 
proposed rule expressed concern that IARC has designated respirable 
crystalline silica as a probable human carcinogen. Several commenters 
were concerned that the requirements for determining the hazards of 
mixtures that had not been tested as a whole did not take into account 
that a chemical is hazardous only when it is encountered in a specific 
physical state or form. Specifically, they felt that the proposed rule 
would have required you to determine that any untested mixture that 
contains 0.1% or greater of respirable crystalline silica is 
carcinogenic. They pointed out that IARC's Monograph No. 42 and 
Supplement 7 and NTP's addition of this substance to its list in its 
6th Edition address only the respirable crystalline form of silica as a 
human carcinogen and not other forms of crystalline silica.
    We agree that it is the respirable form of crystalline silica that 
is designated as a human carcinogen in the sources listed in the final 
rule. Therefore, if the mixture contains 0.1% or greater of crystalline 
silica, you must determine the percentage that is respirable or capable 
of being liberated. Any required label and MSDS for products containing 
concentrations of 0.1% or more of respirable crystalline silica must 
indicate this potential health hazard. HazCom also requires you to 
inform miners about the carcinogenic hazard from exposure to respirable 
crystalline silica.
    Physical hazards. Comments on the proposed rule indicated that you 
may find it difficult to categorize the physical hazards of some 
mixtures because of the stratification or deterioration that may occur 
in these mixtures during storage and handling. To ensure that all 
hazards of a mixture are properly addressed, this commenter felt that 
we should require you to use persons who are qualified by education, 
experience, and training to determine the hazards of a mixture with 
respect to its use in mines. We expect that most of the information 
necessary to determine the hazards of a mixture are available in MSDSs 
or other publications. Because you are responsible for making this 
determination, and often the most qualified, we expect that you will 
make the determination yourself or select a competent person to do it.
    The proposed rule stated that if a chemical is not tested as a 
whole, you must use ``whatever'' scientifically valid evidence is 
available to determine the mixture's physical hazard. The word 
``whatever'' was removed from the final rule at the request of 
commenters to the interim final rule. This minor syntactical change did 
not affect the meaning of the standard and, therefore, does not reduce 
protection for miners.
5. Hazardous Chemical
    One commenter to the proposed rule felt that chemical may be 
interpreted restrictively to mean that only the chemicals you produce 
require a hazard determination. This commenter felt that we should 
state clearly that all mining products, including minerals, ore, and 
miscellaneous materials, require a hazard determination. Another 
commenter to the proposed rule recommended that we use the term 
hazardous material rather than hazardous chemical because operators and 
miners are more likely to associate that term with minerals, ores, and 
other materials that occur naturally.
    We use the term hazardous chemical in HazCom to be consistent with 
its use in OSHA's HCS. It is used by a wide variety of industries and 
has been the subject of much clarification in the 15 years since OSHA 
promulgated its HCS.

[[Page 42340]]

We believe that the definition of chemical in the proposed, interim 
final, and final rules is more widely applicable and less open to 
misinterpretation than the alternatives suggested.

D. Subpart D--HazCom Program

    All mines must have a written HazCom program. The written program 
does not have to be lengthy or complicated, and some operators may be 
able to rely on existing HazCom programs to comply with the 
requirements of the final rule. As mining processes change and as new 
chemicals are brought onto mine property, you must update your written 
program to reflect these changes.
    Commenters to the proposed and interim final rules stated that 
written programs are an unnecessary paperwork burden, rarely if ever 
used. They declared that the written program requirement in particular 
seemed unnecessary if training requirements were retained, since 
operators will be training miners on their mine's HazCom policies and 
procedures. These commenters asked that we exempt those mines where 
hazardous chemicals are neither used nor produced from the requirement 
to have a written HazCom program.
    We do not agree with these commenters. In our experience, we have 
found that the mining industry is highly dependent on processes and 
machinery that use, to name a few common examples, explosives, diesel 
fuel, or gasoline in order to extract mine products from the earth. 
Maintenance of equipment or facilities, even at the simplest 
operations, is in an industrial environment.
    MSHA intends that the written hazard communication program be your 
plan for how you will implement HazCom at your mine. The final rule 
requirements on HazCom program are flexible, allowing you to design 
your HazCom program taking into account the specific circumstances at 
your mine.
    Mines are dynamic work environments that change their methods to 
adjust to changing needs. If a mine does not have a hazardous chemical, 
we believe the miners at that property are better served by requiring 
the mine operators to review their processes and inventories and know 
with certainty that chemicals are not present. It is important that 
operators conduct at least a one-time review of their mines to ensure 
that no harmful chemicals exist which under normal conditions of use or 
in foreseeable emergencies can put their miners at risk.
1. Section 47.31  Requirement for a HazCom Program
    This section of the final rule is substantively the same as the 
proposed and interim final rules and is consistent with OSHA's HCS. It 
requires you to develop, establish, and maintain a written HazCom 
program. You must ensure that you have an effective method to 
communicate hazards to miners and other operators at the mine if their 
miners can be exposed to your hazardous chemicals. You must also retain 
the written program for as long as a hazardous chemical is known to be 
at the mine.
    The scope of HazCom, Sec. 47.2, clearly states that the final rule 
applies to all operators with miners who can be exposed to a hazardous 
chemical ``under normal conditions of use or in a foreseeable 
emergency.'' The scope applies to all sections of HazCom and all 
operators at a mine, including independent contractors. Therefore, we 
did not need to repeat the language of the scope in the requirements 
for the contents of the written program.
    You must make the written program available to miners, their 
designated representatives, and MSHA and Department of Health and Human 
Services (HHS) personnel. In the final rule, the provisions on access 
and copies are in a separate subpart on making HazCom information 
available. This administrative re-ordering of HazCom's provisions is 
unchanged from the interim final rule, but different from the proposed 
rule.
    Generic programs. Some commenters to the proposed and interim final 
rules stated that development of the written HazCom program was beyond 
the capabilities of most operators and would impose a technological and 
financial burden. Other commenters to the proposed and interim final 
rules suggested that we develop a generic written HazCom program for 
use as an example.
    You are responsible for developing a HazCom program for the 
chemicals that you produce or bring to the mine. Your written program 
must include all the information that you need--
     To implement the HazCom program;
     To provide hazard information to miners so that they will 
know what is expected and can participate in supporting the protective 
measures in place; and
     To ensure that other operators at the mine receive the 
HazCom information they need.
    Although the development and implementation of a HazCom program may 
pose a technological and financial burden on some small operators, we 
determined that the final rule is technologically and economically 
feasible. To relieve the burden for small operators, we have delayed 
the application of the final rule, planned an extensive outreach 
effort, and developed a wide variety of compliance aids. As part of our 
efforts, we will provide examples of a written HazCom program in the 
MSHA HazCom Toolbox for this rule and place model programs on our 
website. You can also adapt the model programs on OSHA's website 
because the two standards are similar, or obtain assistance from 
organizations that have developed generic guides to meet OSHA's HCS. 
The availability of generic programs reduces your technical and 
financial burden.
    Some commenters to the interim final rule asked us to clarify that 
one HazCom program will meet both OSHA's and MSHA's requirements. We 
wrote the HazCom program requirements to be, at least in part, 
interchangeable with OSHA's HCS so that programs written to comply with 
OSHA will also comply with MSHA. We intended that companies with 
operations under both MSHA and OSHA, such as those with MSHA-inspected 
quarries and OSHA-inspected asphalt plants, would be able to use a 
single plan to meet both sets of requirements. We have a few mines, 
such as those with hazardous waste facilities, where differences 
between MSHA's HazCom and OSHA's HCS might require that written 
programs be amended. Even then, however, you should be able to prepare 
a written program that will satisfy both OSHA and MSHA requirements. We 
urge you to contact the MSHA District Manager for help in resolving any 
concerns you may have in this regard.
2. Section 47.32  HazCom Program Contents
    Under the final rule, like the proposed and interim final rules, 
your HazCom program has to describe how you meet the standard's 
requirements for hazard determination, labels and other forms of 
warning, MSDSs, and initial miner training. It also must include a list 
of the hazardous chemicals that you produce or bring to the mine and 
use the same identity for a chemical on this list, the label, and the 
MSDS.
    Exchanging HazCom information. Where more than one operator works 
at a mine, your HazCom program also has to describe--
     How you inform these other operators about hazardous 
chemicals to which their miners can be exposed and any protective 
measures;

[[Page 42341]]

     How you provide other operators with access to MSDSs and 
other relevant HazCom information; and
     How you identify hazards on labels and other warnings (the 
system or symbols you use).
    Several commenters to the proposed and interim final rules 
expressed concern about how information would be exchanged between 
operators. One commenter to the proposed rule wanted the final rule to 
give the primary operator at the mine the latitude to determine how to 
exchange information. Another commenter to the proposal wanted MSHA to 
prescribe how operators exchange information.
    The final rule deliberately uses performance-oriented language to 
give you the flexibility to establish how to exchange information with 
other operators and tailor your written program. At many mines, 
independent contractors, service personnel, and production miners are 
exposed to hazards of chemicals from many sources. For example, when 
independent contractors bring hazardous chemicals onto mine property, 
it is their responsibility to provide the primary operator and other 
operators (such as other independent contractors at the same site) with 
information about those chemicals. Likewise, it is the responsibility 
of the primary operator to inform these independent contractors about 
the chemical hazards at the mine. A systematic and orderly transfer of 
information ensures that all miners are informed. Specific, detailed 
requirements could reduce flexibility and become unnecessarily 
burdensome.
    Hazard determination procedures. One commenter to the proposed rule 
wanted the final rule to require you to describe, in writing, the 
procedures you use to determine the hazards of the chemicals you 
evaluate and to maintain these written procedures. This commenter 
stated that these detailed written procedures would be a valuable 
source of information for workers, their representatives, and the 
government. This commenter also stated that such a record is the means 
to determine if you are following procedures to assess the hazards 
associated with a chemical's inherent properties and know how you use 
it. Another commenter to the proposed rule said that we do not need to 
know the basis of your hazard determination.
    Consistent with the proposed and interim final rules, the final 
rule requires that your HazCom program include how you are putting the 
provision for hazard determination into practice at your mine. This 
requirement is performance oriented; it does not specify format or 
criteria. We expect your description of your hazard determination 
procedures to be sufficient to allow others to understand how you made 
the determination.
    Hazardous chemical list. The final rule requires you to compile a 
list of hazardous chemicals and maintain it for as long as a hazardous 
chemical is known to be at the mine. You are responsible for listing 
only the hazardous chemicals that you produce or bring to your work 
areas. The list, or inventory, of hazardous chemicals is a quick 
reference so that you, miners, other operators working at your mine, 
and MSHA and NIOSH personnel can see what hazardous chemicals are 
present. It also must use a chemical identity that permits cross-
referencing between the list, a chemical's label, and its MSDS. For 
example, if a chemical is identified by a trade name on the MSDS or the 
label, the list should be indexed and the chemical identified using the 
trade name. This requirement is unchanged from the proposed and interim 
final rules.
    One commenter to the interim final rule expressed concern that a 
chemical manufacturer may prepare the MSDS with one chemical identity, 
but a supplier may label the product with another, making you unable to 
cross-reference them. As in the proposed and interim final rules, the 
final rule does not hold you responsible for the accuracy of 
information received from a chemical supplier or manufacturer. You 
should, however, notify the manufacturer of any problem and ask them to 
remedy the situation.
    Other commenters to the interim final rule asked that we clarify 
our requirements and give one month to update the HazCom program. The 
final rule, consistent with the proposed and interim final rules, does 
not specify a time limit for updating a HazCom program, but because the 
rule requires you to maintain the list, it implies that you will need 
to keep the list current.
    You can compile the list for the mine as a whole or you can compile 
lists for individual work areas. For example, if few chemicals are used 
in one work area, such as a mine's quarry, and many are used in another 
work area, such as its shop, lists for the individual work areas would 
avoid confusing the miners in the quarry who would have no exposure to 
most of the chemicals that would be on a comprehensive list. You are in 
the best position to judge the most effective and efficient way to 
maintain this list. In maintaining this list, you must keep it up-to-
date, whether for the whole mine or a specific work area.

E. Subpart E--Container Labels and Other Forms of Warning

    Labeling containers of hazardous chemicals is a major provision of 
HazCom. A label is an immediate source of information about a hazardous 
chemical in the work area, providing the identity of the chemical and a 
brief summary of the chemical's most serious hazards. Commenters to the 
proposed rule endorsed the content of the label requirements, asking 
that they stay consistent with OSHA's. The labeling requirements in the 
final rule are substantively the same as in the proposed and interim 
final rules and consistent with OSHA's HCS. Labels that comply with 
OSHA's HCS will meet HazCom's requirements.
    The proposed rule contained the labeling exemptions under the 
``Scope and Application'' and again under ``Labels and Other Forms of 
Warning.'' In response to comments to the proposed rule, we eliminated 
this repetition. We also put the labeling exemptions in a table, so 
that they are visually more accessible, and restated the proposed 
rule's provisions using clearer language. We moved the exemptions to a 
separate subpart near the end of the rule rather than placing them in 
the ``Scope'' section at the front of the rule. Except for ``raw 
materials being mined or processed while on mine property,'' the 
chemicals listed are exempt from labeling under HazCom because they are 
covered by the labeling requirements of other federal agencies. These 
exempt chemicals, therefore, are already labeled when you receive them 
at the mine. We will discuss these exemptions in detail later in the 
section called ``Exemptions from Labeling'' (Sec. 47.92).
    The proposed rule and the interim final rule contained provisions 
addressing a miner's and designated representative's right to examine 
the labeling information and have a copy without cost. In response to 
comments to the proposed rule, we consolidated HazCom's provisions on 
access and cost for copies in a new, separate subpart, Making HazCom 
Information Available (Sec. 47.71 through Sec. 47.73), in the interim 
final rule.
    The final rule, like the interim final rule, does not include 
proposed Sec. 46.5(d). The proposed rule would have required you to 
ensure that the label for a hazardous chemical complies with the 
labeling requirements in an MSHA substance specific standard, rather 
than the labeling requirements in HazCom. We determined that this 
provision was unnecessary because a substance

[[Page 42342]]

specific standard would apply before a general standard like HazCom.
1. Labeling Requirement in General
    Among those commenters supporting a HazCom labeling requirement in 
the proposed rule, many urged us to be consistent with OSHA's HCS. 
Several of these commenters, especially those with operations in both 
mining and general industry, said that it would be extremely burdensome 
if they had to comply with two significantly different requirements. 
For example, they said that it would be a great burden if you had to 
re-label incoming containers of hazardous chemicals to meet unique MSHA 
requirements. Other commenters to the proposed rule stated that they 
already provide labeling information and MSDSs for their products 
consistent with OSHA's standard because their customers are asking for 
them.
    The final rule is consistent with the proposed and interim final 
rules, as well as OSHA's HCS. Labels that comply with OSHA's HCS will 
meet our labeling requirements because HazCom requires the same 
information on a label as OSHA's HCS. Likewise, we expect that labels 
meeting MSHA's HazCom criteria will meet OSHA's requirements for labels 
under its HCS.
    Among those commenters to both the proposed and interim final rules 
generally opposed to labeling requirements under HazCom, many stated 
that our existing labeling standards are adequate and HazCom is 
redundant. Some commenters to the interim final rule asked us to accept 
labels developed under our existing standards, such as 30 CFR 56/
57.20012 labeling of toxic materials, to be in compliance with HazCom.
    The HazCom labeling requirements are more comprehensive than 
existing warning label standards. MSHA's existing labeling standards 
were developed before 1968 and were for chemicals brought to the mine 
and put in unlabeled containers. HazCom's requirements for labels are 
broader in scope and more flexible. HazCom also requires you to make 
sure that existing hazard warning labels on hazardous chemicals brought 
to the mine are maintained. For example, a gas can that says 
``gasoline'' on it, is acceptable labeling under HazCom for a 
temporary, portable container.
    As in the proposed rule and the interim final rule, this final rule 
requires you to make sure a chemical identity can be cross-referenced 
between the chemical inventory, the MSDS, and a label. It also requires 
that the label be in English and specifies when it must be updated. 
These are different provisions from the existing requirements. We 
expect, however, that most operators are already complying with 
HazCom's labeling requirements because of the labeling requirements 
under OSHA or CPSC.
    Consistent with the proposed rule and the interim final rule, this 
final rule unifies labeling requirements for hazardous chemicals in 
HazCom and expands existing requirements to include underground coal 
mines and clarify requirements for all mines.
2. Section 47.41  Requirement for Container Labels
    The final rule, consistent with the proposed and interim final 
rules, requires that each container of a hazardous chemical be labeled, 
tagged, or marked with the identity of the hazardous chemical and 
appropriate hazard warnings. You should only have to deal with three 
categories of labels: labels on containers of hazardous chemicals 
brought to the mine; labels on mixing, storage, or transport containers 
on mine property; and labels on the containers that you use to ship a 
hazardous chemical that you produce.
    A commenter to the interim final rule asked that we remove language 
saying ``tagged'' or ``marked'' because a label might, as a result, not 
be meaningful. The commenters concern was that a tag or mark was less 
specific than a label. The definition of label under HazCom states that 
it is any written, printed, or graphic material displayed on or affixed 
to a container to identify its contents and convey other relevant 
information. Tagged and marked containers must meet the requirements of 
labels and, therefore, carry the same information as a label.
    Existing container labels. HazCom requires you to check the label 
on a chemical brought to the mine to determine if it is hazardous so 
you will know whether you need to obtain and keep an MSDS, list the 
chemical on the list of hazardous chemicals, and train miners about the 
chemical's hazards. You also must ensure that the labels and other 
forms of hazard warning are legible. You do not have to re-label these 
containers unless there is no label, the label is unreadable, or the 
manufacturer sends a revised label. Likewise, you must not remove or 
deface the labels on hazardous chemicals brought to the mine unless you 
immediately mark the container with the chemical's identity and its 
hazards. You must also ensure that the container remains labeled as 
long as you use it to contain a hazardous chemical.
    Hazardous chemicals brought to the mine normally arrive with labels 
or labeling information. We expect that the label on the original 
container of a hazardous chemical provides adequate information about 
its hazards. The EPA, the Consumer Product Safety Commission (CPSC), 
OSHA, and other federal agencies have rules addressing the labeling of 
hazardous chemicals. For this reason products or chemicals subject to 
their standards are exempt from labeling under HazCom.
    Commenters' suggestions about label content and format indicated 
that they perceived the proposed rule as requiring much more operator 
labeling than we intended. Some seemed to think that we required 
operators to evaluate and label containers of hazardous chemicals 
brought to the mine. One commenter pointed out that manufacturers may 
not identify new information on the label and MSDS they provide and 
stressed that operators should not have to update existing labels.
    The final rule, consistent with the interim final rule, does not 
require you to re-label containers of hazardous materials that are 
labeled in accordance with other federal standards or are otherwise 
marked or tagged with the required information. You are not responsible 
for inaccurate information on a label prepared by the chemical's 
manufacturer or supplier, which you accept in good faith. We do not 
expect, and HazCom does not require, you to update the hazard warnings 
on labels you did not prepare. We do expect, however, that as you 
replace your inventory, you will do so with containers already labeled 
by the manufacturer with the new information. If the manufacturer sends 
you a new label with instructions to replace the existing label, you 
must do so.
    Labels on mine products. Commenters to the proposed rule expressed 
concern that some operators might be unable to prepare a label for 
their mine's products because they lack the technical knowledge. We 
expect that you can easily compile the hazard information for the 
chemicals produced at your mine because our existing standards already 
require you to train miners about the safety and health aspects of 
their job. While underground coal mines are not required to label 
hazardous materials, they do conduct miner training.
    A commenter to the proposed rule asked that we clarify whether the 
requirement to update the label with significant new hazard information 
within 3 months applied to small quantities of hazardous chemicals in 
transfer, or temporary portable containers.
    Significant new hazard information about a chemical develops 
infrequently.

[[Page 42343]]

Most new information confirms, clarifies, or expands knowledge about 
the hazards already known. We intend the provision to apply to labels 
you make for your product or other containers of hazardous chemicals at 
the mine, excluding temporary portable or transfer containers. If you 
have to label the container of a hazardous material, it is our intent 
that you ensure that the label is accurate and update the label when 
you become aware of significant new hazard information. However, you 
must tell miners about significant new information when you discover it 
or a manufacturer notifies you about it.
    Maintenance. Some commenters to the proposed rule stated that 
labels would be difficult to maintain in a mining environment or that 
they would be difficult for miners to read and understand. Although it 
may be difficult to maintain labels in some areas of the mining 
environment, these labeling requirements are realistic and achievable. 
OSHA's HCS provisions are successfully met at heavy and highway 
construction sites as well as at tunneling operations, situations that 
are comparable to mining sites. Many of the containers coming onto mine 
property will have permanent labels affixed, suitable for use in the 
mining environment, and effective training will help miners to 
understand the labeling information.
    Label accuracy. Consistent with the interim final rule, final 
Sec. 47.41 (b), Requirement for container labels, requires that for 
each hazardous chemical produced at the mine, the operator prepare a 
container label and update this label with any significant, new 
information about the chemical's hazards within 3 months of becoming 
aware of this information. Paragraph (c) of the same standard requires 
the mine operator to replace outdated labels of hazardous chemicals 
brought to the mine when a revised label is received from the 
chemical's manufacturer or supplier.
3. Section 47.42  Label Contents
    HazCom requires that you label containers of the hazardous 
chemicals you produce. The label must be prominently displayed, 
legible, accurate, and in English. It must display appropriate hazard 
warnings and use a chemical identity that permits cross-referencing 
between the list of hazardous chemicals, a chemical's label, and its 
MSDS. The label must also contain the name and address of the operator 
or another responsible party who can provide additional information 
about the hazardous chemical.
    Although the hazard warnings on the labels should be concise and 
easy to see, they also must convey the chemical's identity and its 
physical and health hazards. The label, tag, or other marking that you 
prepare must communicate enough information to users of your product 
and other employers so that they can recognize the hazards and make 
correct decisions about safe procedures and protective equipment. We do 
not intend the label to be the only or most complete source of 
information on the hazardous chemical.
    One commenter stated:

    We urge you to consider the possible effects of a world in which 
every conceivable threat is labeled, stickered, highlighted until 
the senses are saturated and the desired effect of the entire 
message is lost. We are rapidly creating such a world, and we 
caution you against needlessly furthering this unnerving trend.

    We recognize that it may not be feasible to include every hazard on 
the chemical's label that is listed in the MSDS. We expect, however, 
that you will address all chemical hazards in the miner's work area in 
your initial HazCom training program, as well as your parts 46 and 48 
training programs. The selection of hazards to be highlighted on the 
label will involve some assessment of the weight of the evidence 
regarding each hazard. This does not mean, however, that only acute 
hazards are to be covered on the label or that well substantiated 
hazards can be omitted from the label because they appear on the MSDS.
    For those chemicals posing multiple hazards, we expect you to 
prioritize the hazards and use that as the basis for the warnings. At a 
minimum, you must specify all serious hazards on the label. For 
example, if chromium (VI) in a welding fume is carcinogenic, causes 
liver and kidney damage, and blood abnormalities, as well as 
respiratory irritation, perforation of the nasal septum, damage to the 
eyes, sensitization dermatitis, and skin ulcers, the label could say: 
``Causes cancer, liver and kidney damage, blood abnormalities, and 
irritation of the skin, eyes, and mucous membranes.'' The warning about 
it causing sensitization dermatitis, respiratory irritation, skin 
ulcers, perforation of the nasal septum, or conjunctivitis could be 
covered by the less specific phrase, ``irritation of the skin, eyes, 
and mucous membranes.''
    You may have to reconcile inconsistent information in different 
sources by evaluating the evidence used in making the hazard 
classification. For example, if the chemical causes severe burns upon 
contact with skin, eyes, or mucous membranes, you would not also have 
to say that some evidence reported it to be a skin irritant. You also 
may need to distinguish between acute and chronic hazards. For example, 
some chemicals present a hazard only from prolonged exposure to high 
concentrations. When determining what hazard information to include on 
a label for your product, you must evaluate the evidence for each 
hazard listed on the MSDS. The label does not have to include all the 
hazards, but must show the most serious.
    The proposed rule would have required you to provide your name and 
address or the name and address of a responsible party who could 
provide additional information about the chemical. To simplify the 
language of the requirement, we changed the interim final rule's access 
to information provision to require a label with the name and address 
of a responsible party. A commenter to the interim final rule asked 
that this be changed back because persons often change jobs and the 
MSDS would be inaccurate. We agree. Accordingly, the final rule, 
consistent with the proposed rule and OSHA's HCS, requires that the 
name, address, and telephone number of the operator or other 
responsible party be included in the contents of the label. The 
provision was moved from ``Making HazCom Information Available'' to 
``Container Labels and Other Forms of Warning'' because it seemed more 
appropriate there.
    Hazard warning. The definition of hazard warning in this final 
rule, consistent with the proposed and interim final rules, states that 
the warning must convey the specific hazard of the chemical. The hazard 
warning can be any type of message, words, picture, or symbol that 
provides at least general information regarding the hazards of the 
chemical in the container such as ``flammable'' or ``human 
carcinogen''. If applicable, the warning must include the organs 
affected. For example, if the chemical causes lung damage when inhaled, 
then ``causes lung damage'' is the appropriate warning. ``Lung damage'' 
would be the hazard and ``do not inhale'' would be the protective 
measure. Phrases such as ``caution,'' ``danger,'' or ``harmful if 
inhaled'' are precautionary statements.
    Some commenters to the proposed rule suggested that the labels 
would need to state the container's contents and provide a general 
hazard warning, using words like ``combustible,'' ``flammable,'' or 
``poison.'' A general statement, however, would not convey enough 
information to enable miners to adequately protect themselves. Other

[[Page 42344]]

commenters to the proposal believed that only a precautionary 
statement, such as ``Danger!'' would be needed. Some suggested that we 
require operators to include precautionary statements on the label, in 
addition to the other information. A few commenters to the proposed 
rule stated that warning labels should summarize acute and chronic 
health effects and safety hazards and should provide advice and a phone 
number in case of emergency. Others recommended that labels include the 
target organ(s) affected by the chemical.
    Consistent with the proposal and interim final rules, the final 
rule intends that the label include the target organ effects, if such 
information is available. There are some situations where the specific 
target organ effect is not known. When this is the case, you can use a 
more general warning statement. For example, if the only information 
available is an LC50 test result, ``harmful if inhaled'' is 
appropriate. (An LC50, or the lethal concentration by 
inhalation for 50% of the animals tested, is the exposure concentration 
at which half of the animal test subjects died.)
    Our existing standards (Secs. 56/57.16004; Secs. 56/57.20012; 
Sec. 77.208) require you to label hazardous materials appropriately. In 
addition to the required information, we encourage you to include other 
helpful information on the label. For example, the symbols on the label 
representing precautionary measures or safe work practices, such as 
``chemical goggles,'' ``respiratory protection,'' or ``use only in a 
well ventilated area,'' serve as reminders about the hazard and 
increase the likelihood that miners will use these measures.
    Label format. Many commenters to the proposed rule suggested 
various format criteria and coding schemes for labels, affirming the 
benefits of uniformity. In this final rule, as with the proposed and 
interim final rules, we recognize that there are a variety of different 
labeling systems to warn persons of chemicals and their hazards. Some 
systems rely on numeric codes and specific colors to convey the hazards 
of chemicals. These systems, however, usually convey the degree of risk 
that a chemical poses and not specific hazard information. You can use 
these types of systems for labels used at the mine if you communicate 
the specific physical and health hazards of the chemicals through other 
parts of the HazCom program, such as MSDSs and training. HazCom's 
labeling requirements are performance oriented. The rule recognizes 
that a specific system is not necessary to communicate the chemical's 
identity and its hazards, and that some mine operators already have an 
effective labeling system.
    The final rule is deliberately flexible to allow for the adoption 
of an international system for classifying and displaying hazard 
information, when it becomes available. Commenters to the interim final 
rule asked that we delay implementation of HazCom because it would be a 
burden to unify the provisions with anticipated global harmonization 
requirements. We have held discussions with representatives to this 
international committee and we were informed that no prediction could 
be made as to when worldwide labeling standards are expected. Moreover, 
postponing HazCom requirements would forestall vital information and 
training requirements that enhance miner protections.
    Although the final rule does not require a specific labeling 
system, we encourage you to adopt a label format that is in accordance 
with an established standard. In its comments on the proposed rule, the 
Chemical Manufacturers Association (CMA) suggested that operators use 
the ``American National Standard for Industrial Chemicals `` 
Precautionary Labeling'' (ANSI Z129.1-1988) for their labeling system. 
Uniformity in the format, content, and terminology of MSDSs and labels 
aids understanding and simplifies their development. It also allows 
miners and others to find critical information quickly. Consistent 
labeling requirements between MSHA and OSHA will make communication 
among industries more effective and will make it easier for them to 
adopt global hazard communication standards.
    Other languages. The final rule, consistent with OSHA's HCS and the 
proposed and interim final rules, requires that the label be in 
English. If a significant number of your miners do not read English, or 
if their English is poor, you could provide the labeling information in 
another language in addition to English or add symbols to communicate 
the chemical's hazards. HazCom's purpose is the communication of 
chemical hazard information. You must make sure that your miners 
receive the information in a manner that they can understand. For 
example, if your workforce speaks Spanish, you could add a label in 
Spanish that gives the chemical's identity and hazard information or 
provide a translation of the labeling information to the affected 
miners. If your workforce speaks several different languages, or there 
are other literacy issues, you could add symbols to the label to 
communicate the chemical's hazards and train the workforce in the 
meaning of the symbols.
    Carcinogen labeling. As discussed under ``Identifying Hazardous 
Chemicals,'' the final rule and OSHA's HCS both require that the 
employer consider a chemical to be hazardous if it is listed in the 
specified NTP or IARC publications or regulated under agency standards. 
You must include a carcinogenic warning on the label if one of these 
sources classifies the hazardous chemical as a probable or known human 
carcinogen. Other categories, such as potential or suspected, must be 
listed on the MSDS only.
    Many commenters to the proposed rule suggested that we allow 
operators to determine what should be listed on the label based on an 
assessment of the weight of the evidence. Several pointed out that both 
IARC and NTP acknowledge that their classification evaluations are not 
complete hazard assessments. IARC and NTP use a strength-of-evidence 
approach that does not take into consideration negative studies for 
evaluating a chemical's carcinogenic hazard. In regard to the use of 
ACGIH, one commenter stated:

    ACGIH lists chemicals identified as carcinogens from ``other 
sources'' without identifying these sources. The ACGIH documentation 
of TLV's and BEI's lists five sources of information on carcinogens 
(IARC, MAK, NTP, NIOSH, and TLV). Since these sources often use each 
other as their reference point rather than come to independent 
conclusions, we believe that the ``carcinogen'' tag can be 
inappropriate unless there is conclusive evidence of 
carcinogenicity. While fuller explanations may be given on an MSDS, 
we believe that automatic triggers should not be used to determine 
warnings on labels.

    Although some commenters specifically objected to using IARC, NTP, 
or ACGIH as a trigger for cancer labeling, others supported carcinogen 
labeling based on the judgment of these organizations, but only for 
those chemicals identified as known human carcinogens. Another 
commenter objected to carcinogen labeling for those chemicals listed in 
IARC Group 2A. Group 2A carcinogens (probably carcinogenic) are known 
to induce cancer in animals, but the evidence of human carcinogenicity 
is limited. These commenters believed that requiring carcinogen 
labeling for potential or probable carcinogens would result in ``over-
labeling'' and detract from the focus that should be given to more 
serious hazards. In addition, one pointed out that ``over-labeling'' 
could have the adverse marketplace consequence of encouraging shifts to 
unlabeled products, typically without

[[Page 42345]]

an assessment of whether the unlabeled product is, or is not, safer 
than the labeled product. Several commenters supported including 
IARC's, NTP's, and ACGIH's carcinogenicity findings on the MSDS, but 
not on the label. A few commenters, however, recommended that we 
require labeling for all carcinogens, including those listed as 
potential or probable.
    In considering the comments, we find that IARC and NTP base their 
cancer classifications on valid scientific evidence. This evidence 
warrants informing miners of the cancer hazard associated with any 
chemical on these lists. Miners have a right to know about this hazard 
information. If one or more of these organizations has associated a 
potential, probable, or confirmed carcinogenic hazard with a chemical 
at the mine, you must inform the miners who can be exposed. A fuller 
discussion about the use of these organizations as sources is in the 
Hazard Determination section of this preamble.
    We intend to interpret HazCom consistent with OSHA's interpretation 
of its HCS, to the extent applicable. If valid studies include positive 
evidence of human carcinogenicity, OSHA requires hazard warnings of 
carcinogenicity on the label. With this intent, the label on your 
product only has to include a carcinogenic designation for ``known'', 
``probable'', or ``reasonably anticipated'' human carcinogens.
    We included the carcinogen designation by the ACGIH in the interim 
final rule intending for you to notify miners about it. NTP and IARC 
are recognized world authorities on carcinogens and their studies often 
form at least a part of the basis of ACGIH classifications. Some 
commenters to the interim final rule pointed out that ACGIH is not a 
source for OSHA carcinogen labeling. To be consistent with OSHA's HCS 
and minimize the effect of those discrepancies, the final rule refers 
only to carcinogen designations by NTP and IARC. Deleting reference in 
the final rule to the carcinogen designations of ACGIH does not 
diminish protection for miners because NTP and IARC are respected 
sources for comprehensive and reliable carcinogen designations.
    Silica labeling. IARC is one of the sources listed in HazCom for 
establishing whether a chemical is a carcinogen. In 1997, IARC 
classified inhaled (respirable) crystalline silica as Group 1, a 
confirmed human carcinogen.
    A number of commenters to the proposed rule expressed concern that 
the proposed rule would have required the labeling of silica as a 
carcinogen. Several argued that labeling silica as a carcinogen was 
both impractical and unnecessary. One of these commenters stated:

    Silica is, as MSHA recognizes, a natural substance occurring in 
the great majority of the earth's crust and labeling over one 
billion tons annually of naturally occurring stone produced by 
American quarries would clearly be impractical and unnecessary by 
the standards of good science.

    Some commenters to the proposal stressed that the labeling 
requirement should apply to respirable silica because the size of the 
silica particle determines whether or not it is a health hazard. One 
commenter stated:

    OSHA has taken the position in interpreting its HCS that it 
applies only to crystalline silica available for respiration. * * * 
Mr. Gerald F. Scannel, Assistant Secretary of Labor for OSHA, stated 
that kaolin dust products containing less than 0.1% respirable 
crystalline silica would be exempt from coverage under the provision 
of paragraph (d) of the [OSHA's] HCS, ``Hazard Determination.''

    In addition, this commenter cited a statement by Dr. David Rall of 
the NTP that, ``Only crystalline silica in respirable form will be 
added to the list of substances in the [NTP] 6th annual report.''
    The final rule does not address the labeling of containers of 
hazardous chemicals when they leave the mine because OSHA, EPA, CPSC, 
and other federal agencies already regulate labeling for other 
industries, consumer use, and commerce. To meet OSHA's HCS labeling 
requirements for your customers, you will have to label as a 
carcinogen, containers of any product containing 0.1% or more of 
respirable crystalline silica. The HazCom final rule exempts the raw 
material being mined or processed from labeling only while on mine 
property. For example, if you operate a ground silica (silica flour) 
mill, you do not have to label containers of the raw material, such as 
crushers, bins, or hoppers.
    Under HazCom's hazard determination criteria, you must consider 
crystalline silica to be a human carcinogen when it is in respirable 
form and capable of being released in the work area or when an 
activity, such as crushing, would create respirable dust. Although you 
do not have to label it for purposes of HazCom, you must train miners 
about silica's carcinogenicity.
4. Section 47.43  Label Alternatives
    Mines typically process materials in bulk quantities. They keep 
chemicals, such as cyanide, anhydrous ammonia, ammonium nitrate, or 
fuel oil, in large retaining ponds, silos, stockpiles, or tanks. The 
scale of operations can make an ordinary label inappropriate. ``Label 
alternatives'' allows performance-oriented options for identifying 
chemical hazards to miners. The label alternatives may be signs, 
placards, process sheets, batch tickets, operating procedures, or other 
means appropriate for individual, stationary process containers. The 
alternative must identify the container to which it applies, 
communicate the same information as a label, and be readily available 
throughout the shift to miners in the work area. Because it addresses 
only mine-site chemicals, the name, address, and telephone number of a 
responsible party is not required.
    HazCom's primary label requirements state that the hazardous 
chemical's label warn miners about the presence, chemical identity, and 
specific health and physical hazards of the chemical. Neither the 
proposed rule, the interim final rule, nor the final rule includes 
specific criteria for the format of the label. The final rule, 
consistent with the proposed and interim final rules, requires that the 
label--
     Be prominently displayed, legible, accurate, and in 
English;
     Display appropriate hazard warnings; and
     Use a chemical identity that permits cross-referencing 
between the list of hazardous chemicals, a chemical's label, and its 
MSDS.
    In the case of a trade secret, you must comply with the 
requirements of Secs. 47.81 through 47.87 (trade secrets).
    Commenters supplied a wide variety of suggestions for a label 
format. Several recommended that we require a standardized label 
format. Some commenters suggested that a coding or rating system might 
be helpful. Some requested that we permit flexibility in our labeling 
requirements and allow batch labeling, color coding, standardized 
containers, or stenciling a generic name on the container. Others did 
not support the use of a coding or rating system on labels because they 
thought that miners would find such a system confusing. Some commenters 
suggested that we require labels to have large bold print with 
pictorial or color warnings. Another suggested that operators could 
label containers using markers or paint.
    The label requirements in the final rule are performance oriented, 
flexible, and consistent with OSHA's HCS. Labels made with markers or 
paint are acceptable as long as they identify the hazardous chemical 
and its hazards and are maintained in legible condition. Any name may 
be used to identify the

[[Page 42346]]

chemical contents of a container as long as it can be cross-referenced 
with the MSDS and the hazardous chemical list. You may substitute 
various types of standard operating procedures, process sheets, batch 
tickets, blend tickets, and similar written materials for container 
labels on stationary process equipment. The alternative, however, must 
identify the container to which it applies, communicate the same 
information as required on the label, and be readily available 
throughout each work shift to miners in the work area. You can post 
signs or placards that convey the hazard information if there are a 
number of stationary containers within a work area that have similar 
contents and hazards.
    In the final rule, we changed the term ``readily accessible'' to 
``readily available'' to clarify how soon you have to provide this 
labeling information to miners. This language is consistent with other 
MSHA standards. You are still required to provide miners access to this 
labeling information under Sec. 47.71, ``Access to HazCom materials.''
5. Section 47.44  Temporary, Portable Containers
    Temporary, portable containers are a common convenience on mine 
properties, particularly for miners servicing equipment from lube 
trucks. The final rule, consistent with the interim final rule, does 
not require you to label a portable container if you make sure that the 
miners using it know the identity of the chemical in the portable 
container, its hazards, and any protective measures. The final rule, 
consistent with the interim final rule, requires that the temporary, 
portable container be left empty ``at the end of the shift.'' We have 
also added an alternative to the final rule that was not in the interim 
final rule which permits you to label a temporary, portable container 
with the hazardous chemical's common name. If you label a temporary, 
portable container with at least the common name of its contents, you 
do not have to leave it empty at the end of the shift. We discuss this 
alternative later in this preamble.
    Most commenters supported the proposed portable container 
exemption, but some claimed that it was too restrictive. These 
commenters recommended that we not require labeling of portable 
containers if they are subject to operating procedures that provide a 
means of alerting miners to their contents. Other commenters 
recommended that we expand this exemption to include any designee of 
the miner who performs the transfer. One of these commenters stated 
that adding the word designee would allow those individuals working 
with the miner who transferred the hazardous chemical, also to use that 
chemical. Otherwise, each miner working on the job would need his or 
her own portable container, perhaps creating a bigger hazard. Another 
commenter opposed expanding the portable container exemption to include 
the miner's designee because of concern that the miners would not 
communicate the hazard information to each other.
    Other commenters opposed our proposal to exempt portable 
containers, believing that it was too lenient and could create a 
serious hazard. Commenters expressed concern that--
     Unattended, misplaced, or forgotten unlabeled portable 
containers could present a high risk of exposure to hazardous materials 
due to inappropriate handling or disposal by other workers;
     Unlabeled portable containers could be potentially 
dangerous because of the residues left in them;
     If the chemical in the portable container was not 
completely used by the end of the shift, we should require that the 
unused portion be returned to a labeled container;
     All containers of hazardous chemicals should be labeled 
under this law or other applicable laws; and
     This section should be clarified because it seems to imply 
that you have no responsibility to maintain labeling information if a 
product is repackaged or transferred to another container at the mine 
site.
    After considering these comments and observing the use of portable 
containers in mining, we determined that it will not reduce the miner's 
protection to allow the miner who transfers a hazardous chemical from a 
labeled to an unlabeled container to use the unlabeled container. One 
common use of temporary, portable containers is when a miner transfers 
a chemical, such as brake fluid, from a 55-gallon drum into a small 
plastic or galvanized container in order to safely access and properly 
service machinery. We recognize that it would be impractical, or at 
least inconvenient in some instances, to access many pieces of 
equipment without the use of these containers. The numbers of fluids on 
a lube truck would force operators to choose between providing numerous 
containers (one for each fluid) which might prove impractical on a lube 
truck, or greatly increase the number of trips a lube person would have 
to make onto the serviced machine. This Hobson's choice could encourage 
people to ignore the requirement unless an inspector were present.
    In response to commenters concerns, we expanded this exemption in 
the final rule. This provision is less restrictive than the one in 
OSHA's HCS and is more appropriate to the narrow range of working 
conditions in the mining industry. Under HazCom, you can allow other 
miners to use a hazardous chemical from an unlabeled, temporary, 
portable container provided you ensure that they know the chemical's 
identity, its hazards, and the protective measures needed; and that the 
container is left empty at the end of the shift. You can leave the 
chemical in the portable container for the next shift if you label the 
container with at least the common name of the chemical the container 
will have in it.

F. Subpart F--Material Safety Data Sheet (MSDS)

    The MSDS is a detailed information document that serves as the 
principal source of important information about hazardous chemicals 
used or produced at the mine. This final rule requires you to have an 
MSDS for each hazardous chemical to which a miner can be exposed under 
normal conditions of use or in a foreseeable emergency. Although we 
revised the format and language of HazCom's MSDS requirements to reduce 
redundancy and use plain language, the final rule is substantively the 
same as the proposed and interim final rules and OSHA's HCS.
    An MSDS that complies with OSHA's HCS will meet our MSDS 
requirements because HazCom requires the same information on the MSDS 
as OSHA's HCS. Likewise, we expect that MSDSs meeting MSHA's criteria 
will meet OSHA's criteria for MSDSs under its HCS.
    In the proposed rule, provisions for determining hazards of single 
substances and mixtures were repeated under both ``Hazard 
Determination'' and ``MSDS.'' To eliminate this duplication, the final 
rule includes these provisions in the hazard determination section 
only. Also, in response to comments, we consolidated HazCom's 
provisions on access and cost for copies of MSDSs in a new, separate 
section on ``Making HazCom Information Available'' (Secs. 47.71 through 
47.73).
1. Section 47.51  Requirement for an MSDS
    The final rule requires you to have an MSDS for each hazardous 
chemical at the mine. You must prepare an MSDS for any hazardous 
chemical produced at the mine. If you do not have an MSDS for a 
chemical brought to the mine and its label indicates that it is 
hazardous,

[[Page 42347]]

the final rule, consistent with the interim final rule, requires you 
to--
     Obtain one from the manufacturer or supplier,
     Develop one on your own, or
     Obtain one from another source.
    In response to comments to the interim final rule, we amended this 
provision to require that operators have an MSDS ``for each hazardous 
chemical they produce or use'' rather than ``before using'' the 
chemical. Commenters said that at companies with centralized 
purchasing, a chemical may be sent to a mine site, but the MSDS may be 
sent with the bill to the office address that placed the order. 
Consistent with the OSHA HCS, we intend to give you time to have the 
MSDS forwarded to the mine where the chemical is used.
    As a common business practice, mine operators introduce a new 
chemical as part of a process change only after careful planning and 
thought. In rare instances, you may have to use a new chemical that 
poses a new hazard before you receive its MSDS. Before a miner can be 
exposed to a new chemical hazard, you must inform the miner about the 
chemical's hazards, instruct miners as to how they can recognize the 
hazard, and how they can protect themselves. We believe that it will 
take less than 1 week from when the MSDS is received at a central 
purchasing office before it is in the mine that has the hazardous 
chemical. This should be enough time to ship and handle the MSDS.
    Chemicals brought to the mine. The proposed rule would have allowed 
you to request, but not require you to obtain, an MSDS prior to using a 
hazardous chemical. Several commenters to the proposed rule stated that 
requesting an MSDS was not sufficient and that you should have to 
obtain the MSDS before using the chemical on mine property. MSHA's 
provisions on MSDSs are substantially similar to those in OSHA's 
standard. You must have an MSDS available to miners in their work area 
for each hazardous chemical to which they may be exposed. OSHA requires 
MSDSs for hazardous chemicals produced at non-mining operations. For 
this reason, we expect that most, if not all, MSDSs prepared by 
chemical manufacturers or suppliers are readily available by fax or 
from the internet. Consequently, you can ``have'' an MSDS before using 
the hazardous chemical even if a hard copy is not in the work area.
    Another commenter to the proposed rule suggested that we allow you 
the flexibility to have either an MSDS or appropriate information about 
the chemical's hazards, safe work procedures, means of control, and 
first aid and emergency procedures immediately available. We did not 
respond to this commenter by changing the interim final rule, but did 
revise the final rule in response to additional comments to the interim 
final rule. We added International Chemical Safety Cards and Workplace 
Hazardous Material Information Sheets to the definition of material 
safety data sheet. This change is discussed in more depth in the 
Definitions section of this preamble and below in this section. 
Nevertheless, we understood the commenter to the proposed rule to 
suggest limited, informally gathered information in lieu of an MSDS and 
this did cause us some concerns. Information kept in place of an MSDS 
must be from a reliable and authoritative source of chemical 
information, such as an international chemical safety card (ICSC) or 
workplace hazardous material information sheet (WHMIS). Substituting 
the information suggested by the commenter for the MSDS may not be 
sufficient because the MSDS contains much more information than 
outlined in the comment. If you have a document available to miners 
that contains all the information required in Sec. 47.52 (MSDS 
contents), however, we would consider that to be an MSDS. HazCom does 
not require a specific MSDS format, but the MSDS must contain all the 
information required to the extent that it is available.
    As mentioned above, in response to comments to the interim final 
rule, we revised the final rule to provide more flexibility in MSDS 
requirements. We are allowing you to use alternative sources of MSDSs, 
including international chemical information, such as Workplace 
Hazardous Material Information Sheets (WHMIS) and International 
Chemical Safety Cards (ICSC). The proposed and interim final rules 
defined material safety data sheet in the limited context of OSHA 
requirements. The final rule revises the MSDS definition to allow these 
well recognized sources of chemical information. We determined that 
WHMIS and ICSC are comparable to MSDSs in communicating critical 
chemical hazard information. By allowing alternative, equivalent 
sources of MSDS information, we allow the operator to choose a format 
that fits the needs of the reader.
    Several commenters to the proposed rule stated that we should 
require MSDSs to be accurate. You are responsible for the accuracy of 
MSDSs that you prepare for a hazardous chemical produced at your mine. 
HazCom does not require you to be responsible for the accuracy of an 
MSDS that you receive with a shipment of a hazardous chemical and 
accept in good faith. Because OSHA requires that information contained 
in MSDSs accurately reflect the scientific evidence that formed the 
basis for determining that the chemical is hazardous, we believe that 
chemical manufacturers and suppliers develop MSDSs correctly. On the 
other hand, since you are responsible for communicating accurate health 
and safety information about the mine and the job to the miner, the 
MSDS that you maintain must be current and updated when there is a 
material revision to the contents. For example, an updated version 
would be required when there is a change in the composition of the 
chemical. One would not be required for merely an administrative 
matter, such as a date.
    Commenters to the proposed and interim final rules stated that 
manufacturers do not indicate what information is new on the MSDS and 
it is impractical and overly burdensome to require operators to update 
MSDSs they do not prepare. We do not see this as a problem. The MSDS 
will show the date it was prepared or last changed. If you receive an 
MSDS that has a later date than the one you have on file, you should 
keep the one with the most recent date and discard the older. If you 
receive an MSDS that is obviously inaccurate or which you suspect is 
inaccurate, or if a category of information is missing, you should 
bring this to the attention of the party responsible for preparing the 
MSDS. There should be an address and telephone number on the MSDS.
    Some commenters to the proposed and interim final rules stated that 
requiring MSDSs as part of HazCom would be burdensome to operators and 
of no real value to miners because of the complexity of information 
required to be provided on the MSDS. Another commenter to the proposal 
stated that to keep track of which materials may or may not require 
MSDSs places an overwhelming burden on operators.
    MSDSs are essential in supplying information to the miner, as well 
as to the mine operator and independent contractor. Information, such 
as the chemical's properties, for example, may not be found on labels. 
The MSDS contains the information that we require you to communicate to 
miners about the hazardous chemicals to which they may be exposed. 
Although it may be an administrative burden to keep track of MSDSs, 
obtaining the MSDS from the manufacturer or supplier of the hazardous 
chemical relieves you of

[[Page 42348]]

conducting independent searches for the required information. We expect 
that MSDSs will be an important resource for you in writing the HazCom 
program and modifying or developing training courses.
    As a result of the OSHA HCS, MSDSs have become widespread in 
general industry and many operators voluntarily obtain and use them. We 
suggest that you check the list of all the hazardous chemicals at your 
mine against the MSDSs that you have collected to discover if there are 
any MSDSs missing. If the list indicates that you use a hazardous 
chemical at the mine, but do not have an MSDS for it, you must contact 
the manufacturer or supplier to obtain the missing MSDS. Alternatively, 
you may be able to download the MSDS from an internet chemical 
database.
    Chemicals produced at the mine. The final rule requires you to 
prepare an MSDS for each hazardous chemical produced at the mine and 
update this MSDS with significant new information within 3 months of 
becoming aware of it. Significant new information is any that has or is 
likely to have a major effect that was unknown before and that is 
important to the health and safety of miners. For example, discovering 
that a certain chemical causes cancer in addition to having an acute 
effect on the liver, would be significant. By contrast, the change in 
the percentage or composition of an inert ingredient is not 
significant. Through our frequent presence at mines, MSHA intends to 
inform mine operators about significant new information concerning the 
hazards of their mine's products. This provision is the same as the 
proposed rule, OSHA's HCS, and the interim final rule.
    Many states have HazCom programs that are identical to OSHA's and 
require the use and distribution of MSDSs. A few apply to mining 
operations. Even so, many mine operators are supplying MSDSs with their 
product as a good business practice, in response to requests from their 
customers, or to comply with state or local laws.
    A few commenters to the proposed rule requested that the final rule 
remove the reference to ``significant'' and ``new'' information and add 
the phrase ``scientifically valid'' to prevent the incorporation of 
questionable information into the MSDS. Another commenter to the 
proposed rule indicated that his operation updates the MSDS every 3 
months. This time period is consistent with provisions in the final, 
interim final, and proposed rules and OSHA's HCS for including 
significant new information on the MSDS and label.
    We intend that the MSDSs you prepare accurately reflect the 
available scientific evidence that formed the basis for your 
determination that the chemical is hazardous (Sec. 47.21 contains 
criteria for determining a chemical's hazards). If the chemical 
presents more than one hazard, you have to address each of them on the 
MSDS. We encourage you to check regularly for new information on the 
hazardous chemicals you produce. HazCom only requires you to update 
your MSDSs (and labels) within 3 months after becoming aware of 
significant new information, not every 3 months. However, HazCom 
requires you to tell your miners this significant new information when 
you provide miner training.
    MSDSs for common minerals. In the proposed rule, we requested 
comments on the usefulness of requiring operators to develop or provide 
MSDSs for common minerals such as sand and gravel, crushed stone, or 
coal. These minerals are the hazardous chemicals produced by over 90% 
of the mines. We also requested comments on whether we should develop 
MSDSs for common minerals and provide them upon request to all 
interested parties. A few commenters agreed that we should develop 
MSDSs for common minerals. Two commenters said that we should not 
develop them. One of these stated that generic MSDSs would not be 
useful and that we should not require MSDSs for these common minerals. 
In reviewing information for generic MSDSs, we determined that mineral 
deposits had specific characteristics, particularly with respect to the 
percent of silica they contain. We recognize that you know the geology 
of your mine and the makeup of your products better than anyone. We 
believe you will put the appropriate information in the MSDS for your 
product.
    If you determine that a common mineral is hazardous using the 
criteria in Sec. 47.21, hazard determination, you must comply with the 
provisions of HazCom to the extent applicable.
2. Section 47.52  MSDS Contents
    Some commenters to the interim final rule thought that we intended 
them to add the MSHA exposure limit to every MSDS they maintained, 
including those for chemicals brought to the mine. Commenters to the 
interim final rule also pointed out that most of their downstream 
customers are in OSHA jurisdiction and are required to have MSDSs with 
the OSHA limits. In response to these comments, we revised the contents 
of an MSDS in the final rule to allow OSHA exposure limits as an 
alternative to MSHA exposure limits. This does not reduce miners' 
protection because the inclusion of exposure limits on the MSDS is for 
information purposes only. Neither MSHA nor OSHA enforce exposure 
limits based on the chemical's MSDS.
    In the final rule, as in the proposed and interim final rules, we 
require that MSDSs be in English, but do not otherwise include a 
requirement for the format. Although the proposed rule did not 
specifically require that the MSDS be legible and accurate, we added 
these terms in the interim final rule and retain them in the final rule 
to clarify your compliance responsibilities.
    Some commenters to the proposed rule suggested that we require 
MSDSs to be made available in alternative languages. Although the MSDS 
must be in English, you also may provide it in other languages. Just as 
you have to communicate job duties and work procedures to those miners 
who may not read or understand English, you must communicate the 
required information about a hazardous chemical to them. MSDSs for 
hazardous chemicals brought to the mine are probably available in 
Spanish or other languages from the manufacturer or supplier or other 
sources, such as trade associations and websites. If you employ miners 
who do not read English but read another language, having an MSDS in 
the language the miner can read makes it easier for you to communicate 
the chemical's hazards. At those mines where multiple languages are 
spoken, you may wish to use symbols to help communicate the nature of 
the hazard and protective measures, and reinforce the miner's 
understanding of this information.
    Similarly, some commenters to the interim final rule claimed that 
miners would be unable to understand the MSDS because the language is 
too technical. As stated earlier, you must balance technical language 
against miner understanding. For example, you can use simple, clear 
language when preparing the MSDS: you could use ``lungs'' as a route of 
entry rather than ``inhalation'' or ``causes nerve damage'' rather than 
``neurotoxin.'' Again, this requirement only applies to the MSDSs you 
prepare for the hazardous chemicals you produce.
    Information required in MSDS. HazCom requires that each MSDS 
include the following information about the chemical:
    1. Identity. The chemical and common names of the hazardous 
chemical if it is a single substance and of the hazardous ingredients 
if it is a mixture. The identity used must permit cross-referencing 
between the list of

[[Page 42349]]

hazardous chemicals at the mine (Sec. 47.32), a chemical's label 
(Sec. 47.42), and its MSDS (Sec. 47.52).
    2. Properties. The chemical's physical and chemical characteristics 
as appropriate, such as boiling point, melting point, vapor pressure, 
evaporation rate, solubility in water, appearance (e.g., crystalline 
form, liquid, clear, color, etc.), odor, flash point, and flammability 
limits.
    3. Physical hazards. The chemical's potential for fire, explosion, 
and reactivity.
    4. Health hazards. The chemical's potential to cause an illness or 
injury, such as its acute and chronic health effects, signs and 
symptoms of exposure, any medical conditions that are generally 
recognized as being aggravated by exposure to the chemical, the primary 
routes of entry (for example, the lungs, the stomach, the skin or 
eyes). Carcinogens are a special class of health hazard that we address 
separately.
    5. Carcinogenicity. The chemical's carcinogenic classification, if 
any, such as whether the chemical is listed as ``known to be a human 
carcinogen'' or ``reasonably anticipated to be a human carcinogen'' 
(NTP 1996) as specified in Sec. 47.21 ``Identifying hazardous 
chemicals''.
    6. Exposure limits. In response to comments to the interim final 
rule, we have amended the language of this requirement in the final 
rule to allow the alternative of an OSHA or MSHA exposure limit. 
Commenters pointed out to us that the MSDSs will be sent to downstream 
customers who are typically in OSHA jurisdictions. In an effort to 
conform with OSHA's HCS and reduce this unanticipated burden, we are 
allowing you to use the OSHA limit or the MSHA limit or both. This 
option preserves safety and health for miners, but offers more 
flexibility for you.
    HazCom only requires one exposure limit, the MSHA or OSHA limit, if 
there is one, unless the preparer of the MSDS recommends others. 
Consistent with the proposed and interim final rules, and based on the 
judgment of the person preparing the MSDS, we also require that the 
MSDS include any other exposure limit used or recommended by its 
preparer, such as its ACGIH TLV'' or NIOSH recommended exposure limit 
(REL). This means that your MSDS is in compliance with HazCom if it 
contains an MSHA or OSHA exposure limit, if there is one, and any other 
exposure limits included by the preparer of the MSDS. It is possible 
then, if there is no MSHA or OSHA exposure limit, and the preparer of 
the MSDS does not include an alternative, that you could write ``not 
applicable'' in the exposure limit space on the MSDS and still be in 
compliance.
    7. Safe use. Any generally applicable precautions for safe handling 
and use that are known to you or the responsible party preparing the 
MSDS, such as appropriate hygienic practices, protective measures 
during repair and maintenance of contaminated equipment, procedures for 
clean-up of spills and leaks, and special disposal requirements.
    8. Control measures. Generally applicable control measures, such as 
ventilation, process controls, restricted access, protective clothing, 
respirators, and goggles.
    9. Emergency information. Emergency procedures, such as special 
instructions for firefighters; first-aid procedures; and the name, 
address, and telephone number of the operator, or that of a responsible 
party who can provide additional information about the hazardous 
chemical and appropriate emergency procedures.
    The proposed rule would have required a name, address and telephone 
number of the operator or a responsible party preparing the MSDS who 
can provide additional information on the hazardous chemical and 
appropriate emergency procedures. The interim final rule required only 
the name and telephone number of a person who can provide additional 
information on the hazardous chemical and appropriate emergency 
procedures. A commenter to the interim final rule asked that this again 
reflect the proposed rule's requirement because persons often change 
jobs and if the person listed on the MSDS was no longer at the mine, 
the MSDS would be inaccurate even though the substantive information 
was correct. We agree. Accordingly, the final rule, consistent with the 
proposed rule and OSHA's HCS, requires that the MSDS include the name 
of the operator or other responsible party who can provide additional 
information on the hazardous chemical and appropriate emergency 
procedures.
    We did not include the proposed phrase ``preparing the MSDS'' in 
the final rule because it would limit your options unnecessarily. If 
the person who prepared the MSDS left, the MSDS would be inaccurate 
even though the person listed could provide additional information on 
the hazardous chemical and appropriate emergency procedures.
    10. Date prepared. The date of preparation of the MSDS or the last 
change to it.
    The categories of MSDS information in the final rule are 
substantively the same as the proposed rule, the interim final rule, 
and OSHA's HCS. The difference, as noted above, is that HazCom gives 
you the option to list either the OSHA or MSHA exposure limit or both 
for the chemical.
    Numerous commenters to the proposed rule asked that additional 
information be required on the MSDS, such as (1) Department of 
Transportation (DOT) requirements, (2) IARC and NTP conclusions, (3) 
CAS numbers, (4) NIOSH Recommended Exposure Limits, (5) Hazardous 
Material Information System (HMIS) hazard code information, (6) upper 
and lower explosive levels, and (7) how products are covered by other 
agencies' programs, such as EPA requirements under the Comprehensive 
Environmental Response, Compensation, and Liability Act (CERCLA), 
Resource Conservation and Recovery Act of 1976 (RCRA), and Superfund 
Amendments and Reauthorization Act of 1986 (SARA). We do not include 
additional requirements for the content of the MSDS in the final rule. 
The OSHA requirements are well known, and adding to the contents could 
obscure crucial information needed for miner protection.
    Standardized format. Consistent with the interim final and the 
proposed rules, the final rule does not prescribe a specific format for 
the MSDS. Both HazCom and OSHA's HCS allow the preparer to determine 
the format, provided that it addresses all the required categories.
    Numerous commenters to the proposed rule requested that we require 
a standardized format for MSDSs. Several of these commenters stated 
that they wanted us to adopt OSHA's MSDS form (OSHA-174), and others 
recommended ANSI Z400-1 Guide for Preparing Material Safety Data 
Sheets. Another commenter to the proposed rule recommended that we 
require operators who prepare MSDSs to present the same information in 
the same manner for the same hazardous chemical. One commenter to the 
proposed rule was concerned that you would have to prepare duplicate 
MSDSs: One for OSHA and one for us.
    There are numerous sources for MSDSs in addition to the 
manufacturer or supplier: university databases, chemical information 
services, trade association or union collections. We established 
minimum requirements for information that must be on the MSDS. Each 
MSDS must contain the same minimum categories of information.
    If you cannot find the appropriate information to complete a 
specified category or if the category is not applicable to the chemical 
involved, you must indicate on the MSDS that no

[[Page 42350]]

applicable information was found. For example, if the chemical does not 
have an exposure limit or is not classified as a carcinogen, mark these 
spaces ``not applicable.'' The MSDS must not contain blanks, even if 
you choose to use a form with categories beyond those required, because 
blanks may be misinterpreted. This requirement is the same as in the 
proposed rule, OSHA's HCS, and the interim final rule. HazCom allows 
you the flexibility to develop an MSDS in any format you wish, as long 
as it contains all required information. We encourage you to use a 
standardized format and suggest OSHA's non-mandatory MSDS form (OSHA-
174) or ANSI Z400-1 as a guide.
    Alternatives. The final HazCom rule, as the proposed and interim 
final rules, allows you to use a single MSDS for a class or family of 
chemicals with similar hazards or for mixtures with similar hazards and 
contents, such as organic solvents or lubricants in which the 
ingredients are the same but their percentages vary from mixture to 
mixture. The few commenters on this provision agreed with the proposed 
rule.
    Also, the final HazCom rule, as the proposed and interim final 
rules, allows you to use a single MSDS to address the hazards of a 
process rather than individual hazardous chemicals when it is more 
appropriate. For example, the chemical composition of a flotation 
reagent changes as it evolves through the processing of a mineral. A 
few commenters to the proposed rule objected to this option, but we 
decided to retain it for the following reasons:
     We saw this option as relating to format, not scope.
     It is not a requirement, but rather an option intended to 
maximize flexibility and to acknowledge the practical limitations of 
dealing with chemicals.
     For the purposes of HazCom, ``hazards of a process'' refer 
to the physical and health hazards of chemicals in the process. If you 
choose to prepare an MSDS for a process, you have to include all the 
chemical hazards created during the process and any likely to be 
created if there is a malfunction or accident, even if the hazardous 
chemical is a short-lived intermediate. In accordance with 
Sec. 47.51(d) you do not have to prepare an MSDS for an intermediate 
chemical if its hazards are addressed on the MSDS of the source 
chemical.
3. Section 47.53  Alternative for Hazardous Waste
    A number of mine operators have EPA permits to burn hazardous waste 
in their kilns or to dispose of liquid or solid hazardous waste. If you 
have hazardous waste at your mine, the final rule requires you to 
provide exposed miners and designated representatives with ready access 
to any materials you have that can help them know about the hazardous 
waste. Suppliers typically send a manifest with the hazardous waste. 
Some may send an MSDS. If no MSDS is available, however, you must give 
the miner access to any information about the hazardous waste which--
     Indicates its identity or that of its components;
     Describes its physical and health hazards; or
     Specifies the appropriate protective measures.
    Our proposed rule would have exempted EPA-regulated hazardous waste 
from HazCom's labeling and MSDS requirements. It still would have 
required you to determine the nature of the waste's hazards and 
instruct miners about them. Proposed Sec. 46.3 ``Hazard determination'' 
stated:

    (b) Operators who receive chemicals shall determine their 
hazards based on the chemicals' material safety data sheets and 
container labels, except that the procedures in paragraph (a) of 
this section shall be followed for hazardous waste received by 
operators when a material safety data sheet cannot be obtained.

Paragraph (a) contained the criteria for determining the hazards of 
chemicals produced at the mine.
    OSHA's HCS includes an exemption for hazardous waste regulated by 
EPA under the Solid Waste Disposal Act, as amended by the Resource 
Conservation and Recovery Act of 1976 (RCRA), as amended (42 U.S.C. 
6901 et seq.). Although OSHA's HCS excludes coverage of hazardous waste 
regulated by EPA, OSHA has other specific standards directed to 
hazardous waste operations (29 CFR 1910.120). OSHA was required to 
issue these standards by Sec. 162, Title 1 of the Superfund Amendments 
and Reauthorization Act of 1986 (SARA), as amended (29 U.S.C. 655 
note). We do not have similar standards regarding hazardous waste 
operations.
    EPA standards require training of personnel at a hazardous waste 
facility, but this training appears to be directed primarily at 
limiting environmental impact. EPA standards also require an analysis 
of the hazardous waste as part of the process for obtaining a permit to 
burn or dispose of it. EPA does not require that this analysis specify 
the chemicals' hazards to workers or that the employer make this 
analysis available to employees.
    Some commenters to the proposed rule expressed concern that 
exempting EPA-regulated hazardous waste from HazCom would omit a 
segment of the mining population that is exposed to hazardous waste on 
a routine basis. These commenters believed that MSDSs should be 
available to miners exposed to hazardous waste, including miners 
working at facilities where hazardous waste is processed or used as a 
fuel.
    We revised the language in the interim final rule to clarify that, 
although you do not have to prepare an MSDS for hazardous waste, you 
must give miners access to the MSDS if you have one. In addition, as an 
alternative to an MSDS, the interim final rule required that you 
provide miners with access to all available information that identified 
the components of the hazardous waste, its hazards, or protective 
measures.
    Commenters to the interim final rule expressed confusion about 
whether or not HazCom required an MSDS for hazardous waste. Neither the 
interim final rule nor the final rule requires the operator to prepare 
or obtain an MSDS for hazardous waste. We revised the language in the 
final rule to clarify that you have to provide miners with access to 
all available information specified in Sec. 47.53, ``Alternative for 
hazardous waste.'' The final rule, as did the interim final rule, does 
not require any specific format for this information. An MSDS or a 
shipping manifest will contain some of this information. This means 
that if you have an MSDS for the hazardous waste, you must give miners 
access to it.
    Commenters to the proposed rule and the interim final rule 
requested clarification about the wastes covered by this section. Some 
commenters asked that we exempt wastes that are discarded from the 
mining process or those collected for recycling.
    This alternative specifically addresses EPA-regulated hazardous 
wastes. We do not exempt mine wastes from HazCom unless they are 
regulated by EPA. If you collect waste chemicals from your mining 
operation, you should know what these wastes contain and the hazards of 
the ingredients. If the hazardous chemical waste produced at your mine 
is regulated by EPA, you do not have to produce an MSDS under HazCom. 
You can use the information that you develop to comply with EPA 
regulations as an alternative to the MSDS. Operations that receive EPA-
regulated hazardous wastes for disposal or to use as a supplemental 
fuel should receive a manifest with each shipment. The manifest should 
contain much of the information found on an MSDS, often in greater 
detail, and you can use

[[Page 42351]]

this manifest as an alternative to the MSDS.
4. Section 47.54  Availability of an MSDS
    In response to comments to the proposed rule about the difficulty 
of keeping paper copies in a harsh mining environment, we revised the 
interim final rule to clarify in Sec. 47.51 and Sec. 47.54 our 
intention to allow internet access or a commercial database as a way to 
comply with the requirement that you have an MSDS for each hazardous 
chemical.
    We revised the final rule to allow MSDSs to be kept at an 
alternative location. This change in language is intended to allow you 
to access MSDSs from an internet or commercial database. It requires 
that you provide miners with access to MSDSs while they are in their 
work area. You can keep MSDSs at an alternative location, such as a 
central location, if you ensure that they are readily available to 
miners in an emergency. The proposed rule had allowed you to keep MSDSs 
at a central location when it was not practical to maintain the MSDSs 
in the work area, if the miners had access to them at some time during 
their work shift, and if you ensured that miners could obtain the 
required information in an emergency.
    Numerous commenters to the proposed rule requested that the MSDSs 
be kept in a central location when mining conditions were not favorable 
for keeping these documents in the work area. A few of theses 
commenters said that we should not specify how MSDSs are to be made 
available to miners, only that they should be available. Several 
commenters to the proposed and interim final rules asked that access to 
MSDSs be available through electronic means, such as computers.
    The purpose of requiring MSDSs in the work area where the chemical 
is stored, handled, or used is so that miners have quick access to 
critical information in emergency situations. The final rule provides 
flexibility for you to determine the best way to meet this requirement. 
We recognize that independent contractors especially need this 
flexibility because they work at different types of mines, typically 
multiple employer sites. Independent contractors, therefore, must 
coordinate the accessibility of MSDSs to other operators and miners, as 
well as their own employees.
    If you wish to comply by retrieving MSDSs electronically from an 
internet site or a commercial database of chemicals, you must still 
meet the requirement that MSDSs be readily available to miners. The 
computer does not have to be connected full time to the internet site. 
However, we still expect you to make MSDSs available to miners in 
accordance with the requirements of Sec. 47.54(b). Miners must know how 
to use the computer or someone who knows how to access the MSDS 
electronically must be available anytime miners are exposed. For 
example, you have a lead mechanic and regular mechanic who perform 
maintenance work at night. If you are providing access to MSDSs 
electronically, these miners must be able and know how to retrieve an 
MSDS from the computer whenever they need or want one. This means that 
you may not lock the computer away from their use unless you give them 
a key. Otherwise, the MSDS is not readily available and you are denying 
them access to the MSDSs.
    We are aware that the failure to have a current MSDS represents a 
significant portion of OSHA's HCS violations. By clarifying that HazCom 
allows the use of internet access to MSDSs, and by establishing links 
on MSHA's home page, we hope to improve the accuracy and availability 
of information for miners. We believe we will also reduce paperwork 
violations by allowing operators to retrieve information from a 
computer.
    The final rule allows you to maintain paper copies of the MSDSs or 
to keep copies on a computer or computer disk. You may also use fax or 
other data transmission or any other method that provides access. If 
you keep MSDSs in the mine office, you must tell the miners where they 
are and how to access them. Access means that the office must remain 
open while miners are working or you must make provisions for them to 
immediately unlock the office if needed. If the MSDS information is 
kept on a computer, it may be necessary to make provision for backup 
electrical power in the event of an emergency.
    Commenters to the interim final rule asked that we clarify our 
intent in regard to keeping an MSDS on a computer. HazCom does not 
require that the MSDS be stored on the individual computer's hard 
drive. It is acceptable to access the MSDS from a CD-ROM or through an 
on-line internet database if the MSDS is readily available to miners in 
an emergency.
    If you intend to comply with this provision by using MSDSs from an 
internet database or chemical manufacturer's website, you must ensure 
your source is available when it is needed. You should bear in mind 
that access to an MSDS on the internet depends on many businesses and 
facilities beyond your control: an electricity provider, electric 
transmission and generating companies, a telephone company, a long 
distance provider, an internet provider, and whoever is the source of 
the MSDS. If you have difficulty accessing the internet because the 
internet provider's lines are often busy, for example, you may need to 
change to a provider who is more accessible.
5. Section 47.55  Retaining an MSDS
    The final rule requires that you keep the MSDS for as long as the 
chemical is at the mine and notify miners at least 3 months prior to 
disposing of the MSDS. The proposed rule did not specify how you were 
to notify the miner about the intent to dispose of these MSDSs. You 
would have had the flexibility to use any method that notified each 
miner who may have been exposed. We intended that you be able to use 
methods such as a safety meeting announcement, a notice in a company 
newsletter, or by notifying and posting the MSDS on a bulletin board 
for 3 months.
    Commenters to the interim final rule asked us to clarify that you 
do not have to notify miners before replacing an outdated MSDS with an 
updated version. A primary purpose of HazCom is to ensure that miners 
have access to information about the chemicals in their work areas. As 
an alternative to this notification, however, you can maintain the old 
MSDS indefinitely and mark on it the interval of dates and the 
locations where the chemical was used.
    The intent of the proposed rule's requirement to notify miners 
prior to disposing of an MSDS was to ensure a miner had the opportunity 
to request a copy. The miner could then retain this information for 
future reference and you would not need to maintain the MSDS for an 
extended period of time.
    Several commenters to the proposed rule suggested that the 3-month 
retention period was not sufficient because the chronic effect of a 
hazardous chemical may take years to manifest itself. Some recommended 
that we be consistent with OSHA and require a 30-year retention period. 
One suggested a retention period of 20 years. A few agreed with the 
proposed 3-month retention period and others felt that there should be 
no retention requirement at all. One suggested that these notices be 
posted. Comments to the interim final rule were similar.
    We considered a 30-year retention period to be consistent with OSHA 
requirements. The OSHA retention period for MSDSs derives from that 
agency's generic rule on recordkeeping, (29 CFR 1904), which was not

[[Page 42352]]

developed specifically for hazard communication purposes. As an 
alternative to retaining the MSDS for 30 years, OSHA's recordkeeping 
rule allowed employers to keep a record of the identity of the 
chemical, where it was used, and when it was used.
    Because of the nature of the mining industry, mines open and close 
frequently and there is a large turnover in miners each year. The 
records from closed mines would be impractical, if not impossible, to 
retain if the mine operator does not continue in business and there is 
no succeeding operator. Also, it would be impractical, if not 
impossible, to find the miners who may have been exposed to the 
chemical if the miner were no longer employed at the mine.
    A requirement to retain MSDSs for a lengthy period of time could 
result in the accumulation of a great number of MSDSs. A manufacturer 
may change the formulation of a chemical as processes or new 
technologies improve, requiring a revision to its MSDS. We expect 
operators to keep the current MSDSs for the chemicals they use. 
Maintaining many MSDSs for a single brand name that has changed 
composition a number of times could lead to confusion and potentially 
cause greater harm than not having the old MSDSs available in case a 
miner develops a disease 10, 20, or 30 years after exposure. Some mines 
use a large number and variety of chemicals briefly, depending on which 
product is cheapest or which the distributor is carrying at a specific 
time. Mines may also try a variety of chemicals for brief intervals to 
find a desired effect.
    For the above reasons, we believe the 30-year retention period 
would be excessively burdensome for the mining industry. We also 
believe, however, that it would not be a great burden for you to notify 
miners 3 months before disposing of an MSDS.
    The final rule, consistent with the interim final rule, requires 
that you maintain the MSDS at the work area or an alternate location as 
long as the hazardous chemical is at the mine, and notify miners at 
least 3 months before you dispose of an MSDS. We require you to provide 
copies of MSDSs to miners because they have a right to specific 
information about their chemical exposures. We determined that this 
access provision is adequate to ensure that a miner could obtain a copy 
of the MSDS if the miner wants one.
    We believe miners request copies of MSDSs because they are 
concerned about a chemical's effect on their health. If a miner has a 
health concern, he or she usually requests a copy immediately rather 
than later. The effects of some chemicals, however, have a long latency 
period between the exposure and the onset of a disease. Miners can get 
a copy at any time the chemical is at the mine, but may not think to 
get a copy until you notify them that you intend to dispose of it. As 
stated previously, you may use any effective method to notify the 
miners, such as a verbal announcement in a safety meeting, a personal 
written notice, an all-employee newsletter, or a notice posted on the 
mine bulletin board.

G. Conforming Amendments: HazCom Training Requirements Under 30 CFR 
Parts 46 and 48

    In response to public comments submitted both in writing and at the 
public hearings, MSHA is removing the training requirements from the 
HazCom standard in 30 CFR part 47, except for initial training of 
currently employed miners. We are also making conforming amendments to 
30 CFR parts 46 and 48 to accommodate HazCom training. These changes 
are a logical outgrowth of the interim final rule because commenters 
urged MSHA to integrate HazCom training with existing training 
standards in parts 46 and 48. In response to commenters' concerns, the 
final rule fully integrates HazCom training provisions into parts 46 
and 48.
    In the interim final rule, MSHA disagreed with the recommendation 
that all HazCom training requirements should be incorporated under 
parts 46 and 48. However, we now believe that the emphasis on hazardous 
chemicals can be incorporated into your training program. We have added 
specific language to existing parts 46 and 48 to make clear that these 
subjects will be a part of the mine's training program.
    These conforming amendments clarify MSHA's intent that HazCom 
training will take place under parts 46 and 48 after the initial HazCom 
training is conducted. The conforming amendments to parts 46 and 48 
make clear that for initial training, new miner training, newly 
employed experienced miner training, annual refresher training, and 
whenever a new task is assigned, miners will now have a unified 
approach to provide a better training focus on working with hazardous 
chemicals. We developed the interim final rule requirements to be fully 
compatible with existing training standards. The amendments to parts 46 
and 48 provide integration of the interim final rule requirements with 
existing training standards. In addition, it is MSHA's intent to allow 
mine operators to use relevant training conducted in compliance with 
other MSHA, federal, or state regulations to meet the HazCom training 
requirement of this part. You can also use relevant training conducted 
in compliance with this part to meet the comparable requirements of 
other parts of this chapter. This means that relevant training provided 
to miners under other MSHA standards, such as parts 46 and 48, OSHA, 
EPA, DOT, and state requirements, can be credited toward HazCom 
training.
1. HazCom Training Under 30 CFR Part 46
    Under the conforming amendments to existing part 46, mine operators 
must provide each new miner and newly hired experienced miner with 
instruction on the health and safety aspects of the tasks to be 
assigned, including the safe work procedures of such tasks, the 
mandatory health and safety standards pertinent to such tasks, 
information about the physical and health hazards of chemicals in the 
miner's work area, the protective measures a miner can take against 
these hazards, and the contents of the mine's HazCom program.
    Mine operators must provide any miner who is reassigned to a new 
task, in which he or she has no previous work experience, with training 
in the health and safety aspects of the tasks to be assigned, including 
the safe work procedures of such tasks, information about the physical 
and health hazards of chemicals in the miner's work area, the 
protective measures the miner can take against these hazards, and the 
contents of the mine's HazCom program. Additionally, the conforming 
amendments to part 46 recommend that mine operators include information 
about the physical and health hazards of chemicals in the miner's work 
area, the protective measures a miner can take against these hazards, 
and the contents of the mine's HazCom program as part of the topics 
covered under the miners' annual refresher training.
    Under the conforming amendments to annual refresher training in 
Sec. 46.8(b), miners will receive instruction on changes at the mine 
which could adversely affect the miners' health or safety. It is under 
this section that miners will get information on potential exposures to 
chemicals which are not in their immediate work area, but which could 
potentially impact them while at the mine.
    New miner training and newly employed experienced miner training. 
Under existing Sec. 46.5, new miners are to receive 24 hours of new 
miner training, with a minimum of 4 hours of training in specific areas 
which, with the addition of these conforming

[[Page 42353]]

amendments, now will include information about the physical and health 
hazards of chemicals in the miner's work area, the protective measures 
a miner can take against these hazards, and the contents of the mine's 
HazCom program, before they begin work. They also must have instruction 
in additional subjects specified in the regulation no later than 60 
days after beginning employment; and the balance of new miner training 
no later than 90 days after beginning employment.
    For newly hired experienced miners, the conforming amendment to 
Sec. 46.6 requires instruction in the same subjects required for new 
miners specified above, before they begin work. Existing part 46 also 
requires that they must have instruction in one additional subject 
specified in the regulation no later than 60 days after beginning work.
    New task training. Existing Sec. 46.7 requires training for every 
miner before the miner is reassigned to a task for which he or she has 
no previous experience. Training must also be given when a miner's task 
has changed. Existing part 46 already requires that the training must 
cover the health and safety aspects and safe work procedures of such 
tasks. The conforming amendment to Sec. 46.7 requires information about 
the physical and health hazards of chemicals in the miner's work area, 
the protective measures a miner can take against these hazards, and the 
contents of the mine's HazCom program. This training will ensure that 
miners are adequately trained about new chemical hazards when they are 
assigned new tasks.
    In addition, if a miner's task requires him to use a chemical and 
the chemical is changed by the mine operator to a chemical that poses a 
new chemical hazard, the miner must get information about those new 
hazards through task training. Task is defined under existing 
Sec. 46.2(n) as ``a work assignment or component of a job that requires 
specific job knowledge or experience.'' In this instance, even though 
the miner's work assignment has remained the same, a component of his 
job that requires new job knowledge or experience has changed by the 
introduction of a new chemical hazard in his work area. The 
introduction of this new chemical hazard would require new ``job 
knowledge'' on the miner's part on how to safely use this chemical. We 
believe that this new information must be provided to the miner under 
the conforming amendment to Sec. 46.7 as part of the miner's training 
in the health and safety aspects related to the assigned task, which 
include the safe operating procedures of such task. This interpretation 
is consistent with the purpose of part 46 task training, which is to 
provide miners with fundamental health and safety information regarding 
all aspects of their work assignments, so that they can perform their 
job duties safely.
    MSHA wants to emphasize that if the introduction of a new chemical 
does not involve the introduction of a new hazard, mine operators do 
not have to conduct new task training and, consequently, no paperwork 
requirement is triggered. Thus, the conforming amendments to part 46 
are not requiring any different training beyond that which is already 
required under Sec. 46.7. New task training is only required when a new 
chemical hazard is introduced into a miner's work area, and not each 
instance when a new chemical is introduced into a miner's work area. 
Introducing a new hazard is not the same as introducing a new hazardous 
chemical. For example, if the mine operator is replacing a solvent with 
a new solvent that presents the same hazards as the old one, the mine 
operator is not required to conduct new task training. By contrast, if 
the new solvent poses a new hazard, the mine operator must conduct new 
task training to provide affected miners with new ``job knowledge'' 
regarding their work assignment and comply with the pertinent 
recordkeeping requirements of part 46. The mine operator also must 
include the new solvent in the list of hazardous chemicals and keep a 
copy of the MSDS available.
    MSHA believes that this interpretation regarding task training is 
appropriate, and is also consistent with the training provision of the 
proposed and interim final rules regarding the introduction of a new 
chemical hazard into the miner's work area. We acknowledge that the 
traditional focus of the definition of ``task'' under part 46 has been 
on new work assignments. With these paragraphs, however, we are making 
clear our intent that task training must be conducted when a new 
chemical hazard is introduced into a miner's work area. We believe that 
this interpretation will achieve a safer workplace, and does not result 
in an increase in the administration of task training to miners, 
because mine operators may be less likely to replace chemicals with 
chemicals that are more hazardous.
    Annual refresher training. Under existing Sec. 46.8(b) annual 
refresher training, miners were already required to have refresher 
training that includes instruction on changes at the mine that could 
adversely affect the miner's health or safety. MSHA believes that this 
paragraph would include training about new chemical hazards introduced 
at the mine. In addition, the conforming amendment to Sec. 46.8 
recommends subjects to include information about the physical and 
health hazards of chemicals in the miner's work area, the protective 
measures a miner can take against these hazards, and the contents of 
the mine's HazCom program.
    Part 46 and the interim final rule training elements. As noted 
below, all of the training elements which were contained in the interim 
final rule are appropriately provided to miners based on the type of 
training the miner receives during his course of employment at a mine.
    All of the training elements which were contained in the interim 
final rule are covered by the language of the conforming amendments to 
part 46, or are covered by existing provisions of part 46. For example, 
new miners and newly hired experienced miners will continue to have 
information regarding the requirements of the HazCom standard under 
Secs. 46.5(b)(4) and 46.6(b)(4), respectively, because mine operators 
were already required to train each miner on the mandatory health and 
safety standards pertinent to their tasks. The provision of this 
information will ensure that miners receive information about the 
location and availability of the HazCom program. The conforming 
amendments to these training provisions require mine operators to 
provide each miner with information about the physical and health 
hazards of chemicals in the miner's work area and the protective 
measures the miner can take against these hazards. The protective 
measures that a miner can take against these hazards must also include 
how a miner can detect the presence or release of a hazardous chemical 
in the work area because such detection is the natural first step that 
a miner would take to protect himself from any developing hazard. 
Finally, the mine operator must inform each miner about the contents of 
the HazCom program. These requirements are consistent with the training 
requirements that were specified in the interim final rule.
    Training about the content of the HazCom program (the specifics of 
the program are enumerated under Sec. 47.32) requires that mine 
operators identify how HazCom is put into practice at the mine through 
the use of hazard determination, labels and other forms of warning, 
MSDSs, and miner training. It also requires a list or other record of 
the identity of all hazardous chemicals known to be at the mine, and 
must be compiled for the whole mine or by

[[Page 42354]]

individual work areas. It is through this training that miners will be 
notified of the locations where hazardous chemicals are present.
    In addition, when a miner is reassigned to a new task in which he 
or she has no previous work experience, the conforming amendment to 
Sec. 46.7(a) provides that the miner must receive training in the 
health and safety aspects of the tasks to be assigned, including the 
safe work procedures of such task, information about the physical and 
health hazards of the chemicals in the miner's work area, the 
protective measures a miner can take against these hazards, and the 
contents of the mine's HazCom program. These requirements are all 
consistent with the training requirements that were addressed in the 
interim final rule.
    Finally, the conforming amendment addressing annual refresher 
training under Sec. 46.8(c) recommends that mine operators provide 
information about the physical and health hazards of chemicals in the 
miner's work area, the protective measures a miner can take against 
these hazards, and the contents of the mine's HazCom program.
    Training plans. Mine operators are reminded that training plans 
that include the minimum information specified in existing part 46 are 
considered approved by us and are not required to be submitted to us 
for formal review, unless you, the miners, or miners' representatives 
requests it.
    To minimize the paperwork burden and assist mine operators with 
compliance with the HazCom requirements, we will provide assistance and 
guidance to all mine operators with training plan modifications. Our 
HazCom compliance guide will further explain the required training plan 
modifications and will include a model training plan addendum which 
mine operators can attach to their existing training plan. Mine 
operators can use this model addendum when revising their training 
plans. Also, mine operators who submitted their training plan to us for 
approval can attach this model addendum to their MSHA approved training 
plan, eliminating the need to resubmit. Mine operators are reminded 
that, under existing part 46 requirements, they must provide the 
miners' representative, if any, with a copy of the approved plan within 
one week after approval. Mines with no designated miners' 
representative must post a copy of the plan at the mine, or provide a 
copy to each miner within one week after approval.
    Records of training. Under existing part 46 requirements, you are 
required to certify that a miner has received required training and 
retain a copy of each miner's training records and certificates for the 
duration of the miner's employment, except that you must keep 
certificates of annual refresher training for at least 2 years. You 
must keep training records and certificates for miners who have 
terminated their employment with you for at least 60 days after the 
employment ends. You may use our existing form for the certification 
(MSHA Form 5000-23) or maintain the certificate in another format. If 
you choose to use Form 5000-23, you should be aware that the form was 
not designed for use under part 46 and you need to ensure that you 
include on the form all the required information. Under part 46, you 
also are required to maintain a copy of the current training plan at 
the mine or have the capability to produce it upon request within one 
business day. You may keep training records and certificates at the 
mine site or at a different location, but must provide copies of the 
records to us and to miners and their representatives upon request.
    Instructor qualifications. Under existing part 46 requirements, 
instructors do not need to be approved by us. Instead, training must be 
provided by a competent person, defined as someone with sufficient 
ability, training, knowledge, or experience in a specific area, who is 
also able to communicate the subject of the training and evaluate the 
effectiveness of the training provided.
    Compatibility with other training. Existing part 46 allows you, 
where appropriate, to substitute equivalent training required by OSHA 
or other federal or state agencies to satisfy your training obligations 
under part 46. It is MSHA's intent to allow mine operators to use 
relevant training conducted in compliance with other MSHA, federal, or 
state regulations to meet the new HazCom training requirements of part 
46. This means that relevant training provided to miners under other 
MSHA standards, such as parts 46 and 48, OSHA, EPA, DOT, and state 
requirements, can be credited toward HazCom training.
2. HazCom Training Under 30 CFR Part 48
    As with part 46, the conforming amendments to existing part 48 
require mine operators to provide new miners and experienced miners 
with instruction in the health and safety aspects of the tasks to be 
assigned, including the safe work procedures of such tasks, the 
mandatory health and safety standards pertinent to such tasks, 
information about the physical and health hazards of chemicals in the 
miner's work area, the protective measures a miner can take against 
these hazards, and the contents of the mine's HazCom program. Training 
of miners assigned to a task in which they had no previous experience 
must include instruction in the health and safety aspects related to 
the assigned tasks, including the safe operating procedures of such 
tasks, information about the physical and health hazards of chemicals 
in the miner's work area, the protective measures a miner can take 
against these hazards, and the contents of the mine's HazCom program.
    Training of new miners. Under existing Secs. 48.5 and 48.25, new 
underground miners are to receive 40 hours and new surface miners are 
to receive 24 hours of new miner training in specific areas, with 
approximately 8 hours of training given at the mine site. Under the new 
conforming amendments to Secs. 48.5 and 48.25, the training now 
includes instruction in the health and safety aspects of the tasks to 
be assigned, including the safe work procedures of such tasks, the 
mandatory health and safety standards pertinent to such tasks, 
information about the physical and health hazards of chemicals in the 
miner's work area, the protective measures a miner can take against 
these hazards, and the contents of the mine's HazCom program. This 
training must be provided before such miner is assigned to work duties.
    Experienced miner training. Experienced miners must complete 
training in the areas specified under existing Secs. 48.6 and 48.26. 
Under the new conforming amendments, the training must include 
instruction in the health and safety aspects of the tasks to be 
assigned, including the safe work procedures of such tasks, the 
mandatory health and safety standards pertinent to such tasks, 
information about the physical and health hazards of chemicals in the 
miner's work area, the protective measures a miner can take against 
these hazards, and the contents of the mine's HazCom program, before 
beginning work duties. Each experienced miner returning to mining 
following an absence of 5 years or more, must receive at least 8 hours 
of training.
    Training of miners assigned to a task in which they have had no 
previous experience. Under existing Secs. 48.7 and 48.27, miners 
assigned to new work tasks as specified in the regulation, must receive 
the required training before the new tasks are performed. The minimum 
subjects to be covered in this training program are specified under the 
regulation. In accordance with the

[[Page 42355]]

conforming amendments to existing part 48, this training program must 
now include instruction in the health and safety aspects related to the 
assigned tasks, including the safe operating procedures of such tasks, 
information about the physical and health hazards of chemicals in the 
miner's work area, the protective measures a miner can take against 
these hazards, and the contents of the mine's HazCom program.
    These conforming amendments to part 48 will ensure that miners are 
adequately trained about new chemical hazards as part of their task 
training when they are assigned new tasks. In addition, if a miner's 
task requires him to use a chemical and the chemical is changed by the 
mine operator to a chemical that included a new chemical hazard, the 
miner must get information about those new hazards through task 
training.
    Task is defined under existing Secs. 48.3(f) and 48.22(f) as ``a 
work assignment that includes duties of a job that occur on a regular 
basis and which requires physical abilities and job knowledge.'' In 
this instance, even though the miner's work assignment has remained the 
same, the introduction of a new chemical hazard in the miner's work 
area would require new ``job knowledge'' on the miner's part on how to 
safely use this chemical. We believe that this new information must be 
provided to the miner under the conforming amendments to Secs. 48.7 and 
48.27 as part of the miner's training in the health and safety aspects 
related to the assigned task, which include the safe work procedures of 
such task. This interpretation is consistent with the purpose of part 
48 task training, which is to provide miners with fundamental health 
and safety information regarding all aspects of their work assignments 
so that they can perform their job duties safely.
    MSHA wants to emphasize that if the introduction of a new chemical 
does not involve the introduction of a new hazard, mine operators do 
not have to conduct new task training and, consequently, no paperwork 
requirement is triggered. Thus, the conforming amendments to part 48 
are not requiring any different training beyond that which is already 
required under Secs. 48.7 and 48.27. New task training is only required 
when a new chemical hazard is introduced into a miner's work area, and 
not each instance when a new chemical is introduced into a miner's work 
area. Introducing a new hazard is not the same as introducing a new 
hazardous chemical. For example, if the mine operator is replacing a 
solvent with a new solvent that presents the same hazards as the old 
one, the mine operator is not required to conduct new task training. By 
contrast, if the new solvent poses a new hazard, the mine operator must 
conduct new task training to provide affected miners with new ``job 
knowledge'' regarding their work assignment and comply with the 
pertinent recordkeeping requirements of part 48. The mine operator also 
must include the new solvent in the list of hazardous chemicals and 
keep a copy of the MSDS available.
    MSHA believes that this interpretation regarding task training is 
appropriate, and is also consistent with the training provision of the 
proposed and interim final rules regarding the introduction of a new 
chemical hazard into the miner's work area. We acknowledge that the 
traditional focus of the definition of ``task'' under part 48 has been 
on new job duties or work assignments. With these paragraphs, however, 
we are making clear our intent that task training must be conducted 
when a new chemical hazard is introduced into a miner's work area. We 
believe that this interpretation will achieve a safer workplace, and 
does not result in an increase in the administration of task training 
to miners, because mine operators may be less likely to replace 
chemicals with chemicals that are more hazardous.
    Annual refresher training. Existing Secs. 48.8(b)(1) and 
48.28(b)(1) already require that the annual refresher training course 
include the requirements of mandatory health and safety standards which 
are related to the miner's tasks. Under Secs. 48.8(b) and 48.28(b), 
miners were already required to have refresher training that includes 
instruction on the mandatory health and safety standard requirements 
which are related to the miner's tasks and on the health provisions of 
the Mine Act, as well as an explanation of the warning labels. We 
believe that instruction about significant new information would be 
included in the above provisions as part of the training on the 
mandatory health and safety standard requirements related to the 
miner's tasks and the warning labels. Under Secs. 48.8 and 48.28, the 
conforming amendments recommend subjects to include information about 
the physical and health hazards of chemicals in the miner's work area, 
the protective measures a miner can take against these hazards, and the 
contents of the mine's HazCom program.
    Additionally, the conforming amendments to Secs. 48.8 and 48.28 for 
annual refresher training recommend that training on health and safety 
standards relevant to mining operations at the mine be included. 
Significant, new information about the hazard of a chemical in a 
miner's work area would be covered by this recommendation.
    Part 48 and the interim final rule training elements. All of the 
training elements which were contained in the interim final rule are 
covered by the language of the conforming amendments to part 48, or are 
covered by existing provisions of part 48. For example, new miners will 
be trained and have information regarding the requirements of the 
HazCom standard under Secs. 48.5(b)(13) and 48.25(b)(13) because the 
miner is already required to have instruction in the health and safety 
aspects of the tasks to be assigned and the mandatory health and safety 
standards pertinent to such tasks. Also, when an experienced miner is 
trained pursuant to Secs. 48.6(b)(11) and 48.26(b)(11), the course must 
include instruction in the health and safety aspects of the tasks 
assigned and the safe work procedures of the tasks. The conforming 
amendments to these training provisions require mine operators to 
provide each miner with information about the physical and health 
hazards of chemicals in the miner's work area and the protective 
measures the miner can take against these hazards. The protective 
measures that a miner can take against these hazards must also include 
how a miner can detect the presence or release of a hazardous chemical 
in the work area because such detection is the natural first step that 
a miner would take to protect himself from any developing hazard. 
Finally, the mine operator must inform each miner about the contents of 
the HazCom program. These requirements are consistent with the training 
requirements that were specified in the interim final rule.
    Training about the content of the HazCom program (the specifics of 
the program are specified under Sec. 47.32) requires that mine 
operators identify how HazCom is put into practice at the mine through 
the use of hazard determination, labels and other forms of warning, 
MSDSs, and miner training. It also requires a list or other record of 
the identity of all hazardous chemicals known to be at the mine, and 
must be compiled for the whole mine or by individual work areas. It is 
through this training that miners will be notified of the locations 
where hazardous chemicals are present.
    In addition, when a miner is reassigned to a task in which he or 
she has no previous work experience, the conforming amendments to 
Secs. 48.7(a)(1) and (c) and 48.27(a)(1) and (c) provide

[[Page 42356]]

that the training must include instruction in the health and safety 
aspects and the safe work procedures related to the assigned tasks, 
including information about the physical and health hazards of 
chemicals in the miner's work area, the protective measures a miner can 
take against these hazards, and the contents of the mine's HazCom 
program. These requirements are all consistent with the training 
requirements that were addressed in the interim final rule.
    The conforming amendments addressing annual refresher training 
under Secs. 48.8(c) and 48.28(c) recommend that mine operators provide 
information about the physical and health hazards of chemicals in the 
miner's work area, the protective measures a miner can take against 
these hazards, and the contents of the mine's HazCom program. Existing 
Secs. 48.8(a)(1) and 48.28(a)(1) already require that the course 
include mandatory health and safety standard requirements which are 
related to the miner's tasks. These provisions will provide information 
regarding the requirements of the HazCom standard during annual 
refresher training because mine operators were already required to 
train each miner on the mandatory health and safety standards pertinent 
to their tasks. The provision of this information will ensure that 
miners receive information about the location and availability of the 
HazCom program. Finally, under part 48, existing Secs. 48.5(b)(7), 
48.6(b)(10), 48.8(b)(11), 48.25(b)(7), 48.26(b)(10), and 48.28(b)(8) 
already require mine operators to explain warning labels to miners.
    Training plans. Mine operators are reminded that under existing 
part 48 regulations, they must submit to us for approval their plans 
for training new miners, training experienced miners, training miners 
for new tasks, annual refresher training, and hazard training for 
miners.
    To minimize the paperwork burden and assist mine operators with 
compliance with the HazCom requirements, we will provide assistance and 
guidance with training plan modifications to all mine operators. Our 
HazCom compliance guide will further explain the required training plan 
modifications and will include a model training plan addendum. Mine 
operators can attach this model addendum to their existing training 
plan or use it when revising their training plans. Also, mine operators 
who submitted their training plan to us for approval can attach this 
model addendum to their MSHA approved training plan, eliminating the 
need to resubmit. Mine operators are reminded that, under existing part 
48 requirements, they must post a copy of revisions to the training 
plan on the mine's bulletin board.
    Records of training. Under existing part 48, you are required to 
record and certify on MSHA Form 5000-23 that a miner has received 
required training. A copy of the training certificate must be given to 
the miner at the completion of the training. The training certificates 
for each miner must be available at the mine for inspection by us and 
for examination by the miners, the miner's representative, and State 
inspection agencies. When a miner leaves your employment, he is 
entitled to a copy of his training certificates. Copies of training 
certificates for currently employed miners must be kept at the mine for 
2 years, or for 60 days after termination of employment.
    Compatibility with other training. It is MSHA's intent to allow 
mine operators to use relevant training conducted in compliance with 
other MSHA, federal, or state regulations to meet the new HazCom 
training requirements of part 48. This means that relevant training 
provided to miners under other MSHA standards, such as parts 46 and 48, 
OSHA, EPA, DOT, and state requirements, can be credited toward HazCom 
training.
    Instructor qualifications. Under existing part 48 requirements, 
instructors must be approved by us. The regulations specify the 
requirements instructors must meet to receive MSHA approval.

H. Subpart H--Making HazCom Information Available

    The proposed and interim final rules defined access as the right to 
examine and copy records. The final rule uses this same language. In 
providing access, the proposed rule required you to make written HazCom 
information available, but the requirements were repeated under each 
major provision. In response to comments to the proposed rule that 
HazCom, as published in 1990, was difficult to understand, we 
consolidated these requirements in a single place in the interim final 
rule and, subsequently, in the final rule. We included language in the 
labeling and MSDS sections to emphasize the need to have this critical 
information readily available.
    Hazard determination and awareness, labels and MSDSs, and training 
provide miners with essential information about hazardous chemicals. 
Each of these components of the HazCom program complements the others. 
They, along with the requirements for a written program and access to 
the HazCom materials, are necessary for the effective communication of 
chemical hazard information to miners and operators.
    Chemical information can be complex and lead to confusion. When you 
give miners access to your written HazCom materials, you will have 
taken an important step toward eliminating the mystery, clarifying any 
misinformation and erroneous concepts, and defusing worker concerns 
about these chemicals. If miners are not given access to the 
information, they can grow suspicious about what you tell them and may 
disregard the information entirely, thus reducing the effectiveness of 
the HazCom program. If you give miners access--allowing them to examine 
the material, copy it, and review it when they have time--they are more 
likely to share in the goals of the program, follow safe and healthful 
work procedures, and seek early medical help in case of exposure.
1. Section 47.71  Access to HazCom Materials
    The proposed rule required you to give miners and their designated 
representatives access to written HazCom materials: the written HazCom 
program, the list of hazardous chemicals, labeling information, MSDSs, 
and training records. The proposed rule also explicitly required that 
you give representatives of the Secretaries of Labor and Health and 
Human Services access to HazCom materials.
    This provision in the final rule is substantially the same as it 
was in the proposed rule, and unchanged from the interim final rule, 
except for training records. It is consistent with OSHA's HCS and 
provides the miner valuable information about the chemical hazards at 
their mine. Providing access means that if the miner requests a copy of 
material associated with the HazCom program, you must give the miner a 
copy of the relevant material. If you prefer, you can give the miner 
the records and the use of a copy machine so that he or she can make a 
copy. If you have an internet website, you could put the MSDSs on the 
website for access by your miners and customers, thus reducing the 
number of requests for paper copies.
    Some commenters to the proposed rule asked that we not require 
operators to copy records for miners, citing an administrative burden. 
Others commenting on the proposed rule suggested miners put their 
requests for access in writing to ``verify and effectively communicate 
actual requests for copies.'' Commenters also pointed out that 
Sec. 103(a) of the Mine Act already

[[Page 42357]]

gives representatives of the Secretaries of Labor and Health and Human 
Services access to HazCom materials.
    Commenters to the interim final rule asked us to clarify miner's 
access to HazCom information and records. They expressed concern that 
some training materials, like videotapes or booklets, would be costly 
to duplicate and may violate copyright laws if they must make copies. 
As was our intent in the interim final rule, the final rule does not 
require that you provide miners copies of training materials. You must 
allow miners to examine that information, however, and to have access 
to all HazCom materials required by the final rule, such as the 
chemical inventory, MSDSs, and your product's labeling information.
    As in the proposed standard, the final access provisions require 
operators to provide a copy of the records for the miner to examine or 
to retain a copy. In the interest of flexibility, the final rule, like 
the interim final rule, does not specify the time period in which you 
have to provide copies. Because you are required to keep all these 
HazCom materials available at the mine, including those available by 
computer, you should be able to provide them to miners, designated 
representatives, and federal officials on the same day or, at most, 
within 24 hours of receiving the request. We believe this timely 
availability of materials to miners will provide the same protection as 
the proposed rule because it will be available when requested.
    While we agree that a written request would ``verify'' and 
``effectively communicate * * * an actual request,'' there are numerous 
ways to achieve this goal other than having the miner put the request 
in writing. Requiring a written request is unnecessary because better 
alternatives are available. For example, you can have miners sign a 
receipt for the copies or initial a log. Requiring written requests 
could delay miners' access to essential HazCom materials. Therefore, 
the final rule does not require requests for copies of HazCom materials 
to be in writing.
    Although it is not stated, you must provide access to 
representatives of the Secretaries of Labor (e.g., MSHA inspectors) and 
Health and Human Services (e.g., NIOSH investigators). The final rule 
does not explicitly include this provision because it is mandated under 
the Mine Act.
2. Section 47.72  Cost for Copies
    The final rule, as in the proposed and interim final rules, 
requires you to provide one copy of written HazCom material without 
cost to the miner. This includes a single copy of any revisions or 
updates. Some commenters to the proposed rule were concerned that 
operators would have to provide copies at no cost to the miner. They 
stated that this was not reasonable and recommended that we require you 
to provide one copy, but not additional copies of the same document, at 
no cost. For this reason, if the miner or designated representative 
requests another copy of material you have already given them, the 
final rule allows you to charge for subsequent copies of the same 
material. These administrative fees must be reasonable and they must be 
the same for everyone. You may not refuse to provide these additional 
copies. These provisions will ensure that miners have access to 
information about hazardous chemicals without placing an undue burden 
on you.
3. Section 47.73  Providing Labels and MSDSs to Customers
    If you produce a hazardous chemical, HazCom requires you to provide 
the labeling information and the MSDS to customers when they request 
them. If you have an internet website, you could put the labeling 
information and MSDSs on the website for access by your miners and 
customers, thus reducing the number of requests for paper copies. You 
also have the option of sending copies by e-mail or facsimile (fax). 
The final rule is the same as the interim final rule. There were no 
significant new comments received from the public on the interim final 
rule.
    The proposed rule would have required you to provide a copy of the 
labeling information with the initial shipment of a hazardous chemical 
to another employer. You could have included this labeling information 
with the chemical's shipping papers rather than attach it to each 
container. If you became aware of any significant new information 
concerning the hazards of the chemical, you would have had to 
incorporate this new information, as appropriate, into a new label 
within 3 months and provide it with the next shipment of the chemical 
to that employer. In addition to the identity of the hazardous chemical 
and appropriate hazard warnings, the proposed rule also would have 
required you to provide that employer with your name and address or the 
name and address of a responsible party who could provide additional 
information about the hazardous chemical. The proposed rule did not 
specifically address customers who were not employers, such as an 
individual homeowner buying a load of stone for her driveway.
    Some commenters to the proposed rule said that HazCom should 
require this labeling information on all containers shipped from the 
mine. They stated that it would be easier to label each shipment to 
avoid the extra recordkeeping associated with tracking which shipments 
to employers must contain labeling information. Others questioned our 
authority to require you to provide labels on products leaving mine 
property. Several commenters wanted us to cover hazardous chemicals 
shipped from a mine in a way that was consistent with the OSHA HCS.
    MSHA has authority under the Mine Act to require operators to 
comply with the provisions of this standard, including providing 
labeling information to commercial carriers and contractors while they 
are on mine property. The final rule, as did the interim final rule, 
requires you to make the label information and MSDSs for your products 
available upon request. If you want to label each container or send the 
MSDS with each shipment, that is your choice. Our experience indicates 
that many mine products are already labeled and MSDSs are sent in a 
manner consistent with OSHA's HCS. Market forces and the requirements 
of other agencies serve to ensure that you label your product 
appropriately for downstream users. You are responsible for the 
accuracy of the information on any label you prepare.
    Several commenters to the proposed rule stated that 3 months is too 
long and that you should inform miners immediately of significant new 
hazard information. These commenters suggested 5 days, 30 days, and 45 
days as adequate time for you to incorporate the new information into a 
new label. We disagree that 3 months is too long for operators to 
incorporate new information into a new label. We believe that 3 months 
is a reasonable amount of time for the design and production of a new 
label and the final rule retains this requirement in Sec. 47.41(b).

I. Subpart I--Trade Secrets

    The ``Trade Secrets'' subpart balances two important interests: The 
miner's interest in obtaining information on hazardous chemicals and 
your proprietary interest in protecting your business. In general, we 
believe miner safety and health is best served by full disclosure of a 
chemical's identity. We recognize, however, the need to protect trade 
secrets. Once a trade secret is disclosed, its value may be lost. Under 
the Subpart I--Trade Secrets:
     You may always protect information about trade secret 
processes and percentages of mixture.

[[Page 42358]]

     You may protect trade secret chemical identities except in 
emergency and specified non-emergency situations.
     You must always disclose the properties, the safe use, and 
the safety and health effects of trade secret chemicals.
    Our proposed rule was, in essence, a restatement of the existing 
OSHA trade secret provision. The OSHA rule has worked for other 
industries for years, has withstood the test of experience, and can 
ensure that trade secrets will not be disclosed beyond what is 
necessary to protect miners. The comments we received on this subpart 
were generally supportive. The interim final and final rules, while 
revised stylistically, retain the substance of the proposed rule and 
the OSHA rule.
    We understand that most operators are probably not concerned with 
trade secrets. One commenter to the proposed rule said that the Trade 
Secrets subpart had limited utility for the coal industry. Another 
commenter to the proposed rule said the provision was unnecessary for 
crushed stone. Both of these commenters wanted us to delete the trade 
secret provisions.
    We disagree with those commenters. To the operators who create 
unique processing compounds, trade secret protection may be vitally 
important. One commenter thought that we were downplaying that 
importance by anticipating limited interest in the provision. On the 
contrary, we recognize the value of trade secrets where they exist. 
Although the subpart may appear elaborate, it provides a proven 
framework to accommodate both the interests of protecting trade secrets 
and miners' health and safety. We have considered all comments 
submitted to the ANPRM, the proposed rule, and interim final rule. We 
determined that the Subpart I-Trade Secrets will effectively provide 
for the investigation and settlement of disputes.
    The final rule is the same as the interim final rule. There were no 
significant new comments received from the public on the interim final 
rule and, subsequently, no changes were made in the language of the 
rule except for stylistic changes.
1. Section 47.81  Provisions for Withholding Trade Secrets
    Once a particular chemical has been classified as a trade secret, 
HazCom allows you to withhold the chemical name and other specific 
identification of the hazardous chemical from the written HazCom 
program, label, and MSDS, provided that--
     You identify the trade secret chemical in a way that it 
can be referenced without disclosing the secret;
     You disclose the properties and effects of the chemical in 
the MSDS;
     You indicate in the MSDS that the chemical's identity is 
being withheld as a trade secret; and
     You make the chemical's identity available to MSHA, health 
professionals, miners, and designated representatives following other 
provisions in this subpart.
    HazCom does not require you to disclose process or percentage of 
mixture information. The final rule, consistent with the interim final 
rule, incorporates the language of the proposed rule with a few 
editorial changes.
    A commenter to the interim final rule was concerned that exempting 
percentage of mixture and process information from disclosure would be 
a loophole in the rule's protection. This exemption is taken from the 
OSHA rule. Even if a trade secret is involved in an exposure, the 
affected miners are entitled to know the properties and effects, 
alternative name, protections and treatments associated with the trade 
secret. When required, you must also disclose the specific chemical 
identity of the trade secret. We believe this gives miners all the 
necessary information that they would practically need for prevention 
or treatment of harmful exposures from a trade secret chemical.
2. Section 47.82  Disclosure of Trade Secret Information to MSHA
    This section requires you to disclose to us, upon request, any 
information required by this subpart. If you are going to make a trade 
secret claim, you must do so no later than when you provide the 
information to us so that we can determine the validity of the claim 
and provide the necessary protection. This provision in the final rule 
is essentially the same as the proposed and interim final rules with a 
few non-substantive editorial changes. There were no comments on giving 
trade secret information to MSHA.
3. Section 47.83  Disclosure in a Medical Emergency
    Upon request, you must immediately disclose the identity of a trade 
secret chemical to a health professional in a medical emergency. You 
are required to make this disclosure when the professional is treating 
the miner and determines that--
     A medical emergency exists, and
     The specific chemical identity is necessary to provide 
emergency or first aid treatment.
    The proposed rule required you to identify the trade secret 
chemical to a treating ``physician or nurse'' in the event of an 
emergency. One commenter to the proposed rule suggested that we revise 
the provision to read ``physicians' assistants and other health-care 
professionals who provide treatment'' instead of ``physician or nurse'' 
so that HazCom includes other health-care professionals involved in 
treatment and patient care. This subject is also addressed in Subpart 
B--Definitions of this preamble under health professional.
    You must provide the chemical's identity to the treating health 
professional immediately in an emergency. After the emergency, however, 
HazCom allows you to require that the health professional provide you 
with a written statement of need, as well as enter into a 
confidentiality agreement to protect against the unauthorized 
disclosure of trade secret information. In general, the statement of 
need verifies that the health professional will be using the trade 
secret information only for the needs permitted by HazCom. The 
confidentiality agreement ensures that the health professional will not 
make any unauthorized disclosures of the trade secret.
    Under Sec. 47.84, non-emergency disclosure, we state that you may 
be subject to a citation. One commenter to the proposed rule 
recommended that similar language be added for unwarrantable failures 
if disclosure is denied in an emergency. We did not adopt this 
recommendation. The Sec. 47.84 citation provision is part of a 
procedure for reviewing denials of disclosures and balancing interests, 
which applies only to non-emergency situations. In any event, a 
violation of the emergency disclosure standard would, like other 
violations of mandatory standards, be subject to Mine Act enforcement.
    A commenter to the interim final rule questioned whether the 
request for a trade secret under the rule could be made by fax or e-
mail in lieu of a letter. The rule does not specify the form of the 
request in an emergency; the request may be made orally. In a non-
emergency situation, the request must be in writing. Fax and e-mail are 
acceptable forms of a written request for purposes of the rule.
4. Section 47.84  Non-Emergency Disclosure
    Commenters to the proposed rule generally agreed with the proposed 
provisions for non-emergency disclosure of trade secret chemical 
identity. These provisions remain substantively unchanged in the 
interim and final rules. In a non-emergency

[[Page 42359]]

situation, you must disclose the trade secret information to a health 
professional providing medical or other occupational health services to 
a miner if they give you a written statement of need requesting the 
information. Under this section, miners and designated representatives 
also have the same access. The statement of need must address the 
reasons specified in the rule, and explain why other available 
information will not suffice. In addition, the requester has to enter 
into a confidentiality agreement.
    A commenter to the interim final rule asked how many occupational 
health needs must be specified in the written request. The request must 
contain at least one of the needs listed in Sec. 47.84(b). Another 
commenter to the interim final rule said that process and percentage of 
mixture information should have to be disclosed in a non-emergency 
situation. We disagree. Although some health effects may differ 
depending on the percentage of mixtures, these health effects are 
supposed to be listed on the MSDS, even if the chemical's identity is 
not.
5. Section 47.85  Confidentiality Agreement and Remedies
    The confidentiality agreement may restrict the use of the trade 
secret chemical identity to the health purposes indicated in the 
statement of need, and may provide for legal remedies in the event of a 
breach of confidentiality. You may not require a penalty bond in the 
confidentiality agreement; however, you may pursue other non-
contractual remedies to the extent permitted by law.
    The proposed rule would have required that you allow the health 
professional, miner, or designated representative to disclose the trade 
secret chemical identity to MSHA if they decide there is a need. This 
is the same as the interim final and final rules. The proposed rule 
would also have required that they let you know before or at the time 
they make the disclosure. This requirement is not mandatory in the 
final rule, the same as the interim final rule, because we determined 
that we could not enforce it. Accordingly, we are leaving it to the 
parties entering the confidentiality agreement. This provision only 
applies to disclosure of the trade secret chemical identity. In any 
event, miners and miners' representatives have the right under the Mine 
Act to confidentially report an imminent danger or health and safety 
violation to MSHA and explain how a trade secret chemical may be 
involved.
    One commenter to the interim final rule asked whether 
confidentiality agreements can be legally required in light of the 
decision in United Steelworkers of America v. Auchter, 763 F. 2d 728 
(3d Cir. 1985). The court in that case expressly acknowledged the 
usefulness and validity of confidentiality agreements in protecting 
trade secrets.
6. Section 47.86  Denial of a Written Request for Disclosure
    You may deny a written request for disclosure of trade secret 
information in non-emergency situations. Your denial must--
     Be in writing, which includes e-mail and facsimile (fax) 
communication;
     Be given to the person requesting the information within 
30 days of the request;
     Include evidence that the chemical's identity is a trade 
secret;
     State why the request is being denied; and
     Explain how alternative information will satisfy the 
medical or occupational health need identified in the request.
    Commenters to the interim final rule agreed with the proposed 
provisions for denying a request for non-emergency disclosure of trade 
secret information and we included these provisions in the final rule. 
The section is unchanged from the interim final rule.
7. Section 47.87  Review of Denial
    If you deny a request for trade secret information, the person or 
organization making the request can refer the denial to us for review. 
In order for the request to be reviewed, it must include a copy of the 
request for disclosure, the confidentiality agreement, and your written 
denial. This provision is essentially unchanged in the proposed, 
interim final, and final rules. We will consider the appropriateness of 
the denial based on the evidence you submit to support your claim that 
the chemical's identity is a trade secret, the medical or occupational 
health need for the information, and the proposed means to protect 
confidentiality.
    If we determine that you wrongfully denied the request for 
disclosure, you will be subject to a citation. If you can demonstrate 
to us that the execution of a confidentiality agreement would not 
protect you against the potential harm of an unauthorized disclosure of 
the trade secret information, we may set conditions to ensure that 
medical services are provided without undue risk of harm to you.
    Finally, if you contest a citation for failure to disclose trade 
secret information, the Federal Mine Safety and Health Review 
Commission will review the citation.
    Commenters to the proposed rule generally agreed with the proposed 
provisions for reviewing a denial and we included these provisions in 
the interim final rule.
    One commenter to the interim final rule, however, questioned our 
ability to provide conditions in addition to those that would be 
provided under a confidentiality agreement to protect the trade secret. 
While we anticipate that a confidentiality agreement would normally 
suffice, the provision allows that in any event adequate protections 
can be fashioned to meet the circumstances of the case so that affected 
miners, their representatives, or health professionals have access to 
critical trade secret information. This provision is essentially the 
same as the OSHA rule.

J. Subpart J--Exemptions

    The final rule, consistent with the interim final rule, has two 
categories of exemptions under HazCom. The exemptions from the HazCom 
standard and the exemptions from labeling. With some differences that 
are noted in the discussion, the final and interim final rules are 
essentially the same. They were constructed in a way different from the 
proposed rule, but we believe they convey the same meaning and, 
therefore, the same application of HazCom as that intended by the 
proposed rule.
    The proposed rule included both the exemptions from the rule and 
the exemptions from labeling in the section on ``scope.'' It then 
repeated the labeling exemptions under ``labeling.'' Commenters to the 
proposed rule remarked that this repetition was unnecessary. In the 
final rule, consistent with the interim final rule, we placed each set 
of exemptions in a table in a separate Exemptions subpart near the end 
of the rule. This change in format brings the compliance requirements 
closer together at the beginning of the rule while, at the same time, 
eliminating repetition and making the exemptions more noticeable.
    The following table summarizes those chemicals exempt from HazCom 
or HazCom labeling because they are regulated under other federal 
statutes or regulations.

[[Page 42360]]



------------------------------------------------------------------------
            Chemical                    Statute       Responsible agency
------------------------------------------------------------------------
Chemical substance (exempt from   Toxic Substances    EPA.
 labeling).                        Control Act (15
                                   U.S.C. 2601 et
                                   seq.).
Consumer product (exempt from     Consumer Product    CPSC.
 rule and labeling).               Safety Act (15
                                   U.S.C. 2051 et
                                   seq.).
Hazardous substance (exempt from  Federal Hazardous   CPSC.
 rule and labeling).               Substances Act
                                   (15 U.S.C. 1261
                                   et seq.).
Hazardous substance (exempt from  Comprehensive       EPA.
 labeling).                        Environmental
                                   Response,
                                   Compensation, and
                                   Liability Act
                                   (CERCLA) (42
                                   U.S.C. 9601 et
                                   seq.).
Hazardous waste (exempt from      Solid Waste         EPA.
 labeling).                        Disposal Act, as
                                   amended by the
                                   Resource
                                   Conservation and
                                   Recovery Act of
                                   1976 (RCRA), as
                                   amended (42
                                   U.S.C. 6901 et
                                   seq.).
Any food, food or color           Federal Food,       Food and Drug
 additive, drug, cosmetic, or      Drug, and           Administration or
 medical or veterinary device or   Cosmetic Act (21    Department of
 product, including materials      U.S.C. 301 et       Agriculture.
 intended for use as ingredients   seq.) or Virus-
 in such products (e.g. flavors    Serum-Toxin Act
 and fragrances) (exempt from      of 1913 (21
 rule and labeling).               U.S.C. 151 et
                                   seq.).
Alcoholic beverages (exempt from  Federal Alcohol     Bureau of Alcohol,
 rule and labeling).               Administration      Tobacco, and
                                   Act (27 U.S.C.      Firearms (BATF).
                                   201 et seq.).
Pesticide (exempt from labeling)  Federal             EPA.
                                   Insecticide,
                                   Fungicide, and
                                   Rodenticide Act
                                   (7 U.S.C. 136 et
                                   seq.).
Pesticides (seed treated with)    Federal Seed Act    Department of
 (exempt from labeling).           (7 U.S.C. 1551 et   Agriculture.
                                   seq.).
------------------------------------------------------------------------

1. Section 47.91  Exemptions From the HazCom Standard
    The final rule exempts the following materials from the full scope 
of the standard. These exemptions are substantively the same as in the 
proposed and interim final rules.
    Articles. The final rule exempts articles from HazCom under normal 
conditions of use if they release no more than insignificant amounts of 
a hazardous chemical and if they pose no physical or health risk to 
miners. This exemption has the same substantive application as the 
proposed rule, though constructed differently, and is unchanged from 
the interim final rule.
    The exemption in the proposed rule appeared to exempt articles 
without any conditions or limits to the exemption. The definition of 
article, rather than the exemption, contained the operative conditions. 
The proposal's definition described article as a manufactured item, 
other than a fluid or particle, that is formed to a specific shape or 
design during manufacture and has end-use functions dependent upon its 
shape or design. For example, even though polyaromatic hydrocarbons are 
hazardous chemicals, their presence in a plastic bucket or seat 
cushions or ventilation curtains is exempt from HazCom because the 
bucket, seat cushions, and ventilation curtains are articles. 
Polyaromatic hydrocarbons in diesel exhaust or adhesives, however, are 
covered by HazCom. Even though chromium is a hazardous chemical capable 
of causing poisoning, chromium in a steel bar or chisel would be exempt 
from HazCom, regardless of its percent composition, because the bar and 
the tool are articles.
    The definition also included paragraph (c), which stated that an 
article is exempt if, under normal conditions of use, it releases no 
more than trace amounts of a hazardous chemical and presents no 
physical or health hazard. For example, chromium in a welding rod is 
not exempt. Even though the welding rod is formed to a specific shape 
or design during manufacture and has end-use functions dependent upon 
its shape or design, the rod releases more than trace amounts of the 
hazardous chemical under normal conditions of use.
    Commenters to the proposed rule generally agreed with the exemption 
of ``articles'' and with its definition in the HazCom proposed rule. 
Some of the proposed rule commenters suggested that we eliminate 
paragraph (c) of the definition. Paragraph (c) said an article, under 
normal conditions of use, does not release enough of a hazardous 
chemical to pose a physical or health hazard. These commenters to the 
proposed rule maintained that paragraph (c) was unnecessary and 
contrary to the thrust of the exemption for articles. Other commenters 
to the proposed rule suggested, however, that the definition must 
address risk for this exemption to be effective. To determine when an 
article is a hazardous chemical, some commenters to the proposed rule 
suggested that the definition include a de minimis provision 
establishing a low threshold concentration below which the rule would 
not apply. Other commenters to the proposed rule wanted a significant 
risk provision. Several commenters to the proposed rule recommended 
that we link this provision to the Mine Act by stating that an article 
is exempt if it ``does not release a quantity of a hazardous chemical 
that poses a risk of material impairment of health or functional 
capacity to miners.'' Another commenter to the proposed rule suggested 
that HazCom clearly state our intent to exempt trivial risks. This 
commenter cited a court decision on OSHA's HCS which interpreted this 
exemption to mean that ``any amount of release that could conceivably 
cause damage eliminates exemption as an `article'.''
    Commenters to the proposed rule also questioned what we meant by 
the terms ``minute'' or ``trace'' as applied to releases of chemicals 
from an article and by the phrase ``normal conditions of use.'' These 
commenters stated that we must clarify this provision for the HazCom 
final rule to be effective. One stated that--

    * * * If exposures are negligible, labeling products as 
hazardous causes needless concern to workers. If warnings are 
provided for all measurable releases of chemicals, regardless of 
risk, workers will be unable to distinguish between meaningful/
significant and trivial risks and the standard will be severely 
diluted.

    We agree with commenters' concerns that paragraph (c) of the 
proposed definition of article is unclear about how much of a hazardous 
chemical released from a manufactured item under normal conditions of 
use would constitute either small, minute, trace, or de minimis 
quantities. In many cases, it may be both time consuming and difficult 
to accurately determine whether an item is an article or a hazardous 
chemical. For example, one commenter to the proposed rule stated

[[Page 42361]]

that ``[u]sing present day analytical chemical technology, extremely 
low levels of chemicals can be detected everywhere.''
    To clarify our intent, in the interim final rule we separated the 
criteria for exemption from the definition for article. We also used 
the term ``insignificant amount'' instead of ``very small quantity'' 
and ``minute or trace amounts.'' By using these terms, we intend to 
shift the emphasis from the quantity of a hazardous chemical release to 
the significance of the release as it relates to risk. We believe that 
these language changes do not change the substantive intent of this 
exemption. There were no substantive comments on this exemption in the 
interim final rule and it remains unchanged in the final rule.
    Biological hazards. The final rule exempts all biological hazards, 
such as poisonous plants, insects, micro-organisms, from HazCom. This 
exemption is unchanged from the interim final rule, and though the 
construction of the standard is different from the proposed rule, it is 
substantively unchanged.
    We proposed to exempt biological hazards from the HazCom standard, 
following OSHA's HCS. We received a few comments supporting this 
exemption. Some commenters to the proposed rule objected to our 
exemption of biological hazards because there are dangers at the mine 
associated with these substances, and information concerning their 
hazards should be communicated to miners. We agree with the commenters, 
however, biological hazards are beyond the scope of this rulemaking.
    Fungus, molds, and poison ivy are found virtually everywhere in our 
environment. If there is a hazardous chemical present in addition to 
the biological hazard, however, it would be subject to the requirements 
of HazCom. For example, a bottle containing a biological sample in a 
hazardous solvent would have to be labeled for the hazardous solvent.
    Consumer products. The final rule, consistent with the proposed and 
interim final rules, exempts consumer products from HazCom if the miner 
uses the product for the purpose the manufacturer intended and the use 
does not expose the miner more often and for longer periods of time 
than ordinary consumer use would. There is also a discussion of 
consumer products under the Definitions section of this preamble 
(Sec. 47.11).
    We proposed to exempt consumer products and hazardous substances 
from the full scope of HazCom when operators or miners use them at the 
mine in the same manner as an ordinary consumer (normal consumer use). 
The proposed rule would have exempted consumer products as defined in 
the Consumer Product Safety Act (15 U.S.C. 2051) and hazardous 
substances as defined in the Federal Hazardous Substance Act (15 U.S.C. 
1261), when they are subject to consumer product safety standards or 
labeling requirements issued under these Acts. The Federal Hazardous 
Substances Act (FHSA), administered by the Consumer Product Safety 
Commission (CPSC), regulates hazardous substances in interstate 
commerce. The CPSC specifically exempts pesticides subject to the 
Federal Insecticide, Fungicide, and Rodenticide Act, and foods, drugs, 
and cosmetics subject to the Federal Food, Drug, and Cosmetic Act, from 
the term ``hazardous substance'' under FHSA. In the proposed rule, we 
also specifically requested comments on the need to exclude from 
coverage any consumer product excluded by Congress from the definition 
of hazardous chemical under Sec. 311(e)(3) of the Superfund Amendments 
and Reauthorization Act (SARA) of 1986, Pub. L. 99-499.
    Commenters to the proposed and interim final rules suggested that 
we define the term consumer product using a working definition for 
exempt materials rather than referencing statutes that mean nothing to 
most operators. One commenter stated that the EPA's consumer product 
exemption under SARA represents a more reasonable approach than that in 
the proposed rule and urged us to incorporate SARA's definition of 
consumer product. SARA does not define consumer product. It defines a 
hazardous chemical and excludes--

    * * * any substance to the extent it is used for personal, 
family or household purposes, or is present in the same form and 
concentration as a product packaged for distribution and use by the 
general public.

    This commenter reasoned that keying the consumer product exemption 
to consumer packaging and concentration would achieve the same result 
as the proposed exemption, but without requiring you to demonstrate 
that your miners use the consumer product as an ordinary consumer.
    Another commenter indicated that many mining uses of consumer 
products may result in exposure that was not contemplated by the 
manufacturer packaging the product for consumer use. Some commenters 
questioned how individuals using consumer products in an unintended 
manner would affect our exemption of consumer products from HazCom. 
Another recommended that we delete the requirement that you must 
demonstrate that the consumer product is being used in the same manner 
as in normal consumer use. The commenter further stated that there is 
no evidence to demonstrate that significant risks are present where 
such materials are used in a manner or amount not consistent with 
normal consumer use.
    Commenters objected to the term ``normal consumer use'' in the 
proposed rule and recommended that we delete it from the final rule. 
Another commenter stated that requiring an additional determination, as 
to whether the product is used at the mine in the same manner as in 
normal consumer use, places an exceptional burden on you and 
recommended that we exempt all consumer products from HazCom regardless 
of how they are used. One commenter stated that consumer products 
should be included in the final rule because mines use the materials 
more frequently and in larger quantities than do private homes. Another 
stated that comparing the use of a consumer product by a miner with its 
use by a normal consumer is neither practical nor possible, because the 
duration and frequency of use are highly variable. Comments to the 
interim final rule were basically the same as those to the proposed 
rule.
    We recognize that there are situations where a miner's exposure is 
significantly greater than that of an ordinary consumer and that, under 
these circumstances, consumer products or hazardous substances which 
are safe for contemplated consumer use may pose unique hazards at the 
mine. For this reason, we limit the exemption in such cases to 
labeling. You must comply with the other requirements of HazCom, such 
as those concerning an MSDS and training, to inform miners about the 
hazardous chemical. This is consistent with OSHA's HCS.
    For a consumer product to be exempt at your mine, you must be able 
to show that miners use it in their work areas the same way (i.e. the 
same concentration, duration, and frequency of exposure) as a normal 
consumer would use it. How the chemical is used determines if it is 
exempt. If the chemical is not hazardous, or if there is no potential 
for exposure, HazCom does not apply.
    We received a number of comments in the public hearings to the 
interim final rule about the concern of operators that their judgment 
about applying the exemption for consumer products might differ from an 
inspector's judgment and result in a citation. After considering all 
comments and various options for small

[[Page 42362]]

mines, we determined that all options for exempting consumer products 
require an exercise of judgment. In response to commenters concerns, we 
simplified the definition of consumer product in the final rule to tie 
it to concentration, packaging, and labeling.
    A guide for determining if a consumer product is exempt from 
HazCom, however, is to look at how the chemical is used at the mine. 
For example, a consumer may own two or three cars and change brake pads 
and rotors once a year. The consumer uses brake cleaner, scrubbing 
parts, and being exposed to the cleaner for about 1 hour during each 
brake job. A small mine may need to do brake work (using the cleaner to 
clean brake parts) monthly. If a particular miner acts as a mechanic, 
doing all the brake work at the mine, the miner's exposure is more than 
that of normal consumer use and the brake cleaner is not exempt. It 
must be included in your HazCom program. If an individual miner only 
changes brakes (uses the brake cleaner) two or three times a year, that 
is within the range of ordinary consumer use and it is exempt from the 
program.
    Here's another example: suppose you assign a miner to paint a 
hazard warning on an explosives magazine using a can of spray paint 
that contains hazardous chemicals. That use would be one time and of 
short duration, typical of an ordinary consumer's use of the product. 
If the miner's job is painting and he or she is required to use the 
spray paint frequently, the exposure would be greater than ``normal 
consumer use'' and the paint must be included in the HazCom program.
    Many mines buy consumer products to use in their daily operations. 
The consumer products exemption does not depend on whether you buy the 
product wholesale or retail. For example, a 5-gallon container of paint 
from a retailer may not have an MSDS. If you purchased this paint from 
an industrial supplier, it would be labeled to comply with HazCom and 
the supplier would probably provide an MSDS.
    We expect you to determine if the use of a consumer product on mine 
property is as the manufacturer intended, and if the exposures is of 
longer duration or more frequent than ordinary consumer use. Although a 
complete exemption may be easier to comply with and enforce than a 
partial one, the issue of concern to us is whether miners have 
sufficient information to use the hazardous chemical safely.
    In response to comments on the proposed rule, and reiterated in 
comments to the interim final rule, we simplified the definition of 
consumer product in the final rule to tie it to concentration, 
packaging, and labeling.
    Items for personal consumption. The final rule exempts ``items for 
personal consumption'' from HazCom when those items are labeled and 
packaged for retail sale and intended for personal consumption or use. 
The application of this standard is unchanged from both the interim 
final and proposed rules although the language and structure of the 
exemption are much simpler. Because the requirements are substantially 
the same in the proposed, interim final, and final rules, the final 
rule does not reduce miner protections.
    We proposed to exempt foods, drinks, drugs, cosmetics, and tobacco 
or tobacco products from HazCom when they were intended for personal 
consumption or use by miners while on mine property. Commenters to the 
proposed rule generally supported these exemptions. The proposed rule 
did not exempt distilled spirits. One commenter to the proposed rule 
recommended that HazCom exempt them, consistent with OSHA's exemption. 
Other commenters to that rule recommended that this exemption also 
include the condition that the product be packaged for retail sale and 
for use by the general public. A few commenters recommended that we not 
exempt any hazardous chemical. There were no comments on this issue to 
the interim final rule.
    The proposed rule did not specifically exempt alcoholic beverages 
sold, used, or prepared in a retail establishment, because we thought 
these exemptions did not apply to mining. Our existing standards for 
metal and nonmetal mines (Secs. 56.20001 and 57.20001) prohibit 
intoxicating beverages in and around mines. Because we do not have 
standards for coal mines which specifically address intoxicating 
beverages, we included an exemption for alcoholic beverages in the 
interim final rule to be consistent in both mining sectors and to avoid 
confusion. The final rule is unchanged from the interim final rule.
    The final rule exempts foods, drinks, including alcoholic 
beverages, drugs, cosmetics, tobacco, and tobacco products intended for 
personal consumption or use by miners while on mine property. For 
example, HazCom does not cover items such as aspirin in a first aid kit 
or food served at a mine cafeteria or vending machine.
    Nuisance particulates. We proposed to exempt nuisance particulates 
that do not pose a covered health or physical hazard from the full 
scope of HazCom. However, the final rule, the same as the interim final 
rule, does not exempt nuisance particulates from the provisions of 
HazCom.
    Many commenters to the proposed rule supported the exemption of 
nuisance particulates and nonspecific mine dust. Commenters to the 
proposed rule stated that nuisance particulates do not present any 
known irreversible health effects and that there are no standards in 
existence to use as a baseline. Several commenters to the proposed rule 
stated that inclusion of nuisance particulates in HazCom could reduce 
the effectiveness of a HazCom program by transmitting too much 
information to employees and diluting the focus on more serious or less 
recognized chemical hazards.
    A number of commenters to the proposed rule objected to the 
exemption of nuisance particulates and nonspecific mine dust from 
HazCom. These commenters stated that many particles thought to be 
nuisances are found later to be important health hazards and that if 
the hazard exists at the mine, regardless of the amount, it should be 
subject to the provisions of HazCom. One commenter stated that nuisance 
particulates are not excluded by OSHA and we should not exclude them. 
This commenter stated further that it would be useful to have MSDSs for 
nuisance particulates to provide miners with reliable information. 
Another commenter recommended that we omit the nuisance particulate 
exemption from the standard because there is no proper classification 
of these substances.
    The final rule, consistent with the interim final rule, does not 
include an exemption for nuisance particulates because we believe there 
is no need for a specific exemption. If a nuisance particulate poses no 
health or safety hazard to miners, other than mechanical irritation, 
then it is not a hazardous chemical and not covered by HazCom. If a 
nuisance particulate causes chemical irritation, contains 
0.1% respirable crystalline silica, or poses another health 
or safety hazard to miners, it is a hazardous chemical, not a nuisance 
particulate, and would be covered by HazCom. For this reason, a 
separate exemption for nuisance particulates is unnecessary. The 
particulates would be included or not included in the HazCom program 
based on whether they pose a health or safety hazard to miners.
    Commenters to the interim final rule strongly objected to our 
decision not to exempt nuisance particulates from HazCom. We disagree 
for several reasons. First, there is no comprehensive list of nuisance 
dusts. They are not the same as ``not otherwise classified'' mine 
dusts. Second, we

[[Page 42363]]

explained in the preamble to the interim final rule that we do not 
consider simple mechanical irritation as a health or physical hazard. 
Finally, some dusts, formerly classified as nuisance particulates, 
contain 0.1% of respirable crystalline silica which IARC and 
NTP classify as a carcinogen.
    The final rule does not include a specific exemption for nuisance 
particulates. MSHA clearly states in the preamble to the interim final 
rule and here that any dusts not presenting a health or physical 
hazard, including those that only cause physical or mechanical 
irritation, are already exempt from HazCom by definition of a physical 
hazard and health hazard. Also, as stated in the preamble to the 
interim final rule and this preamble, we intend that ``irritant'' means 
the same as OSHA's HCS. HCS Appendix A defines ``irritant'' as:

    A chemical, which is not corrosive but which causes a reversible 
inflammatory effect on living tissue by chemical action at the site 
of contact. A chemical is a skin irritant if, when tested on the 
intact skin of albino rabbits by the methods of 16 CFR 1500.41 for 
four hours exposure or by other appropriate techniques, it results 
in an empirical score of five or more. A chemical is an eye irritant 
if so determined under the procedure listed in 16 CFR 1500.42 or 
other appropriate techniques.

    Radiation. The final rule exempts all ionizing and non-ionizing 
radiation, such as alpha, gamma, microwave and x-ray from HazCom. The 
exemption is unchanged from the interim final rule, and though 
constructed differently, it has the same substantive application as the 
proposed rule.
    We proposed to exclude ionizing or non-ionizing radiation from 
HazCom, consistent with OSHA's HCS. We also incorporated this exemption 
in the interim final rule and retain it in the final rule.
    Some commenters to the proposed rule suggested that we not exempt 
radiation from HazCom because, if radiation is a potential hazard in 
the work area, this should be communicated to miners. Commenters to the 
interim final rule also expressed concern that miners be told about 
radiation hazards. Another commenter to the proposed rule suggested an 
exemption for non-product-specific physical hazards, such as noise, 
vibration, and hot environments, associated with the mining 
environment.
    Radiation is covered under other federal requirements and we have 
standards for metal and nonmetal mines that require hazard notification 
for radiation, including the posting of hazard warning signs. A 
chemical with radioactive properties that also presents other types of 
health and physical hazards is not exempt from HazCom. We do not 
consider non-chemical-specific physical hazards (such as heat stress, 
ergonomic hazards, or hearing loss) relevant to this rulemaking because 
HazCom is meant to address chemical hazards.
    Wood and wood products, including lumber. Our proposed rule would 
have exempted wood and wood products, including lumber if they did not 
release or otherwise result in exposure to a hazardous chemical under 
normal conditions of use. The final rule provides an example that wood 
is not exempt if it is treated with a hazardous chemical or if it will 
be subsequently cut or sanded. This exemption is the same as in the 
interim final and final rules, and though constructed different from 
the proposed rule, has the same substantive application.
    Wood products, such as lumber, plywood, and paper, are easily 
recognizable in the work area and pose a risk of fire that is obvious 
and well known to the miners working with them. Wood dust is not 
generally a wood ``product'' but is created as a by-product during 
sawing, sanding, and shaping of wood. We believe that it is necessary 
for you to inform miners about the hazards of wood dust and chemically-
treated wood and precautionary measures to minimize or prevent 
exposure. In response to comments to the proposed rule, however, the 
interim final and final rules exempted wood and wood products from the 
labeling requirements if, for some reason, they were not exempt from 
the entire standard. Commenters to the interim final rule did not 
address this exemption.
2. Hazardous Waste
    Consistent with the proposed and interim final rule, the final rule 
does not exempt hazardous waste. Hazardous waste, therefore, is not an 
entry in Table 47.91.
    Some commenters to both the proposed and interim final rules urged 
us to exclude hazardous waste because it was covered by the 
Environmental Protection Agency (EPA). EPA's regulations are intended 
as environmental safeguards for the protection of the public rather 
than the health and safety of miners on mine property who come in 
direct contact with mining hazards on a daily basis. The final rule 
does not exempt hazardous waste regulated by the EPA under the Solid 
Waste Disposal Act, as amended by the Resource Conservation and 
Recovery Act.
    Hazardous waste would have been exempt from the labeling and MSDS 
requirements under the proposed rule. We did not propose to exempt EPA-
regulated hazardous waste from the other requirements of HazCom. If a 
hazardous waste had been brought to the mine without an MSDS and you 
could not obtain one, the proposed rule would have required you to 
determine its hazards using the same methods as if it had been produced 
at the mine. You would either have had to test it or have used any 
valid, available, scientific information to determine its nature.
    Because the proposed rule would have required you to have 
information on the hazards of this waste, and because there is no 
specific format for the MSDS, it follows that a compilation of such 
information could be considered an MSDS. For this reason, we did not 
specifically exempt EPA-regulated hazardous waste from the MSDS 
requirements in the final rule. Rather, we address this waste 
separately in Sec. 47.53, Alternative for hazardous waste. You must 
make sure that miners have access to the best information you can find 
about the waste's chemical hazards.
    Under EPA standards, a waste analysis is required as part of the 
permit to burn or dispose of hazardous waste. However, EPA does not 
require the waste analysis to specify the chemicals' hazards or provide 
that it be made available to employees.
    In most cases, the shipping manifest or EPA permit required to 
accompany the waste will provide detailed information about the 
character of the chemical. Even if the ingredients are listed 
generically, you should request that the supplier provide you with 
hazard information.
    MSHA indicated in the preamble to the proposed rule, that OSHA also 
excluded hazardous waste regulated by EPA from coverage under its rule. 
MSHA requested comments on the appropriateness of exempting other 
hazardous waste not regulated by EPA from the labeling and MSDS 
requirements of the proposed rule.
    We received numerous comments on this proposed exemption of 
hazardous waste from label and MSDS requirements. Some commenters 
supported the proposed hazardous waste exemption in general, agreeing 
with our rationale. Commenters suggested that we make the following 
specific revisions to our proposed hazardous waste exemption:
     Exempt wastes not regulated by EPA, particularly those 
reused on-site or sent off-site for recycling, such as waste oil, 
antifreeze, and solvents.

[[Page 42364]]

     Exempt process-related waste, such as tailings, mine 
waste, and other hazardous waste generated by the mine, because they 
are already regulated by us and EPA and the inclusion of these 
materials in HazCom labeling and training requirements could lead to 
serious conflicts with other standards.
     Define hazardous waste to include garbage, refuse, sludge, 
and other discarded materials including solid, liquid, semisolid, or 
contained gaseous material resulting from mining because you should 
inform potentially exposed miners about the hazards associated with 
scrap and discarded material at the mine.
     Extend our exemption to include hazardous waste regulated 
under state programs pursuant to the requirements of RCRA.
    Several commenters to the proposed rule suggested that we treat 
hazardous waste exposures as OSHA does, by not requiring HazCom 
training for those miners who are exposed to EPA-regulated hazardous 
waste. One commenter specifically suggested that we follow OSHA's 
requirements for hazardous waste operations in 29 CFR 1910.120(e) by 
requiring training only for specific hazardous waste operations and not 
for all types of hazardous waste handling.
    Since our proposed rule was published, an increasing number of 
mining operations have obtained permits to burn hazardous wastes in 
their kilns. Some bury waste in a landfill or dispose of their own 
wastes from the mining process. There are 55 mining operations burning 
hazardous waste and waste products with an average of 16 miners per 
site. Wastes burned include biological wastes, pesticides, herbicides, 
waste oil, heavy metals, and tires. Some, but not all, of these 
hazardous wastes are regulated by EPA. A few operations have EPA issued 
permits that allow them to burn hundreds of kinds of hazardous wastes, 
up to 260 different kinds. Many are burning thousands of gallons of 
waste products a year in their kilns. Two operations handle more than 
15 million gallons per year and 12 operations handle more than 1 
million gallons per year. Most handle either liquid or solid wastes; 
some can accommodate both. Some of these wastes would meet HazCom's 
definition of a health or physical hazard or both.
    NIOSH stated that hazardous waste not regulated by the EPA or other 
existing statutes should not be exempt from HazCom because to do so 
would be contrary to the intent of HazCom. The rulemaking record 
indicates the need for miners working with hazardous waste to be 
informed of its hazards either as a mixture or its individual 
components. We have determined that, for HazCom to be effective, it 
must include all hazardous chemicals to which miners may be exposed 
and, therefore, the final rule, like the interim final rule, does not 
specifically exempt hazardous waste regulated by the EPA. If they are 
hazardous, other waste chemicals are subject to the same HazCom 
requirements as every other hazardous chemical on site.
    Commenters to the interim final rule asked us to reconsider our 
decision not to exempt hazardous waste. They argued that OSHA exempts 
hazardous waste, leaving it to EPA to regulate. After a careful review 
of all comments received on this issue, we have determined that it is 
necessary to cover hazardous waste under our standard. Although OSHA 
excludes coverage of hazardous waste regulated by EPA, OSHA has other 
specific standards directed to hazardous waste operations. (29 CFR 
1910.120). OSHA was required to issue these standards by Sec. 162, 
title 1 of the Superfund Amendments and Reauthorization Act of 1986 
(SARA). We do not have similar statutory requirements or standards 
regarding hazardous waste operations and believe that we would be 
denying protection to miners handling hazardous waste if we were to 
exempt it from coverage. Accordingly, the final rule does not exempt 
hazardous waste from coverage.
    Under the final rule, you must provide each potentially exposed 
miner with access to MSDS information about the hazardous waste to the 
extent that it is available. You must make any information available to 
the miner or designated representative which identifies its hazardous 
chemical components, describes its physical or health hazards, or 
specifies appropriate protective measures. Some of this information is 
available from the EPA permit, your analysis of the waste, or the 
supplier of the waste material. If the supplier of the hazardous waste 
prepares any document for compliance with EPA or OSHA standards that 
contains the same types of information as required for the label and 
MSDS, we expect you to obtain a copy of these documents and to provide 
miners with access to them.
    Commenters to the interim final rule mistakenly thought that we 
defined hazardous waste to include ``garbage, sludge, and other 
discarded materials.'' MSHA does not intend to include any material as 
hazardous waste other than that regulated by EPA.
3. Section 47.92  Exemptions From Labeling
    The final rule exempts ``chemical substances'', ``hazardous 
substances'', ``consumer products'', and ``pesticides'' when they are 
kept in their manufacturer's or supplier's original packaging and the 
packaging is done under other federal labeling requirements. Although 
the exemption is constructed differently from the interim final rule, 
the application under the final rule, as discussed below is the same. 
The interim final rule named the federal authorities under which the 
packing had to be done. The final rule simply refers to appropriate 
other agencies. This does not reduce miner protections because the 
final rule is substantively the same as the proposed and interim final 
rules.
    We proposed to exempt from HazCom's labeling requirements those 
hazardous substances regulated and labeled under the authority and 
standards of other federal agencies. Commenters objected to the 
proposed rule's referencing the laws and standards of other 
organizations and agencies, considering their inclusion to amount to 
``incorporation-by-reference.'' They stated that the rule does not 
include these documents, that they are not useful in understanding 
HazCom, and that our rules will become dependent on out-of-date 
material or require rulemaking to keep them current. The proposed rule 
had referenced the Consumer Product Safety Act; the Federal Hazardous 
Substances Act; the Federal Food, Drug, and Cosmetic Act; the Federal 
Insecticide, Fungicide, and Rodenticide Act; the Solid Waste Disposal 
Act; and the Resource Conservation and Recovery Act. Commenters to the 
proposed and interim final rules suggested that we replace these 
references with simple operational definitions that would be understood 
by the miner.
    Like the proposed rule, the interim final rule included these 
references to clarify which toxic materials, hazardous substances, 
hazardous wastes, and consumer products are exempt from HazCom 
labeling. We consider these references as informational because they 
inform you of the limits of your responsibility rather than imposing an 
obligation. In response to comment on the interim final rule, the final 
rules includes an operational definition for most exemptions. For 
others, to the extent practical, the final rule simplifies the 
references by not including legal citations. Use of these references to 
specify exemptions from HazCom means that another federal agency

[[Page 42365]]

requires labeling of the hazardous chemical. A simple operational 
definition would be that you do not have to further label a hazardous 
chemical brought onto mine property if it already has a label 
indicating its identity and appropriate hazard warnings.
    We expect that most hazardous chemicals regulated by another 
federal agency are labeled by the manufacturer with information about 
their identity, hazards, precautions for normal use and emergencies, 
and phone numbers for additional information. To avoid duplicate 
federal standards, we will accept pre-existing hazard labels that 
comply with the labeling requirements of another federal statute or 
standard for compliance with HazCom. We believe that this change in the 
final rule does not impose an additional burden on you because existing 
labels on containers of hazardous waste brought onto mine property that 
meet the comparable requirements of other federal or state regulations 
fulfill the labeling requirements of this final rule.
    Also, MSHA will accept the labeling of mine products that comply 
with another comparable state or federal requirements. For example, if 
a hazardous substance or waste is produced at the mine, and it is 
covered by the standards of another federal agency, you must label it 
first in accordance with those standards. Consistent with the purpose 
of HazCom, if the hazardous chemical is not labeled in accordance with 
another federal statute or standard, you must label it in accordance 
with the requirements in Sec. 47.32 (label contents) of HazCom.
    Raw material. We proposed to exempt the raw material mined or 
milled from the labeling requirements of HazCom while on mine property. 
Many commenters strongly supported the proposed raw material exemption. 
Some of these commenters recognized the impracticality of affixing and 
maintaining labels on every ore car or on each bin or hopper containing 
the mined material and believed that such labels would be of little 
benefit. One commenter stated that they currently labeled bins of their 
raw material but found that the labels were difficult to read due to 
the dust covering them. Other commenters believed that, generally, 
operators inform miners about the hazards of the raw material being 
mined and this information could be considered common knowledge.
    Another commenter to the proposed rule stated that while they did 
not disagree with a labeling exemption for the raw material mined--

    * * * the final rule should re-state the operator's duty to 
train and inform miners about the hazards inherent in the mineral 
being mined and by-products of the mining process such as 
crystalline silica, radon progeny, etc.

This commenter stated further that you should at least make an MSDS on 
these substances available and warn miners in a variety of ways. Among 
those commenters supporting the raw material exemption, one recommended 
that we clarify that a container of a raw material that has undergone a 
chemical reaction with other constituents, and thus is not a mixture, 
would not have to be labeled even if a hazardous chemical may have been 
added to it during processing at the mine.
    This commenter further stated that--

    [w]hile the process container where the hazardous chemical is 
added may need to be labeled (at least where the process does not 
result in an instantaneous chemical reaction), the container 
subsequently holding the commodity produced for sale by the operator 
would not constitute a ``mixture'' and should not be labeled.

    A few commenters disagreed with our proposed raw material exemption 
and requested that HazCom require labeling of all containers of 
hazardous raw material. One of these commenters expressed concern about 
the legibility and adhesion of labels, yet was confident that you could 
develop workable solutions. Other commenters stated that unlabeled 
containers of hazardous chemicals must be labeled under our existing 
labeling standards.
    Commenters to the interim final rule asked that we also exempt mine 
wastes from labeling. They stated that the reasons labeling will not 
work for mine waste, such as tailings, are the same as the reasons 
given for exempting raw materials. Signs along the perimeter of 
tailings ponds or along drainage ditches are especially burdensome 
because the content of the ponds and ditches can change frequently.
    The final rule exempts containers of raw materials from labeling 
while they are on mine property because we expect that miners are 
familiar with the hazards of the material being mined. Under HazCom, 
ponds and ditches are not considered containers for the purpose of 
labeling. HazCom requires, however, that you train miners about the 
hazardous chemicals to which they may be exposed and the location of 
hazardous chemicals in their work areas. Also, other MSHA standards 
require signs or barricades to warn miners about hazards that are not 
obvious.
    Another commenter to the interim final rule asked us to clarify 
that raw materials altered through chemical reaction during processing, 
thus not a mixture, are still exempt from labeling. If you add a 
hazardous chemical to a container of raw material to form a mixture, 
you must label the container for the hazardous ingredient. If you add a 
chemical to a container of raw material to form a new compound which is 
no longer the raw material and which meets the criteria in the hazard 
determination section of HazCom (Sec. 47.21), then you must label the 
container for the newly created hazardous chemical.
    Pesticides, food, and consumer products. The proposed rule included 
exemptions from labeling for pesticides; food, food additives, and 
color additives; and consumer products which are required to be labeled 
under standards issued by other federal agencies. The final rule is 
generally consistent with the proposed and interim final rules and with 
OSHA's HCS. The applicable definitions of the substances addressed in 
these exemptions are those provided by the governing statutes and 
standards.
    Although there were some commenters to the proposed rule who 
addressed these exemptions, few had specific comments. Among those who 
did comment, many supported our exemption of consumer products. Several 
suggested that we not require coal mine operators to include consumer 
products in HazCom programs because this would result in meaningless 
storage of countless MSDSs. Another believed that we should clarify 
that you have a responsibility to maintain the labels that come on 
these hazardous materials.
    Commenters to the proposed rule agreed with our intent to have a 
provision similar to OSHA's HCS, stating that separate rules for 
consumer products would be redundant and serve no purpose. Another 
commenter suggested that we also exempt, as per OSHA's standard, drugs, 
cosmetics, medical or veterinary devices, and materials intended for 
use as ingredients in such products (e.g., flavors and fragrances). In 
regard to our proposed consumer product exemption, one commenter 
stated:

    * * * consumer products already possess adequate labels with 
hazard identification and safe use instructions. Since no one knows 
the hazards of a product better than its manufacturer, the safest 
possible use of the product is in accordance with the manufacturer's 
recommendations * * *. Using products according to manufacturer's 
recommendations would result in exposures

[[Page 42366]]

that are very small (this is minute or trace amounts) and would not 
pose a physical or health risk to miners.

    We received a few comments to the proposed rule objecting to the 
exemption of consumer products from HazCom's labeling requirements. 
Others suggested that consumer product labels provided by manufacturers 
may not provide adequate warning, given the use of these products at 
the mine. One of these commenters stated:

    * * * consumer products with warnings on adequate ventilation or 
that require the use of personal protective equipment cannot be 
presumed safe for use in the underground mining environment. 
Further, many mining uses of consumer products may result in 
exposures that were not contemplated by the manufacturer packaging 
the product for consumer use. * * * Many consumer products are 
potential fuel sources for fires (e.g., aerosol solvents or paints). 
Further, exposure to these volatile solvents may adversely affect 
the seals and insulators on permissible equipment or adversely alter 
the explosive characteristics of the atmosphere in underground coal 
mines.

    Commenters to the interim final rule expressed concern that there 
is nothing in the rule to require an operator to tell miners about the 
hazards of consumer products; and that miners may think that a consumer 
product is safe when it is not.
    In response to the concerns expressed by commenters, the final rule 
states specifically that consumer products are exempt from labeling 
when they are labeled under the standards of another federal agency, 
such as the Consumer Product Safety Commission (CPSC). When the 
consumer product is not exempt from HazCom, but exempt from labeling, 
all other provisions, such as training and MSDSs, would still apply. 
Consumer products are exempt from HazCom where you can demonstrate that 
they are used at the mine in the same manner as in normal consumer use. 
Because consumer products are labeled under the authority of another 
federal agency, and these labels generally provide for the listings of 
chemical identities and hazard warnings, hazard information is 
available to miners and there is no need for additional labeling 
standards.
    One commenter to the proposed rule suggested that we provide 
operators with a list of exempt products commonly found on mine 
property. We have determined that a list of exempt products commonly 
found on mine property is neither simple nor appropriate. These 
products are only exempt when used in the same way as they would 
normally be used by a consumer. A list could lead you to believe these 
were exempt under all circumstances. Some exempt items could be 
overlooked and some that are exempt from labeling may not be exempt 
from other provisions of HazCom. Even for exempt products, for example, 
you may not deface or remove labels from containers of hazardous 
chemicals brought onto mine property. If they are repackaged or 
transferred at the mine, you must communicate such labeling information 
to the miner and, if necessary, label the new container.
    The final rule, consistent with the proposed and interim final 
rules, also includes an exemption from HazCom's labeling requirements 
for pesticides labeled under standards issued by other federal 
agencies. As long as the pesticide is kept in the original container 
with its label intact and legible, it is exempt from the labeling 
provisions of this rule. We believe that this partial exemption informs 
and protects the miner and does not place an undue burden on you. We 
intend that all pesticides be labeled with their identity, hazards, and 
precautions for safe use. We believe that existing labels on containers 
of pesticides brought onto mine property that meet the labeling 
requirements of other federal or state standards will fulfill the 
labeling requirements of HazCom.
    The purpose of pesticide labeling is mainly the protection of 
workers exposed to the pesticide either while handling it or through 
inadvertent contact with something that has been treated with it. In 
the case of the other substances, the purpose of the labels is more 
general consumer protection. The final rule does not include a specific 
labeling exemption for foods, food additives, and color additives used 
for personal consumption because they are exempt from the full scope of 
HazCom.
    There were no substantive comments to the interim final rule 
concerning labeling exemptions for pesticides or items for personal 
consumption.
    Other suggested exemptions. Many commenters to the proposed rule 
specifically recommended that we exempt de minimis exposures to, or de 
minimis amounts or concentrations of, hazardous chemicals from the 
labeling requirements. Most of the commenters believed that labeling 
should focus on serious risks rather than on those that are trivial. 
Some suggested that we use 5% silica in the mined ore as a de minimis 
threshold below which labeling would not be required. One recommended 
1% silica, rather than 5%, for a de minimis threshold. Another 
recommended basing a de minimis threshold on a chemical's TLV[supreg] 
or PEL. This commenter suggested that employers would simply need to 
assess whether a hazardous chemical is present in the work area at a 
level meeting or exceeding its PEL or TLV[supreg]. Further, this 
commenter stated that if the chemical did not have a PEL or 
TLV[supreg], no de minimis threshold would apply.
    We determined that a de minimis threshold for silica is 
inappropriate because silica is the most common element in the earth's 
crust. All mining operations disturb the earth's crust. It is safe to 
say that miners are potentially exposed to silica from mining 
operations. This is not the same as saying that they are definitely 
exposed or overexposed. We discuss this issue more fully in the next 
section of this preamble (4. Other Exemptions Discussed in Proposed 
Rule).
    Commenters to the proposed rule also recommended that we exempt 
treated wood products from any labeling requirements because labeling 
every timber in a mine would create an excessive burden on operators 
with no increase in protection to the miner. MSHA agreed and the 
interim final rule included a labeling exemption for treated wood. 
There were no comments to the interim final rule that addressed the 
labeling exemption for wood products.
    The final rule is substantively the same as the interim final rule 
except it clarifies that wood and wood products are exempt from 
HazCom's labeling requirements. Wood and wood products, including 
lumber, that do not present a health or physical hazard are exempt from 
the full scope of HazCom as an ``article.''
4. Other Exemptions Discussed in Proposed Rule
    In the preamble to the proposed rule, we requested comments on a 
variety of options for the scope of the HazCom standard. These 
alternatives covered exemptions for the size of the mine, the commodity 
extracted, the work area, or the amount of hazardous substance. 
Comments to the interim final rule reiterated the perspectives 
expressed in comments to the proposed rule. For the most part, 
consistent with the interim final rule, we did not include these 
exemptions in the final rule for the reasons discussed in the following 
paragraphs. This discussion is the same as in the interim final rule. 
We retained this discussion in the preamble to the final rule for the 
sake of completeness.
    Small mines. The rulemaking record contains a number of comments 
suggesting that we exempt small mines from HazCom. Commenters stated 
that HazCom would create additional

[[Page 42367]]

expenses and recommended that we modify the final rule to exempt small 
operations, especially those with a workforce of 10 or fewer.
    We do not exempt small mines from overall compliance with HazCom 
because chemical hazards are present at all mines, regardless of size, 
and miners at small operations have the right to know if they are 
exposed to hazardous chemicals. To address the needs of small mines, 
however, as well as the variability in the mining industry, the final 
rule allows you to design the HazCom program for the conditions at your 
mine. In addition, MSHA has delayed the compliance date of the final 
rule for small mines employing five or fewer miners. To further assist 
you, and especially small mine operators, we will prepare generic 
HazCom programs. Many of these aids are available now and the remainder 
will be available soon. You can contact the National Mine Health and 
Safety Academy at 304-256-3257 or visit our Web site at http://www.msha.gov to find out what is available. Also, OSHA has developed 
training materials for its industries, such as a generic MSDS form, a 
model hazard communication program, and the HCS Compliance Guide. Many 
are available from OSHA's Web site at http://www.osha.gov and can be 
adapted for use at mining operations. You can use these as models for 
your own program.
    Common minerals. We considered an exemption from HazCom for certain 
common minerals (such as coal, sand and gravel aggregates, crushed 
stone aggregates, and clay) and those minerals containing less than 5% 
silica and no other hazardous chemicals. In the preamble to the HazCom 
proposed rule, we requested comments on--
     The appropriateness of exempting certain minerals;
     The appropriate criteria for making a determination for 
exemption;
     The degree to which miners are aware of the hazards of 
these minerals;
     The level of silica in such minerals necessary before the 
mineral would be considered hazardous;
     How these minerals are used and handled by downstream 
employers; and
     How we could best publicize and provide hazard information 
on these substances to you and miners.
    A number of commenters addressed the scope of the common minerals 
exemption. Some expressed support for the exemption and stated that 
natural rocks and minerals should not be classified as chemicals for 
the purpose of an MSDS or other HazCom requirements. Others stated that 
the exemption for minerals containing less than 5% silica is warranted 
because these minerals do not constitute a hazard, and the exemption 
would preclude duplicate regulatory requirements and unnecessary 
expenditures. One commenter stated that such an exemption is especially 
appropriate for minerals designated as carcinogenic merely because they 
contain greater than 0.1% silica. Another commenter stated that 
labeling common minerals is unnecessary because part 48 (and part 46) 
requires miners to be trained to recognize the hazards of the product 
being mined.
    Commenters also suggested that we exempt specific minerals from 
HazCom. For example, one commenter stated that we should exempt coal 
and limestone. In addition, with regard to exempting coal, other 
commenters stated that the hazards of respirable coal mine dust are 
strictly controlled through extensive sampling and monitoring programs. 
Other commenters recommended that we modify the standard to exempt 
dimension stone quarries and iron ore pellets. One commenter urged us 
to specify which minerals are of concern to us and suggested an 
exemption for silica flour or certain industrial sands based upon their 
purity and particle size.
    Several commenters objected to our proposed exemption of common 
minerals. One stated that most mining products are used by OSHA-
regulated facilities and, as such, OSHA already requires that these 
facilities keep MSDS forms up-to-date for customers, label containers, 
and fill out the appropriate transport forms. Another commenter 
expressed concern that, if operators are responsible for preparing the 
MSDSs and labels, the common minerals exemption could lead to 
violations of the OSHA HCS for downstream general industry customers. 
Others objected to the common minerals exemption because it would send 
conflicting signals to miners; it is inconsistent with OSHA triggers 
and MSDS requirements; and it fails to provide health protection for 
miners in the sand and gravel, stone, clay, and shell dredging 
operations. One commenter stated that these minerals still present 
sufficient hazards to require MSDSs and training and HazCom should 
cover them, even though they are common or silica is present in small 
proportion to the total material.
    Some commenters suggested that we exempt or provide limited 
coverage to mining industry sectors with a low degree of risk. One 
suggested specifically that we exempt the brick industry from HazCom 
because the risk posed to miners in the brick industry is lower than 
that experienced in other mining operations due to the way the industry 
handles the clay and shale. According to this commenter, there is no 
reason to regulate clay and shale, the brick industry's principal raw 
materials, because HazCom relates to free silica and most clay and 
shale have 5% or less free silica. In addition, this commenter 
indicated that MSDSs are unnecessary because exposure to silica is a 
primary part of the training programs administered by brick 
manufacturers.
    We do not agree that the overall degree of risk encountered by 
miners in a given industry segment is a viable argument for totally 
exempting an entire mine or commodity from coverage under HazCom. A 
major concern is that miners are exposed to chemicals without knowing 
their hazards and, thus, they may not follow the proper procedures for 
handling or using these chemicals. The extent of risk is not a 
determining factor in deciding whether or not you have to communicate 
information on hazardous chemicals. Miners have the right to know that 
they are being exposed to a potential hazard. As long as the potential 
for exposure exists in the work area and the chemical is hazardous, 
HazCom applies.
    For these reasons, the final rule does not exempt minerals 
containing 5% silica or less or other hazardous chemicals or certain 
common minerals, such as coal, clay, and dimension stone. Depending on 
the airborne concentration of the dust and other circumstances 
regarding exposure, respirable crystalline silica in these minerals or 
respirable coal mine dust may cause pneumoconiosis or cancer. The final 
rule is consistent on this point with OSHA's HCS.
    Nonfuel mining. One commenter recommended that we exempt the 
nonfuel mining industry from HazCom. This commenter questioned whether 
we have demonstrated that such a broad-based standard is necessary for 
the nonfuel mining industry, given that HazCom would duplicate our 
existing training and labeling standards.
    Based on the findings of the NIOSH National Occupational Health 
Survey of Mining (NOHSM) and our experience in the mining industry, we 
concluded that a HazCom rule applicable to coal, metal, and nonmetal 
mines is appropriate because all mines use hazardous chemicals, and 
there are a number of hazardous chemicals common to all types of mines, 
including non-fuel mines. Fuel oil, solvents, and paint are just three 
examples of hazardous chemicals used at non-fuel mines. Non-fuel mines 
report the most chemical burn injuries to MSHA. HazCom is broadly 
written and performance oriented in recognition of the diversity among 
mining operations and

[[Page 42368]]

independent contractors. Our intent is that all miners, including those 
working in the nonfuel mining industry, have access to information 
about the chemical hazards to which they are exposed at the mine. This 
decision is consistent with the mandate of the Mine Act to protect all 
miners to the extent feasible.
    De minimis requirements. In the HazCom proposed rule, we solicited 
comments on whether we should establish de minimis criteria for 
hazardous chemical exposure in general. De minimis or trivial risks are 
those below the threshold of regulatory concern.
    A few commenters stated that, for HazCom to be effective, the final 
rule must contain an exemption for de minimis chemical exposures. These 
commenters urged us to specify minimum quantities for the substances 
covered by the standard. Commenters suggested that we exclude exposures 
that are less than one-half of any applicable PEL or ACGIH TLV[supreg], 
or where the health risk is not significant. Some felt that HazCom 
should address only those chemicals that exceed a PEL or ACGIH 
TLV[supreg]. One commenter stated that a meaningful de minimis 
provision could be provided--
     By clarifying the definition of article similar to that 
found in the mixture definition;
     By defining a significant health risk; and
     By stating a reasonable and consistent interpretation of 
the terms ``minute'' or ``trace.''
    A few commenters recommended that we exclude trivial exposures to 
avoid unnecessary and misleading labeling and the creation of the 
functional equivalent of a ``Delaney Clause.'' (Note: The Delaney 
Clause is an amendment to the Food, Drug, and Cosmetic Act (21 U.S.C. 
348). It requires the Food and Drug Administration to prohibit the use 
of any food additive that is carcinogenic without regard to the 
quantitative level of risk.)
    Commenters wanted us to set a de minimis concentration below which 
you would not have to consider whether a substance is hazardous. There 
are highly toxic substances, however, which can cause adverse health 
effects from the absorption or inhalation of tiny amounts. HazCom is 
intended to address all hazardous chemicals at mines. The range of 
hazards and concentrations are too diverse to address through a single 
measurement. A de minimis exemption, therefore, would not provide 
sufficient protection to miners and would not address the true issue of 
concern, informing miners of potential hazards.
    Likewise, requiring information disclosure only in situations where 
exposure might exceed a PEL or ACGIH TLV[supreg] is not consistent with 
the purpose of the rule. Exposure limits address a limited number of 
the hazardous chemicals encountered at the mine. Also, PELs are used to 
control inhalation exposures. Because the definition of exposure in 
HazCom includes absorption through the stomach or skin, in addition to 
the lungs, the exposure limits might be unrelated to the total exposure 
experienced by a miner. In certain circumstances, the most significant 
route of exposure may be through the stomach or skin. We have received 
reports of injuries and illnesses among miners as a result of skin 
contact with cyanide solutions, cement and trona dusts, and mercury, 
and as a result of ingesting lead.
    Laboratories. The proposed rule requested comments on whether 
laboratories should be exempt from HazCom, primarily because OSHA's HCS 
(29 CFR 1910.1200(b)(3)) partially exempted laboratories. OSHA, 
however, regulates laboratories under both its HCS (29 CFR 1910.1200) 
and its laboratory standard (29 CFR 1910.1450). The laboratory standard 
supplements the HCS.
    The OSHA HCS requires labels, MSDSs, training, and access. The 
heart of the OSHA laboratory standard is the Chemical Hygiene Plan. The 
Plan, which contains elements similar to HazCom's written program, must 
be reviewed annually. It also requires detailed descriptions of 
personal protective equipment, standard operating procedures, and 
engineering controls. Whatever OSHA does not cover under its HCS, it 
covers in its laboratory standard. The OSHA laboratory standard 
requires training; access to the plan and all known reference material; 
labels and MSDSs; hazard determination for chemicals produced, 
including by-products; hazard determination, labels, and MSDSs for 
chemicals produced for users outside the lab itself; and records of 
exposure monitoring and medical exams.
    Unlike OSHA, we do not have specific standards addressing hazardous 
chemicals in laboratories. At this time, we do not plan to develop a 
separate standard to address laboratory hazards.
    Several commenters urged us to exempt laboratories. One commenter 
stated that small laboratories are exempt from OSHA's standards. 
Another commenter stated that both OSHA's HCS and EPA's SARA exempt 
laboratories of any size when under the direct supervision of a 
technically qualified individual. Some commenters supported the 
application of training requirements to laboratories on mining property 
unless the lab has trained chemists. Others recommended that we exempt 
laboratory use of chemicals from HazCom because such use is unique and 
our training standards already cover laboratory hazards.
    Most commenters, however, supported our coverage of laboratories 
within HazCom. Some commenters found our approach reasonable because 
covering mine laboratories would preclude the need for us to develop a 
separate standard to address laboratory hazards, as was done by OSHA.
    We agree that laboratories in mining should be subject to the full 
scope of the standard with no specific exemptions. Laboratories found 
in the mining industry differ in several respects from those common to 
general industry, such as research facilities. Although there may be a 
few large-scale laboratories in the mining industry supervised by 
trained chemists, our experience indicates that most mine laboratories 
are small-scale operations devoted to quality control or process 
control, with relatively few trained chemists.
    Compared to research facilities or laboratories in the chemical 
manufacturing industry, quality control laboratories in the mining 
industry use relatively few chemicals and analytical methods. Most of 
these mine laboratory workers receive on-the-job training. This 
training can be inadequate in addressing the hazards of the chemicals 
to which the laboratory workers are exposed. MSHA data, reported under 
the requirements of 30 CFR part 50, cite illnesses or injuries in 
laboratories caused by improper mixing of chemicals, mercury spills, 
use of inadequate or inappropriate personal protective equipment, use 
of improper procedures, and improper use of controls or inadequate 
ventilation.
    The final rule does not exempt laboratories on mine property, but 
gives you the latitude to create a HazCom program based upon the 
hazards identified. We recognize that these programs may differ from 
work area to work area because of the different chemicals used. 
Therefore, we expect the HazCom program to vary depending on the 
circumstances at the mine. To exclude miners working in laboratories 
from HazCom would not be in keeping with our mandate to prevent mine-
related occupational injuries and illnesses. After reviewing the 
comments and the rulemaking record, and based

[[Page 42369]]

on the presence of hazardous chemicals in the laboratories, we have 
concluded that it is necessary to include mine laboratories under the 
scope of the final rule.

K. Appendices

    The proposed rule contained three appendices:
    Appendix A, Health Hazard Definitions, was a mandatory section 
providing additional details for the proposed rule's definitions.
    Appendix B, Information Sources, was a comprehensive advisory list 
of sources to evaluate the physical hazards of chemicals and their 
specific health effects.
    Appendix C, Guidelines for Operator Compliance, provided additional 
advisory guidance for complying with the HazCom standard.
    The final rule does not include these appendices. Much of this 
information, which you can use as a guide, will be included in a HazCom 
Compliance Guide and Toolbox.

III. Legal Authority and Feasibility

A. HazCom as a Sec. 101(a)(6)(A) Standard

    The primary purpose of the Federal Mine Safety and Health Act of 
1977 (Mine Act) is to ensure safe and healthful working conditions for 
the Nation's miners. One means established by Congress to achieve this 
goal is the authority vested in the Secretary of Labor (Secretary) to 
set mandatory safety and health standards. Authority for issuance of 
the HazCom final rule is found in Secs. 101(a) and 115 of the Mine Act.
    Some commenters to the proposed and interim final rules stated that 
the HazCom standard is not the type of standard Congress intended to 
fall within the scope of Sec. 101(a)(6)(A) of the Mine Act. They 
alleged that the legislative history of that section indicates that 
Congress intended the provision to authorize standards that would 
address specific limits for individual or classes of hazardous 
chemicals. In their opinion, because HazCom does not establish 
permissible exposure limits for the chemicals covered, the standard can 
only be promulgated under Sec. 101(a)(7). We disagree with these 
commenters.
    One of the findings made by Congress supporting the enactment of 
the Mine Act is the urgent need to provide more effective means and 
measures for improving the working conditions and practices in the 
Nation's mines to prevent death and serious physical harm to the 
miners. As stated previously, one of the means established by Congress 
to effectuate this statutory mandate is through the development of 
mandatory health and safety standards under Sec. 101(a)(6)(A) of the 
Mine Act.
    Section 101(a)(6)(A) applies to all mandatory standards involving 
toxic materials or harmful physical agents. It requires us to set 
standards to ensure that a miner will not suffer a material impairment 
of health or functional capacity as a result of exposure to the hazard, 
even if the miner is exposed for his or her working life. It also 
requires us to consider the latest scientific data in the field, 
feasibility of the standard, and experience gained under this and other 
health and safety laws.
    Section 101(a)(7) requires that any health or safety standard 
promulgated under the authority of Sec. 101(a) of the Mine Act must 
prescribe the use of labels or other appropriate forms of warning, as 
are necessary, to ensure that miners are appraised of all hazards to 
which they are exposed, relevant symptoms and appropriate emergency 
treatment, and proper conditions and precautions of safe use or 
exposure.
    Contrary to commenters' allegations, the legislative history of the 
Mine Act does not state that the use of Sec. 101(a)(6)(A) is restricted 
to the promulgation of mandatory health standards that address specific 
limits for individual or classes of hazardous chemicals. The 
legislative history concerning Sec. 101(a)(6)(A) specifically states 
that:


    The Secretary's authority under this section includes not only 
the promulgation of standards covering individual substances but 
also standards covering classes or groups of substances. The 
Committee believes that ``generic'' standards of this kind may often 
provide more effective protection to miners. The committee believes 
that the overriding consideration in setting health standards 
dealing with toxic substances and harmful physical agents must be 
the protection of the health of miners. S. Conf. Rep. No. 95-181, 
95th Cong., 1st Sess. 21 (1977). [Emphasis added.]

Additionally, the legislative history of Sec. 101(a)(7) states that:

    The Secretary, in determining the most effective means of 
appraising [sic] miners of hazards, should bear in mind the 
diminished effectiveness that may result from excess labeling, and 
should consider other means of informing miners of hazards, such as 
safety and health training of requiring period briefings of miners. 
Id. at 22. [Emphasis added.]

Both Sec. 101(a)(6)(A) and Sec. 101(a)(7) work in conjunction to 
identify and reduce a specific risk. In HazCom, the identified risk is 
miners' lack of information regarding the hazards of chemicals they are 
exposed to at their workplace. By providing this information to miners, 
the standard is intended to reduce the incidence of chemically related 
injuries and illnesses in the mining industry.
    The information requirements of the HazCom standard provide basic 
protections for miners without the need to set specific permissible 
exposure limits. The provision of information under the HazCom 
standard, about the physical and health hazards of chemicals and 
protective measures designed to minimize those effects, are intended to 
reduce the incidence of chemical-source illnesses and injuries in the 
mining industry by modifying the behavior of mine operators and miners. 
The three information components in this standard (labels, MSDSs, and 
initial miner training) are all essential to the effective functioning 
of the HazCom program. The MSDS provides comprehensive technical 
information and serves as a reference document for exposed miners, as 
well as health professionals providing services to those miners. The 
labels provide a brief synopsis of the hazards of the chemicals and 
provide the first and most immediate source of information in the work 
area. Each component reinforces the other and all are directed not only 
at the identification of workplace chemicals, but also at the reduction 
of their hazards.
    The information provided under the standard will also help health 
and safety professionals provide better services to exposed miners. The 
ready availability of health and safety information, such as signs and 
symptoms of exposure, will aid medical surveillance and the early 
detection and treatment of illnesses and injuries. It also will help 
mine operators to make better decisions regarding exposure monitoring, 
process or exposure controls, and appropriate personal protective 
equipment.
    In sum, Sec. 101(a)(7) does not limit the Secretary's authority to 
promulgate a HazCom standard under Sec. 101(a)(6)(A). The fact that 
HazCom does not set exposure limits for hazardous chemicals and 
prescribes the use of labels and initial training to inform miners of 
the physical and health hazards of the chemicals they are exposed to in 
their work areas, does not alter our authority to promulgate the 
standard as a mandatory health and safety standard under 
Sec. 101(a)(6)(A) of the Mine Act.

B. Finding of Significant Risk

    Some commenters to the proposed and interim final rules stated that 
we must establish a significant risk for every chemical and mining 
sector covered under HazCom. They specifically stated that we have not

[[Page 42370]]

substantiated our general finding of significant risk because nothing 
in the rulemaking record or in the preamble to the interim final rule 
documents the relationship between HazCom's information collection and 
dissemination requirements and the reduction of alleged occupational 
risks miners face through exposure to hazardous chemicals.
    We continue to disagree with these commenters that we must 
establish a significant risk for every chemical and mining sector 
covered under HazCom. We also disagree with their statement that 
nothing in our rulemaking record or preamble to the interim final rule 
documents the relationship between HazCom's information collection and 
dissemination requirements and the reduction of occupational risks 
miners face through exposure to hazardous chemicals.
    As stated in the preamble to the interim final rule, HazCom is not 
a risk-based health standard for measuring exposures, requiring 
controls, or providing personal protective equipment. HazCom is an 
information standard intended to diminish risk by ensuring that 
operators provide miners with a level of knowledge that allows miners 
to reduce their exposures to hazardous chemicals by recognizing 
potential hazards and following safe work practices.
    HazCom is being promulgated to anticipate the possibility of harm 
or loss from chemical exposures and provide information on ways to 
avoid them. The standard does not regulate chemical use; does not 
prohibit or limit the use of chemicals in the mining industry; does not 
set exposure limits; and does not prescribe controls to reduce 
exposures. HazCom's effectiveness is dependent on the operator's and 
miner's knowledge and awareness of hazards. Like any information 
standard, it is through hazard identification and awareness that HazCom 
addresses the information needed to limit hazardous chemical exposure 
and prevents injuries and illnesses.
    It is clear from relevant court decisions involving OSHA's HCS, 
that a specific finding of significant risk is not required for a 
standard such as this, where the significant risk being regulated is 
that of inadequate knowledge. Section 101(a)(6)(A) of the Mine Act and 
Sec. 6(b)(5) \8\ of the Occupational Safety and Health Act (OSH Act) 
contain similar statutory language. Both statutory sections contain 
provisions indicating that mandatory standards must be designed to 
prevent ``material impairment of health or functional capacity * * *.''
---------------------------------------------------------------------------

    \8\ Section 6(b)(5) of the OSH Act states in part--
    The Secretary, in promulgating standards dealing with toxic 
materials or harmful physical agents under this subsection, shall 
set the standard which must adequately assure, to the extent 
feasible, on the basis of the best available evidence, that no 
employee will suffer material impairment of health or functional 
capacity even if such employee has regular exposure to the hazard 
dealt with by such standard for the period of his working life.
---------------------------------------------------------------------------

    The Supreme Court has indicated, in discussing significant risk of 
material impairment of health in the context of litigation under 
Sec. 6(b)(5) of the OSH Act, that the significant risk determination 
constitutes a finding that, absent the change in practices mandated by 
the standard, the workplaces in question would be ``unsafe'' in the 
sense that workers would be threatened with a significant risk of harm. 
[Industrial Union Dept. v. American Petroleum Institute, 448 U.S. 607, 
642 (1980)(Benzene)]. This finding, however, does not require 
mathematical precision or anything approaching scientific certainty if 
the ``best available evidence'' does not warrant that degree of proof. 
[Id. at 655-656]. Rather, the agency may base its findings largely on 
policy considerations, and the agency has considerable leeway with the 
kinds of assumptions it applies in interpreting the supporting data. 
[Id. at 656].
    As previously stated, we believe that lack of knowledge regarding 
the hazards of chemicals in the workplace increases a miner's risk of 
suffering a chemically related occupational illness or injury, because 
precautions and appropriate protective measures would only be taken 
when the presence of a chemical hazard is known. The 3rd Circuit Court 
in United Steelworkers of America v. Auchter, 763 F.2d 728, 735 (1985) 
(discussion of ``significant risk'' in Sec. 6(b)(5) of the OSH Act), 
concluded that as a threshold matter, the hazard communication rule is 
a Sec. 6 standard under the OSH Act which is aimed at correcting a 
particular ``significant risk'' in the workplace. The court 
specifically indicated that ``inadequate communication is itself a 
hazard, which the standard can eliminate or mitigate.''
    In Associated Builders & Contractors v. Brock, 862 F.2d 63 (1988), 
industry confronted the 3rd Circuit Court of Appeals with a similar 
argument involving the OSHA HCS and OSHA's general finding of 
significant risk. Industry argued that the standard was invalid because 
OSHA had promulgated it without a significant risk determination. 
Industry also claimed that OSHA needed to find a significant risk for 
each chemical covered and for each industry covered. The court 
disagreed with industry and ruled that the general significant risk 
finding for the original 1983 rule was appropriate for the entire 
manufacturing sector, and that it was also applicable to each of the 20 
major Standard Industrial Classification (SIC) Code manufacturing 
subdivisions [Id. at 67].
    The court also stated that OSHA was not required to determine 
significant risk for each chemical covered under the rule because the 
rule was not a substance based rule, but an information disclosure 
standard. The court concluded that--

    * * * for this performance-oriented information disclosure 
standard covering thousands of chemical substances used in numerous 
industries, the significant risk requirement must of necessity be 
satisfied by a general finding concerning all potentially covered 
industries. A requirement that the Secretary assess risk to workers 
and the need for disclosure with respect to each substance in each 
industry would effectively cripple OSHA's performance of the duty 
imposed on it by 29 U.S.C. 655(b)(5); a duty to protect all 
employees, to the maximum extent feasible. [Id. at 68]

    OSHA was not required to assess individually the significant risk 
that would be alleviated by the HCS's application to each of the 70 
major business classifications, much less for each of the hazardous 
substances used in those industries. Moreover, OSHA's application of 
the 1983 general finding of significant risk to the construction and 
grain processing and storage industries was upheld by the 5th Circuit 
in National Grain and Feed Association v. OSHA, 866 F.2d 717 (1989) 
(petition for review of OSHA's modified HCS as it applied to the 
construction and grain processing and storage industries).
    Because our HazCom rule is modeled on OSHA's HCS, and the Mine Act 
and OSH Act are similar with respect to the regulatory requirements for 
the promulgation of mandatory safety and health standards, we believe 
we have satisfied our statutory threshold of establishing significant 
risk with the general finding of risk presented in this preamble. Also, 
contrary to commenters' allegations, our rulemaking record clearly 
indicates that inadequate communication about serious chemical hazards 
endangers miners, and that the requirements of this standard are 
necessary and appropriate for the elimination or mitigation of these 
hazards.
    For example, the rulemaking record contains the National 
Occupational Health Survey of Mining (NOHSM) which NIOSH conducted 
between 1984 and 1989. In this survey, NIOSH examined almost 500 
individual mines

[[Page 42371]]

covering 70 commodities and about 60,000 miners. The NOHSM documented 
over 10,000 individual hazardous chemicals and mixtures of hazardous 
chemicals to which miners could be exposed. The NIOSH NOHSM report 
(September 1996) lists the 100 chemical substances with the highest 
projected number of miners potentially exposed. We used these data to 
develop Part VII as an addendum to this preamble. Part VII contains a 
list of 58 chemicals, to which 1,000 or more miners are projected to be 
exposed, and the acute and chronic health effects that can result from 
that exposure.
    In reviewing the data presented in Part VII, it is obvious that a 
large number of miners could be exposed to hazardous chemicals on their 
jobs and that many of these chemicals have serious acute health 
effects, as well as life-shortening, chronic health effects due to 
exposure. Based on our experience and the rulemaking record, we have 
determined that mine operators have not communicated to miners many of 
the potential hazards associated with chemicals. In many cases, the 
mine operators do not know what the chemical hazards are and, thus, 
cannot take into account the potential impact the use of a particular 
chemical may have on miners.
    Additionally, in considering this standard, MSHA reviewed reports 
of chemically related injuries and illnesses reported to the agency 
which are part of this rulemaking record. Those reports indicate that 
from January 1990 through December 1999, the mining industry reported 
over 2,500 chemical burns. More than 1,200 of these burns were lost 
work time cases. This same accident and injury data indicates more than 
400 poisonings.
    It is important to note that these chemically related injuries and 
illnesses data take into account only some of the acute effects 
reported as a result of chemical exposures. MSHA experience indicates 
that the health effects of some chemicals may contribute to the 
occurrence of injuries that are reported, but are not causatively 
linked to chemical exposures. For example, a miner was overcome while 
climbing down a ladder into a tank to retrieve his hard hat that had 
fallen off as he leaned over the tank opening. The resultant injury was 
reported as a ``fall of person.''
    The data do not include the chronic effects that can occur from 
chemical exposure for several reasons. First, lack of knowledge about 
health effects associated with chemical exposures contributes to the 
chronic under-reporting of occupational illnesses. Second, because of 
an incomplete or non-existent occupational history, physicians may 
misdiagnose an illness and treat symptoms of chemically related 
occupational illnesses without realizing that the cause is an 
occupational chemical exposure. Third, worker turnover also increases 
the likelihood that the link between a workplace chemical exposure and 
subsequent illness will be overlooked and will not be reported. This is 
particularly true for long-term health effects which develop over time, 
or after repeated exposures.
    Some commenters to the interim final rule claim that the above 
database does not support findings of significant risk because some 
entries in the database fall outside the scope of the regulation; 
others would not have been prevented by HazCom; and many would have 
been prevented by existing MSHA regulations. These comments are 
addressed fully in ``Reasons for Not Exempting Aggregate Producers'' in 
the introductory section of this preamble. We believe, however, that 
the above data understate the extent of the health and safety problems 
caused by chemicals in the workplace for the reasons cited above.
    Finally, testimony by miners, as well as industry representatives 
at the most recent public hearings includes numerous accounts of miners 
injured because of their lack of knowledge regarding the health effects 
of chemicals in their workplace. Several commenters testified regarding 
their personal experience with illnesses and diseases due to their 
exposure to hazardous chemicals. These commenters indicated that they 
could not protect themselves from these injuries and illnesses because 
they had not received adequate training regarding these substances' 
health effects, and the appropriate protective equipment which would 
have been appropriate to use to protect themselves from these adverse 
health effects.
    In sum, our rulemaking record clearly indicates that exposure to 
chemical hazards occurs in every type of mine with miners typically 
experiencing multiple exposures to different chemical hazards at one 
point of time, or over a long period of employment. Neither the record 
evidence nor policy considerations support commenters' argument that we 
should apply HazCom only where chemical exposures pose known 
significant risks.
    Chemicals pose myriad hazards to exposed miners that range from 
mild health effects, such as irritation, to serious health effects, 
such as blindness or even death. Some chemicals cause or contribute to 
chronic diseases, such as heart disease, kidney disease, sterility, or 
cancer. Many chemicals cause acute injuries or illnesses such as 
rashes, burns, and poisoning. Additionally, numerous chemicals pose 
physical hazards to miners by contributing to accidents like fires and 
explosions. Miners have an inherent right to know about hazardous 
chemicals at their workplaces, and a need to know how they can safely 
work with such chemicals, because they are at significant risk of 
experiencing adverse health or physical effects in the absence of such 
knowledge.
    Even inert substances can pose a hazard when mixed or heated. For 
example, calcium chloride has limited toxicological information 
available. Contact with skin or eyes may cause severe irritation or 
burns; dust may irritate nose and throat; ingestion may cause nausea 
and vomiting. The MSDS for the compound, however, lists its toxic 
decomposition products as chlorine fumes or hydrogen chloride. The 
final HazCom rule requires operators to instruct each miner about the 
physical and health hazards of chemicals in the miner's work area, 
protective measures that miners can take against these hazards, and the 
mine's HazCom program.
    We find that the risk of harm to miners will increase if operators 
allow a condition to develop that poses a significant risk of harm to 
miners, before providing the potentially exposed miners with chemical 
hazard information.
    We also find that the information collection and dissemination 
requirements of this rule will reduce the occupational risks that 
miners face through exposure to hazardous chemicals. The HazCom 
standard provides miners with the right to know the hazards and 
identities of the chemicals they are exposed to while working, as well 
as the measures they can take to protect themselves from these hazards. 
With this final rule, mine operators will now have the necessary 
information regarding the hazards of chemicals present at their mine, 
so that work methods can be improved or instituted to minimize exposure 
to these chemicals. Miners will have access to this information, so 
that they can take action to protect themselves.
    Some commenters stated that we failed to consider OSHA's experience 
under its HCS in promulgating HazCom. We disagree with these 
commenters. To the extent possible, we reduced the compliance burden on 
mine operators based on OSHA's experience and industry's experience 
under OSHA. We

[[Page 42372]]

believe that we addressed OSHA's experience in both the rule and our 
discussion in the preamble. We reviewed reports, OSHA letters of 
interpretation, compliance directives, court cases, and conferred with 
OSHA personnel, applying what we learned to HazCom. In promulgating 
HazCom, we considered among other things, OSHA's entire HCS rulemaking 
record; OSHA's compliance directives; National Advisory Committee on 
Occupational Safety and Health (NACOSH) reports of the Hazard 
Communication Workgroup; and a number of states' right-to-know laws. 
Moreover, we considered all comments submitted by the mining industry 
addressing our request for comments concerning their experience under 
the OSHA's HCS. In fact, some of the revisions in the interim and final 
HazCom rules such as electronic access to, content, and retention of 
MSDSs, reflect commenters suggestions based on their experience with 
OSHA's HCS.

C. Finding of Feasibility

    After we have determined that a significant risk exists and that 
such risk can be reduced or eliminated by a standard, Sec. 101 
(a)(6)(A) requires a determination of feasibility.
    The Mine Act and the OSH Act also have similar statutory 
requirements regarding ``feasibility.'' While Sec. 6(b)(5) of the OSH 
Act requires that standards assure, ``to the extent feasible, * * * 
that no employee will suffer material impairment of health or 
functional capacity,'' Sec. 101(a)(6)(A) of the Mine Act requires us to 
consider ``the feasibility of the standard * * *.''
    The legislative history of the Mine Act specifically cites 
feasibility cases decided under the OSH Act and strongly suggests that 
``feasibility'' principles applicable to OSHA standards are also 
applicable to our standards. [S. Rep. No. 95-181, 95th Cong., 1st Sess. 
21 (1977)]. The legislative history of the Mine Act specifically states 
that--

    In adopting the language of [this section], the Committee wishes 
to emphasize that it rejects the view that cost benefit ratios alone 
may be the basis for depriving miners of the health protection which 
the law was intended to insure. Id.

    Though the Mine Act and its legislative history are not specific in 
defining feasibility, the Supreme Court clarified its meaning in 
American Textile Manufacturers' Institute v. Donovan, 452 U.S. 490, 
508-509 (1981)(Cotton Dust), in discussing significant risk of material 
impairment of health in the context of litigation under Sec. 6(b)(5) of 
the OSH Act. In that case, the Court defined the word ``feasible'' as 
``capable of being done, executed, or affected.'' The Court stated, 
however, that a standard would not be considered economically feasible 
if it threatened an entire industry's competitive structure. The Court 
also stated that in promulgating standards, agencies do not have to 
rely on hard and precise predictions regarding feasibility. They need 
only base their projections on reasonable inferences drawn from 
existing facts. Thus, to establish the economic and technological 
feasibility of a new rule, we must assess the likely range of costs 
that it will impose on mines, and show that a reasonable probability 
exists that a typical mine will be able to meet the standard.
    We received numerous comments on the burden and cost of this 
standard. In general, commenters claimed that HazCom was unnecessarily 
burdensome in that compliance requires a continuing time and paperwork 
demand with little or no effect on reducing hazards. We address these 
comments in Part IV (The Regulatory Flexibility Act, the Small Business 
Regulatory Enforcement Fairness Act, and Executive Order 12866) and 
Part V (Paperwork Reduction Act) of this preamble.
    The rulemaking record does not contain credible evidence that 
HazCom would be technologically or economically infeasible for the 
mining industry. On the contrary, the record contains substantial 
evidence of feasibility. In fact, testimony presented by industry at 
the most recent public hearings indicates that some operators on their 
own initiative have established programs that meet HazCom's provisions 
and goals, and have integrated OSHA's HCS requirements into the work 
practices at their mines.
    We conclude that all of the administrative requirements contained 
in the HazCom standard can be merged economically into present 
practices. HazCom gives mine operators wide latitude with both 
individual requirements and optional compliance measures. The 
informational provisions of HazCom are capable of being done and will 
not threaten the viability or long-term profitability of the mining 
industry. The informational requirements contained in this final rule 
are not the types of obligations that approach the limits of 
feasibility. Also, this standard does not relate to activities on the 
frontiers of scientific knowledge. There are no technological barriers 
preventing implementation of the HazCom requirements because most of 
these requirements are accepted, common business practices that are 
administrative in nature. As previously stated, according to both 
comments and testimony to the proposed and interim final rules, some of 
these practices have already been implemented at certain mining 
operations.
    As estimated in our Regulatory Economic Analysis (REA) supporting 
this HazCom final rule, the mining industry will incur costs of about 
$7.8 million annually to comply with the final rule. These compliance 
costs, which represent much less than 1% (about 0.01%) of mining 
industry annual revenues of $57.9 billion, provide convincing evidence 
that the final rule is economically feasible.

D. Petitions for Modification

    As explained in the interim final rule, our classification of 
HazCom as both a safety and a health standard impacts whether operators 
or representative of miners can petition us for a modification. Under 
Sec. 101(c) of the Mine Act, operators or representatives of miners may 
petition us to modify the application of a mandatory safety standard, 
but not a health standard. Because the HazCom final rule is being 
promulgated as both a health and safety standard, operators may not 
petition us for a modification. One of the purposes of a petition for 
modification is to provide a mine operator with an alternative method 
of compliance. To allow as much compliance flexibility as possible, 
however, the final HazCom requirements already provide the mine 
operator with the following alternatives for compliance, among others.
    Temporary, portable containers. OSHA's HCS does not require the 
employer to label a temporary, portable container into which a 
hazardous chemical is transferred from a labeled container for the 
immediate use of the employee who performs the transfer. Under MSHA's 
HazCom standard, mine operators do not have to label the container if 
their miners know the identity, hazards, and protective measures for 
the chemical in the container, and leave the container empty at the end 
of the shift. Otherwise, mine operators must label the container, at 
least with the common name of its contents.
    Existing labels. Under HazCom's labeling requirements, pre-existing 
hazard labels that comply with the labeling requirements of another 
federal statute or standard are in compliance with the labeling 
requirements of HazCom.
    Inventory. HazCom will require mine operators to include in the 
HazCom program list or other record identifying all hazardous chemicals 
known to be at the mine. For compliance purposes, mine operators may 
compile the list for

[[Page 42373]]

the mine as a whole or for individual work areas. For example, if few 
chemicals are used in one work area, such as a mine's quarry, and many 
are used in another work area, such as its shop, the mine operator may 
decide to compile the list by individual work areas to avoid confusing 
the miners in the quarry who would have no exposure to most of the 
chemicals that would be on a mine's comprehensive list.

IV. The Regulatory Flexibility Act, the Small Business Regulatory 
Enforcement Fairness Act, and Executive Order 12866

    The Regulatory Flexibility Act (RFA) requires a regulatory agency 
to evaluate each proposed and final rule and to consider alternatives 
so as to minimize the rule's impact on small entities (businesses and 
local governments). Under the RFA, we must use the Small Business 
Administration's (SBA's) definition of a small entity in determining a 
rule's economic impact unless, after consultation with SBA, we 
establish a different definition.
    In the preamble to our HazCom proposed rule, we certified that this 
rule would not have a significant economic impact on a substantial 
number of small mining operations. The preamble also included a full 
discussion of the regulatory alternatives that we were considering and 
invited the public to comment.
    In 1996, Congress enacted the Small Business Regulatory Enforcement 
Fairness Act (SBREFA) amending the RFA. SBREFA requires a regulatory 
agency to include in the preamble to a rule the factual basis for that 
agency's certification that the rule has no significant impact on a 
substantial number of small entities. The agency then must publish the 
factual basis in the Federal Register, followed by an opportunity for 
public comment. Although SBREFA did not exist when we published the 
HazCom proposed rule, we published a notice re-opening the record in 
March 1999 to give you an opportunity to comment on the factual basis 
for our previous certification that the HazCom proposed rule would pose 
``no significant impact.''
    For the interim final rule, we determined that the rule would not 
have a significant impact on a substantial number of small entities, 
and we so certified that finding to the Small Business Administration. 
The factual basis for that certification was provided in the Regulatory 
Economic Analysis in support of the interim final rule.
    This final rule has been drafted and reviewed in accordance with 
Executive Order (E.O.) 12866, Sec. 1(b), Principles of Regulation. 
Executive Order 12866 requires a regulatory agency to assess both the 
costs and benefits of proposed and final rules and to complete a 
Regulatory Economic Analysis (REA) for any rule having major economic 
consequences for the national economy, an individual industry, a 
geographic region, or a level of government. We prepared a REA and 
Regulatory Flexibility Certification Statement to fulfill the 
requirements of the RFA and E.O. 12866. Based on our REA, we determined 
that this final rule is not an economically significant regulatory 
action pursuant to Sec. 3(f)(1) of E.O. 12866. Because it affects all 
mining operations, almost all of which are small businesses using SBA's 
definition of a small business, we determined that this final rule is 
significant under Sec. 3(f)(4) of E.O. 12866. This section defines a 
significant regulatory action as one that may--

    * * * Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
this Executive Order.

    The REA is available on request from MSHA, Office of Standards, 
Regulations, and Variances, 4015 Wilson Boulevard, Arlington, VA 22203 
or from our Internet home page at http://www.msha.gov.

A. Alternatives Considered

    In accordance with Sec. 604 of the RFA, we are including a 
discussion of the regulatory alternatives considered in developing this 
final rule. We used OSHA's HCS as a model for the proposed rule. For 
the final rule, we also considered suggestions from commenters to the 
proposed and interim final rules. At this stage of the rulemaking 
process, we did not consider alternatives to the rule, which we did at 
the ANPRM stage, but alternatives within the rule. In part, the limited 
impact of the final rule on small mines reflects our decision not to 
require more costly alternatives. Most of the alternatives suggested 
addressed the scope of the standard--what would be covered and what 
would be exempt. In response to comments, we did adopt several 
provisions that differ from the proposed rule or OSHA's HCS.
    (1) The proposed rule would have exempted hazardous waste regulated 
by EPA under the Resource Conservation and Recovery Act (RCRA) from 
both the labeling and MSDS provisions of HazCom. The interim final rule 
provided an alternative compliance option for the MSDS provision, but 
inadvertently left out the exemption for labeling. The final rule 
corrects this oversight and exempts hazardous waste regulated by EPA 
under RCRA from labeling. We determined that exempting EPA hazardous 
waste from the entire HazCom standard would put miners at risk of a 
potential injury or illness.
    (2) Consistent with the proposed and interim final rules, the final 
rule exempts the raw material being mined or milled from labeling while 
on mine property. OSHA's HCS does not address raw material being mined 
or milled on mine property.
    (3) The proposed rule exempted from HazCom's labeling requirements 
certain categories of hazardous chemicals regulated and labeled under 
the authority and standards of other federal agencies. These include 
consumer products, hazardous substances, drugs, tobacco products, 
foods, food additives, and color additives which are labeled in 
accordance with the requirements of the Food and Drug Administration or 
the Department of Agriculture. The interim final rule extended these 
exemptions to the full scope of the rule rather than to labeling only. 
The final rule retains these exemptions but simplifies the conditions 
for exemption to when they are intended for personal consumption or 
use.
    (4) To be consistent with OSHA's HCS, the proposed, interim final 
and final rules included an exemption from labeling for hazardous 
substances that EPA or other federal agencies require to be labeled for 
hazards.
    (5) The proposed rule would have allowed you not to label 
temporary, portable containers of a hazardous chemical that was to be 
used only by the miner who transferred it from its labeled container. 
The final rule, consistent with the interim final rule, allows other 
miners to use the hazardous chemical from the unlabeled container if 
you ensure that all miners know the chemical's identity, its hazards, 
and protective measures; and that you ensure the container is left 
empty at the end of the shift. The final rule, however, also adds a new 
compliance alternative for labeling temporary, portable containers.
    (6) In the proposed rule, we would have required you to label 
containers of your hazardous product or provide a copy of the labeling 
information with the first shipment to an employer. The final rule does 
not require you to label your hazardous product for sale to customers 
who are employers. Rather, we require you to provide the label or 
labeling information and an MSDS when requested. This requirement in 
the final rule is the same as that in the interim final rule.

[[Page 42374]]

B. Consultation with SBA

    The RFA requires regulatory agencies to consult with SBA's Chief 
Counsel for Advocacy about regulations that have an impact on small 
entities. The RFA also requires us to use SBA's definition of a small 
entity in determining a rule's economic impact. To comply with this 
law, we consulted with SBA about this rule and our certification of no 
significant economic impact on small mines. For the mining industry, 
SBA defines small as a business with 500 or fewer employees (13 CFR 
121.201). Almost all of the coal and M/NM mines fall into this 
category. To establish an alternative definition for the mining 
industry, after consultation with SBA, we must publish that definition 
in the Federal Register providing an opportunity for public notice and 
comment.
    Traditionally, for regulatory purposes over the past 20 years, we 
have considered a mine ``small'' if it employs fewer than 20 miners and 
``large'' if it employs 20 or more. These small mines differ from 
larger mines not only in the number of employees, but also, among other 
things, in economies of scale in material produced, in the type and 
amount of production equipment, and in supply inventory. Typically, 
their costs of complying with the final rule and the impact of the 
final rule on them will also differ. It is for this reason that ``small 
mines,'' as traditionally defined by the mining community, are of 
special concern to us.
    For purposes of the REA and to comply with the RFA, we analyzed the 
impact of the final rule on mines using SBA's definition of ``small,'' 
as well as our traditional definition.

C. Compliance Costs

    We estimate that the total net yearly cost of the final HazCom rule 
(30 CFR part 47) will be about $7.8 million. Table 1 summarizes our 
estimate of the yearly costs by mine size and by major provision. These 
costs reflect first year (one-time, start-up) costs of $25.5 million 
and annually recurring costs of $6.1 million. HazCom will affect all 
coal and M/NM mines, some only insignificantly.

         Table 1.--Yearly Costs for HazCom Final Rule by Provision, Commodity, and Mine Size (x $1000)*
----------------------------------------------------------------------------------------------------------------
                                                                      Provision
                                               -------------------------------------------------------
                   Mine Size                     Written                           HazCom                Total
                                                 Program     Labels     MSDSs     Training    Access
----------------------------------------------------------------------------------------------------------------
                                     Coal Mines and Independent Contractors
----------------------------------------------------------------------------------------------------------------
<20...........................................       $465        $32       $291       $452       $196     $1,436
[ge]20........................................        262         52         86        319        136        846
----------------------------------------------------------------------------------------------------------------
                                  M/NM Mines and Independent Contractors (M/NM)
----------------------------------------------------------------------------------------------------------------
<20...........................................     $1,289        $76       $496     $1,204     $1,238     $4,303
[ge]20........................................        304         72         82        424        293      1,175
All Mining....................................      2,320        231        955      2,400      1,855     7,761
----------------------------------------------------------------------------------------------------------------
*Values are rounded.

D. Regulatory Flexibility Certification and Factual Basis

    Based on our analysis of costs and benefits in the REA, we certify 
that this HazCom final rule will not have a significant economic impact 
on a substantial number of small mining entities using either SBA's or 
our traditional definition of ``small.''
1. Derivation of costs and revenues
    In this final rule, both coal and M/NM mines must incur compliance 
costs. We examined the relationship between costs and revenues for the 
coal and M/NM mine sectors as two independent entities, rather than 
combining them into one category. All cost estimates in this preamble 
are presented in 2001 dollars.
    For this final rule, we estimated the one-time costs, annualized 
costs (one-time costs amortized over a specific number of years), and 
annual costs. One-time costs are those that are incurred once and do 
not recur. For example, the cost to develop a written procedural 
program occurs only once. For the purpose of this REA, we amortized 
one-time costs over an infinite life resulting in an annualized cost 
equal to 7% of the one-time cost. Converting one-time costs to 
annualized costs allows us to add them to annual costs in order to 
compute a combined yearly cost for the rule. Annual costs are those 
that normally recur annually. Three examples of annual costs are 
maintenance costs, operating expenses, and recordkeeping costs.
    Commenters on the interim final rule argued that MSHA had 
overestimated the percentage of mine operators, particularly larger 
operators and contractors, which are currently in compliance with 
OSHA's HCS and would already be in substantial compliance with MSHA's 
HazCom rule. In addition, commenters on the interim final rule argued 
that MSHA had failed to include costs for operators to obtain and 
assemble MSDSs and had underestimated the time required to comply with 
a variety of other provisions of MSHA's HazCom rule.
    Based on our review and in response to these comments, we have 
introduced three major sets of changes in the REA for the final HazCom 
rule. First, we re-examined and subsequently modified our estimates of 
compliance rates for all operator types for all ten mine size 
classifications.\9\ The most important changes were that we no longer 
assumed that all operators with more than 500 employees would be in 
substantial compliance with the final rule.\10\ We revised these non-
compliance rates as follows:
---------------------------------------------------------------------------

    \9\ See U.S. Department of Labor, Mine Safety and Health 
Administration, ``Compliance Rates by Mine Size and HazCom Provision 
for Mines and Contractors,'' December 12, 2001.
    \10\ MSHA's estimates of non-compliance rates were 0 percent in 
the interim final rule for all provisions, for all operators with 
more than 500 employees.

[[Page 42375]]



----------------------------------------------------------------------------------------------------------------
                                                             HazCom
                        Mine type                           program     Labels     MSDSs     Training    Access
                                                           (Percent)  (Percent)  (Percent)  (Percent)  (Percent)
----------------------------------------------------------------------------------------------------------------
Coal Mine................................................         10          5          5         30         75
M/NM Mine................................................         10          5          5          5          5
Coal Mine................................................         50         50         50         50        100
M/NM Contractor..........................................         50         50         50         50        100
----------------------------------------------------------------------------------------------------------------

    We also dramatically increased our estimates of the number of 
contractors not currently in compliance with the various provisions of 
the final rule.\11\ Second, we added costs to reflect the effort 
required by an operator to obtain and assemble physical copies of MSDSs 
or alternatively, under the option provided in the final rule, the 
effort required by an operator to establish access to MSDSs from an 
internet or commercial database. Third, in several instances, we 
increased our estimates of the time required for mine operators in 
specific size classes to comply with particular provisions of the final 
rule. These include time estimates for mine operators with more than 
500 employees for all provisions of the final rule (except the time for 
operators with an existing HazCom program to review their existing 
program) and time estimates for mine operators in other size classes to 
develop MSDSs and to prepare lesson materials for HazCom training.
---------------------------------------------------------------------------

    \11\ MSHA's estimates of contractor non-compliance rates 
increased by at least 44 percentage points for all mine size classes 
and all provisions relative to those in the interim final rule. See 
U.S. Department of Labor, Mine Safety and Health Administrator, 
``Compliance Rates by Mine Size and HazCom Provision for Mines and 
Contractors,'' December 12, 2001.
---------------------------------------------------------------------------

    In addition, because many operators will not have sufficient time 
to integrate HazCom training into their part 46 or part 48 training 
before the final rule takes effect, we have added first-year costs for 
current miners to attend initial HazCom training. The effect of these 
changes has been to increase MSHA's total compliance cost estimates 
from about $5.7 million yearly for the interim final rule to about $7.8 
million yearly for this final rule or, equivalently, from about $270 
per operator, including independent contractors, to about $370 per 
operator.
    Several commenters on both the proposed and the interim final rule 
also expressed their belief that we had underestimated the cost for 
operators to train miners and label containers and that the wage rates 
for conducting hazard evaluations should be two to three times higher 
than we estimated because consultants, not miners, would be conducting 
the evaluation. Nevertheless, we believe that the cost estimates in the 
REA supporting the final rule represent a reasonable approximation of 
the burden on operators for the following reasons.
    First, we have existing standards for training. We did not 
calculate a cost for miners to attend training (except, now, in the 
first year the rule takes effect) because the HazCom training can be 
accomplished during annual refresher training or task training, both of 
which require operators to cover health and safety hazards. Our recent 
final training rules, both the new part 46 and the modified part 48, 
allow operators more flexibility in developing training courses to meet 
the changing needs of the miners and the changing hazards of the mine 
environment. Also, we intend to allow mine operators to use relevant 
training conducted in compliance with other MSHA, federal, or state 
regulations to meet the HazCom training requirement of this part. Mine 
operators can also use relevant training conducted in compliance with 
this part to meet the comparable requirements of other parts of this 
chapter. This means that relevant training provided to miners under 
other MSHA standards, such as parts 46 and 48, OSHA, EPA, DOT, and 
state requirements, can be credited toward HazCom training. HazCom 
training costs include the time to develop a HazCom training course, 
time for the instructor to prepare the lesson, and the cost for 
training materials.
    Second, we have existing standards for labeling for metal/nonmetal 
mines and surface coal mines. We calculated only a small cost for 
labels because most hazardous chemicals are already labeled by the 
manufacturer or supplier before they are brought to the mine, and the 
HazCom rule exempts the raw materials being mined or milled from 
labeling. The small cost is for labeling storage tanks of bulk 
hazardous materials and portable transport containers, as necessary; 
for labeling containers of hazardous chemical mixtures produced and 
used at the mine; for labeling containers in underground coal mines; 
and for replacing damaged or missing labels.
    Third, 39 states have employee right-to-know laws. OSHA's HCS has 
had widespread impact on state right-to-know regulations and, 
indirectly, on the mining industry. All operators comply with some of 
the provisions of this final rule. Some independent contractors work in 
industries under OSHA jurisdiction, as well as in the mining industry, 
and some large companies have other businesses in industries under OSHA 
jurisdiction. These operators comply with some or most of the 
provisions of this final rule because of existing federal, state, or 
local regulations. A few operators comply because the state regulations 
also cover mining. Others comply voluntarily because of corporate 
policy.
    Finally, we are developing compliance aids to reduce the burden on 
operators, especially small operators. These include generic HazCom 
programs, generic training programs, training materials, and videos 
(some to help the operator develop a HazCom program and some to use in 
training the miner under the final rule and under parts 46 and 48). We 
will also provide training and compliance assistance through state 
grants, MSHA health specialists, and our Educational Field Services so 
that operators can understand and comply with the rule. MSHA's state 
grant recipients will be supporting HazCom through free training and 
program assistance. The benefit we see is that if operators develop 
their own programs to meet the unique needs of their operations, they 
will be better prepared to maintain it. We will help the mining 
community understand the requirements of this regulation before it goes 
into effect. Every first inspection after HazCom's publication will 
include HazCom outreach.
    Because of our commitment to help the mining industry, especially 
small operators, implement a HazCom program with minimum burden, we do 
not anticipate a need for them to hire consultants. We anticipate that 
the vast majority of hazard determinations will be made by reading the 
MSDS and label and acting accordingly. We have no definitive 
information about the use of consultants under OSHA's HCS, however, 
numerous training and information materials have been developed in 
response to OSHA's HCS. We know that the industry's trade associations 
have model HazCom

[[Page 42376]]

programs, generic MSDSs, and a number of aids developed for their 
members. Because we intend to have extensive outreach programs, 
particularly for small mine operators, and reduce the need for outside 
consultants, we assumed in our calculation of wage rates that miners 
will conduct the hazard determination rather than consultants.
    In determining revenues for coal mines, we multiplied mine 
production data (in tons) by the estimated price per ton of the 
commodity ($16.78 per ton in 2000). We obtained production data from 
our CM441 reports \12\ and the price estimates from the Department of 
Energy.\13\ Because we do not collect data on M/NM mine production, we 
took the total revenue generated by the M/NM industry ($40.2 billion) 
\14\ and divided it by the total number of employee hours to arrive at 
the average revenue of $70.45 per hour of employee production. We then 
took the $70.45 and multiplied it by the employee hours in specific 
size categories to arrive at the estimated revenues for the size 
category.
---------------------------------------------------------------------------

    \12\ MSHA's 2001 CM441 Report, cycle 1998/198.
    \13\ U.S. Department of Energy, Energy Information 
Administration, Coal Industry Annual 2000, January 2002, p. 206.
    \14\ U.S. Department of the Interior, U.S. Geological Survey, 
Mineral Commodity Summaries 2001, January 2001, p. 7.
---------------------------------------------------------------------------

2. Factual basis for certification
    Whether or not compliance costs impose a ``significant'' impact on 
small entities depends on their effect on the profits, market share, 
and financial viability of small mines. To address these issues, we had 
to determine whether compliance with HazCom will place small mines at a 
significant competitive disadvantage relative to large mines or impose 
a significant cost burden on small mines.
    The first step in this determination is to establish whether the 
compliance costs impose a significant burden on small mines in absolute 
terms. For this purpose, we began with a ``screening'' analysis of 
compliance costs relative to revenues for small mines. When estimated 
compliance costs are less than 1% of estimated revenues, we conclude 
that there is no significant impact on a substantial number of small 
entities. When estimated compliance costs approach or exceed 1% of 
revenue, we conclude that further analysis is needed.
    The second step in this determination is to establish whether 
compliance with the HazCom rule will impose substantial capital or 
first-year, start-up costs on small mines. Because financing is 
typically more difficult or more expensive to obtain for small mines 
than for large mines, initial costs may impose a greater burden on 
small mines than on large mines. HazCom, however, does not require 
engineering controls or other items requiring a substantial initial 
capital expenditure. The initial costs associated with HazCom are those 
necessary to develop and implement a HazCom program. Because this cost 
is well below 1% of revenues, we do not consider it to be significant.
    The third step in this determination is to establish whether there 
are significant economies of scale in compliance that place small mines 
at a competitive disadvantage relative to large mines. We investigated 
economies of scale by calculating whether compliance costs are 
proportional to mine employment. Although the annual compliance cost 
per miner is greater for small operations than for large, this 
difference is unlikely to provide strategic leverage because small 
mines generate over 95% of the revenues in their respective markets. 
Furthermore, total compliance costs will be greater, on average, for a 
large mine than for a small mine.
3. Results of screening analysis
    In all size categories, the cost of complying with the final rule 
is well below 1% of revenues.
     For coal operations with fewer than 20 miners, the 
estimated average yearly cost of the HazCom rule is $400 per operation, 
which is about 0.24% of the average annual revenue per operation.
     For coal operations with 500 or fewer miners, the 
estimated average yearly cost of the HazCom rule is $481 per operation, 
which is about 0.02% of the average annual revenue per operation.
     For M/NM mines with fewer than 20 miners, the estimated 
average yearly cost of the HazCom rule is $334 per operation, which is 
about 0.05% of the average annual revenue per operation.
     For M/NM mines with 500 or fewer miners, the estimated 
average yearly cost of the HazCom rule is $361 per operation, which is 
about 0.01% of the average annual revenue per operation. As shown in 
Table 2, compliance costs represent only about 0.01% to 0.02% of the 
value of mine production.

                                Table 2.--Compliance Costs Compared to Revenue\*\
----------------------------------------------------------------------------------------------------------------
                                                                Average       Total        Total      Cost as %
                     Small mines (1-500)                        cost per   yearly cost    revenue     of revenue
                                                                  mine      (millions)   (millions)   (percent)
----------------------------------------------------------------------------------------------------------------
Coal........................................................         $481         $2.3      $15,093         0.02
M/NM........................................................          361          5.5       36,802        0.01
----------------------------------------------------------------------------------------------------------------
\*\Includes independent contractors and their employees.

    Because the cost of HazCom as a percentage of revenue is 
considerably less than 1%, we believe that this result, in conjunction 
with the previous analysis, provides a reasonable basis for the 
certification of ``no significant impact'' in this case.

E. Benefits

    In considering a HazCom standard, we reviewed chemically related 
injuries and illnesses reported to MSHA between January 1983 and June 
1999. During this period, the mining industry reported almost 4,700 
chemical burns crossing 57 commodities and 70 job classifications and 
involving exposures to chemicals at all sizes and types of mines. This 
same accident and injury data indicated more than 800 poisonings, 2,600 
eye injuries, and 2,100 cases of dermatitis or skin injury as a result 
of chemical exposures. These data only account for the acute effects of 
chemical hazards, not the chronic effects which we know exist.
    We conclude that miners face a significant risk from exposure to 
hazardous chemicals. We further conclude that compliance with this rule 
will prevent a substantial number of acute illnesses, injuries, and 
fatalities, as well as long term cancer cases.
    HazCom is an important means of ensuring that both operators and 
miners are aware of the chemical hazards to which they may be exposed 
at the mine. We anticipate that our HazCom standard will enhance both 
operator and miner awareness of the physical and health hazards 
associated with hazardous chemicals in such a way that both

[[Page 42377]]

parties will take positive steps to lower exposures, resulting in lower 
incidence of chemically related injuries and illnesses. Also, if the 
miner and operator know the potential health effects from exposure to a 
chemical, they can forewarn their doctor to watch for signs and 
symptoms of exposure and further reduce the risk of injury by obtaining 
early diagnosis and treatment.
    Based on our review and analysis of the available data, we estimate 
that compliance with this rule will prevent one fatality every four 
years, beginning when the rule takes effect, as well as an annual 
average of 57 chemically related acute injuries and illnesses (15 in 
coal mines and 42 in M/NM mines). Of these 57 injuries and illnesses, 
32.5 will result in 392 lost workdays and 24.8 will not require lost 
workdays.
    In addition, we expect that HazCom will prevent a total of 50 
cancer deaths (16 in coal and 34 in M/NM) from year 11 through year 20 
after promulgation and 9.4 cancer deaths every year thereafter.

V. Paperwork Reduction Act

    When we published the HazCom proposed rule in 1990, its information 
collection and paperwork requirements were not an information 
collection burden under the 1980 Paperwork Reduction Act because they 
were third-party disclosures. In August 1995, the Office of Management 
and Budget (OMB) published its final rule (60 FR 44978) implementing 
the new Paperwork Reduction Act of 1995 (PRA 95). These OMB rules 
expanded the definition of information to clarify that PRA 95 also 
covers agency rules that require businesses or individuals to maintain 
information for the benefit of a third-party or the public, rather than 
the government. The requirements for information collection and 
dissemination in HazCom are now an information collection burden 
because of this expanded definition. Most of the provisions in this 
HazCom final rule fit this definition: Secs. 47.2, 47.31, 47.32, 47.41, 
47.42, 47.43, 47.44, 47.51, 47.52, 47.53, 47.54, 47.55, 47.71, 47.72, 
47.73, 47.81, 47.82, 47.83, 47.84, 47.85, 47.86, and 47.87. The HazCom 
training provisions that appeared in the interim final rule 
(Secs. 47.51, 47.52, 47.53) have been moved to 30 CFR parts 46 and 48 
and do not pose an additional paperwork burden. The final rule also 
removes the labeling requirements from existing Secs. 56.16004, 
57.16004, and 77.208, and adds conforming amendments to parts 46 and 48 
for subsequent HazCom training. We submitted the interim final rule to 
OMB for its review and approval under Sec. 3507 of PRA 95. OMB approved 
the information collection provisions for MSHA's Hazard Communication 
Interim Final Rule, 30 CFR part 47, under OMB Control No. 1219-0133, 
contingent on our addressing the comments. This approval expires on May 
31, 2002.
    Description of requirements. HazCom is primarily an information 
collection and dissemination rule. The annual information collection 
burden includes the time to inventory chemicals, determine the hazards 
of chemicals present, develop a HazCom program, develop or obtain 
labels or MSDSs as necessary, prepare training materials, provide 
initial training to current miners, and provide copies of HazCom 
materials. The information collection and paperwork burden encompasses 
each section of this part, as summarized in Table 3.

       Table 3.--Description of Information Collection Provisions
------------------------------------------------------------------------
             Provision                  Information collection burden
------------------------------------------------------------------------
Written HazCom Program............  Prepare, administer, and review
                                     annually; determine hazards of
                                     chemicals; list hazardous chemicals
                                     at the mine.
Labels or other warnings..........  Prepare for hazardous chemicals
                                     produced; maintain legibility and
                                     accuracy.
Material Safety Data Sheets.......  Develop for hazardous chemicals
                                     produced; obtain for other
                                     hazardous chemicals; maintain
                                     availability and accuracy.
Training Program..................  Develop or obtain training courses
                                     and materials; conduct initial
                                     training for miners; administer
                                     program.
Copies of HazCom information......  Distribute written HazCom program
                                     information to miners, HazCom
                                     designated representatives, and
                                     customers when requested;
                                     distribute to other operators.
------------------------------------------------------------------------

    All written information can be either paper or electronic format 
provided that you meet access requirements.
    Description of respondents. The respondents are operators, 
including independent contractors. The final HazCom rule will be 
applicable to all 21,166 operations under MSHA jurisdiction: 2,459 
surface and underground coal mines; 3,801 coal contracting firms; 
11,337 surface and underground metal and nonmetal (M/NM) mines; and 
3,569 M/NM contracting firms.
    The percentage of mines complying with a specific HazCom 
requirement varies depending on the type of mine and the specific 
provision. For example, some mines label containers and keep MSDSs, but 
do not have a written program or provide HazCom information to miners. 
As a matter of corporate policy or to comply with state hazard 
communication or right-to-know laws, most existing HazCom programs are 
modeled on OSHA's HCS. For these reasons, we believe that operators can 
adjust their existing programs to comply fully with HazCom with little 
effort and few resources.
    We assumed that many independent contractors conduct some work at 
locations under OSHA jurisdiction and would have an existing hazard 
communication program. The contractor's program, however, may need 
modification for a particular mine. The magnitude of the burden for any 
individual mine operator or independent contractor, therefore, will 
vary greatly by the size, type, and location of the operation.
    Information Collection Burden. The greater portion of HazCom's 
burden accrues when the operator is developing and implementing the 
program. The first-year only information collection burden for coal 
mine operators, including independent contractors, will be 162,240 
burden hours, and the associated burden hour costs will be $6,350,339 
($444,524 in annualized terms). The annual information collection 
burden for coal mine operators, including independent contractors, will 
be 62,249, and the associated burden hour costs will be $1,909,557. The 
first-year only information collection burden for M/NM mine operators, 
including independent contractors, will be 320,244 burden hours, and 
the associated burden hour costs will be $11,494,762 ($804,633 in 
annualized terms). The annual information collection burden for M/NM 
mine operators, including independent contractors, will be 149,287, and 
the

[[Page 42378]]

associated burden hour costs will be $3,870,336.
    The final rule does not require records for initial miner training 
and 30 CFR parts 46 and 48 already requires training records. This 
change from the interim final rule results in a reduction in the 
information collection and paperwork burden of the final rule.

VI. Other Regulatory Considerations

    We recognize that the mining industry has changed since 1990 when 
we developed the Preliminary Regulatory Impact Analysis (PRIA) and 
published the HazCom proposed rule. Most of the changes, however, 
decreased the impact of HazCom on the mining industry. For example, the 
number of mines and miners has decreased while the number of 
independent contractors has increased. Independent contractors are more 
likely than mines to have an existing hazard communication program 
because they are more likely to work in operations under OSHA 
jurisdiction, as well as in mines under MSHA jurisdiction. Similarly, 
more mines have a hazard communication program now than in 1990 because 
the parent company also has operations in industries subject to OSHA's 
HCS, or the mine is located in a state with a state right-to-know law 
that covers mining. We believe that these existing programs decrease 
the economic impact of the HazCom rule on the mining industry.
    Another change that affects the hazard communication environment is 
increased public awareness due to the length of time that the OSHA HCS 
has been in effect. There is an abundance of hazard communication 
information, supplies, training, and training aids readily available to 
the public off-the-shelf or through the Internet.
    On March 30, 1999, we re-opened the rulemaking record (64 FR 15144) 
for the limited purpose of receiving comments on several regulatory 
mandates, some of which were not in existence when the Agency published 
the hazard communication proposed rule in 1990. Current statutory 
mandates and Executive Orders require the Agency to evaluate the impact 
of a regulatory action on small mines; on the environment; on 
expenditures by state, local, and tribal governments (Unfunded 
Mandates); on constitutionally protected property rights; on the 
federal court system; on children; on federalism; on Indian tribal 
governments; and on energy.

A. The National Environmental Policy Act of 1969

    The National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et 
seq.) requires each federal agency to consider the environmental 
effects of its actions. NEPA also requires an agency to prepare an 
Environmental Impact Statement for major actions significantly 
affecting the quality of the environment. We have reviewed the HazCom 
final rule in accordance with the requirements of NEPA, the regulations 
of the Council on Environmental Quality (40 CFR part 1500), and the 
Department of Labor's NEPA regulations (29 CFR part 11). As a result of 
this review, we have determined that this final rule has no significant 
environmental impact.

B. Unfunded Mandates Reform Act of 1995

    For purposes of the Unfunded Mandates Reform Act of 1995, this rule 
does not include any federal mandate that may result in increased 
expenditures by state, local, and tribal governments in the aggregate 
of more than $100 million annually, or increased expenditures by the 
private sector of more than $100 million annually.

C. Executive Order 12630: Government Actions and Interference With 
Constitutionally Protected Property Rights

    The HazCom final rule is not subject to Executive Order 12630 
because it does not involve implementation of a policy with takings 
implications.

D. Executive Order 12988: Civil Justice Reform

    We have reviewed Executive Order 12988 and determined that the 
HazCom final rule will not unduly burden the federal court system. We 
wrote the final rule to provide a clear legal standard for affected 
conduct and have reviewed it carefully to eliminate drafting errors and 
ambiguities.

E. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    We have evaluated the environmental safety and health effects of 
the HazCom final rule on children and have determined that the final 
rule will have no disproportionate effect on children. HazCom is a 
health and safety information standard. It does not set exposure limits 
or require controls. It can, however, benefit children indirectly. One 
commenter to the re-opened record supported the interim final rule 
stating that--
     Parents exposed to a genotoxic material could have their 
reproductive genes damaged which, in turn, could result in miscarriages 
or congenital or developmental impairments in their children;
     Parents could bring home hazardous chemicals on their 
clothing or their person which could result in children being injured 
by contact with the parent; and
     If parents knew that a chemical could adversely affect 
their children, they would take more precautions to prevent their own 
and their children's exposures.

F. Executive Order 13132: Federalism

    We have reviewed this rule in accordance with Executive Order 13132 
regarding federalism, and have determined that it does not have 
``federalism implications.'' The rule does not--

    * * * have substantial direct effects on the States, on the 
relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various 
levels of government.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    We certify that the final rule does not impose substantial direct 
compliance costs on Indian tribal governments. Further, MSHA provided 
the public, including Indian tribal governments which operated mines, 
the opportunity to comment on the interim final rule. No Indian tribal 
government applied for a waiver or commented on the interim final rule.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    In accordance with Executive Order 13211, we have reviewed the 
final HazCom rule for its energy impacts. The rule has no effect on the 
distribution or use of energy. The only impacts of the rule on the 
supply of energy would be through its effect on the price of coal or 
the production of coal. Impacts of the rule on metal/nonmetal mines do 
not affect the supply of energy.
    The final rule has no direct effects on the production of coal. The 
rule does not prevent the mining of particular coal deposits, nor does 
the rule require coal deposits to be mined at a slower pace. The only 
impacts of the rule on coal mine production are indirect, via the cost 
or price of coal.
    The estimated annual cost of the final rule for the coal mining 
industry is $2.3 million.\15\ The annual revenues of the coal mining 
industry in 2000 were

[[Page 42379]]

$17,663,646,512.\16\ The cost of the rule for the coal mining industry 
is 0.01% of revenues. Even if we were to suppose that the increased 
cost caused by the rule would be fully reflected in coal prices, the 
impact would be negligible.
---------------------------------------------------------------------------

    \15\ Estimate obtained from Table IV-1 of the Regulatory 
Economic Analysis.
    \16\ Data for revenues derived from: U.S. Department of Labor, 
Mine Safety and Health Administration, Office of Standards, 
Regulations, and Variances, based on 1998 Final MIS data (quarter 1-
quarter 4), CM441, cycle 1998/198; and U.S. Department of Energy, 
Energy Information Administration, Annual Energy Review 1998, DOE/
EIA-0384(98), July 1999, p. 203.
---------------------------------------------------------------------------

    Accordingly, we have determined that the final HazCom rule has no 
significant adverse effect on the supply, distribution, or use of 
energy. Therefore, no reasonable alternatives to this action are 
necessary.

VII. Addendum: Physical and Health Effects of Chemical Substances 
Normally Used by Miners

    In Appendix O of its National Occupational Health Survey of Mining 
(NOHSM) report, NIOSH projects the number of miners potentially exposed 
to various chemicals, not including the number of workers employed in 
the corresponding mineral commodity's mining industry. An asterisk (*) 
identifies those chemicals where the number of miners exposed does not 
include those who mine the listed chemical commodity. The following is 
a list of chemicals for which NIOSH projected more than 1,000 miners 
potentially exposed and their health effects. We found the listed 
health effects for most of these substances on material safety data 
sheets (MSDSs) available free on the Internet. The number in 
parentheses is the projected number of miners potentially exposed.

Common Chemical Hazards in Mining

    Acetic Acid (1,066) Irritation of eyes, skin, nose, throat; eye, 
skin burns; skin sensitization; black skin, hyperkeratosis; dental 
erosion; conjunctivitis, lacrimation (discharge of tears); pharyngeal 
edema, chronic bronchitis.
    Acetone (1,013) Irritation of eyes, nose, throat; dermatitis; 
headache, dizziness, central nervous system depressant, depression.
    Acetylene (66,665) Headache, dizziness; asphyxia; frostbite 
(liquid).
    Aluminum Sulfate (2,527) Health hazard acute and chronic: acute: 
irritation of eyes, skin and liquid alum is an acidic salt that can 
irritate the eyes, skin, open wounds and mucous membranes. Inhalation 
of mists can be irritating to the Respiratory tract and lungs. Chronic 
overexposure signs/symptoms of overexposure: health hazard: Cause 
contact dermatitis.
    Ammonium Hydroxide (1,452) Inhalation: Vapors and mists cause 
irritation to the respiratory tract. Higher concentrations can cause 
burns, pulmonary edema and death. Brief exposure to 5000 ppm can be 
fatal. Ingestion: Toxic! May cause corrosion to the esophagus and 
stomach with perforation and peritonitis. Symptoms may include pain in 
the mouth, chest, and abdomen, with coughing, vomiting and collapse. 
Ingestion of as little as 3-4 mL may be fatal. Skin Contact: Causes 
irritation and burns to the skin. Eye Contact: Vapors cause irritation. 
Splashes cause severe pain, eye damage, and permanent blindness. 
Chronic Exposure: Repeated exposure may cause damage to the tissues of 
the mucous membranes, upper respiratory tract, eyes and skin. 
Aggravation of Pre-existing Conditions: Persons with pre-existing eye 
disorders or impaired respiratory function may be more susceptible to 
the effects of this material.
    Ammonium Nitrate (4,333) Inhalation: May cause irritation to the 
respiratory tract; symptoms may include coughing, sore throat, and 
shortness of breath. At high temperatures, exposure to toxic nitrogen 
oxides decomposition products can quickly cause acute respiratory 
problems. Inhalation of large amounts causes systemic acidosis and 
abnormal hemoglobin. Ingestion: Large oral doses of nitrates may cause 
dizziness, abdominal pain, vomiting, bloody diarrhea, weakness, 
convulsions, and collapse. Harmful if swallowed. May cause 
methemoglobinemia resulting in cyanosis. Skin Contact: Causes 
irritation to skin. Symptoms include redness, itching, and pain. Eye 
Contact: Causes irritation, redness, and pain. Chronic Exposure: Small 
repeated oral doses of nitrates may cause weakness, depression, 
headache, and mental impairment.
    Argon (1,587) Argon is odorless and nontoxic, but may produce 
suffocation by diluting the concentration of oxygen in air below levels 
necessary to support life. Personnel, including rescue workers, should 
not enter areas where the oxygen concentration is below 19%, unless 
provided with a self-contained breathing apparatus or airline 
respirator. Exposure to oxygen-deficient atmospheres may produce 
dizziness, nausea, vomiting, loss of consciousness, and death. Death 
may result from errors in judgement, confusion, or loss of 
consciousness which prevents self rescue. At low oxygen concentrations 
unconsciousness and death may occur in seconds without warning. 
Extensive tissue damage or burns can result from exposure to liquid 
argon or cold argon vapors.
    95% Argon 5% Oxygen (5,516) Asphyxiant: Effects are due to lack of 
oxygen. Moderate concentrations may cause headache, drowsiness, 
dizziness, excitation, excess salivation, vomiting, and 
unconsciousness. Lack of oxygen can kill.
    75% Argon 25% Carbon Dioxide (8,493) The main health hazard 
associated with this gas is asphyxiation by displacement of oxygen. If 
the concentration of carbon dioxide (a component of this gas mixture) 
reaches 10% or more, suffocation can occur within minutes. At 
concentrations between 2-l0%, carbon dioxide can cause nausea, 
dizziness, headache, mental confusion, and increased blood pressure and 
respiratory rate. Moisture in the air could lead to the formation of 
carbonic acid, which can be irritating to the eyes and skin.
    Calcium Chloride (10,513) Contact with skin or eyes may cause 
severe irritation or burns; dust may irritate nose and throat. Toxic 
gas produced: hydrogen chloride. Ingestion: May cause nausea and 
vomiting.
    Calcium Hydroxide (2,411) Irritation eyes, skin, upper respiratory 
system; eye, skin burns; skin vesiculation; cough, bronchitis, 
pneumonia.
    Calcium Oxide (4,252) Irritation eyes, skin, upper respiratory 
tract; ulcer, perforation nasal septum; pneumonia; dermatitis.
    Carbon Dioxide (2,054) Headache, dizziness, restlessness, 
paresthesia; dyspnea (breathing difficulty); sweating, malaise (vague 
feeling of discomfort); increase(d) heart rate, cardiac output, blood 
pressure; coma; asphyxia; convulsions; frostbite (liquid, dry ice)
    Carbonic Acid, Monosodium Salt (1,454) Not Available (disodium salt 
MSDS is available).
    Carbonic Acid, Disodium Salt (2,729) Inhalation: dust may cause 
irritation to respiratory tract. Known to cause damage to nasal septum. 
Ingestion: only slightly toxic, but large doses may be corrosive to GI 
tract. Signs/symptoms of overexposure: skin: excessive contact may 
cause irritation w/Blistering and redness. Solutions may cause severe 
irritation or burns. Eye: contamination may be corrosive to eyes and 
cause conjunctivitis. Edema and corneal destruction. Chronic: prolonged 
or repeated skin exposure may cause sensitization.
    Carbonic Acid, Dithio, o-Pentyl Ester, Potassium Salt (1,084) Not 
Available (o-ethyl MSDS is available).
    Chloroprene (1,558) Health Hazard Acute And Chronic: Inhalation: 
central nervous system. Vapor emitted during

[[Page 42380]]

processing above 200c are highly irritating causing soreness in eyes, 
nose and throat. Ingestion: central nervous system and severe stomach 
distress. Eyes: irreversible damage. Skin: irritation. Signs/symptoms 
of overexposure: inhalation: headaches, drowsiness, lack of 
coordination. Skin: redness, itching; in severe cases, blisters. Don't 
induce vomiting. Eyes: flush with water for 15 min. Skin: wash 
thoroughly w/soap and water. Obtain medical attention in all cases.
    Coal* (11,193) Chronic bronchitis, decreased pulmonary function, 
emphysema.
    Coke (Petroleum) (1,887) or Coke (1,561) Eye: Dusts may be abrasive 
and irritating to the eyes and cause stinging, watering, and redness. 
Skin: Dusts may be abrasive and mildly irritating to the skin. No 
harmful effects from skin absorption are expected. Inhalation 
(Breathing): Low degree of toxicity by inhalation. Ingestion 
(Swallowing): No harmful effects expected. Signs and Symptoms: Repeated 
overexposure to dusts may result in irritation of the respiratory 
tract, pneumoconiosis (dust congested lungs), pneumonitis (lung 
inflammation), coughing and shortness of breath. Pre-Existing Medical 
Conditions: Conditions aggravated by exposure may include skin and 
respiratory (asthma-like) disorders. (See above.)
    Denatured Alcohol (1,091) Inhalation: Causes irritation to the 
respiratory tract. Symptoms may include coughing, shortness of breath. 
Prolonged exposures to high concentration may cause drowsiness, loss of 
appetite, and inability to concentrate. Ingestion: Cause headaches, 
gastritis, intoxication, blindness and, in acute cases, death. Skin 
Contact: Causes skin irritation, cracking or flaking due to dehydration 
and defatting action. Eye Contact: Can cause eye irritation. Splashes 
may cause temporary pain and blurred vision. Chronic Exposure: 
Prolonged skin contact causes drying and cracking of skin. May affect 
the nervous system, liver, kidneys, blood, G.I. tract and reproductive 
system. Continued ingestion of small amounts could result in blindness. 
Aggravation of Pre-existing Conditions: Persons with pre-existing skin 
disorders or eye problems or impaired liver or kidney function may be 
more susceptible to the effects of the substance.
    Dichloro, Difluoro-Methane (1,178) Dizziness, tremor, asphyxia, 
unconsciousness, cardiac arrhythmias, cardiac arrest. Liquid: 
frostbite.
    Diesel Fuel, NEC (2,664) Central Nervous System (CNS) depression; 
possible irritation of eyes, nose, and lungs; and dermal irritation. 
Signs of kidney and liver damage may be delayed.
    Diesel Fuel, No. 1 (16,852) Central nervous system depression; 
possible irritation of eyes, nose, and lungs; dermal irritation; 
delayed signs of kidney and liver damage.
    Diesel Fuel, No. 2 (109,097) Central nervous system depression; 
possible irritation of eyes, nose, and lungs; dermal irritation; 
delayed signs of kidney and liver damage.
    Gasoline (3,901) Irritation eyes, skin, mucous membrane; 
dermatitis; headache, fatigue, blurred vision, dizziness, slurred 
speech, confusion, convulsions; chemical pneumonia (aspiration liquid); 
possible liver, kidney damage; [Potential occupational carcinogen].
    Gasoline, Leaded (19,893) Headache; nasal and respiratory 
irritation; drowsiness, fatigue; pneumonitis, pulmonary edema; central 
nervous system depression; and kidney damage. Long-term exposure to 
rats has resulted in kidney cancer. Regular leaded gasoline contains 
lead. Lead can be a cumulative poison.
    Gasoline, Unleaded (30,811) Eyes, skin, respiratory system, central 
nervous system, liver, kidneys.
    Graphite (1,420) Cough, dyspnea (breathing difficulty), black 
sputum, decreased pulmonary function, lung fibrosis.
    Gypsum* (6,701) Irritation eyes, skin, mucous membrane, upper 
respiratory system; cough, sneezing, rhinorrhea (discharge of thin 
nasal mucous).
    Hydrogen Chloride (4,578) Irritation nose, throat, larynx; cough, 
choking; dermatitis; solution: eye, skin burns; liquid: frostbite; in 
animals: laryngeal spasm; pulmonary edema.
    Fe, Iron (1,079) Inhalation: May cause irritation to the 
respiratory tract. Symptoms may include coughing and shortness of 
breath. Ingestion: Extremely large oral dosages may produce 
gastrointestinal disturbances. An overdose of iron may cause vomiting, 
abdominal pain, bloody diarrhea, vomiting blood, lethargy, and shock. 
In severe cases, toxicity may progress and develop into an increase in 
acidity in the blood, bluish skin discoloration, fever, liver damage, 
and possibly death. Skin Contact: No adverse effects expected. Eye 
Contact: May cause irritation, redness and pain. Eye contact may cause 
conjunctivitis and deposition of iron particles can leave a ``rust 
ring'' or brownish stain on the cornea. Chronic Exposure: Long-term 
inhalation exposure to iron has resulted in mottling of the lungs, a 
condition referred to as siderosis. This is considered a benign 
pneumoconiosis and does not ordinarily cause significant physiological 
impairment. Ingestion of greater than 50 to 100 mg of iron per day may 
result in pathological iron deposition in body tissues. Repeated iron 
ingestion can produce cardiac toxicity. Aggravation of Pre-existing 
Conditions: Persons with impaired respiratory function may be more 
susceptible to the effects of the substance.
    Iron Ore* (1,410) Dust may be harmful if inhaled.
    Iron Oxide (Fe3O4) (2,423) Benign 
pneumoconiosis with X-ray shadows indistinguishable from fibrotic 
pneumoconiosis (siderosis).
    Iron Scale (1,455) Caustic.
    Kerosene (10,712) Irritation of eyes, skin, nose, throat; 
dermatitis; headache, nausea, weakness, restlessness, lack of 
coordination, confusion, drowsiness; vomiting, diarrhea; burning 
sensation in chest; chemical pneumonia (aspiration of liquid).
    Lignin Sulfonate (1,719) MSDS could not be found.
    Limestone* (8,918) Irritation of eyes, skin, mucous membrane; 
cough, sneezing, rhinorrhea (discharge of thin nasal mucous); 
lacrimation (discharge of tears).
    Magnetite (2,668) Eye: May cause eye irritation. Exposure to iron 
particles may cause toxic effects. Skin: May cause skin irritation. 
Ingestion: May cause gastrointestinal irritation with nausea, vomiting 
and diarrhea. The toxicological properties of this substance have not 
been fully investigated. Inhalation: May cause respiratory tract 
irritation. Inhalation of fumes may cause metal fume fever, which is 
characterized by flu-like symptoms with metallic taste, fever, chills, 
cough, weakness, chest pain, muscle pain and increased white blood cell 
count. The toxicological properties of this substance have not been 
fully investigated. Chronic: No information found.
    Methyl Acetylene-Propadiene Mixture (1,215) Inhalation: short term 
exposure: difficulty breathing, drowsiness, symptoms of drunkenness, 
disorientation. Long term exposure: no information on significant 
adverse effects. Skin contact: short term exposure: blisters, 
frostbite. Long term exposure: no information is available. Eye 
contact: short term exposure: irritation, blurred vision. Long term 
exposure: no information is available. Ingestion: short term exposure: 
frostbite. Long term exposure: no information is available.
    Methyl Alcohol (1,504) Irritation eyes, skin, upper respiratory 
system;

[[Page 42381]]

headache, drowsiness, dizziness, vertigo (an illusion of movement), 
lightheadedness, nausea, vomiting; visual disturbance, optic nerve 
damage (blindness); dermatitis.
    Methyl Chloroform (4,412) Irritation eyes, skin; headache, 
lassitude (weakness, exhaustion), central nervous system depressant/
depression, poor equilibrium; dermatitis; cardiac arrhythmias; liver 
damage.
    Methyl Isobutyl Carbinol (1,039) Irritation of eyes, skin; 
dermatitis; headache, drowsiness; narcosis in animals.
    Mineral Oil (1,563) Inhalation: Causes irritation to the 
respiratory tract. Symptoms may include coughing, shortness of breath. 
Inhalation of mist or vapor may produce aspiration pneumonia. 
Ingestion: Material is a cathartic and can cause serious diarrhea. 
Nausea and vomiting may also occur and possibly abdominal cramping. 
Aspiration of mineral oil into the lungs can cause chemical pneumonia. 
Skin Contact: Prolonged contact may cause irritation; occasionally 
dermatitis due to hypersensitivity occurs. Eye Contact: Mists or fumes 
can irritate the eyes. Can cause discomfort similar to motor oil. 
Chronic Exposure: Prolonged or repeated skin exposure may cause 
dermatitis. Highly refined mineral oils are not classified as human 
carcinogens. However, related forms (untreated and mildly-treated oils) 
are listed as human carcinogens by both N.T.P. and IARC. Aggravation of 
Pre-existing Conditions: Persons with pre-existing skin disorders or 
impaired respiratory function may be more susceptible to the effects of 
the substance.
    Naphtha, Coal Tar (3,227) Irritation eyes, skin, nose; 
lightheadedness, drowsiness; dermatitis; in animals: liver, kidney 
damage.
    Natural Gas (8,040) Light hydrocarbon gases are simple asphyxiants 
which, at high enough concentrations, can reduce the amount of oxygen 
available for breathing. Symptoms of overexposure can include shortness 
of breath, drowsiness, headaches, confusion, decreased coordination, 
visual disturbances and vomiting, and are reversible if exposure is 
stopped. Continued exposure can lead to hypoxia (inadequate oxygen), 
cyanosis (bluish discoloration of the skin), numbness of the 
extremities, unconsciousness and death. High concentrations of carbon 
dioxide can increase heart rate and blood pressure.
    Nitric Acid (1,245) Nitric acid is extremely hazardous; it is 
corrosive, reactive, an oxidizer, and a poison. Inhalation: Corrosive! 
Inhalation of vapors can cause breathing difficulties and lead to 
pneumonia and pulmonary edema, which may be fatal. Other symptoms may 
include coughing, choking, and irritation of the nose, throat, and 
respiratory tract. Ingestion: Corrosive! Swallowing nitric acid can 
cause immediate pain and burns of the mouth, throat, esophagus and 
gastrointestinal tract. Skin Contact: Corrosive! Can cause redness, 
pain, and severe skin burns. Concentrated solutions cause deep ulcers 
and stain skin a yellow or yellow-brown color. Eye Contact: Corrosive! 
Vapors are irritating and may cause damage to the eyes. Contact may 
cause severe burns and permanent eye damage. Chronic Exposure: Long-
term exposure to concentrated vapors may cause erosion of teeth and 
lung damage. Long-term exposures seldom occur due to the corrosive 
properties of the acid. Aggravation of Pre-existing Conditions: Persons 
with pre-existing skin disorders, eye disease, or cardiopulmonary 
diseases may be more susceptible to the effects of this substance.
    Nitrogen (4,042) Can cause rapid suffocation when concentrations 
are sufficient to reduce oxygen levels below 19.5%.
    Petroleum White (3,110) Acute: Large doses may produce diarrhea. 
Chronic: not a hazard.
    Portland Cement* (1,002) Irritation of eyes, skin, nose; 
dermatitis; cough, expectoration; exertional dyspnea (breathing 
difficulty), wheezing, chronic bronchitis.
    Propane (11,437) Dizziness, confusion, excitation; asphyxia; 
frostbite (liquid).
    Silica, Crystalline (2,620) Cough, dyspnea (breathing difficulty), 
wheezing; decreased pulmonary function, progressive respiratory 
symptoms (silicosis); irritation eyes; [Potential occupational 
carcinogen].
    Silicic Acid, Disodium Salt (1,067) A strong alkaline irritant. 
Inhalation: Can cause severe irritation of mucous membranes and upper 
respiratory tract. Symptoms may include burning sensation, coughing, 
wheezing, laryngitis, shortness of breath, headache, nausea and 
vomiting. High concentrations may cause lung damage. Ingestion: Causes 
irritation to the gastrointestinal tract. Symptoms may include nausea, 
vomiting, and diarrhea. Solid sodium silicate: Alkaline corrosive 
ingestion may produce burns to the lips, tongue, oral mucosa, upper 
airway, esophagus, and occasionally stomach. Skin Contact: Causes 
severe irritation. Symptoms include redness, itching, and pain. Dries 
to form a glass film which can cut skin. Solid sodium silicate: Dermal 
contact with alkaline corrosives may produce pain, redness, severe 
irritation or full thickness burns. Eye Contact: Alkaline eye exposures 
produce severe irritation with effects similar to those of dilute 
caustics. Inflammation or burns with possible damage to the eye tissues 
can occur together with tearing and considerable pain. Chronic 
Exposure: No information found. Aggravation of Pre-existing Conditions: 
Persons with pre-existing skin disorders or impaired respiratory 
function may be more susceptible to the effects of the substance.
    Sodium Cyanide (1,063) Irritation of eyes, skin; asphyxia; 
weakness, headache, confusion; nausea, vomiting; increased respiratory 
rate; slow gasping respiration; thyroid, blood changes.
    Sodium Hydroxide (4,567) Irritation eyes, skin, mucous membrane; 
pneumonitis; eye, skin burns; temporary loss of hair.
    Stoddard Solvent (4,307) Irritation eyes, nose, throat; dizziness; 
dermatitis; chemical pneumonia (aspiration liquid); in animals: kidney 
damage.
    Sulfate (2,025) Not Available.
    Sulfuric Acid (4,626) Irritation eyes, skin, nose, throat; 
pulmonary edema, bronchitis; emphysema; conjunctivitis; stomatis; 
dental erosion; tracheobronchitis.
    Xylene (2,994) Ingest: practically non-toxic; 2g/kg. 
Aspiration hazard. Inhale: harmful if inhaled. Eyes: irritant. Skin: 
practically non-irritating, but may cause defatting.

List of Subjects

30 CFR Part 42

    Education, Intergovernmental relations, Mine safety and health.

30 CFR Part 46

    Education, Mine safety and health, Reporting and recordkeeping 
requirements.

30 CFR Part 47

    Chemicals, Hazardous substances, Labeling, Mine safety and health, 
Reporting and recordkeeping requirements.

30 CFR Part 48

    Education, Mine safety and health, Reporting and recordkeeping 
requirements.

30 CFR Part 56

    Chemicals, Electric power, Explosives, Fire prevention, Hazardous 
substances, Metals, Mine safety and health, Noise control, Reporting 
and recordkeeping requirements.

[[Page 42382]]

30 CFR Part 57

    Chemicals, Electric power, Explosives, Fire prevention, Gases, 
Hazardous substances, Metals, Mine safety and health, Noise control, 
Radiation protection, Reporting and recordkeeping requirements.

30 CFR Part 77

    Communications equipment, Electric power, Emergency medical 
services, Explosives, Fire prevention, Mine safety and health, 
Reporting and recordkeeping requirements.

    Dated: June 14, 2002.
Dave D. Lauriski,
Assistant Secretary for Mine Safety and Health.


    For the reasons set out in the preamble, and under the authority of 
the Federal Mine Safety and Health Act of 1977, we are amending chapter 
I of title 30 of the Code of Federal Regulations as follows.

PART 46--[AMENDED]

    1. The authority citation for part 46 continues to read as follows:

    Authority: 30 U.S.C. 811, 825.


    2. Paragraph (b)(4) of Sec. 46.5 is revised to read as follows:


Sec. 46.5  New miner training.

* * * * *
    (b) * * * 
    (4) Instruction on the health and safety aspects of the tasks to be 
assigned, including the safe work procedures of such tasks, the 
mandatory health and safety standards pertinent to such tasks, 
information about the physical and health hazards of chemicals in the 
miner's work area, the protective measures a miner can take against 
these hazards, and the contents of the mine's HazCom program;
* * * * *

    3. Paragraph (b)(4) of Sec. 46.6 is revised to read as follows:


Sec. 46.6  Newly hired experienced miner training.

* * * * *
    (b) * * *
    (4) Instruction on the health and safety aspects of the tasks to be 
assigned, including the safe work procedures of such tasks, the 
mandatory health and safety standards pertinent to such tasks, 
information about the physical and health hazards of chemicals in the 
miner's work area, the protective measures a miner can take against 
these hazards, and the contents of the mine's HazCom program;
* * * * *
    4. Paragraph (a) of Sec. 46.7 is revised to read as follows:


Sec. 46.7  New task training.

    (a) You must provide any miner who is reassigned to a new task in 
which he or she has no previous work experience with training in the 
health and safety aspects of the task to be assigned, including the 
safe work procedures of such task, information about the physical and 
health hazards of chemicals in the miner's work area, the protective 
measures a miner can take against these hazards, and the contents of 
the mine's HazCom program. This training must be provided before the 
miner performs the new task.
* * * * *
    5. The second sentence of paragraph (c) of Sec. 46.8 is amended by 
inserting the phrase ``information about the physical and health 
hazards of chemicals in the miner's work area, the protective measures 
a miner can take against these hazards, and the contents of the mine's 
HazCom program;'' after the phrase ``including mandatory health and 
safety standards;''.

PART 47--[REDESIGNATED AS PART 42]

    6. The authority for part 47 continues to read as follows:

    Authority: 30 U.S.C. 957.


    7. Part 47--National Mine Health and Safety Academy is transferred 
to subchapter G-Filing and Other Administrative Requirements, and 
redesignated as part 42.

PART 47--[ADDED]

    8. Add a new part 47 to subchapter H in chapter I, title 30 of the 
Code of Federal Regulations to read as follows:

PART 47--HAZARD COMMUNICATION (HazCom)

Sec.
Subpart A--Purpose, Scope, Applicability, and Initial Miner Training
47.1   Purpose of a HazCom standard; applicability.
47.2   Operators and chemicals covered; initial miner training.
Subpart B--Definitions
47.11   Definitions of terms used in this part.
Subpart C--Hazard Determination
47.21   Identifying hazardous chemicals.
Subpart D--HazCom Program
47.31   Requirement for a HazCom program.
47.32   HazCom program contents.
Subpart E--Container Labels and Other Forms of Warning
47.41   Requirement for container labels.
47.42   Label contents.
47.43   Label alternatives.
47.44   Temporary, portable containers.
Subpart F--Material Safety Data Sheets (MSDS)
47.51   Requirement for an MSDS.
47.52   MSDS contents.
47.53   Alternative for hazardous waste.
47.54   Availability of an MSDS.
47.55   Retaining an MSDS.
Subpart G--Reserved
Subpart H--Making HazCom Information Available
47.71   Access to HazCom materials.
47.72   Cost for copies.
47.73   Providing labels and MSDSs to customers.
Subpart I--Trade Secret Hazardous Chemical
47.81  Provisions for withholding trade secrets.
47.82   Disclosure of information to MSHA.
47.83   Disclosure in a medical emergency.
47.84   Non-emergency disclosure.
47.85   Confidentiality agreement and remedies.
47.86   Denial of a written request for disclosure.
47.87   Review of denial.
Subpart J--Exemptions
47.91   Exemptions from the HazCom standard.
47.92   Exemptions from labeling.

    Authority: 30 U.S.C. 811, 825.

Subpart A--Purpose, Scope, Applicability, and Initial Miner 
Training


Sec. 47.1  Purpose of a HazCom standard; applicability.

    The purpose of this part is to reduce injuries and illnesses by 
ensuring that each operator--
    (a) Identifies the chemicals at the mine,
    (b) Determines which chemicals are hazardous,
    (c) Establishes a HazCom program, and
    (d) Informs each miner who can be exposed, and other on-site 
operators whose miners can be exposed, about chemical hazards and 
appropriate protective measures.
    (e) As of September 23, 2002, all mines employing six or more 
miners are required to comply with this part.
    (f) As of March 21, 2003, all mines employing five or fewer miners 
are required to comply with this part.


Sec. 47.2  Operators and chemicals covered; initial miner training.

    (a) This part applies to any operator producing or using a 
hazardous chemical to which a miner can be exposed under normal 
conditions of use or in a foreseeable emergency. (Subpart

[[Page 42383]]

J of this part lists exemptions from coverage.)
    (b) Operators of mines which employ six or more miners must 
instruct each miner with information about the physical and health 
hazards of chemicals in the miner's work area, the protective measures 
a miner can take against these hazards, and the contents of the mine's 
HazCom program by September 23, 2002. Operators of mines that employ 
five or fewer miners must instruct each miner with information about 
the physical and health hazards of chemicals in the miner's work area, 
the protective measures a miner can take against these hazards, and the 
contents of the mine's HazCom program by March 21, 2003.

Subpart B--Definitions


Sec. 47.11  Definitions of terms used in this part.

    The definitions in Table 47.11 apply in this part as follows:

                        Table 47.11--Definitions
------------------------------------------------------------------------
               Term                   Definition for purposes of HazCom
------------------------------------------------------------------------
Access............................  The right to examine and copy
                                     records.
Article...........................  A manufactured item, other than a
                                     fluid or particle, that--
                                    (1) Is formed to a specific shape or
                                     design during manufacture, and
                                    (2) Has end-use functions dependent
                                     on its shape or design.
Chemical..........................  Any element, chemical compound, or
                                     mixture of these.
Chemical name.....................  (1) The scientific designation of a
                                     chemical in accordance with the
                                     nomenclature system of either the
                                     International Union of Pure and
                                     Applied Chemistry (IUPAC) or the
                                     Chemical Abstracts Service (CAS),
                                     or
                                    (2) A name that will clearly
                                     identify the chemical for the
                                     purpose of conducting a hazard
                                     evaluation.
Common name.......................  Any designation or identification
                                     (such as a code name, code number,
                                     trade name, brand name, or generic
                                     name) used to identify a chemical
                                     other than by its chemical name.
Consumer product..................  A product or component of a product
                                     that is packaged, labeled, and
                                     distributed in the same form and
                                     concentration as it is sold for use
                                     by the general public.
Container.........................  (1) Any bag, barrel, bottle, box,
                                     can, cylinder, drum, reaction
                                     vessel, storage tank, or the like.
                                    (2) The following are not considered
                                     to be containers for the purpose of
                                     compliance with this part: (i)
                                     Pipes or piping systems; (ii)
                                     Conveyors; and (iii) Engines, fuel
                                     tanks, or other operating systems
                                     or parts in a vehicle.
Cosmetics and drugs...............  (1) Cosmetics are any article
                                     applied to the human body for
                                     cleansing, beautifying, promoting
                                     attractiveness, or altering
                                     appearance.
                                    (2) Drugs are any article used to
                                     affect the structure or any
                                     function of the body of humans or
                                     other animals.
CPSC..............................  The U.S. Consumer Product Safety
                                     Commission.
Designated representative.........  (1) Any individual or organization
                                     to whom a miner gives written
                                     authorization to exercise the
                                     miner's rights under this part, or
                                    (2) A representative of miners under
                                     part 40 of this chapter.
EPA...............................  The U.S. Environmental Protection
                                     Agency.
Exposed...........................  Subjected, or potentially subjected,
                                     to a physical or health hazard in
                                     the course of employment.
                                     ``Subjected,'' in terms of health
                                     hazards, includes any route of
                                     entry, such as through the lungs
                                     (inhalation), the stomach
                                     (ingestion), or the skin (skin
                                     absorption).
Foreseeable emergency.............  Any potential occurrence that could
                                     result in an uncontrolled release
                                     of a hazardous chemical into the
                                     mine.
Hazard warning....................  Any words, pictures, or symbols,
                                     appearing on a label or other form
                                     of warning, that convey the
                                     specific physical and health
                                     hazards of the chemical. (See the
                                     definitions for physical hazard and
                                     health hazard for examples of the
                                     hazards that the warning must
                                     convey.)
Hazardous chemical................  Any chemical that can present a
                                     physical or health hazard.
Hazardous substance...............  Regulated by CPSC under the Federal
                                     Hazardous Substances Act or EPA
                                     under the Comprehensive
                                     Environmental Response,
                                     Compensation, and Liability Act.
Hazardous waste...................  Chemicals regulated by EPA under the
                                     Solid Waste Disposal Act as amended
                                     by the Resource Conservation and
                                     Recovery Act.
Health hazard.....................  A chemical for which there is
                                     statistically significant evidence
                                     that it can cause acute or chronic
                                     health effects in exposed persons.
                                     Health hazard includes chemicals
                                     which--
                                    (1) Cause cancer;
                                    (2) Damage the reproductive system
                                     or cause birth defects;
                                    (3) Are irritants, corrosives, or
                                     sensitizers;
                                    (4) Damage the liver;
                                    (5) Damage the kidneys;
                                    (6) Damage the nervous system;
                                    (7) Damage the blood or lymphatic
                                     systems;
                                    (8) Damage the stomach or
                                     intestines;
                                    (9) Damage the lungs, skin, eyes, or
                                     mucous membranes; or
                                    (10) Are toxic or highly toxic
                                     agents.
Health professional...............  A physician, physician's assistant,
                                     nurse, emergency medical
                                     technician, or other person
                                     qualified to provide medical or
                                     occupational health services.
Identity..........................  A chemical's common name or chemical
                                     name.

[[Page 42384]]

 
Label.............................  Any written, printed, or graphic
                                     material displayed on or affixed to
                                     a container to identify its
                                     contents and convey other relevant
                                     information.
Material safety data sheet (MSDS).  Written or printed material
                                     concerning a hazardous chemical
                                     which--
                                    (1) An operator prepares in
                                     accordance with Table 47.52--
                                     Contents of MSDS; or
                                    (2) An employer prepares in
                                     accordance with 29 CFR 1910.1200,
                                     1915.1200, 1917.28, 1918.90,
                                     1926.59, or 1928.21 (OSHA Hazard
                                     Communication regulations); or
                                    (3) An independent source prepares
                                     which contains equivalent
                                     information, such as International
                                     Chemical Safety Cards (ICSC) and
                                     Workplace Hazardous Material
                                     Information Sheets (WHMIS).
Mixture...........................  Any combination of two or more
                                     chemicals which is not the result
                                     of a chemical reaction.
Ordinary consumer use.............  Household, family, school,
                                     recreation, or other personal use
                                     or enjoyment, as opposed to
                                     business use.
OSHA..............................  The Occupational Safety and Health
                                     Administration, U.S. Department of
                                     Labor.
Physical hazard...................  A chemical for which there is
                                     scientifically valid evidence that
                                     it is--
                                    (1) Combustible liquid: (i) A liquid
                                     having a flash point at or above
                                     100 deg.F (37.8 deg.C) and below
                                     200 deg.F (93.3 deg.C); or (ii) A
                                     liquid mixture having components
                                     with flashpoints of 200 deg.F (93.3
                                     deg.C) or higher, the total volume
                                     of which make up 99% or more of the
                                     mixture.
                                    (2) Compressed gas: (i) A contained
                                     gas or mixture of gases with an
                                     absolute pressure exceeding: (A) 40
                                     psi (276 kPa) at 70 deg.F (21.1
                                     deg.C); or (B) 104 psi (717 kPa) at
                                     130 deg.F (54.4 deg.C) regardless
                                     of pressure at 70 deg.F. (ii) A
                                     liquid having a vapor pressure
                                     exceeding 40 psi (276 kPa) at 100
                                     deg.F (37.8 deg.C) as determined by
                                     ASTM D-323-82.
                                    (3) Explosive: A chemical that
                                     undergoes a rapid chemical change
                                     causing a sudden, almost
                                     instantaneous release of pressure,
                                     gas, and heat when subjected to
                                     sudden shock, pressure, or high
                                     temperature.
                                    (4) Flammable: A chemical that will
                                     readily ignite and, when ignited,
                                     will burn persistently at ambient
                                     temperature and pressure in the
                                     normal concentration of oxygen in
                                     the air.
                                    (5) Organic peroxide: An explosive,
                                     shock sensitive, organic compound
                                     or an oxide that contains a high
                                     proportion of oxygen-superoxide.
                                    (6) Oxidizer: A chemical, other than
                                     an explosive, that initiates or
                                     promotes combustion in other
                                     materials, thereby causing fire
                                     either of itself or through the
                                     release of oxygen or other gases.
                                    (7) Pyrophoric: Capable of igniting
                                     spontaneously in air at a
                                     temperature of 130 deg.F (54.4
                                     deg.C) or below.
                                    (8) Unstable (reactive): A chemical
                                     which in the pure state, or as
                                     produced or transported, will
                                     vigorously polymerize, decompose,
                                     condense, or become self-reactive
                                     under conditions of shock,
                                     pressure, or temperature.
                                    (9) Water-reactive: A chemical that
                                     reacts with water to release a gas
                                     that is either flammable or a
                                     health hazard.
Produce...........................  To manufacture, process, formulate,
                                     generate, or repackage.
Raw material......................  Ore, valuable minerals, worthless
                                     material or gangue, overburden, or
                                     a combination of these, that is
                                     removed from natural deposits by
                                     mining or is upgraded through
                                     milling.
Trade secret......................  Any confidential formula, pattern,
                                     process, device, information, or
                                     compilation of information that is
                                     used by the operator and that gives
                                     the operator an opportunity to
                                     obtain an advantage over
                                     competitors who do not know about
                                     it or use it.
Use...............................  To package, handle, react, or
                                     transfer.
Work area.........................  Any place in or about a mine where a
                                     miner works.
------------------------------------------------------------------------

Subpart C--Hazard Determination


Sec. 47.21  Identifying hazardous chemicals.

    The operator must evaluate each chemical brought on mine property 
and each chemical produced on mine property to determine if it is 
hazardous as specified in Table 47.21 as follows:

              Table 47.21--Identifying Hazardous Chemicals
------------------------------------------------------------------------
                                     Basis for determining if a chemical
             Category                           is hazardous
------------------------------------------------------------------------
(a) Chemical brought to the mine..  The chemical is hazardous when its
                                     MSDS or container label indicates
                                     it is a physical or health hazard;
                                     or the operator may choose to
                                     evaluate the chemical using the
                                     criteria in paragraphs (b) and (c)
                                     of this table.
(b) Chemical produced at the mine.  The chemical is hazardous if any one
                                     of the following that it is a
                                     hazard:
                                    (1) Available evidence concerning
                                     its physical or health hazards.
                                    (2) MSHA standards in 30 CFR chapter
                                     I.

[[Page 42385]]

 
                                    (3) Occupational Safety and Health
                                     Administration (OSHA), 29 CFR part
                                     1910, subpart Z, Toxic and
                                     Hazardous Substances.
                                    (4) American Conference of
                                     Governmental Industrial Hygienists
                                     (ACGIH), Threshold Limit Values and
                                     Biological Exposure Indices (2001).
                                    (5) U.S. Department of Health and
                                     Human Services, National Toxicology
                                     Program (NTP), Ninth Annual Report
                                     on Carcinogens, January 2001.
                                    (6) International Agency for
                                     Research on Cancer (IARC),
                                     Monographs and related supplements,
                                     Volumes 1 through 77.
(c) Mixture produced at the mine..  (1) If a mixture has been tested as
                                     a whole to determine its hazards,
                                     use the results of that testing.
                                    (2) If a mixture has not been tested
                                     as a whole to determine its hazards-
                                     - (i) Use available, scientifically
                                     valid evidence to determine its
                                     physical hazard potential; (ii)
                                     Assume that it presents the same
                                     health hazard as a non-carcinogenic
                                     component that makes up 1% or more
                                     (by weight or volume) of the
                                     mixture; and (iii) Assume that it
                                     presents a carcinogenic health
                                     hazard if a component considered
                                     carcinogenic by NTP or IARC makes
                                     up 0.1% or more (by weight or
                                     volume) of the mixture.
                                    (3) If evidence indicates that a
                                     component could be released from a
                                     mixture in a concentration that
                                     could present a health risk to
                                     miners, assume that the mixture
                                     presents the same hazard.
------------------------------------------------------------------------

Subpart D--HazCom Program


Sec. 47.31  Requirement for a HazCom program.

    Each operator must--
    (a) Develop and implement a written HazCom program,
    (b) Maintain it for as long as a hazardous chemical is known to be 
at the mine, and
    (c) Share relevant HazCom information with other on-site operators 
whose miners can be affected.


Sec. 47.32  HazCom program contents.

    The HazCom program must include the following:
    (a) How this part is put into practice at the mine through the use 
of--
    (1) Hazard determination,
    (2) Labels and other forms of warning,
    (3) Material safety data sheets (MSDSs), and
    (4) Miner training.
    (b) A list or other record identifying all hazardous chemicals 
known to be at the mine. The list must--
    (1) Use a chemical identity that permits cross-referencing between 
the list, a chemical's label, and its MSDS; and
    (2) Be compiled for the whole mine or by individual work areas.
    (c) At mines with more than one operator, the methods for--
    (1) Providing other operators with access to MSDSs, and
    (2) Informing other operators about'
    (i) Hazardous chemicals to which their miners can be exposed,
    (ii) The labeling system on the containers of these chemicals, and
    (iii) Appropriate protective measures.

Subpart E--Container Labels and Other Forms of Warning


Sec. 47.41  Requirement for container labels.

    (a) The operator must ensure that each container of a hazardous 
chemical has a label. If a container is tagged or marked with the 
appropriate information, it is labeled.
    (1) The operator must replace a container label immediately if it 
is missing or if the hazard information on the label is unreadable.
    (2) The operator must not remove or deface existing labels on 
containers of hazardous chemicals.
    (b) For each hazardous chemical produced at the mine, the operator 
must prepare a container label and update this label with any 
significant, new information about the chemical's hazards within 3 
months of becoming aware of this information.
    (c) For each hazardous chemical brought to the mine, the operator 
must replace an outdated label when a revised label is received from 
the chemical's manufacturer or supplier. The operator is not 
responsible for an inaccurate label obtained from the chemical's 
manufacturer or supplier.


Sec. 47.42  Label contents.

    When an operator must make a label, the label must--
    (a) Be prominently displayed, legible, accurate, and in English;
    (b) Display appropriate hazard warnings;
    (c) Use a chemical identity that permits cross-referencing between 
the list of hazardous chemicals, a chemical's label, and its MSDS; and
    (d) Include the name and address of the operator or another 
responsible party who can provide additional information about the 
hazardous chemical.


Sec. 47.43  Label alternatives.

    The operator may use signs, placards, process sheets, batch 
tickets, operating procedures, or other label alternatives for 
individual, stationary process containers, provided that the 
alternative--
    (a) Identifies the container to which it applies,
    (b) Communicates the same information as required on the label, and
    (c) Is readily available throughout each work shift to miners in 
the work area.


Sec. 47.44  Temporary, portable containers.

    (a) The operator does not have to label a temporary, portable 
container if he or she ensures that the miner using the portable 
container--
    (1) Knows the identity of the chemical, its hazards, and any 
protective measures needed, and
    (2) Leaves the container empty at the end of the shift.
    (b) Otherwise, the operator must mark the temporary, portable 
container with at least the common name of its contents.

Subpart F--Material Safety Data Sheets (MSDS)


Sec. 47.51  Requirement for an MSDS.

    Operators must have an MSDS for each hazardous chemical which they 
produce or use. The MSDS may be in any medium, such as paper or 
electronic, that does not restrict availability.
    (a) For each hazardous chemical produced at the mine, the operator 
must

[[Page 42386]]

prepare an MSDS, and update it with significant, new information about 
the chemical's hazards or protective measures within 3 months of 
becoming aware of this information.
    (b) For each hazardous chemical brought to the mine, the operator 
must rely on the MSDS received from the chemical manufacturer or 
supplier, develop their own MSDS, or obtain one from another source.
    (c) Although the operator is not responsible for an inaccurate MSDS 
obtained from the chemical's manufacturer, supplier, or other source, 
the operator must--
    (1) Replace an outdated MSDS upon receipt of an updated revision, 
and
    (2) Obtain an accurate MSDS as soon as possible after becoming 
aware of an inaccuracy.
    (d) The operator is not required to prepare an MSDS for an 
intermediate chemical or by-product resulting from mining or milling if 
its hazards are already addressed on the MSDS of the source chemical.


Sec. 47.52  MSDS contents.

    When an operator must prepare an MSDS for a hazardous chemical 
produced at the mine, the MSDS must--
    (a) Be legible, accurate, and in English;
    (b) Use a chemical identity that permits cross-referencing between 
the list of hazardous chemicals, the chemical's label, and its MSDS; 
and
    (c) Contain information, or indicate if no information is 
available, for the categories listed in Table 47.52 as follows:

                      Table 47.52--Contents of MSDS
------------------------------------------------------------------------
                                       Requirements, descriptions, and
             Category                            exceptions
------------------------------------------------------------------------
(1) Identity......................  The identity of the chemical or, if
                                     the chemical is a mixture, the
                                     identities of all hazardous
                                     ingredients. See Sec.  47.21
                                     (Identifying hazardous chemicals).
(2) Properties....................  The physical and chemical
                                     characteristics of the chemical,
                                     such as vapor pressure and
                                     solubility in water.
(3) Physical......................  The physical hazards of the chemical
                                     including the hazards potential for
                                     fire, explosion, and reactivity.
(4) Health hazards................  The health hazards of the chemical
                                     including--
                                    (i) Signs and symptoms of exposure,
                                    (ii) Any medical conditions which
                                     are generally recognized as being
                                     aggravated by exposure to the
                                     chemical, and
                                    (iii) The primary routes of entry
                                     for the chemical, such as lungs,
                                     stomach, or skin.
(5) Exposure limits...............  For the chemical or the ingredients
                                     of a mixture--(i) The MSHA or OSHA
                                     permissible limit, if there is one,
                                     and (ii) Any other exposure limit
                                     recommended by the preparer of the
                                     MSDS.
(6) Carcinogenicity...............  Whether the chemical or an
                                     ingredient in the mixture is a
                                     carcinogen or potential carcinogen.
                                     See the sources specified in Sec.
                                     47.21 (Identifying hazardous
                                     chemicals).
(7) Safe use......................  Precautions for safe handling and
                                     use including--(i) Appropriate
                                     hygienic practices, (ii) Protective
                                     measures during repair and
                                     maintenance of contaminated
                                     equipment, and (iii) Procedures for
                                     clean-up of spills and leaks.
(8) Control measures..............  Generally applicable control
                                     measures such as engineering
                                     controls, work practices, and
                                     personal protective equipment.
(9) Emergency information.........  (i) Emergency medical and first-aid
                                     procedures; and (ii) The name,
                                     address, and telephone number of
                                     the operator or other responsible
                                     party who can provide additional
                                     information on the hazardous
                                     chemical and appropriate emergency
                                     procedures.
(10) Date prepared................  The date the MSDS was prepared or
                                     last changed.
------------------------------------------------------------------------

Sec. 47.53  Alternative for hazardous waste.

    If the mine produces or uses hazardous waste, the operator must 
provide potentially exposed miners and designated representatives 
access to available information for the hazardous waste that--
    (a) Identifies its hazardous chemical components,
    (b) Describes its physical or health hazards, or
    (c) Specifies appropriate protective measures.


Sec. 47.54  Availability of an MSDS.

    The operator must make MSDSs accessible to miners during each work 
shift for each hazardous chemical to which they may be exposed either--
    (a) At each work area where the hazardous chemical is produced or 
used, or
    (b) At an alternative location, provided that the MSDS is readily 
available to miners in an emergency.


Sec. 47.55  Retaining an MSDS.

    The operator must--
    (a) Retain its MSDS for as long as the hazardous chemical is known 
to be at the mine, and
    (b) Notify miners at least 3 months before disposing of the MSDS.

Subpart G--Reserved

Subpart H--Making HazCom Information Available


Sec. 47.71  Access to HazCom materials.

    Upon request, the operator must provide access to all HazCom 
materials required by this part to miners and designated 
representatives, except as provided in Sec. 47.81 through Sec. 47.87 
(provisions for trade secrets).


Sec. 47.72  Cost for copies.

    (a) The operator must provide the first copy and each revision of 
the HazCom material without cost.
    (b) Fees for a subsequent copy of the HazCom material must be non-
discriminatory and reasonable.


Sec. 47.73  Providing labels and MSDSs to customers.

    For a hazardous chemical produced at the mine, the operator must 
provide customers, upon request, with the chemical's label or a copy of 
the label information, and the chemical's MSDS.

Subpart I--Trade Secret Hazardous Chemical


Sec. 47.81  Provisions for withholding trade secrets.

    (a) Operators may withhold the identity of a trade secret chemical, 
including the name and other specific identification, from the written 
list of hazardous chemicals, the label, and the MSDS, provided that the 
operator--
    (1) Can support the claim that the chemical's identity is a trade 
secret,

[[Page 42387]]

    (2) Identifies the chemical in a way that it can be referred to 
without disclosing the secret,
     (3) Indicates in the MSDS that the chemical's identity is withheld 
as a trade secret, and
    (4) Discloses in the MSDS information on the properties and effects 
of the hazardous chemical.
    (b) The operator must make the chemical's identity available to 
miners, designated representatives, and health professionals in 
accordance with the provisions of this subpart.
    (c) This subpart does not require the operator to disclose process 
or percentage of mixture information, which is a trade secret, under 
any circumstances.


Sec. 47.82  Disclosure of information to MSHA.

    (a) Even if the operator has a trade secret claim, the operator 
must disclose to MSHA, upon request, any information which this subpart 
requires the operator to make available.
    (b) The operator must make a trade secret claim, no later than at 
the time the information is provided to MSHA, so that MSHA can 
determine the trade secret status and implement the necessary 
protection.


Sec. 47.83  Disclosure in a medical emergency.

    (a) Upon request and regardless of the existence of a written 
statement of need or a confidentiality agreement, the operator must 
immediately disclose the identity of a trade secret chemical to the 
treating health professional when that person determines that--
    (1) A medical emergency exists, and
    (2) The identity of the hazardous chemical is necessary for 
emergency or first-aid treatment.
    (b) The operator may require a written statement of need and 
confidentiality agreement in accordance with the provisions of 
Sec. 47.84 and Sec. 47.85 as soon as circumstances permit.


Sec. 47.84  Non-emergency disclosure.

    Upon request, the operator must disclose the identity of a trade 
secret chemical in a non-emergency situation to an exposed miner, the 
miner's designated representative, or a health professional providing 
services to the miner, if the following conditions are met.
    (a) The request is in writing.
    (b) The request describes in reasonable detail an occupational 
health need for the information, as follows:
    (1) To assess the chemical hazards to which the miner will be 
exposed.
    (2) To conduct or assess health sampling to determine the miner's 
exposure levels.
    (3) To conduct reassignment or periodic medical surveillance of the 
exposed miner.
    (4) To provide medical treatment to the exposed miner.
    (5) To select or assess appropriate personal protective equipment 
for the exposed miner.
    (6) To design or assess engineering controls or other protective 
measures for the exposed miner.
    (7) To conduct studies to determine the health effects of exposure.
    (c) The request explains in detail why the disclosure of the 
following information would not satisfy the purpose described in 
paragraph (b) of this section:
    (1) The properties and effects of the chemical.
    (2) Measures for controlling the miner's exposure to the chemical.
    (3) Methods of monitoring and analyzing the miner's exposure to the 
chemical.
    (4) Methods of diagnosing and treating harmful exposures to the 
chemical.
    (d) The request describes the procedures to be used to maintain the 
confidentiality of the disclosed information.
    (e) The person making the request enters a written confidentiality 
agreement that he or she will not use the information for any purpose 
other than the health needs asserted and agrees not to release the 
information under any circumstances, except as authorized by 
Sec. 47.85, by the terms of the agreement, or by the operator.


Sec. 47.85  Confidentiality agreement and remedies.

    (a) The confidentiality agreement authorized by Sec. 47.84--
    (1) May restrict the use of the trade secret chemical identity to 
the health purposes indicated in the written statement of need;
    (2) May provide for appropriate legal remedies in the event of a 
breach of the agreement, including stipulation of a reasonable pre-
estimate of likely damages;
    (3) Must allow the exposed miner, the miner's designated 
representative, or the health professional to disclose the trade secret 
chemical identity to MSHA;
    (4) May provide that the exposed miner, the miner's designated 
representative, or the health professional inform the operator who 
provided the trade secret chemical identity prior to or at the same 
time as its disclosure to MSHA; and
    (5) May not include requirements for the posting of a penalty bond.
    (b) Nothing in this subpart precludes the parties from pursuing 
non-contractual remedies to the extent permitted by law.


Sec. 47.86  Denial of a written request for disclosure.

    To deny a written request for disclosure of the identity of a trade 
secret chemical, the operator must--
    (a) Put the denial in writing,
    (1) Including evidence to substantiate the claim that the 
chemical's identity is a trade secret,
    (2) Stating the specific reasons why the request is being denied, 
and
    (3) Explaining how alternative information will satisfy the 
specific medical or occupational health need without revealing the 
chemical's identity.
    (b) Provide the denial to the health professional, miner, or 
designated representative within 30 days of the request.


Sec. 47.87  Review of denial.

    (a) The health professional, miner, or designated representative 
may refer the written denial to MSHA for review. The request for review 
must include a copy of--
    (1) The request for disclosure of the identity of the trade secret 
chemical,
    (2) The confidentiality agreement, and
    (3) The operator's written denial.
    (b) If MSHA determines that the identity of the trade secret 
chemical should have been disclosed, the operator will be subject to 
citation by MSHA.
    (c) If MSHA determines that the confidentiality agreement would not 
sufficiently protect against unauthorized disclosure of the trade 
secret, MSHA may impose additional conditions to ensure that the 
occupational health services are provided without an undue risk of harm 
to the operator.
    (d) If the operator contests a citation for a failure to release 
the identity of a trade secret chemical, the matter will be adjudicated 
by the Federal Mine Safety and Health Review Commission. The 
Administrative Law Judge may review the citation and supporting 
documentation ``in camera'' or issue appropriate orders to protect the 
trade secret.

Subpart J--Exemptions


Sec. 47.91  Exemptions from the HazCom standard.

    A hazardous chemical is exempt from this part under the conditions 
described in Table 47.91 as follows:

[[Page 42388]]



  Table 47.91.--Chemicals and Products Exempt from this HazCom Standard
------------------------------------------------------------------------
             Exemption                    Conditions for exemption
------------------------------------------------------------------------
Article...........................  If, under normal conditions of use,
                                     it--
                                    (1) Releases no more than
                                     insignificant amounts of a
                                     hazardous chemical, and
                                    (2) Poses no physical or health risk
                                     to exposed miners.
Biological hazards................  All biological hazards, such as
                                     poisonous plants, insects, and
                                     micro-organisms.
Consumer product or hazardous       (1) If the miner uses it for the
 substance regulated by CPSC.        purpose the manufacturer intended;
                                     and
                                    (2) Such use does not expose the
                                     miner more often and for longer
                                     periods than ordinary consumer use.
Cosmetics, drugs, food, food        When intended for personal
 additive, color additive, drinks,   consumption or use.
 alcoholic beverages, tobacco and
 tobacco products, or medical or
 veterinary device or product,
 including materials intended for
 use as ingredients in such
 products (such as flavors and
 fragrances).
Radiation.........................  All ionizing or non-ionizing
                                     radiation, such as alpha or gamma,
                                     microwaves, or x-rays.
Wood or wood products, including    If they do not release or otherwise
 lumber.                             result in exposure to a hazardous
                                     chemical under normal conditions of
                                     use. For example, wood is not
                                     exempt if it is treated with a
                                     hazardous chemical or if it will be
                                     subsequently cut or sanded.
------------------------------------------------------------------------

Sec. 47.92  Exemptions from labeling.

    A hazardous chemical is exempt from subpart E of this part under 
the conditions described in Table 47.92 as follows:

          Table 47.92--Hazardous Chemicals Exempt from Labeling
------------------------------------------------------------------------
             Exemption                    Conditions for exemption
------------------------------------------------------------------------
Chemical substance, consumer        When kept in its manufacturer's or
 product, hazardous substance, or    supplier's original packaging
 presticide.                         labeled under other federal
                                     labeling requirements.
Hazardous substance...............  When the subject of remedial or
                                     removal action under the
                                     Comprehensive Environmental
                                     Response, Compensation and
                                     Liability Act (CERCLA) in
                                     accordance with EPA regulations.
Hazardous waste...................  When regulated by EPA under the
                                     Solid Waste Disposal Act as amended
                                     by the Resource Conservation and
                                     Recovery Act.
Raw material being mined or         While on mine property, except when
 processed.                          the container holds a mixture of
                                     the raw material and another
                                     hazardous chemical and the mixture
                                     is found to be hazardous under Sec.
                                      47.21, Identifying hazardous
                                     chemicals.
Wood or wood products, including    Wood or wood products are always
 lumber.                             exempt from labeling.
------------------------------------------------------------------------

PART 48--[AMENDED]

    9. The authority citation for part 48 continues to read as follows:

    Authority: 30 U.S.C. 811, 825.

    10. Paragraph (b)(13) of Sec. 48.5 is revised to read as follows:


Sec. 48.5  Training of new miners; minimum courses of instruction; 
hours of instruction.

* * * * *
    (b) * * *
    (13) Health and safety aspects of the tasks to which the new miner 
will be assigned. The course shall include instruction in the health 
and safety aspects of the tasks to be assigned, including the safe work 
procedures of such tasks, the mandatory health and safety standards 
pertinent to such tasks, information about the physical and health 
hazards of chemicals in the miner's work area, the protective measures 
a miner can take against these hazards, and the contents of the mine's 
HazCom program.
* * * * *

    11. Paragraph (b)(11) of Sec. 48.6 is revised to read as follows:


Sec. 48.6  Experienced miner training.

* * * * *
    (b) * * *
    (11) Health and safety aspects of the tasks to which the 
experienced miner is assigned. The course must include instruction in 
the health and safety aspects of the tasks assigned, including the safe 
work procedures of such tasks, information about the physical and 
health hazards of chemicals in the miner's work area, the protective 
measures a miner can take against these hazards, and the contents of 
the mine's HazCom program. Experienced miners who must complete new 
task training under Sec. 48.7 do not need to take training under this 
paragraph.
* * * * *

    12. Paragraphs (a)(1) and (c) of Sec. 48.7 are revised to read as 
follows:


Sec. 48.7  Training of miners assigned to a task in which they have had 
no previous experience; minimum courses of instruction.

    (a) * * *
    (1) Health and safety aspects and safe operating procedures for 
work tasks, equipment, and machinery. The training shall include 
instruction in the health and safety aspects and the safe operating 
procedures related to the assigned tasks, including information about 
the physical and health hazards of chemicals in the miner's work area, 
the protective measures a miner can take against these hazards, and the 
contents of the mine's HazCom program. The training shall be given in 
an on-the-job environment; and
* * * * *
    (c) Miners assigned a new task not covered in paragraph (a) of this 
section shall be instructed in the safety and health aspects and safe 
work procedures of the task, including information about the physical 
and health hazards of chemicals in the miner's work area, the 
protective measures a miner can take

[[Page 42389]]

against these hazards, and the contents of the mine's HazCom program, 
prior to performing such task.
* * * * *

    13. Paragraphs (c) and (d) of Sec. 48.8 are redesignated as 
paragraphs (d) and (e) respectively, and new paragraph (c) is added to 
read as follows:


Sec. 48.8  Annual refresher training of miners; minimum courses of 
instruction; hours of instruction.

* * * * *
    (c) Refresher training may include other health and safety subjects 
that are relevant to mining operations at the mine. Recommended 
subjects include, but are not limited to, information about the 
physical and health hazards of chemicals in the miner's work area, the 
protective measures a miner can take against these hazards, and the 
contents of the mine's HazCom program.
* * * * *

    14. Paragraph (b)(12) of Sec. 48.25 is revised to read as follows:


Sec. 48.25  Training of new miners; minimum courses of instruction; 
hours of instruction.

* * * * *
    (b) * * *
    (12) Health and safety aspects of the tasks to which the new miner 
will be assigned. The course shall include instructions in the health 
and safety aspects of the tasks to be assigned, including the safe work 
procedures of such tasks, the mandatory health and safety standards 
pertinent to such tasks, information about the physical and health 
hazards of chemicals in the miner's work area, the protective measures 
a miner can take against these hazards, and the contents of the mine's 
HazCom program.
* * * * *

    15. Paragraph (b)(11) of Sec. 48.26 is revised to read as follows:


Sec. 48.26  Experienced miner training.

* * * * *
    (b) * * *
    (11) Health and safety aspects of the tasks to which the 
experienced miner is assigned. The course must include instruction in 
the health and safety aspects of the tasks assigned, including the safe 
work procedures of such tasks, information about the physical and 
health hazards of chemicals in the miner's work area, the protective 
measures a miner can take against these hazards, and the contents of 
the mine's HazCom program. Experienced miners who must complete new 
task training under Sec. 48.27 do not need to take training under this 
paragraph.
* * * * *

    16. Paragraphs (a)(1) and (c) of Sec. 48.27 are revised to read as 
follows:


Sec. 48.27  Training of miners assigned to a task in which they have 
had no previous experience; minimum courses of instruction.

    (a) * * *
    (1) Health and safety aspects and safe operating procedures for 
work tasks, equipment, and machinery. The training shall include 
instruction in the health and safety aspects and safe operating 
procedures related to the assigned task, including information about 
the physical and health hazards of chemicals in the miner's work area, 
the protective measures a miner can take against these hazards, and the 
contents of the mine's HazCom program. The training shall be given in 
an on-the-job environment; and
* * * * *
    (c) Miners assigned a new task not covered in paragraph (a) of this 
section shall be instructed in the safety and health aspects and safe 
work procedures of the task, including information about the physical 
and health hazards of chemicals in the miner's work area, the 
protective measures a miner can take against these hazards, and the 
contents of the mine's HazCom program, prior to performing such task.
* * * * *

    17. Paragraphs (c) and (d) of Sec. 48.28 are redesignated as 
paragraphs (d) and (e) respectively, and new paragraph (c) is added to 
read as follows:


Sec. 48.28  Annual refresher training of miners; minimum courses of 
instruction; hours of instruction.

* * * * *
    (c) Refresher training may include other health and safety subjects 
that are relevant to mining operations at the mine. Recommended 
subjects include, but are not limited to, information about the 
physical and health hazards of chemicals in the miner's work area, the 
protective measures a miner can take against these hazards, and the 
contents of the mine's HazCom program.
* * * * *

PART 56--[AMENDED]

    18. The authority citation for part 56 continues to read as 
follows:

    Authority: 30 U.S.C. 811.

    19. Section 56.16004 is revised to read as follows:


Sec. 56.16004  Containers for hazardous materials.

    Containers holding hazardous materials must be of a type approved 
for such use by recognized agencies.


Sec. 56.20012  [Removed]

    20. Section 56.20012 is removed.

PART 57--[AMENDED]

    21. The authority citation for part 57 continues to read as 
follows:

    Authority: 30 U.S.C. 811.


    22. Section 57.16004 is revised to read as follows:


Sec. 57.16004  Containers for hazardous materials.

    Containers holding hazardous materials must be of a type approved 
for such use by recognized agencies.

    23. Section 57.20012 is removed.

PART 77--[AMENDED]

    24. The authority citation for part 77 continues to read as 
follows:

    Authority: 30 U.S.C. 811.


    25. Paragraph (c) of Sec. 77.208 is revised to read as follows:


Sec. 77.208  Storage of materials.

* * * * *
    (c) Containers holding hazardous materials must be of a type 
approved for such use by recognized agencies.
* * * * *
[FR Doc. 02-15396 Filed 6-17-02; 8:45 am]
BILLING CODE 4510-43-P