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Monday August 24, 1987 Part III Department of Labor Occupational Safety and Health Administration 29 CFR Parts 1910, 1915, 1917, 1918, 1926, and 1928 Hazard Communication; Final Rule lam 012543 DPMC-13888 31852 Federal Register / Vol 52, No. 163 / Monday, August 24. 1987 / Rules and Regulations DEPARTMENT OF LABOR Occupational Safety and Health wuiiwmuiuufl 29 CFR Parts 1910,1915,1917,1918, 1928, and 1928 [Docket Na.H-0230] themselves* are available from the OSHA Docket Office, Dockets H-022 and H-022D. Occupational Safety and Health Administration. 200 Constitution Avenue, NW. Room N3670, Washington. DC 20210; telephone (202)523-7894. L Background Hazard Communication A. History of OSHA's Hazard M8NCY: Occupational Safety and Health Administration (OSHA): Labor. action: Final rale. Communication Standard When Congress passed the Occupational Safety and Health Act of 1970,29 U.S.C. 851 et seq. (the Act), it summary: OSHA is revising its Hazard included language in section 6(b)(7) Communication Standard (HCS) (29 CFR stating that any occupational safety or 19iai200), which currently applies to health standard promulgated by the the manufacturing sector, to cover all - Secretary of Labor under section 8(b) employers with employees exposed to ' rulemaking authority "shall prescribe hazardous chemicals in their the use of labels or other appropriate workplaces. Expansion of the scope of forms of warning as are necessary to the HCS requires non-manufacturing . insure that employees are apprised of all employers to establish hazard hazards to which they are exposed, communication programs to transmit relevant symptoms and appropriate information on the hazards of chemicals emergency treatment and proper to their employees by means of labels conditions and precautions of safe use on containers, material safety data or exposure." Whenever OSHA has sheets, and training programs. This promulgated a substance-specific rule to action will reduce the incidence of address the hazards of a particular chemically-related occupational chemical, this Congressional directive illnessesand injuries in non has been followed. However, given the manufacturing workplaces. universe of chemicals present in dates: Effective September 23.1987. American workplaces (as many as The revised standard published today requires that chemical manufacturers importers, and distributors ensure that material safety data sheets are provided 575X00 hazardous chemical products), and the time-consuming nature of OSHA's rulemaking process, it soon became clear that little information with the next shipment of hazardous would be available to employees if this chemicals to non-manufacturing employers or distributors after substancp-by-substance approach were the only one pursued. The Agency thus September 23.1967. All employers in the decided to address the issue of hazard non-manufacturing sector are to be in information transmittal on a generic compliance with all provisions of the basis. OSHA's experience, as well as standard by May 23.1983. our rulemaking record to date, supports the view that when employees have TOR FURTHER INFORMATION CONTACT: Mr. James F. Foster. Office of Information and Consumer Affairs,. Occupational Safety and Health Administration. 200 Constitution Avenue. NW,, Room N3637, Washington. DC 20210; telephone (202)523-8151. nmn smentarv information: access to, and understand, the nature of the chemical hazards they are exposed to during the course of their employment, they are better able to participate in their employers' protective programs, and take steps to protect themselves. In addition, providing employers with complete chemical hazard information enables them to References to the rulemaking record are better design and implement protective made in the text of this preamble, and programs. Together these actions will the following abbreviations have been result in more effective worker used: protection and the occurrence of fewer H-02Z x_' Exhibit number in Docket illnesses and injuries due to exposure to H-022. which includes Dockets H-022A chemicals. Sea. ag. 48 FR 53282-84. and H-022B. 53321.53323-24.53327-29 (Nov. 25. *- Exhibit number in Docket H-022D 1983); 47 FR12093-12101 (Mar. 1911982). for exhibits collected since the 1985 In 1974, OSHA established a Court remand. Standards Advisory Committee on 7>_- Public hearing transcript page Hazardous Materials Labeling under number. section 7(b) of the Act to develop Copies of-the official list of entries in guidelines for the implementation of the record; as well as the exhibits section 6(b)(7). On June 8.1975, the Committee submitted its final report to the Assistant Secretary for Occupational Safety and Health which recommended categorization and ranking of chemical hazards, as well as provisions for labels, material safety data sheets, and training programs for all workers. The National Institute for Occupational Safety and Health (NIOSH) published a criteria document in 1974 which also recommended a standard to OSHA. The document entitled "A Recommended Standard... An Identification System for. Occupationally Hazardous Materials." included provisions for labels and material safety data sheets. In 1978. Congressman Andrew Maguire Gram New Jersey and the Health Research Group petitioned OSHA to issue a standard to require the labelingof all workpface chemicals. The House of Representatives' Committee on Government Operations (1978 and 1977) recommended that OSHA enforce the health provisions of the Act by requiring manufacturers to disclose any toxic ingredients in their products, and by requiring all employers to disclose this information to workers. On January 28,1977, OSHA initiated the public participation phase of the rulemaking process on these issues by publishing an advance notice of proposed rulemaking (ANPR) on chemical labeling in the Federal Register (42 FR 5372). The ANPR requested comments and information on the need for such a standard, and the particular provisions that should be included. The Agency received eighty-one comments. Most supported the need for the rule, but opinions as to the specific approaches to be pursued varied significantly. On January 16,1981, OSHA published a notice of proposed"rulemaking (NPRM) entitled "Hazards Identification" (48 FR 4412). The rule would have required manufacturing employers to assess the hazards in their workplaces using specified procedures, and to label containers. The requirements were quite different from the comprehensive approach previously recommended by the Standards Advisory Committee and NIOSH as they did not include provisions for material safety data sheet development or training. OSHA withdrew the NPRM on February 12.1981 (48 FR 12214) for further consideration of regulatory alternatives. A new NPRM was published on March 19.1982, and was entitled "Hazard Communication" (47 FR 12092). It proposed to require producers of chemicals to evaluate them to determine their hazards, label DPMC-13889 lam 012544 Federal Register / VoL 52. No. 163 / Monday. August-24, 1987 / Rules and Regulations 31853 containers, and provide material safety data sheets to manufacturing purchasers of their products. The standard also proposed that all employers in the manufacturing sector have a hazard communication program, label in-plant containers, maintain and provide access to material safety data sheets, and train workers. The proposal also invited comments on whether non manufacturing employers should be subject to the rule. Following a period for written comments, informal public hearings, and a post-hearing comment period. OSHA published the final Hazard Communication Standard on November 25.1983 (48 FR 53280). The provisions of the final rule are very similar to those described above for the proposal, i.e., chemical manufacturers and importers are required to evaluate the hazards of the chemicals they produce or import, and all manufacturers are required to have hazard communicadon programs for their employees exposed to hazardous This comprehensive standard was designed to reduce the hazards faced by manufacturing workers when they handle chemicals without adequate information on. among other things, the physical and health hazards of the chemicals, safe handling precautions, and emergency and first aid procedures. See. e.g., 48 FR 53321. OSHA found that inadequate communication regarding chemical hazards presents a significant risk to workers. See, e.g., 48 FR 53321. Accord United Steelworkers ofAmerica v. Auchter. 783 F.2d 728,735 (3d dr. 1985) (UnitedSteelworkers I) ("[Ijnadequata communication is itself a . hazard, which the standard can eliminate or mitigate."]. OSHA dedded to limit the scope of coverage of the HCS to the manufacturing sector based on an analysis of the chemical source illnesses and injuries occurring in each industrial sector. (See discussion at 48 FR 53284- 88.) In particular, since the purpose of the standard is to reduce the occurrence of such incidents, OSHA determined that the rule should focus on those industrial sectors where they are recorded most frequently. The Agency found that over half of these incidents occur in manufacturing, although manufacturing accounts for only about 30 percent of total employment. Thus OSHA dedded that the greatest need for transmittal of chemical hazard information: is in the manufacturing sector. The Agency further recognized that since chemicals are developed and produced in the manufacturing sector, the hazard information would have to be developed in the manufacturing sector first regardless of the eventual coverage of the rule. OSHA believed that requiring the development of the chemical hazard information in manufacturing would lead to its increased availability in the other sectors without the standard specifically requiring the transmittal of hazard information to those sectors. The Agency acknowledged that hazardous chemicals are pervasive throughout industry and that chemical source injuries and illnesses have been recorded in all industry sectors. See. e.g., 48 FR 53282-87. See also United Steelworkers /, 763 F.2d at 737. The Agency planned to make a decision regarding the explicit coverage of the non-manufacturing sectors once the HCS was in effect and a determination could be made as to whether the other industries were, in fact obtaining the information they needed. OSHA believed that the Act gives the Secretary of Labor and the Agency the authority to regulate the most hazardous industry first under section 6(g), 29 U.S.C. 055(gJ, which states in part: In determining the priority for establishing standards under this section, the Secretary shall give das regard to the urgency of the need for mandatory safety and health standards for particular industries, trades, crafts, occupations, businesses., workplaces or work enrimnmerits. B. Court Challenges The HCS was challenged in the U.S. Court of Appeals for the Third Circuit (hereinafter referired to as "the Court" or "the Third Circuit") on several grounds. The Court issued its decision on May 24,1985 (United Steelworkers /. 763 F.2d 728 (3d Or. 1985]]. The standard was upheld in most respects, but three issues were remanded to the Agency for reconsideration. The decision was not appealed. Fust the Court concluded that the definition of trade secrets incorporated by OSHA included chemical identity information that was readily discoverable through reverse engineering and. therefore, was "broader than the protection afforded trade secrets by state law." The Court directed the Secretary ofLabor to reconsider a trade secret definition which would not include chemical identity information that is readily discoverable through reverse engineering. Second, the Court held the trade secret access rule in the standard invalid insofar as it limited access to health professionals, but found the access rule otherwise valid. The Secretary was directed to adopt a rule permitting access by employees and their collective bargaining representatives to trade secret chemical identities. OSHA complied with the Court orders regarding the two trade secret issues in a separate rule, published in final form on September 30, 1988 (51 FR 34590). The third issue remanded to OSHA involved the scope of the standard's coverage. As noted, the HCS currently applies to employers and employees in the manufacturing sector. The Court rejected the Secretary's contention that sertion 8(g) gave him the flexibility to regulate the most hazardous sector first before commencing rulemaking for other sectors in whichworkers are exposed, to a lesser extent, to the same hazards. The Court agreed that section 8(g) "clearly permits the Secretary to set priorities for the use of the Agency's resources, and to promulgate standards sequentially." 783 F.2d at 738. The Court also acknowledged that "there is substantial evidence in the record that the manufacturing sector has the highest incidence rate of chemical exposures which the Agency has authority to regulate." Id. at 737. However, the Court held that it is not enough merely to establish that the sector selected for coverage presents greater hazards than those that have been left for later rulemaking. Given the record evidence of high levels of exposure to hazardous chemicals in several job settings outside the manufacturing sector, the Secretary was required to explain "why coverage of workers outside the manufacturing sector would have seriously impeded the rulemaking process" or "why it is not feasible for the same standard to be applied in other sectors where workers are exposed to similar hazards." Id. at 738. The Court was not persuaded that the HCS would provide protection to uncovered workers because chemical hazard warnings would be found on container labels and detailed information on material safety data sheets would become increasingly available in tha unregulated sectors as a result of being required in manufacturing. Id. There was considerable record evidence that indicated that workers in the non manufacturing industries are exposed to chemical hazards. The Court concluded that the Secretary had not stated why it would not be feasible to require employers in non-manufacturing industries to give workers material safety data sheets and training as required in the manufacturing sector. Id. The Court maintained that the Act required an explanation why the same, information, that is. labels, material DPMC-13890 LAM 012545 31^54 ; Federal Register / VoL 52. No. 163 / Monday. August 24. 1987 / Rules and Regulations safety data sheets, and training, is not needed for workers in other sectors similarly exposed to hazardous chemicals. Id at 738-39. Therefore, as previously indicated. OSHA was directed by the Court to reconsider the application of the standard to employees in the non-manufacturing industries and to order its application to these other sectors unless the Secretary can state reasons why this application would not be feasible. It should be noted that'in previous OSHA litigation, the ' Courts have defined "feasibility" in terms of OSHA rules as meaning "capable of being done." American Textile Manufacturers Institute v. Donovan. 452U.S. 490.508-509 (1960)(ATMI). OSHA decided not to appeal this decision. As stated in the preamble to the final rule (48 FR 53288): It should be emphasized that the Agency does notbelieve that employees In other industries are not exposed to hazardous chemicals, or that they should not be informed of those hazards. OSHA has merely exercised its discretion to establish rulemaking priorities, and chosen to lint regulate those industries with the greatest demonstratad-need. OSHA was prepared to evaluate the HCS* effectiveness in getting information to downstream employers, and to extend the standard if necessary. In fact the Agency Initiated the process on March 41985. prior to the Court decision, when the Assistant Secretary asked the National Advisory Committee on Occupational Safety and Health (NACOSH) to give OSHA Its recommendation on the need and feasibility ofexpanding, the scope of the HCS to other industries. On )une 21. 1985, NACOSH adopted the following recommendation: (NACOSH) itrongly.endorses the OSHA effort to promulgate a Hazard Communication Standard and selection of the - manufacturing sector for its initial scops of coverage. It Is the consensus racosmneodatioa of the Committee that the scope of the current Hazard Communication Standard should beexpanded to cover all employees in aii industries at as eariy a time as possible. Complete implementation may require phasing in gradually. The BLS [Durssu of Labor Statistics! incidence rates of occupational illnesses, and other appropriate factors, shooId be primary considerations in expanding the coverage. Tbs Committee farther recommends that OSHA establish a task force to address these issues. Meanwhile. OSHA's review of the rulemaking record showed that while there was considerable evidence concerning the need for hazard communication in other industries, and general supportfor a finding that the HCS would be feasible for non manufacturing. there was a need for Steelworkers ofAmerica. AFL-CIO- more direct evidence of the feasibility of CLC v. Pendergrass. No. 83-3554 (3d expanded coverage, particularly in the Cir.) (United Steelworkers //). The Court area of economic feasibility. declared that adequate notice had been Accordingly. OSHA believed it was necessary and appropriate to initiate further rulemaking. OSHA commissioned a study of the economic impact of extending the HCS to the fifty major non-manufacturing industry groups within its jurisdiction, and issued an Advance Notice of Proposed Rulemaking (ANPR) seeking public comment on present hazard communication practices outside manufacturing, and the likely impact of extending the HCS to industries significantly different from the prototypical manufacturing worksites on provided to non-manufacturers during the original rulemaking that they might be covered by the HCS. id. slip op. at 710.18-17, that thecanawers to the remaining questions OSHA may have had regarding feasibility were "selfevident" or "readily ascertainable" from the original record, id. at 15,17, and that further feet finding waa "unnecessary". id. at 15. The Court ordered the Agency to issue, within 60 days of its order, "a hazard communication standard applicable to ail workers covered by the OSHA Act including those which have which the original standard was based. ' not been covered in the hazard 50 FR 48794 (Nov. 27.1985). Over two communication standard as presently hundred responses were received. Based written, or a statement of reasons why. on this newly acquired evidence and on on the basis of the'present the previous rulemaking record, OSHA administrative record; a hazard was in die process of drafting a proposed rule which it expected to publish for notice and comment followed by promulgation of a final rule in early 1988. On January 27,1987, however, the United Steelworkers of America, AFL- C3Q-CLC and Public Citizen, hut. petitioners in the 1985 challenge, filed a Motion For An Order Enforcing The Court's Judgment and Holding Respondent In Civil Contempt communication standard is not feasible." Id. at 19. OSHA is responding to the Court order by issuing this final rule expanding the scope of the HCS' coverage to ail workers within OSHA's jurisdiction. OSHA continues to believe that it should have been permitted to follow the rolemaking procedures in the Act.by issuing a notice of proposed rulemaking and developing a public record prior to Petitioners claimed that the Court's 1985 promulgating a final rule. However, as order had not authorized OSHA to discussed in the following section embark on further fact gathering; that regarding,feasibility, the Agency does OSHA should have made a feasibility not havesufficient evidence in the determination on the 1985 rulemaking current record to indicate that the rule record. Petitioners also argued that even would be infeasible for any part of the . if further fact gathering had been allowed by the Court's order; OSHA's pace was unduly slow. In response. OSHA noted that the Court*a 1985 order did not specify that OSHA should act on the then-existing record. OSHA believed that seeking further evidence on feasibility in non manufacturing was appropriate in light of its statutory obligation to issue rules that are well grounded in a factual record. OSHA also asserted that non-manufacturing sector. OSHA recognizes that information submitted during a normal rulemaking process might have resulted in further changes to the provisions to better address feasibility or practicality concerns. In light of the feet that there may be additional information regarding the feasibility or practicality of the rule as it applies to some non-manufacturing sectors, the Agency invites persons to consistent with Supreme Court provide such information and any precedent. the-Agency should be recommendations for further rulemaking permitted to exercise its discretion in within sixty days of the date of determining the appropriate rulemaking publication of this final rale. OSHA will procedures for complying with the then evaluate these submissions and Court's remand order. Lastly, the determine whether any additional Agency argued that its schedule to complete the rulemaking was reasonable and did not constitute undue delay. On May 29,1987, the Court issued a decision holding that the Court's 1985 remand order required consideration of the feasibility of an expanded standard without further rulemaking. United rulemaking is required. Data or evidence related to feasibility should be addressed to: Directorate of Health Standards Programs. Occupational Safety and Health Administration. Attention: Hazard Communication, 200 Constitution Avenue. NW,, Room N3718. Washington. DC.20210. DPMC-13891 LAM 012546 Federal Register / VoL 52. No. 163 / Monday. August 24, ia67 / Rules and Regulations 31855 C Feasibility ofthe Standard In the context of OSHA standard . setting;.feasibility constraints limit the extent to winch standards can address health, and safety concerns within the workplace. Section 6{b)(5] of the Act 29 U-S.C855(b)(5). Feasibility analysis involves .an inquiry to determine whether a standard is both technologically and economically capable of being done. ATML 452 U.S. at 512-13 and 513 nJl (1980). As the Third Circuit has indicated, "the Secretary was able to determine that the hazard communication standard could feasibly be applied in the manufacturing sector." United Steelworkers O, slip op. at 18. The Court further noted that OSHA had concluded in the final rule that importers and'distributors could feasibly comply with the HCS based on the evidence in the record and that "this is equally true of all non-manufacturer user employers. Plainly, the ease with which the same information can be utilized by those employers can be easily determined from the information already in the record." Id. at 18. The Third. Circuit has ordered expansion of the HCS to all workers unless OSHA can give reasons why the HCS is infeasible for particular industries, and has forbidden OSHA from gathering further evidence. OSHA concludes that the original HCS rulemaking record (Docket H-022), does not contain credible evidence indicating the standard would be infeasible for any industrial sector. In fact OSHA believes that the original recordon.the whole supportsa finding that the performance-oriented HCS is feasible for all industries. In addition, the Agency's experience under the present HCS and other pertinent OSHA standards, the promulgation and implementation of State and local rightto-know laws,.and evidence and data gathered by this Agency since the 1985 Court order (Docket H-022D), farther supports OSHA's conclusion feat non- manufacturing employers are "capable" of implementing the HCS for their employees potentially exposed to hazardous chemicals. OSHA found that the HCS is technologically feasible for manufacturers, and believes it is clearly technologically feasible for nonmanufacturers aawelL Twelve of the OSHA-approved State plan States have already extended the rule to cover the non-manufacturing sector, and the requirements are bong enforced in those States as workplace standards. This experience provides practical evidence of the technological feasibility of the requirements of the rule; The more technical aspects.of fee standardscientific evaluation of chemicals to determine their hazards and creation of material safety data sheets and warning labels--remain a burden on those producing or importing hazardous chemicals. The technical expertise needed to develop the chemical hazard information, and its associated costs, is subsumed within the current rule covering manufacturers, and it has been found feasible. All other requirements in the HCS, such as maintaining material safety data sheets, developing a written hazard communication program, and designing and implementing chemical hazard training, are conventional and common business practices that are administrative in nature, and no technological barriers prevent their development and implementation. OSHA has mandated such practices for some non-manufacturing workplaces since the. early 1970's. See, e.g,, 29 CFR 1915.97 (requiring material safety data sheets and chemfoai hazard training for shipyard workers); 1917.22 (requiring marine terminal workers be instructed as to-fee chemical hazards presented by cargo); 191848 (requiring chemical hazard instruction for longshore workers); 192841 (requiring chemical hazard training for construction workers). See, also, H-022. Ex. 99 (journal article regarding usefulness of material safety data sheets, written by Dow Chemical Company representatives and published in December 1957). OSHA also believes that the economic feasibility of extending the current HCS to the non-manufacturing sector is supported by the record. Simply-put economic feasibility is established by evidence that fee standard will not threaten fee regulated industry's "long term profitability." ATML 452 U.S. at 531 il55. Costs associated wife expanding the standard to cover nonmanufacturing workplaces will stem from the initial start-up costs and fee less substantial recurring program implementation and upkeep costa for maintaining material safety data sheets received from manufacturers, importers, distributors, and other employers; creating labels for in-house containers of hazardous chemicals: developing a written hazard cnmnuminatton program. Including a list of hazardous chemicals present in the workplace: and developing and implementing chemical hazard training. After careful analysis of the original HCS rulemakingrecord, OSHA concludes that as a whole, it supports a finding that non-manufacturers are economically capable of providing employees chemical hazard information in the manner prescribed by fee HCS. As noted previously, development of the evidentiary record for the HCS began as early as 1974. In that year. NIOSH recommended that OSHA adopt a standard requiring all employers to implement a system of labels, placards and material safety data sheets in their workplaces to inform employees about the chemical hazards to which they may be exposed (H-022, Ex. 4). The NIOSH recommended standard like the HCS. included requirements that employers ensure that chemicals in the workplace are marked with hazard warnings and that material safety data sheets are "filed in the establishment" where they are "readily available for examination by workers". Id. at 3. This hazard identification and warning system was designed to additionally "help in the education of employees and provide the data necessary for employers to take proper action to safeguard their employees." Id. at 1. NIOSH concluded that such a chemical hazard communication program was appropriate for all employers. See, also comments of the Air.Transport Association. H-022, fee. 5-3 ("[T]he airlines have no general objection to the (NIOSH) Criteria. . . (except that it] should dearly delineate the responsibility of the manufacturer supplying fee necessary data on the Material Safety Data Sheets."). The 1975 report of fee Standards Advisory Committee on Hazardous Materials Labeling (H-022, Ex. 3). recommended a "total system" approach tochemical hazard mwmimiieflttnn not tmHV* the comprehensive approach of the current HC& The Advisory Committee, which induded representatives of non manufacturers. recommended labeling and placarding systems, the creation and availability of material safety data sheets, and employee education and training programs for all workers potentially exposed to hazardous chemicals. The Committee recognized that these practices "are not new and novel concepts" but "well established in many industries end professional associations as well as regulated by various governmental agencies and international agreements." Id. at 3. The Advisory Committee made "no distinction among employees in different sectors of fee-economy." United Steelworkers IL at 7. As fee Court has stated, id at a. fee 1977 ANPR requested public comment from all interested persons on whether a chemical hazard communication standard should be promulgated by DPMC-13892 lam 012547 31856 Federal Register / yoL 52, No. 163 / Monday. August 24. 19b/ / Rules and Regulations OSHA Comments on the Standards to employees, and providing information safety data sheetpolicy and program. Advisory Committee's recommended and training to employees regarding the "[U]nder this program, a material safety standard were specifically requested. chemical hazards present in the data sheet is recognized as a basic Although OSHAdid not receive workplace to be economically feasible. source of information for practical comment from employers in every See. also H-022. Exs. 2A-2 (Schiimer health, safety and environmental industrial sector, those non- Engineering Corporation); 2A-31 (Union information. The MSDS whether manufacturers that did respond Electric Company); 2A-32 (Texaco); 2A- generated internally or obtained from a supported a comprehensive hazard 36 (American Trucking Association, supplier is used to communicate communication system for their Inc.). relevant data within the company and io workplaces. For example. Sea-Land Moreover, comments received from outside customers. It is the Service. Inc. (H-022. Ex. 2A-6), non-manufacturers at later stages of the responsibility of our various operating supported requirements for container original rulemaking also indicate they companies to distribute copies of each labels (consistent with transportation are capable of implementing the MSDS to customers and company labels already in place), the availability performance-oriented HCS. In fact, there facilities for employee instruction and/ of material safety data sheets to persons are comments which indicate that many or information." Tr. 2439. Their company in the workplace, and individual training of these requirements were already facilities include such non programs. Panhandle Eastern Pipe Line being implemented in the non- manufacturing operations as petroleum Company (H-02% Ex. 2A-7) and manufacturing sector. production. Truckline Gas Company (H-022, Ex. 2A- For example, the Western Agricultural Similarly, Exxon. Inc. testified that it 9) both "agreefd] that employees need Chemicals Association indicated that its too provides material safety data sheets information about the product with members provide material safety data to all customers: **[W]e consider a which they work" and that this could be sheets to anyone who requests them, material safety data sheet a matter of accomplished by requiring suppliers of including customers in the non- public informatunrthat's part of our hazardous chemicals to label containers manufacturing sector (Tr. 2873). Their literature, regularly available to anyone with the "degree and nature of the representative further stated that "(i]n who requests it" Tr. 1708-09. See. also. hazard" and by requiring user the agricultural field, I would say most Shell testimony at Tr. 1712 and 2500. and employers to "inform employees of the technical products have material safety Uniroyal Chemicals at TV. 1464. hazard." Those companies had already data sheets. I would say maybe 75% to Therefore, based on the developed "a special manual of data for 80% of the inerts have them . . ." (Tr. recommendations of NIOSH. the all chemicals, solvents and cleaners 2881). Standards Advisory Committee and the used in [their] operations and mflint<>nafu^w Then was also testimony from employee representatives, including comments received from nonmanufacturers and.their representatives Wisconsin Electric Power Company those in the non-manufacturing sector participating-in the lengthy rulemaking, (H-022. Ex. 2A-30), stated thatgiven such as airline mechanics, that they- OSHA concludes that the original record adequate labels and material safety requested and wen able to obtain as a whole indicates that non data sheets from chemical material safety data sheets from manufacturers are capable of complying manufacturersand suppliers, chemical manufacturers for products in use in ' with the HCS; As long as chemical users such as they "would be in a their facilities. Tr. 2819-21.3131,382& suppliers provide adequate chemical position to prepare their own Material One union testifiedthat a joint hazard-information in the form of labels Safety Data Sheets, hazard placard employee-employer safety committee ' and material safety data sheets to non- systems; proper labeling of auxiliary received every material safety data manufacturers using the chemicals, and secondary containers and training sheet it requested, and that the union those user employers, like the of personnel wbo may use or otherwise then trained workers to be able to use " manufacturers who use hazardous contact this material." Recognizing the the information. Tr. 2824-A. chemicals which they themselves did need for "properlabeling, storage, Another non-manufacturing union not manufacture or import can develop handling and instructions in the use of representative, the International hazard communication programs and hazardous materials." Wisconsin Brotherhood ofPainten and Allied provide employees-information and Electrio Power Company had already Trades, indicated that it shared training on the chemical hazards in the "developed and pat into effect a collected material safety data sheets workplace. Hazardous Materials Control Program." with employers who needed such In light of the evidence in the original Southern Gas Association (SGA) (H- information. "(T]o contractors who rulemaking record. OSHA concludes 022; Ex. 2A-75] also believed that make requests of us for information, we that non-manufacturers can incorporate suppliers and manufacturers of do provide them material safety data the HCS' administrative practices and hazardous materials should be required sheets, write-ups on the chemicals and provide chemical hazard information to to provide proper labeling, warnings and- the-products . . ..We do everything-- their employees. OSHA believes all other hazard information to all our union does everything they can as a employers can ensure that containers of employers using these materials. SGA service to onr contractor members to chemicals are maintained with proper further suggested that OSHA promulgate - provide them with the information they hazard warnings just as an employer a standard directing all employers "to need to operate safely.-.. Tr. 2101-2. would maintain labels or marks on establish required training for Other large companies with containers to ensure that employees employees that may handle or otherwise- - manufacturing as well as non- comprehend their contents and intended be exposed to any hazardous materials." manufacturing establishments testified uses. Likewise, all employers are able to These comments and others filed in that information was made available acquire and maintain up-to-date response to OSHA's 1977 ANPR indicate throughout their corporations*and they material safety data sheets for that many non-manufacturers consider provide information to all customers hazardous chemicals just as they are maintaininglabels received on chemical regardless of industry. For example. able to acquire and maintain up-to-date containers, making material safety data Atlantic Richfield Company testified cost information' and performance sheets received from suppliers available that they have a company-wide material specifications on those very same DPMC-13893 LAM 012548 Federal Register / VoL 52,. No. 163. / Monday. August 24. 1987 / Rules and Regulations 31857 chemicals. OSHA also concludes that it chemicdls. If employees are not is feasible for employers toinform and potentially exposed to hazardous train their workers regarding the chemicals in a particular work chemical hazards present in the operation, the proposed standard does workplace just as employers are capable not apply. Also, to the extent that of training their workers to perform their employers are voluntarily providing jobs in an efficient and speedy manner. information, or providing information in These conclusions are further supported order to complywith other regulations by the experience and evidence or laws, this should significantly reduce gathered by the Agency since the burden of compliance with this rule. promulgation of the HCS for Approximately 32 States and several manufacturers in 1983. localities already have hazard At this time. OSHA has no evidence communication/right-to-know laws indicating that the profitability of covering non-manufacturing industries manufacturers generally, or even - indicating that many others seeking to chemical manufacturers in SIC 28 (by far protect the safety and health of workers the most economically burdened by the HCS. see 48 FR 53333). has been threatened by complying with the HCS. have concluded that industry can comply with these types of requirements. In fact as evidenced in Manufacturers have had the considerable costs of evaluating, the original rulemaking record, many companies involved in interstate collectively, hundreds of thousands of commerce would benefit from chemicals for their hazards and creating promulgation of a uniform Federal corresponding labels and material safety data sheets since November 198S, as well as the coats of implementing an in-plant program by May 1986. After thorough analysis. OSHA determined standard as it would preempt different and potentially mnfllrting State local laws and lessen overall compliance burdens. 48 FR 53283. See ' also. H-022D, Ex. 2-83 flhe that the current HCS wouldnot impose a substantial burden on manufacturers American Gas Association "believes that e Federal Standard, rather than a and that the HCS was economically variety of differing state regulations, feasible for them. See 48 FR 53333. would bestserve the needs of the Experience to date in implementation of natural gas industry, the employees in the rule supports that finding. For our industry, and the general public as example, if manufacturers were welL"); Ex. 2-108 (The National experiencing significant feasibility problems in complying with the rule. Constructors Association has found that "(i]t has been nearly impossible to OSHA would have expected to receive establish uniform interstate policy" and numerous substantive comments "can dearly see the wisdom of having regarding those problems in response to one workable/cost-effective government the 198S ANPR questions addressing regulation that addresses hazard * feasibility concerns. However, although communication.") some manufacturing employers objected Although the original HCS record to some requirements, substantive contained no evidence to indicate the comments demonstrating infeasibility HCS would be economically infeasible were not received which appears to support OSHA's conclusion that compliance with the HCS was. and continues to be*economically feasible for manufacturers and indicates the for non-manufacturing, OSHA recognized that potential feasibility concerns could arise, for example, with small businesses, businesses with large employee turnover (such as retail stores standard is also feasible for non and construction companies), and manufacturers. In fact some manufacturers took the opportunity to state their continuing support for the rule and its requirements. See. eg, H0220, Ex. 2-14. (The Chemical businesses with rapid turnover of hazardous chemicals in the workplace (such as warehouses and marine cargo operations). However, baaed on the original HCS rulemaking record, and Manufacturers Association "strongly additionally based om (1) The apparent believes that the substantive provisions successful implementation of the present of the Hazard Communication Standard HCS by manufacturera; (2) the are sound as a matter of science and policy."]; Ex. 2-87 (Economics implementation of other Federal communication standards and of State Laboratory. Inc. "considers hazard plan States' laws by non-manfacturers; communication worth the effort") and. (3) on regulatory impact and. Generally, the HCS costs-to non- regulatory flexibility analyses prepared manufacturers would be a function of by the Agency since the 1985 Court the number of hazardous chemicals in order and summarized in Section III of the workplace, and the number of this document* OSHA concludes that the employees exposed to hazardous- provisions in the current Hazard Communication Standard are economically feasible for all of the non manufacturing industries. OSHA is also aware that many employers in the manufacturing sector have been able to satisfy some of their responsibilities under the HCS by using compliance materials obtained from various sources. Trade associations, for example; have frequently been instrumental in assisting their members in developing programs suitable for their type of industrial facility. This is particularly appropriate given the performance orientation of the HCS. and the flexibility employers are-permitted to design appropriate compliance programs. Sample written programs and other written materials, as well as training programs regarding the requirements of the rule, have been developed and provided to association members and hwa facilitated compliance efforts. The ability of associations to accomplish this successfully demonstrates technical feasibility and enhances economic feasibility. Trade associations in states covering non-manufacturing workplaces under their right-to-know rules have also been able to develop materials to assist their members to comply. Materials developed for these State laws or for the manufacturing sector under the current HCS could be adapted for the non manufacturing workplaces newly covered by the HCS. There have also been a number of services provided by consultants in the private sector. These range from very specific items, such as computer programs to manage information, to a comprehensive compliance strategy, where a consultant will devise an entire program t enable a facility to comply. Sucfr serv^pes will often minimize the burden of compliance by minimizing the time the facility staff must spend to develop and implement a program. The availability of such programs also provides support for the conclusion that the rule is feasible. For large companies, the burden per facility will often be minimized by corporate development of a standardized program. It can be expected that most corporations with multiple facilitieswill use this approach (this has occurred in the manufacturing sector as well). Therefore, OSHA concludes that similar resources will be available to employers in the non-manufacturing sectors, which farther demonstrates thatthe rule is feasiblefor implementation in all sectors. In fact; given the pre-existing coverage of non-mamifacturing under various state rules, and the extent of the DPMC-13894 LAM 012549 31858 Federal Register / Vos. 52. No. 1S3 / Monday, August 24, 1987 / Rules and Regulations materials developed in response to the current HCS which would also be applicable in non-manufacturing, additional devefoparent of such materials iihM require contiderably less effort and he easier for non- manufacturers to obtain. Nevertheless. OSHA recognizes that the unique characteristics ol soma businesses render certain ptoviaiona of die ament standard tumaceseary or ineffective in communicating the hazards of chenrirala to workers.The Agency has thus made some mnriificathma to the standard to ensure that its provisions ana practical and effective<. aU waken, 45ZOS. at 531 m32 (OSHA nay aae cat effectiveness analyses and choose the less costly of two equally effective standards). The inclusion of these "tailoring" provisions is consistent with the Agent's action in tailoring the original HCS to make it practical andcoot affective for all manufacturers. See 23 CF& lflUU2QQ(b} (3)-(5). No* that the coverage of the standard is being expanded to non* manufartaing amglayanaawall.it is necessary to taike the standard to (he chtfBCtfliftticft-af thfttt boo* manufacturingemployer!. The tailoring praeiaiona. explained in Ssctiaa 8 of this preamble, are baaed on the origan! record in.tho HTftrahmaking. and also on Agency experience in implementing the current rule; State pisn Slate tm ftpWidid versions ofthe current nde; and (q Am Agwy tn response totheANFRpublished in Novemba 19M. OSHA. boliame that the knowledge andexperiencegained during thepeatfins ysanof ifflpiegMttfentlQB'flnd nfiBCOHBM&l p tta current ralemoat be taken into consideration whan crafting a role to appropriately apply to the noo- manafiaeturingsector. The Ageecy*a position is that ell regarding the chemical hazarde they are svpneed to lathe workplace. sad the* e tmifiiHw^ FtteuikmdGOBflHoiBdoi rtandard is the-best method to eoaure that tnfnnnattmla providedThis poeitiuo iemntisteat withtheAct (pratactiagall ea^loyeaa to tho extant feasible),as wada* with the Court's dsdakui upon review of the rain. HwMfaf Atsat mUMtms-- coonuBicfttiB^g&bb^cbLfscudfr to aS. . exposed amployaea. U should ha emphasizadtfaatin preparing s datatiartregdahay impact analysisfarthe.expansion oftbsscope of theHCS. OSHA ha acnumulateri svideeca to indicatethat some employees ip every SC code designation are exposed tohazardous chemicals, and that it is therefore not Safety andHealth met to (fiscuse a draft proposed: standard prepared by OSHA to expand the scope of theHCS to the appropriate to exempt any particular non-manufacturing industries. The draft industry sector. For OSHA has proposed rule was very similar to the received suggestions that retail. establishments be exempted since employee exposure to chemicals is believed to be unlikely in these types of facilities. However, there is testimony in the original rulemaking record from the United Food and Commercial Workers International Union (Tr. 3088-871 that HpmfWifrafyi wni4w m grh facilities are exposed to hazardous klirf thwrfowAa protections afforded by coverage under theHCS: While ruparnwrkrtsdoaftuse hundreds of hazardous chrmicale like some iwmnfnhipnj igHiialsisst | imwhf flf workers are exposed to the dosaa or so they do use. Chemicals used iaefuda caustic and add cleaning compounds, solvents; waxes. paints and disudaetants.. .lafmemiatste you one casewMtiaosr union wince workers were overexposed toso wtiriretified snhstsece Agteopof mpeneahs* workers began experiencing dtetnem.spper respiratory tractUritetioe end headaches... Nbt until wotkscs started to talk with one sootherdid they start to suspect e possible link between theirignew and certain sotveot that weeused to remove ottpries fadwts from mmdMidise ceiled Garvey XC-3&. See Tr.3068-88t .Sirea&wTfc 414 and T>. 1840-43. Thtestimony further relates other incidents; as vreff as the various activities the union had topuisaeto obtainhrfonsatioe forexposed wnrkvrs iiii'htfing chmirad analysis of products to datenniee their contents. This illustrates the need fiarappticutioo of tho fen fciAttiMtiti wdt9M retail afore* as writ as those industries where chrmicel nxno--as are more obvious. For additional ti stimnuy regarding the extent of chemical final standard being promulgated herein. OSHA has reviewed the recommendations of the Construction Advisory Committee^ and incorporated a number of the suggestedrevisions into this document to the rule for the construction industry, and for other industries which have similar concerns due to similar differences in work operations from the typical manufacturing establishment. Other recommendations called for more substantive changes to the HCS. affecting the obligation* of chemical manufacturers and others, and OSHA does not believe they are supported by the record or appropriate to incorporate into this final ralewithout further opportunity for notice and comment from those affected. It ia important to note, however; that despite the recommended changes there were no indications that members of the Construction Advisory Committee believe thst it isinfeasible to implement hazard communication programs in the construction industry. In fact, as OSHA has noted previously, the construction industry has been subject to training Ttiqniftiffitintti pnaparwtnj **^Tiitll hazards formany years (see 23CFR 182&21). In preparing the draft proposed nde. and subsequently this final rale. OSHA did review theReport aa Occupaticoai Health Standout*forth* Caaetmetiott Industry whichwas submitted fay the Construction Advisory Committee to the AssistantSecretary on May 18.1980. in that repot the Committee addressed recommendations foe labels, material safety data sheets, and training all of the major components of the HCS. sectnc. eem ee. hosntini weekera:Tr. 411-4* 273&-4L and3080 (** - hospital workers are exposed to ftsmaldefayri* ethylene aadde. drawing agents whirh are oftenvery caustic ..fEc 4Ufc. barbers end baeetkfonm Ik 4354a r- - - wok aroundhairdyes... Of particular concern to tbs Cammitteeet that timewee that construction employer* do not have access to the necessary information upon which,to dcvalop-appropiiatg signs and labels ormateriel safety data sheets, and therefore meat depend upas suppliers for such mfonmatfon. workaaeTfc 30431 utilitywaken:Tn. 417.307* 313ft worken in iky rlnmwr andlaundrieetTtHTti. ft B> r - - [B]eycwd the rhka kwied MlveMafhirtyaurtlqr^iriareua; aasociatad with a partjrnier prodact or device if the iteam arrant accunpauied upon purchase by appropriate labels and datasheets....." OSHA agrees dyes .. ftrmwahene Tn2286. D. ConstructionAdvrtarjCommittee Recommendations Q*june 23.1987, theContraction Advisory Caaunittee onOccupational that this lade offatfoamtioa hen been a problem for ail downstream users of chemicals, andtimedevelopod the approachincorporated into thrHCS-- producers or importers of chemicals are responsible foe evaluating the hazards DPMC-13895 LAM 012550 Federal Register / VoL 52, No. 163 / Monday. August 24, 1987 / Rules and Regulations 31859 and transmitting that information to It was1interesting to note that downstream employers or users of the although the Construction Advisory materials. Under the expanded rule, Committee was essentially maintaining construction employers would be the that hazard communication in recipients in this downstream flow of construction could be treated as a information. separate issue, many of the changes the The HCS did not exist at the time of the report and the Committee thus recommended that a solution to the members were recommending would often have required substantive changes in the requirements for the problem of lack of information "would manufacturing sector. As noted above, be to modify and extend the existing OSHA standard for material safety data sheets which now applies only to ship repairing, shipbuilding, and ship breaking (29 CFR1915.1918 and 1317). The modified standard would require manufacturers or formulators of harmful materials or agents to supply material safety data sheets along with their products in such a fashion that they reach construction employers." Shipbuilding and ship repairing are in the manufacturing sector, and covered by the requirements of the 1983 final rale--ship breaking will be covered by the Committee expects to receive tables on containers and material safety data sheets from its suppliers. This is certainly consistent with OSHA's : approach in the rule. But the Committee is also rumwiwenHtng that the labels on containers being shipped to construction contain additional information, and that the requirements for material safety data sheets be slightly different as welL They also recommended changes in the hazard determination provisions, while maintaining that hazard determinations must be accomplished in the manufacturing sector. These these expanded provisions. Therefore. OSHA is doing,what was recommended in I960, i&. extending the existing OSHA standard for material safety data sheets to construction. The Advisory Committee concluded that although the recommendations serve to support OSHA's view that in an approach which requires a downstream flow of information, the relationship between the requirements for producers and downstream users are so inter hazard information may have been dependent that separation of diem into difficult for construction employers to two separate standards would be acquire in the past "such information logically inconsistent And furthermore; was fundamental to the preparation of since the requirements for hazard warning signs, labels, training programs, determinations, labels, and material and other important job safety and safety data sheets were based an an health activities." extensive rulemaking record, and are The Construction Advisory Committee' not industry-specific, it would not be is now recommending that the appropriate to modify those construction industry be regulated under requirements at this point a separate standard for Hazard Two separate standards would also Communication, rather than being require cross-referencing provisions treated as any other downstream from one rule to another to ensure employer who uses chemicals. The proper information transmittal, a rationale is that construction sites are regulatory format which would be unique among industrial workplaces and unnecessarily confusing to the regulated should be addressed in a vertical community. OSHA believes it is more standard specific to the Industry. effective to list in one standard, the Although OSHA has found this obligations of chemical producers, argument persuasive for a few health importers, and suppliers with those of standards, where there are fundamental the users so that employers using differences in control strategies to hazardous chemicals will be aware of achieve permissible exposures for a- the content and quality of die hazard chemical in a fixed site facility versus information they are entitled to receive the construction site, it does not appear from their suppliers. Furthermore, it to be appropriate in this situation which would not be appropriate to indicate simply involves transmittal of requirements for chemical information, that can be accomplished manufacturers and importers in a on any type of site. Arguments regarding standard which purports to cover solely transient workers, mobile work sites, the construction industry, as would have etc. can appropriately be made for other to be dona to accommodate ail of the non-manufacturing users of chemicals as recommendations of the Committee. welL The problems raised can be dealt Therefore; construction employers are with more effectively by modifying the included with all other employers in this provisions of the current rule to address standard. However, OSHA will print the them, rather than preparing completely rule in full in 29 CFR Part 1928 (in separate standards-far each industry. 31928-50) for ease of reference for construction employers and employees. In addition, it will also be printed in 29 CFR Parts 1915,1917, and 1918. for the use of maritime employers and employees (at new ! 1915.99.1917.28, and 191890, respectively), and will be referenced in Part 1928 covering agricultural employments. Federal Community Right-to-Know Law Expansion ofOSHA's HCS will also have an impact on employers' obligations under another Federal law to inform State and local communities of the hazardous chemicals present in the workplace. On October 17,1986. the President signed into law the Supefund Amendments andReauthorization Act of 1986 ("SARA"). Part of the new law, Title HL the Emergency Planning and Community Rightxto-IOiow Act of 1988. encourages and supports emergency planning efforts at the State and local level and provides citizens and local governments with information concerning potential chemical hazards present in theircommunities. Two provisions in the new law, sections 311 and 312, mandate that employers required under the Occupational Safety and Health Act of 1970 and regulations under that Act to prepare or have available material safety data sheets for hazardous chemicals in their workplaces, must also submit chemical hazard information to State and local governments. Specifically, employers required by the OSHA HCS to create or maintain material safety data sheets for employees must also submit to the State emergency response commissions, the local emergency planning committee and the local fire department (1) A material safety data sheet for each hazardous chemical for which a data sheet is available (section 311); and (2) an emergency and hazardous chemical inventory form (section 312). The public mayrequest material safety data sheets and inventory information from the local platwiinj CQflUIlittM. Because all manufacturing employers are currently subject to the OSHA HCS and required to create or maintain data sheets for the hazardous chemicals present in their workplaces, they must also comply with the community reporting requirements of the Emergency Planning and Community Rlght-to-Know Act An expanded HCS covering nonmanufacturers will-require non- . manufacturers to provide chemical hazard information not only to their employees but also to the surrounding communities. DPMC-13896 LAM 012551 3186a Federal Register / Vol. 52. Na 163 / Monday. August 24. 1987 / Rules and Regulations On January 27.1987, EPA proposed regulations to implement the community data sheet and inventory reporting requirements. A detailed explanation of the EPA proposal can be found at 52 FR 2836 (January 27.1987). A final rule is expected to be published in the near future. OSHA has prepared a preliminary estimate of the costs of expansion of the EPA requirements into the non-manufacturing sector. This estimate is addressed further in the section of this preamble dealing with tha regulatory impact analysis for the final rule. EPA has established a toff-free hotline to answer questions concerning the requirements: Chemical Emergency Preparedness Program Hotline; 1-800/ 535-0202; in Washington. DC at 1-202/ 479-2448. CL Summary and Explanation of tha Issues and the Proriliana *f the Final Standard This final rale is both an expansion and revision of the current HCS. The regulatory text presented herein includes the unchanged provision* ofthe present mis; anwell as those whirh OSHA is changing. This was dons to ensure that readers can dearly follow when these would appearin the standard. As axplaintd below, the - substantive changes wma found to be necessary and appropriateiora hazard comirumiratian standard covering all workers exposed to haaaidooa chemicals. OSHA ia also seeking several ---1 --j--- T t*rhi-t rxau finds prior public notica and comment for these arionr amenrlnwnt* to tha uooccMury bocsttM of tUi substantive natnre.5 U.SC. 553(b); 29 CFRUHUl The discussionwhich follows will address the changed provisions of tbe rule, as well aa the issues related to these changes. A detailed summary and explanation oftha current rule's provisions is only provided when necessary for the discussion of the modification. For a complete explanation of the existing provisions, please seethe preamble to the current HCS (48 FR 53334 40). The current mfe is cofiffedat2GFRt0Iftl20a;aiidwas published at 4S FR5334(Mft The modified trade secret provisions are discussed at 51 FR 3459ft This dieceeeiBn is organised by paragraphedthestandard, and is presented he the order these paregapha appearin tbe HCS. Forease ofreference. OSHA wffl be printing thesame rule in fuO te 29 CFR Pert 19IO (fa | 19HH2D0)fcr general industry, 29 CFR Part 1928 (in ) 19Z850) for construction, and in 29 CFR Parts 1915,1917; and 191ft for the use of the maritime industry (at new S31915.99,1 1917.28, and 191819ft respectively). (a) Purpose All references to the manufacturing sector; SKI Codes 20 to 3ft have been deleted to reflect tbe expansion of the scope to all employers and employees. It should be noted that these changes have been made throughout the pcovinoos of the rule, wherever the HCS currently addresses employes endemployees in the manufacturing sector rather than employers and employees in general Despite tbe expansion of covered employers from manufactures* to all employers, however; OSHA retains in this final rule the distinction between chemical manufecftirere and importers who produce or import hazardous chemicals, and downstream employers who merely use the chemicals. Only tha former are to prepare the technical hazard information for labels and material* safety data sheets accompanying hazardous chemical*, wherea* all employers ora to pass this information on to thair-wockei* potentially exposed to the chemical* through * comprehensive hazard communication program which include* The original Hazard Communication Standardincluded, at2ft CFR 1910.1200(aK2J. a generally-warded' statement concerning theAgency's position, regarding the preemptive effect of the standard. This paragraphhas, been revised to more explicitly state tha Agency's position.regarding preemption, based on the provisions of the Act and related legal actions. This final rule significantlyexpands the number of industrial groups to which the Federal standard appHes, and thus It significantly expands the area hr which state end local lews will be preempted . Section 18(a) of theAct 29 VJS.C. 687(a), provide* that a state may assert Jurisdiction through any court or agency over "any occupational safetyorhealth Issue with respect to which no standard is in effect under section A" Conversely, where OSHA hasleaned a standard. section 18 expressly preempt*states from smarting Jurisdiction through any court or agency over the issue addressed by that standard unless m Federallyapproved State plan is hr affect 29 U-S.CL 687(a) and (b); 29CFR 1BOLZ The express preemption provisions of the Act apply to ell state or leeai laws . which relate to an lisas covered bye Federal standard, without regard to whather testate taw-would eonflfet with, complement or supplement the Federal standard and without regard to whether the state law appears to be "at least as effective as" tbe Federal standard. The "at least as effective asTM test applies only to state standards adopted under an approved State plan. 29 U.S.C. 667(c)(2). In enacting OSHA. Congress rejected provisions which would have permitted states to enforce laws which were "dot in conflict with" or "at least as effective aa" Federal OSHA standards. See Senate Comm, on Labor and Public Welfare. 92d Cong* 1st Sess* Legislative History of the Occupational Safety and Health Act of 197ft at 58.708 (Comm. Print 1971). Instead. Congress enacted section 18 providingthat Federally-approved State plans are the exclusive aftmnathre to preemption: Since the promulgation ofOSHA's original Hazard Communication Standard, a number of court decisions have dealt with theeffect ofexpress and implied Federal preemption upon state and local hazard communication or "right-to-know" laws: United. Steelworkers ofAmerica . Auchter. 783 Fid 728,733-38 (3d Or. 1985) (Federal Hazard Communication Standard expressly preempts state hazard disclosure laws in manufacturing sector);JVerJerseyState Chamberof Commercev. Hughey, 774 F-2d 587 (3d Cir. 1985} (provisions of New Jersey right-to-know law which pertain primarily to community or environmental safety and health are not expressly preempted: right-to-know lawa subject to implied preemption if they make it impossible to comply with Federal law or pose an obstacle to objectives of the Federal Act); Manufactmers Association ofTH- County v. Knepper. 801 F2d 130 (3d Or. 1988) (similar hofcting in connection with Pennsylvania right-to-know law). The revised paragraph (a)(2) specifically provides that both state end local laws pertaining to occupations! hazard communication are preempted by the Federal standard. In the one court decision which has addressed the question, the United States Court of Appeals far the Sixth Circuit ruled that the Federal Hazard Gmmmndcatibn Standard preempts local as weg as state laws: OhioManufacturersAssociation v. City ofAkron 801 F.2d 824 (1986); The court noted that the text of 319iai280(aK2) (fid not mention localities and referred only to preemption of "state1" laws: fei at 827, 831-832. Nevertheless, relying upon references to local ee well ss state laws in the preamble to the 1983 standard; the court correctly inferred that OSHA had intended to preempt all non-Federaf occupational hazard communication DPMC-13897 LAM 012552 f Federal Register / VoL 52, No. 163 / Monday. August 24. 1987 / Rules and Regulations 31861 laws. Id. at 832. Therefore, in accordance with the Court decision. OSHA is making a technical amendment to paragraph (a)(2) so that it explicitly states that the HCS preempts local worker right-to-know laws. The revised 1310.1200(a)(2) not only defines hazard communication as an "issue" under the terms of the Act. but also enumerates the generic areas addressed by die standard for purposes . of establishing the parameters of preemption. 11018 any State or local government provision requiring the preparation of material safety data sheets, labeling of chemicals and identification of their-hazards, development of written hazard communication programs including lists of hazardous chemicals present in the workplace, and development and implementation of worker chemical hazard training for the primary purpose of assuring worker safety and health, would be preempted by the HCS unless it was established under the authority of an OSHA-approved State plan. (b) Scope and Application Laboratories. With regard to the coverage of laboratories, specifically addressed in paragraph (b)(3), OSHA concludes that the current rule's provisions, requiring only that labels and material safety data sheets received with incoming chemicals be maintained and that the general training of paragraph (h) be provided, are feasible for non-manufacturing laboratories as welL See. comments of the Massachusetts Institute ofTechnology, H-022D, Ex. 2-120 ("We agree that the Hazard Communication Standard's requirements for labs are adequate. . . . We expect our compliance costs to remain at the current level of spending because the majority of these are start up costs and some activities have been absorbed and integrated within existing programs.") OSHA believesthat these somewhat limited hazard communication requirements for manufacturing laboratories are also appropriate for non-manufacturing laboratories because both share the operating conditions that distinguish them front the typical industrial workplace: they commonly use small quantities of many different hazardous chemicals for short periods of time: the conditions and purposes of the use of the chemicals frequently change, often unpredictable many substances are of unknown toxicity: and many workers are highly trained. Compare 48 FR 53287-88, with 51 FR 28863-64. OSHA concludes that the same HCS provisions tailored for manufacturing laboratories are appropriate for the protection of ail laboratory workers within OSHA's jurisdiction. It should also be noted that OSHA is currently proceeding with a specific rulemaking to directly address "Occupational Exposure to Toxic Substances in Laboratories" (51 FR 28860; July 24.1988]. When that rule becomes final its provisions may supplement the information transmittal requirements of the HCS by directly reducing hazardous chemical exposures inlaboratories by requiring, among other things, safe work practices. As . noted in that proposal the final rule might modify the general information and training requirements in the HCS to incorporate other aspects of that standard. Any changes in the application of the HCS provisions to laboratories will be qddrassed in detail in the final rule for laboratories and will be based on that rulemaking record (Docket H-150). Coverage determined by "exposure. " The HCS covers situations where employees "may be exposed" to hazardous chemicals (paragraph (b)(2)). and such exposure is defined to include potential exposure as well as actual exposure. This is to ensure that employees receive information about all chemical hazards in their work areas, and that they are-prepared to deal with any unexpected releases or emergency situations, os well as exposures during the normal course of employment OSHA concluded that employees are entitled to information regarding the chemicals to which they are exposed in their work areas. It should be noted, however, that individual facilities and workplaces may have some employees who are covered since their work involves exposure to hazardous chemicals, and others who are not covered because their work does not For example, in a retail department store, maintenance workers or workers in a graphic arts dapartment may be covered since their jobs involve exposure to chemicals, but an accountant in the billing department would not be likely to experience exposure that would require coverage by the HCS. There are a number of work situations where employees only handle sealed containers of chemicals, and under normal conditions of use would not open the containers and would not expect to experience any measurable-exposure to the chemicals. Such work operations include, for example, warehousing, retail sales, marine cargo handling and trucking tenninais. It is reaaonable toasaume, however, that all such containers an subject to leakage and breakage, and these employees are in fect potentially exposed by virtue of the presence of these hazardous chemicals in their workplaces. Because of this potential exposure, they need information to protect themselves from the hazards of these chemicals in the event such an emergency situation occurs. However, OSHA has considered the extent of information necessary or appropriate in this type of operation, and the practicality of requiring such work operations to be subject to all of the provisions of the rule. The primary need is to ensure that these employees know how to acquire and use the hazard information available to them, and to handle an emergency exposure situation. As in laboratory operations, maintaining lists of chemicals where the chemicals present may change on short notice, sometimes on a daily basis, is not a useful requirement Similarly, obtaining material safety data sheets for every chemical in a sealed container that passes through a facility--even if it is there less than a day in some situations--would result in a considerable amount of paperwork, with little discemable benefit for the employees involved. Therefore. OSHA has added a provision, paragraph (b)(4), to limit the duties of employers for those work operations where employees only handle sealed containers that are not intendedto be opened under normal conditions of use. (Some States which have adopted right-to-know laws have also recognized the practical problems of coverage in this area, and have included provisions limiting coverage of workplaces where chemicals are handled in sealed containers. See. e.g,, Tennessee Hazardous Chemical Right to Know Law, Tennessee Code Annotated. 50-3-2001 through 50-3-20019.) In these situations, employers must not remove labels affixed to Incoming containers of hazardous chemicals; must maintain and provide access to material safety data sheets that are received for hazardous rhemimls while the ohftinlralu are iU the workplace, and obtain material safety data sheets when they are not received but an employee requests one; and must train employees in accordance with the provisions of the rule to ensure they are protected in the event of a spill or leak. The employees In these operations will always have access to the label information, which will provide appropriate hazard warnings and be a visual reminder of the potential hazards if exposure occurs. Employees will also be trained regarding the general classes ofchemical hazards faced and the means by which they can protect DPMC-13898 LAM 012553 31862 Federal Register / \/ol. 52, No. 163 / Monday. August 24, lat>7 / Rules and Regulations themselves from these hazards when there is a spill or leak. The training must also address the availability and use of substance-specific information found on labels and material safety data sheets, where available. These requirements should provide employees handling only sealed containers of chemicals with the information they need. This limited provision also addresses some of the concerns raised by representatives of industries with these types of workplaces. (See. e.g. Exs. 2-53, 2-75.2-201. and 2-214). Although they generally were arguing that this type of operation warrants exclusion from the rule; OSHA does not agree that no protection under the HCS is required in these situations. As already described, a potential for exposure does exist and therefore such employees must be appropriately covered. OSHA believes the limited coverage described will effectively protect employees while recognizing the constraints of the particular work operations involved with regard to the applicability of the current rule to these types of work. Labeling exemptions. The HCS includes a number of labeling exemptions to ensure that OSHA does not provide duplicative coverage for products which are already labeled under-the rules of another Federal agency. It should be reemphasized that these exemptions (in paragraph (b)(4) of the original rule; paragraph (b)(5) in this final rule) are only from the container labelingrequirements under paragraph (f)--all other provisions of the rule are still in effect A minor correction is being made, however, to these exemptions to indicate that when medical or veterinary devices ate labeled in accordance with the labeling requirements of the Food and Drug Administration (FDA) under authority of the Federal Food, Drag, and Cosmetic Act (2X U.S.C. 301 et seq.], those items are exempted from HCS labeling requirements. All other items regulated by FDA under that Act were listed in the HCS labeling exemption. Medical and veterinary devices were inadvertently omitted from the list of items that might be subject to FDA labelingrequirements under the Federal Food. Drag, and Cosmetic Act, and>they are exempted from HCS labels for the same reasons that the other items areexempt when subject to labeling under FDA. See.48 FR 53280. To ensure that all these FDA regulated items are treated in the same manner and that devices are exempted from HCS labeling if subject to PDA labeling; paragraph (b)(5)(ii) is amended by adding medical and veterinary devices. OtAef exemptions. The HCS includes a number of specific, total exemptions from the requirements of the rule for certain types of chemicals. This rale adds three categories of exemptions: food, drags, cosmetics, or alcoholic beverages in a retail establishment packaged for retail sale (paragraph (b)(6)(vi); consumer products (paragraph (b)(6)(viij); and certain pharmaceuticals (paragraph (b](6)(viii)). Food;drugs, cosmetics, alcoholic beverages. The current HCS includes an exemption for food, drugs, or cosmetics brought into the workplace for employee consumption. These types of exposures are not related to an employee's work, and therefore do not need to be covered under the HCS. The expansion of the HCS into the non-manufacturing sector will result in many of these types of products being present in workplaces [e.g~ liquor stores) where they are not intended for employee consumption, and where they normally would not result in employee exposure because they are packaged for sale to consumers. Although some of these products may meet tee definition of a "hazardous chemical" (e.g~ vinegar is acetic add), when packaged for retail sale they do not pose a hazard to workers that is any different than the hazards of such products in their homes. The label information required by other Federal agencies for foods, drugs, cosmetics, and alcoholic beverages should thus provide sufficientprotection for workers, and OSHA has exempted these products from coverage under the rule. It should be noted that this is not an exemption for facilities of any particular industry, as all facilities may have other chemicals in use that would be covered by the HCS. In addition, since these products are exempted, employers which package them for retail sale would not have to furnish material safety data sheets to distributors receiving the products. Consumerproducts. The current rule provides a labeling exemption for consumer products when they are labeled in accordance with the requirements of the Consumer Product Safety Commission (CPSC). CPSC requires consumer products which contain hazardous substances to be appropriately labeled. Examples of consumer products would include such items as oven cleaner, paint stripper, and adhesive, which may be found in various types of workplaces. In addition to the specific labeling exemption, OSHA has been interpreting the rale as not being applicable to consumer products when used as a consumer would use them. OSHA is now adding this interpretation to the rale itself, paragraph (b)(6)(vi). stating teat where such consumer products are used in the workplace in a a manner comparable to normal conditions of consumer use, resulting in a duration and frequency of exposure to employees which is no greater than exposures experienced by ordinary consumers, under such conditions the chemical would not have to be included in the employer's hazard communication program. This position is consistent with OSHA's reason for orginally limiting the exemption for hazardous consumer products used in the course of employment to only an exemption from HCS labeling, and not material safety data sheet and training requirments. "OSHA recognizes. . . that there may be situations where worker exposure is significantly greater than that of consumers, and that under these circumstances, substances which are safe for contemplated consumer use may pose unique hazards in the workplace." 48 FR 53289. However, to tee extent that workers are exposed to the substances in a manner similar to that of the general public, there is no need for any HCS requirements. One example of such a differentiation in exposure situations involves the use of abrasive cleaners in the workplace. Where these are used intermittently to dean a sink, much as they would be used at home, the deaners would not be covered under the standard. But if they are used to dean out reactor vessels, thus resulting in a much greater level of exposure; they would be covered. Or if an employee deans sinks all day long, thus resulting in more frequent exposures, the abrasive would also be included in tee hazard communication program. Thus workplaces which only have chemicals which are consumer products used in-tee same way and as frequently as the general public would normally use them, would not have to have a hazard communication program. It should be noted that OSHA intends to read thisexemption narrowly. Where an employer is uncertain whether the duration and frequency of exposure to these products is comparable to consumer use, an employer should obtain or develop the material safety data sheet and make it available toemployees. In response to questions raised in tee 1985 ANPR. OSHA received a few comments on the use of consumer products in the non-manufacturing sector. A number indicated that overexposure may occur from the use of such products, or teat the frequency and duration of workplace exposure is typically greater than that experienced DPMC-13899 LAM 012554 Federal Register / VoL 52. No. 163 / Monday. August 24. 1987 / Rules and Regulations 31883 by consumers (Exs. 2-59.2-83,2-10tt 2- 120. and 2-184). Others stated that the exposure was comparable to consumer use (Exs. 2-46 and 2-83). There were several that'felt dm label provided enough information, and no additional requirements-were needed to protect employees (Exs; 2-75,2-79,2-99,2-107, and 2-118); while-others felt the employer should be required to request material safety data sheets because employees are not getting enough information (Exs. 2-109.2-128. and 2169). One suggested that the label note that a material safety data sheet is available on request (Ex. 2-100). while another contended that when a product Is usedby a professional, it is no longer a consumer product (Ex. 2-199). OSHA believes that the consumer product exemption in this final rule takes all of these concerns into consideration, and strikes a balance between the practical considerations of acquiring and maintainingmaterial safety data sheets on CPSC regulated products which employees are exposed to at home as well as at work, and the worker's need for more hazard information than a CPSC label when exposures are greater or more frequent than typical public use of the chemical would generate. A number of States adopting right-towork laws have also developed consumer product exemptions. (Sea, &#, Wisconsin "Employees' Right to Know Law"; Illinois "Toxic Substances Disclosure to Employees Act") However, moat ed these rules have-taken a broader approach to the consumer product exemption, generally eliminating coverage of such products unless exposure is "significantly greater" than consumer exposure during the "principal consumer use." OSHA considered and rejected such language for the consumer product exemption. It would be very difficult from an enforcement perspective to determine when exposure to a consumer product is "significantly greater" than consumer exposure. The key elements of concern to OSHA are as stated in the consumer product exemption included in this rale--that the consumer product be used in the same manner as a consumer would use it (and therefore as intended by the manufacturer when preparing the label information), and that the duration and frequency of exposure be essentially the same as would be experienced bya consumer (and thus the label warnings would provide adequate protection.) A broader exemption than this wouldnot be appropriate to protect workers from occupational exposures that were not anticipated by the manufacturer when the labels, and thus the protective measures, were developed; Application to Office Products.1 A number of questions have been raised about'the application of the rale to office products that may contain hazardous chemicals; Itis OSHA*s determination that office-products such as pencils, pens, typewriter ribbons, and the like, are "articles" under the rule and therefore exempted, paragraph (b)(8)(iv). Employers are not therefore required to implement a program for such products. OSHA has also determined that intermittent occasional use of a copying machine tomake copies is not covered by the rale. Hie copying machine would also be considered an article for purposes of this standard! However, if a firm has a copying machine operator who is responsible for handling the chemicals associated with its use, or who operates the machine frequently, that individual would be entitled to information under the rale; Medicine. The rule; paragraph (b)(6)(vfl), also includes an exemption for drags when they are solid, and are in final form for direct administration to the patient (&. pills or tablets). Employees handling such finished drug products would not be exposed to the chemicals involved, and would not need information other than that supplied on the container label under FDA requirements. (The State of North Carolina adopted a similar exemption in their Hazard Communication Standard. 12 NCAC s7Cl01(a)(99)). Wood dust As OSHA has received a number of questions regarding the application of the wood and wood products exemption to wood dust, OSHA would like to reiterate its interpretation regarding the wood and wood product exemption in paragraph (b)(8)(iii) of this final rule. The wood and wood products exemption was included in the HCS for two reasons. First, the presence and identity of wood and wood products in the workplace is "unmistakable" and second, their hazards (Leu flammability or combustibility) are well-known to workers. 48 FE 53289. Because wood and wood products, characteristic hazards are self-evident, regulations requiring formal notification was not thoughtto benecessary; Wood and wood products "are not expected to be hazardous for purposes of this standard." Id. at 53335. OSHA never intended, however, that wood dust be excluded from the standard's coverage under the wood and wood products exemption. Wood dust is not generally a wood "product" but is created as a byproduct during manufacturing operations involvingsawing, sanding, and shaping of wood. Wood dust does not share solid wood products' "selfevident" hazard chmacteristics that supported the exemptionof wood products from the HCS' coverage. Except for the chemical additives present in the weed, products such as lumber, plywood.- and paper are easily recognizable in the workplace and pose a risk of fire that is obvious and wellknown to the employees working with them. The potential for exposure to wood dust within the workplace. especially with regard to respirable particles, is not self-evident nor are its hazards through inhalation so wellknown that hazard communication programs are unnecessary. "Wood dust" is a recognized health hazard, with exposure limits recommended by die American Conference of Governmental Industrial Hygienists (ACGIH) to control employee exposures to the substance. Under the provisions of-the HCS, this means that wood dust is to be considered a hazardous chemical (paragraph (d)(3)(ii)], and therefore subject to the requirements of the rule including material safety data sheets and training. (c) Definitions The only changes to the definitions in the current HCS are those that need to be made to accomplish the expansion of the HCS. The reference to SIC Codes 20 through 39 is being deleted from the definition of "chemical manufacturer" to be consistent with the extent scope of the rale. Any employer who produces a hazardous chemical for "use or distribution^ is considered a "chemical manufacturer" under the HCS, and must prepare and provide the appropriate hazard information. OSHA has modified the definition of "container" to exempt "engines, feel tanks, or other operating systems in a vehicle." The Agency has received some questions regarding the need for labeling such parts of a vehicle in applying the rule to the manufacturing sector. Expansion into non-manufacturing will greatly increase the number of vehicles involved in work operations, and thus OSHA determined that this clarification will ensure that the Agency's position regarding this issue is clear--vehicles do not have to bear labels regarding hazardous chemicals used to operate them. This does not exempt such chemicals from coverage by the rale--it simply eliminatesthe need to label once they are placed into the vehicle. The definition of "distributor" has also been changed to reflect the DPMC-13900 LAM 012555 31864 Federal Register / . ol. 52, No. 163 / Monday. August 24, lb,,/ / Rules and Regulations extended scope of the rule. A "distributor" means "a business, other than a chemical manufacturer or importer, which supplies hazardous chemicals to other distributors or to employers." Among other things, distributors must transmit hazard information they receive from chemical manufacturers and importers to all their employer customers. Under the current rule. OSHA defined "employee" as someone working in the manufacturing sector, and stated that those employees in manufacturing whose jobs did not involve routine potential exposure to hazardous chemicals would not generally be covered by the rule. Examples related to the manufacturing sector were provided. This was intended to limit the coverage primarily to those employees in the industry who were actually involved in production operations. However, since the scope of the entire standard is being expanded to cover employees in all types of work operations, the definition has been modified to clarify that workers who are exposed to hazardous chemicals as part of their assigned jobs would generally be covered under the rule, except for those who only encounter hazardous chemicals in nonroudne. isolated instances. OSHA believes moat office workers, and many other workers, are not exposed to the hazardous chemicals covered by the HCS in such a way that file rule would apply to those types of.work operations. The rule, therefore;,simply defines a covered "employee" as any "worker who is exposed to hazardous -chemicals under normal operating conditions-or in forseeable emergencies" and further states that "workers such as office workers or bank tellers who encounter hazardouschemicals only in nonroutine. isolated instances are not covered," "Normal operating conditions" are those which employees encounter in'performing their job duties in their assigned work areas. For example, if the receptionist in a facility receives and delivers a telephone message for someone in a different work area where hazardous chemicals arepresent. this does not mean that the receptionist would be covered under the rule by virtue of the one potential exposure from delivering the message. However, if performance of the receptionist's job entails walking through the production area every day. and thus befog potentially, exposed during the performance of regular, duties, that job would be covered under the rule. The definitions of "employer" and "importer" are also amended to indicate that all employers are covered by the standard. In addition, the definition of "employer" is amended to indicate that the term includes contractors and subcontractors. This reflects the definition of employer used in OSHA's construction standards. Similarly, the definition of "workplace" has been modified to specifically include job sites and projects. Hazard warning. While OSHA is not modifying the definition of "hazard warning" contained in the current rule, the Agency wishes to reiterate the intent to help employers,better understand and comply with the requirements. "Hazard warning" means "any words.,pictures, symbols, or combination thereof which convey the hazard(s) of the chemical(s) in the containers)." "Appropriate hazard warnings" are to be put on container labels. (See final rale paragraphs (f)(l)(ii) and (f)(5)(ii)). Since the rale covers "physical" and "health" hazards, specific information regarding, these would be required on a label to comply. Many labels at the time the HCS was promulgated includes only precautionary statements, rather than providing necessary information about the specific hazards of the chemicals. Thus employees encountered statements such as "avoid inhalation" on virtually every chemical container, but were not provided with statements regarding what type or severity of effect inhalation could be expected to produce. Therefore. OSHA's standard requires . identity and hazard information-on labels. Although employers can choose to provide additional statements. OSHA's requirements are limited to that required to convey the hazards to the workers. Under the OSHA scheme, other data: regarding protective measures, first aid. eta. are to be included on the material safety data sheet or in training, rather than appearing on the label itself. This approach is in keeping with the Agency's evaluation of available data on effectiveness of labels which indicates that the more detail there is on a label, the less likely it is that employees will read and act on the information. The purpose of the label is to serve as an immediate visual warning of the chemical hazards in the workplace. [See generally, 48 FR 5330003). There have been misinterpretations of the requirements made based on statements in the preamble to the current rule-concerning various labeling systems (see 48 FR 53301). This preamble discussion involves format of labels, and is not an unqualified endorsement of any particular labeling system. It simply states that any format may be usecLas long as the label includes the information regarding the chemical hazards required by the standard. It should be noted that it can be expected that some labels prepared in accordance with any of the available labeling systems can be expected to be found to be deficient Again, the preamble discussion cited merely reemphasized that employers are not constrained to use any particular format or warding, but are constrained by the necessity to comply with the requirements of the rale concerning the information to be provided--the identity, the hazaids. and for containers leaving the workplace, the name and address of the responsible party. The terms "physical" and "health" hazards are already defined in the rale, and these are thespecific hazards that are to be "conveyed" in an "appropriate" hazard warning. There are some situations where the specific target organ effect is not known. Where this is the case, a more general warning statement would be permitted. For example, if the only information available is an LCm test result, "harmful if inhaled" may be the only type of statement supported by the data and thus may be appropriate. It will not necessarily be "appropriate" to warn on the label about every hazard listed in the MSDS. The data sheet is to address essentially everything that is known about the chemical. The selection of hazards to be highlighted on the label will involve some assessment of the weight of the evidence regarding each hazard reported on the data sheet 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 data sheet It may be "appropriate" to provide less detailed information on the chemical hazards in an in-plant labeling system, where MSDSs and training are readily available, than on a label placed on a container leaving the workplace, where it may provide the only hazard information in certain situations and where there is no guarantee that the downstream employees handling or using the. chemical will fully understand the less detailed labeL This difference in appropriateness allows employers to establish standardized in-plant labeling systems, as long aa training regarding the use of these systems is conducted, and MSDSs provide the required, detailed information. DPMC-13901 LAM 012556 ; ,) Federal Register / VoL 52. No. 163 / Monday. August 24. 1987 / Rules and Regulations 31865 Article. OSHA is not modifying the definition of "article'* but wouldliketo provide some clarification regarding the Agency's interpretation. Releases of very small quantities of chemicals are not considered to be covered by the rule. So if a few molecules or a trace amount are released, the item is still an article and therefore exempted. In an earlier discussion in this preamble, application of the rule to office products was discussed and it was stated that items such as pens or pencils are to be considered artides. Other examples would be: emissions from tires when in use: emissions from toner on pieces of paper or emissions from newly varnished furniture. Furthermore, it should be reiterated that the HCS is limited to hazardous chemicals "known to be present" (paragraph (b](2J). and does not require any chemical analysis or testing to determine or verify such presence. See 48 FR 53334-35. Thus although one may assume that molecules are being emitted from an item, under the standard one does not "know" that a particular hazardous chemical is "present" The article exemption applies solely to the ultimate end use--intermediate users which result in exposure are covered and require hazard information to be provided. The following are examples of items which would require information for intermediate use prior to being finally installed: encapsulated asbestos insulation where the normal installation involves hernmeHng the material into openings, thus releasing the asbestos; tiles to be placed on a ship's hull which contain lead that is released during installation: and glass mercury switches to be installed in equipment a percentage of which are expected to break during this installation process. In these cases, installation is the "normal condition of use" for the employees installing the items, and thus hazard information is required for these intermediate uses. Once installed, these items would be articles and thus exempted. Although installation of an item may render the exemption temporarily void (until the item is installed, information must still be provided if there is a potential for exposure). OSHA does not believe that the possibility that exposure could occur when the item is repaired or worked on need be considered in the determination of when information must be transmitted downstream. Employers of employees performing repairs must provide the best information they have concerning the potential exposures. There would be no way to ensure, for example, that a material safety data sheet prepared for a lead pipe would be available to a worker repairing the pipe some years following installation. The employerwould provide the employees with general information concerning the hazards of the operations they were performing in lieu of specific information on the pipe itself! (d) HazardDetermination OSHA is not modifying the current rule's hazard determination requirements. The burden of evaluating chemicals to determine whether they are hazardous remains on the chemical manufacturers and importers who produce or import them and on those user employers who choose not to rely on the evaluations made by their suppliers and instead evaluate the chemicals themselves. A detailed explanation of these provisions can be found at 48 FR 53298-09. 53335-38. (e) Written Hazard Communication Program Under the current rule, a written hazard communication program must be developed and implemented for each workplace. Since the current rule covers fixed manufacturing sites, it did not appear to be necessary to specifically` state that the written program be available at the site. With expansion to non-manufacturing, however, particularly in the construction industry where a firm may have multiple sites, the standard must be tailored to specifically state that the intent is to maintain the written program at each site. Employees will then be able to access the information as required. The current written hazard communication program requirements include a provision that requires manufacturing employers to provide hazard Information to on-site contractor employers who have employees who may be exposed to the hazards generated by the manufacturer (current paragraph (e)(l)(iii)). The current standard does not address the reverse situation, fa, where a contractor employer brings hazardous materials on-site, and exposes the manufacturer's employees to them. Since the expanded rule will affect more worksites with work arrangements of this type (a.#, construction), and the need for an exchange of hazard information is obvious, OSHA has revised the requirements to tailor it to address the multi-employer workplace. (This was suggested in comments submitted in response to the ANPR. See Ex. 2-225, comments from the National Constructors Association. In addition., this situation has also been addressed in existing Stateright-to-know laws. See, e.g, Alabama Act 85-658; Tennessee "Hazardous Chemical Right to Know Law.") Under these provisions (paragraph (e)(2)), the employers must exchange material safety data sheets, as well as information about precautionary measures necessary to protect employees and an'indication of the type of labeling system in use, where exposures may occur to another employer's employees. Each employer will then have the information necessary to inform and train their employees. This will help ensure that all employees have sufficient information to protect themselves in the workplace, regardless of which employer uses the hazardous chemical. Consistent with the performanceorientation of tile rule, the provisions' do not specify how this coordination is to be accomplished.-This is best-left to the discretion of the parties involved. In many cases, it would probably be most efficient for the general contractor to coordinate the function For example, the general contractor could keep and make available material safety data sheets in the office on the site. It should be emphasized that the exchange of information is limited to those situations where exposures of other employers' employees may occur. Given the nature of multi-employer work sites in construction, there would be many situations where subcontractors responsible for various phases of the building project would not have employees present during other phases and thus no such exchange would be required. For example, if the electricians are not working near, or at-the same time as. the paving contractor, then no interchange is required. But if a painting contractors workers are using flammable solvents in an area where another subcontractor is welding pipes, this information exchange is vital to ensure proper protection of employees. (!) Labels and Other Forms of Warning A tailoring provision has been added concerning shipments which consist of solid metaL OSHA considers this change to be necessary since the problem addressed will occur more frequently in shipments to the nonmanufacturing sector than has been the case in the manufacturing sector. (Paragraph (f)(2)). Solid metal is often considered to be an "article" under the rule, and thus exempt. Where the metal is not an "article" since its downstream use results in hazardous chemical exposure to employees working with it. a provision has been added which allows shippers of this type of material DPMC-13902 LAM 012557 31868 Federal Register / 1 52. No. 163 / Monday. August 24. 19c '/ Rules and Regulations to send the label information once.. or from wholesale distributors as is similar to material safety data sheet more comknonly done in the transmittal, as long as the material is the manufacturing sector. Under the current same and it is being shipped to the same HCS. distributors of hazardous customer. In these situations, there chemicals must automatically provide should be no hazard to anyone handling commercial customers material safety the metal from the time it is produced in data sheets (paragraph (g)(7)). Retail solid form, until the time someone works distributors, however, often sell to on it in a way that releases a chemical businesses and the general public and hazard. Since the label information frequendy have no way of blowing,who transmitted would only reflect the a particular purchaser is. Under the chemical hazards released when it is current rule, retail distributors might later worked on. the label would not have to give material safety data sheets provide any hazard information that is to each customer to ensure that needed by those handling the material commercial customers get the in transit It most be emphasized that information they need under the HCS. A this exception is only for the solid metal specific statement regarding retail itself--any hazardous chemicals present distributors is, therefore, included in in conjunction with the metal in such a paragraph (g)(7) to address this practical form diet employees maybe exposed problem. Those retail distributors who when handling the material (&. cutting sell hazardous chemicals to employers fluids. lubricants, and greases), require must provide a material safety data labels with each shipment This tailoring sheet upon request and must post a sign provision, therefore, does not diminish or otherwise inform the employers that worker protection--workers get the an MSDS is available. According to hazard information they need. Schneider Hardware ofBanksville, Inc, (g) Material Safety Data Sheets Under the hazard determination provisions, a requirement is included which indicates that there are situations where the percentage cut-off for mixtures would not apply--when the released chemical is particularly hazardous, or when it could exceed an this is a reasonable approach (Ex. 2179): If OSHA does require commercial customers to get information through a retail outlet I do not foresee any problems with that arrangement The manufacturers could supply us with the Information, sa they are required to now for shipments to manufacturing plants, and we could make it established permissible exposure limit avaflable to customers upon request We or Threshold Limit Value when released would merely keep the sheets fare fliadrawer (paragraph (d)(5)(hr)). Although this is dearly a requirement of the rule, tee also 48 FR 53336, the material safety data sheet provisions for disclosure of hazardous ingredient identities did not address that particular situation. Clearly it was OSHA's intent to have all hazardoua ingredienta of mixtures listed on a material safety data sheet even and post a sign informing customers of their availability. We have leas than 100chemicals that would probably be affected, and keeping information on those would require at moiri. ona file drawer. It would not be burdensome. The retail distributors likely affected are those selling building supplies, hardware, etc Retail distributors will have to assess their product lines, and those in verysmall concentrations, whether or not they have commercial when t^e hazard determination accounts, to determine whether they provisions of paragraph (d) mandate must comply with,this provision. It is that they are to bo considered clear that most other types of retail hazardous for proposes of the HCS. As establishment* (eg* grocery stores, noted in die HCSpreamble discussion of clothing stores, etc) would not. the material safety data sheet With regard to the maintenanceof provisions: ``Employers must also list material safetydata sheet*so that they- ingredients present in concentrations of are readily available to employees, less than one percent if there is evidence whereas manufacturing farilitks are that the permissible exposure limit may generally fixed work sites with fixed be exceeded or if it could present a locations for these materials^ in some health hazard in those concentrations.'* types of nonmsnnfacturing work Id. at 53337. Thioobvious overtigHi.haa operations, employees must travel beencorrected by a minor amendment betweenwork areas during a wotkshift. to thank. Paragraph (g)(2KiKCM2). For example, employees involved hr Another sitnation which raises servicing oiland gas well* may have a- practicality concerns because of the central office location, but then travel by expansion of the scopeof the rule truck to the wells to perform their work. involves employers who purchase These remote locations may not have hazardous chemicals from local retag any staff, ozmay not have an office distributors, rather than directly from facility. OSHA has added a provision to the Aurfwii manufacturer or importer. .the MSDS requirements to ailowMSDSs to be kept at a central location in this type of situation, as along as the employer ensures that the employees can immediately obtain the information in an emergency, paragraph (g)(9). OSHA believes that this provision tailors the HCS so that it remains practical, yet effective, in getting workers the hazard information they need. This was also supported by a number of ANPR commenters (see, eg., Exa. 2-63.2-107.2-114.2-116, and 2117). The current rule, as well as the expanded standard, allows downstream employers to rely on upstream chemical manufacturers and importers to provide MSDSs. However, there is a duty for downstream users to request an MSDS when they don't receive one at the time of the first shipment There have been some questions regarding how the downstream user will know a data sheet is required withoutdoing a hazard evaluation. Such an evaluation is not necessary. If the label indicates a hazard, the employer will know he needs a data sheet and must request one if it is not received. If there are no hazards on the label the downstream user can assume the product is not hazardous and a data sbeetis not required. (h) Employee Information and Training OSHA is not making any modifications to the current rule's information and training provisions. These requirements remain performance-oriented and designed so that each employer will adequately address the hazards posed by chemicals in the workplace. An explanation of these provisions can be found at 48 FR 53310-12.53337-38. One question that does arise regarding training ULwhether it needs to be done specifically on each chemical or whether employers can train regarding categories of hazards. Either method would be acceptable. See 48 FR 53312,53338. If employees are exposed to a small number of chemicals, the employer may wish to discuss the particular hazards of each one. Where there are large numbers ofchemicals, the training regarding hazards could be done on categories (eg* flammable liquids; carcinogens).,with employees being referred to substance-specific information on the labels and MSDSs. Similarly, the re-training occurs when the hazard changes, not just when a new chemical is introduced into the workplace. If the new chemical has hazards which employees have been trained about, no re-training occurs. If the chemical has a hazard they have not DPMC-13903 LAM 012558 Federal Register / Vol. 52, No. 163 / Monday. August 24, 1987 / Rules and Regulations 31867 been trained about re-training would be limited to that hazard. (i) Trade Secrets Paragraph (i)(ll) of die current rule states that "fiJC following the issuance of a citation and any protective orders, die chemical manufacturer, importer, or employer continues to withhold the information, the matter is referrable to the Occupational Safety and Health Review Commission for enforcement of the citation. . . ." This provision was worded in such a manner that it left tile impression that OSHA could refer the matter to the Review Commission. This is incorrect as a matter of law. An enforcement proceeding is referred to the Review Commission when a citation is issued by OSHA, and is subsequently contested by the employer receiving the citation. Therefore, OSHA has made a technical amendment to paragraph (i](ll) to reflect the applicable procedural law. 01 Effective Dates The expansion of the rule to cover all employers becomes effective nine months from the date of promulgation of the final standard. Since the rhamiral hazard information for labels and material safety data sheets has already been generated in the manufacturing sector, and in many cases has also been distributed in non-manufacturing due to State law requirements and voluntary transmittal by suppliers, one month should be sufficient time for chemical manufacturers, importers, and distributors to Initiate provision of material safety data sheets to other distributors and to customers in the non manufacturing sector. An additional eight months is being provided for nonmanufacturers to complete preparation of a written hazard communication program for each facility and to conduct employee training. It should be noted that this eight month period for compliance only applies to those employers which are newly covered under the expanded provisions-- employers in SIC Codes 20 through 38 are covered under the current HCS and are already required to be in compliance with the provisions of that rule. Those tailoring provisions that apply to manufacturing workplaces, such as the consumer product exemption, go into effect immediately for those facilities. Appendices A and3 OSHA is not emending Appendix A's discussion of the health hazards posed by chemicals, or Appendix B*s discussion of hazard determination. They remain applicable to all- chemical manufacturers, importers, and employees performing hazard cleanser used to dean the sink in an determinations. Appendix C employee restroom. However, if such cleanser is used in large quantities to clean process equipment it should be addressed in The reference sources listed in this the Hazard Communication-Program. non-mandatory appendix have been updated to reflect currently available sources. This policy has been incorporated into the revisions to the HCS. and was taken into account wheq evaluating data Appendix D describing the number of hazardous The recent rulemaking on trade secrets added a new Appendix regarding the evaluation of the validity of trad*' secret claims. 51FR 34590. The full text of this appendix has been reprinted in this document as welL L Analyses of Regulatory Impact; Regulatory Flexibility, and Environmental Impact chemicals in the various two-digit SIC groups that could be affected by extension of the HCS to the nonmanufacturing sector. Assessing the net impact of the training provisions required identifying and deducting die costs of existing OSHA standards which' already require employers to provide the types of information and training activities The following is a summary of the prescribed in the HCS. This was done regulatory impact and regulatory for construction (1192621). flexibility analysis prepared by OSHA shipbreaking ($ 1915.97), marine for the revision of the Hazard terminals (J 1917.22), and longshoring Communication Standard which extends (5 1918JJ8). However, it was not possible the scope of the existing standard to the to separately identify and deduct the nonmanufacturingisector. The foil text of existing training costs for substance- the document may be examined end specific standards that currently apply copied in OSHA's Docket Office, 200 to the nonmanufacturing sector. Thus, Constitution Avenue, NW,, Room N3670, the compliance costs presented in this Washington, DC 20210; telephone (202) analysis are somewhat overstated. 523-7894. In extending the rule for Economic Analysis manufacturing to the nonmanufacturing Aa part of OSHA's efforts to gather information concerning the economic sector, OSHA has made revisions to reflect unique aspects of some work operations. For example, the standard feasibility of extending the coverage of the HCS to include workplaces in the nonmanufacturing sector, the JACA allows MSDSs to be maintained at central locations In circumstances where employees must travel between Corporation performed-e study work operations during a woricshift, examining the benefit, costs, and overall economic impact of such a revision. This report was used as the basis for the regulatory impact analysis prepared by OSHA. The analysis reflects the extent to ' provided that the information can be obtained immediately in an emergency. This provision is expected to lower costs in SIC groups 07, 08,09,13. 46, 49. and 73. {See Table 1 for a description of the SICs.) which employers in the nonmanufacturing sector are currently subject to state right-to-know lawrand are voluntarily implementing their own hazardcommunication programs. The analysis also takes into account OSHA's existing policy regarding the uae of consumer products and training requirements already imposed on employers by other OSHA standards; With respect to consumer products covered by the HCS, OSHA Instruction CPL 2-2J38A ("Inspection Procedures for the Hazard Communication Standard, 29 CFR 1910.1200"] states: The standard also allows forlimited coverage in those work situations where employees handle chemicals in sealed containers that are not opened under normal conditions of use. and thus have little potential for measurable exposures. Employers would be required to leave warning labels on containers, and make available any MSDSs received with the containers. Employers would also have to be trained in accordance with the standard, with particular emphasis on procedures to follow if there is a spill or leak of the hazardous chemicals in the normally A common sense approach must be sealed containers. Affected employed whenever a product is used in a manner similar to which it could be used by s consumer, thus resulting hrlevels of exposure comparable to consumer exposure, The frequency and duration of use should be establishments would not have to make special efforts to obtain and keep MSDSs that are not received with the chemicals, and no written plan for considered. For example, it may not be complying with the HCS would be necessary to have a data sheet for a can of required. This provision is expected to DPMC-13904 31888 . --, . Federal Regster / iL 52. No. 163 / Monday. August 24, l!! Rules and Regulations result in lower costs in SIC groups 42. 44. 45.47.51. and 52. Thus the changes made to establish more appropriate provisions for unique work situations should result in lower costs than would be experienced if the HCS for manufacturing were extended to the nonmanufacturing sector without revision. Tabte 1.--SIC Groups Covered iatha OSHA Analysis Division A. Agriculture, Forestry, and Fishing Major Group 01. crops Major Group 02. livestock Major Group 07. MajorGroup 06. Major Group 00. trapping Agricultural production-- Agricultural production-- Agricultural senricas Forestry Fishing tiimring. and Division B. Mining Major Group 13. Oil and gas extraction Division C Construction Major Group 15. Building constructioti-- general contractors and operative builders Major Group 16. Cansmctiao other than balding conatroction- general contractors Major Group 17. Construction--special trade contractors Division E. Transportation. Communication, Electric, Css. mid Sanitary Services Major Group 40. Railroad transportation Major Group 41. Local and suburban transmit andintenoiMn highway passenger transportation Major Group 42. Motor freight transportation and srarehousing Major Grouped. Water transportation Major Group 45. Transportation by air Major Gawp46. Pipe Lisas, except natural gas Major Group 47. Transportation services Major Greup'4& Communication Major Gronp 48. Electric gas. and sanitary Divisiou F. Wholesale Unde Major Group 50. Wholesale trade--durable goods Major Group 51. Wholesale trade-- nondurable goods Division G. Retail Trade MajorGroup 52. Building materials, hardware, garden supply, and mobile home dealers Major Creep S3. General merchandise stone Major Group 54. Food stores Major Gronp 55. Antuoctira dealers and gasoline service stations Major Group 55. Apparel aad.accaaaory stores Malar Creep 57.. nsntim.hamatenialifafr Major Group 55: Earing and drinking placaaMajor Group 50. Misrallanaoua wtail Division H. Hnaacn,lnautancc and Rani Estate Major Croapaa; Banking Major Group 31. Credit ngsndsa orimr than banks Major Group 52. Security and commodity brokers) dealers, exchanges, and services Major Group 83. Insurance Major Group 64. Insurance agents, brokers, and service Major Group 85. Real estate Major Group 86. Combinations of real estate, insurance, loans, law.office Major Group 67. Holding and other investment offices Division L Services Major Group 7a Hotels, rooming houses. camps, and other lodging places Major Group 72. Personal services Major Group 73. Business service*' Major Gronp 75. Automotive repair. " services, and garages Major Gronp 75. Miscellaneous repair services Major Gronp 78. Motion pictures Major Group 79. Amusement and recreation services, except motion pictures Major Group sa Health Services Major Group 81. Legal Services Major Group 82. Education Services Major Group 83. Social Services Major Group 84. Museums, art galleries, botanical and zoological gardens Major Group 85. Membership organizations Major Group 89. Miscellaneona senricas The analysis of the benefits, costs, and economic impacts of extending the HCS to the nonmanufacturing sector are projected for 40 years. As indicated, the analysis reflects requirements of state right-to-know laws and voluntarily implemented hazard communication programs. Risk Evaluation/Benefits Analysis For tins analysis OSHA estimated the percentage of workers exposed to hazardous chemicals. The percentage and numbers of exposed worker* are shown in Table 2 `.by SIC group. The analysis of risks and benefits proceeds from the current annuel incidence of chemical-related injuries and illnesses in the nonmanuiacturing sector. For workers in this sector, measures of acute chemical source injuries and illnesses included nonlost workday (NLWD) injuries (13,671) and LWD illnesses (38449); and fatalities (102). Measures for chronic illnesses include: chronic iUnets cases (17453), cancer cases (23488), and cancer deaths (12490). The cancer cases category includes cancer deaths. (Note that tables used in the computer models far this analysis may vary slightly from these figures due to rounding.) The benefits of the standard result from its expected reduction of occupational injuries and illnesses that ..are chemically related. Specifically.. OSHA projects that the standard will avert 20 percent of these injuries and illnesses. (Five percent of all cancer `Tabba 2 to-10appear* the ad of this articla. cases are assumed to be occupationally related: the 20 percent reduction fa applied to this 5 percent of all cases . among occupationally exposed workers in the nonmannfacturing sector.) However, the foil reduction of chronic illnesses and cancers will not occur immediately; rather, the reduction for these cases is phased in over time. For chronic illnesses, die standard is expected to reduce 1 percent of the cases in the first year. 2 percent in the second year, and so on. until it reaches the full reduction of 20 percent For cancer cases and cancer deaths, the standard is expected not to have an effect for the first 10 years, then it is expected to reduce 2 percent of the cases in the eleventh year, 4 percent in the twelfth year, and so on until it reaches the full reduction of 20 percent Benefits were monetized using two independent approaches. The first took into account medical costs and lost earnings incurred by each victim. This "human capital1* approach resulted In- first-year benefits of $564 million, and a 40 year present value of $646 billion (summarized in Table 3). A second estimate of benefits was made using the "willingness-to-pay" approach. This approach resulted in first-year benefits of $5684 million, and a 40 year present value of $544 billion (Table 3). To provide comparability with the estimates of compliance coats, benefits were attributed to the states with rightto-know laws in proportion to the share of hazard communication costs projected for firms in those states. Under the "human capital" approach die present veins of the 40 year stream of benefits from the extension of the HCS, after deducting states with right-tokaow-laws, is $340billion (1985 dollars). Under thewillingness-to-pay approach, the present value of the 40year stream of benefits from extension of the HCS is $314 billion, after deducting the amount attributable to states with right-to-know laws. The monetized benefits ofhazard communication in the nonmanuiacturing sector, whether monetized in terms of human capital or willingness to pay, are presented after discounting (at 10 percent). Such discounting does not convey tha.magnitnria of the expected number of injuries. Illnesses and deaths that should be averted by the extension of hazard communication to the nonmanufacturing sector. The actual number of NLWD cases. LWD cases, chronic illness cases, cancer cases, cancer deaths, and other fatalities that are expected to be averted In the first. DPMC-13905 LAM 012560 Federal Register 7ol. 52. No. 163 / Monday, August 24. f / Rules and Regulations 31869 twentieth, and fortieth years are presented in Table 4. The numbers of cases presented in Table 4 are projections of cases that will be averted by the state right-to-know laws and the extension of the HCS. Approximately 43 percent of these cases will be averted as a result of the hazard communication-(/a, right-to-know) laws of the states. The remaining 57 percent uniquely relate to the extension of HCS and translate into the following: 148.400 cancer casesand 74*200 cancer deaths, 119.200 chronic disabling illnesses. 448.500 lost work day cases. 702.000 non-lost work day cases, and about 653 non-cancer fatalities avoided over the next 40 years. This estimate is believed to be conservative since OSHA assumed that only 5 percent of all cancers are occupationally related. The original Regulatory Impact Analysis (RIA) for the HCS in manufacturing included estimates of benefits arising from,the reduction of the incidence^of chemical fires in the manufacturing sector. Using the RIA'i methodology and newer data obtained from the U.S. Fire Administration's National FireIncidence Reporting System. OSHA has determined that extension of the HCS to the nonmanufacturing sector would yield first-year benefits (.. the value of property damages and losses avoided) of $1.8 million (1985 dollars). For the twentieth and fortieth years, the estimates are$25 and $24 million, respectively. The present value of the 40-year stream ofbenefits is $203 million (using a 10 percent discount rate). - Extending the HCS to the nonmanufacturing sector will also yield benefits by eliminating the need for employers to complywith multiple state and local right-to-know laws with differing requirements. The estimated benefits for the first year amount to $39.6 million (1985 dollars). For the twentieth and fortieth years, the benefits are $805 and $1255 million, respectively. The present value of the 40-year stream of benefits is $578 million (using a 10 percent discount rate). Compliance Costs ' Compliance costs were estimated for five items: preparation of a written hazard communication program: container labeling; provision of MSDSs;maintenanca of MSDSs; and information and training* Tables provides a summary of total regulatory costs, the costs attributable to state right-to-know laws and the costs attributable to the extension of the OSHA standard. Costs are presented for the first twentieth, and fortieth year of the standard, as well as in terms of total present value over forty years. Present values were calculated using a 10 percent discount rate. Table 8 presents the costs by provision. The total cost attributable to hazard communication laws during the first year the expanded HCS is effective is SI-28 billion (1985 dollars). The first year cost associated with compliance with state right-to-know laws is $5975 million and $6875 million with the Federal HCS. The present value of the total HCSrelated compliance costs over the 40 year period is $157 billion. Recordkeeping activities are required in the maintenance of MSDSs. As shown in Table 6, the Year 1 costs for this function amount to $445 million (1985 dollars). The costs for the twentieth and fortieth years are $85 and $135 million. The present value of the costs over 40 years is $845 million. Economic Impacts In order to assess the potential economic impacts of expanding the hazard communication standard. OSHA studied the impact of the first year costs on typical establishments that have not implemented any of the provisions. No allowance was made for partial compliance. If establishments can pass through or absorb first year costs, it is assumed that they can afford the minimal recurring costs related to training new employees and the introduction of new hazards. Table 7 presents the average compliance costs, assuming no current compliance, for typical establishments in each SIC Code. Typical establishments in the preponderance for SICs (over SO" percent) would incur compliance costs of less than $700 in the first year. In only one of the SICs does the average total first year cost exceed $800 per establishment The average first year cost per exposed employee in all SICs is less than $250. or less than $550 per worker per week. Table 6 presents a comparison of the post-tax compliance costs to a typical firm's revenues and profits. A typical establishment's pre-tax compliance cost will be a negligible percentage (less than one-half of one percent) of the establishment's average annual revenue in over 96 percent of the SICs. The only exceptions. SIC 83 (Social Service) and SIC 88 (Membership Organizations), are primarily composed of nonprofit establishments that are characterized by relatively inelastic demand for their services. Given the magnitude of the compliance costs in relation to revenue, and the fact that the affeeted-industry sectors are predominantly service providers, which are necessarily characterized by localized markets, it appears likely that most firms will pass the compliance costs on to their customers. The post-tax compliance cost as a percent of profits is less than two percent in most (over 80 percent) of the SICs. Typical firms in these SICs should be able to absorb the costs even if they cannot pass them on to their customers. Given the small absolute magnitude of the compliance costs, and the fact that the analysis was conducted using first year compliance costs which are significantly higher than the recurring compliance costs for subsequent years, the expansion of the hazard communication standard should have little or no economic impact on typical firms. Community Right-to-Know The cost of extending the Superfund Amendments and Reauthorization Act (SARA) requirements for community right-to-know to-the non-manufacturing sector was also estimated. Under Title III of SARA, establishments holding a given hazardous chemical in amounts greater than specified threshold quantities must report these chemicals and their quantities to State and local emergency planning committees and the local fire department Cost estimates were based on EPA's projected phase-in threshold quantities of 10500 pounds of hazardous chemicals in the first two years; and 500 pounds in the third and subsequent years that the requirements apply to the non-manufacturing sector. The estimated costs for the first and second years are $8.614500 and $3524.000. respectively. Third and fourth year costs were estimated to be $63.432500 and $32.738500. The economic impact of extending SARA to nonmanufacturing was also estimated by OSHA. The third year average total cost of SARA was combined with CSHA's recurring average total costs of the Hazard Communication Standard to estimate the impact The analysis indicated that the economic impact per facility of extending SARA to nonmanufacturing is minor, and that costs incurred by affected establishments could be passed on to the consumer. OSHA believes that the extension of SARA to nonmanufacturing will not affect the feasibility of the Hazard Communication Standard. Regulatory Flexibility As is shown in Table 9, a majority of establishments in all of the potentially impacted SICs are small businesses with fewer than 20 employees. Thus, the average compliance costs,.for small firms DPMC-13906 LAM 012561 31870 Federal Register , oL 52. No. 163 / Monday. August 24, 1 ) / Rules and Regulations are very similar to those for typical firms. No disproportionate economic impact is foreseen forsmall firms. Most establishments in the potentially affected SICs are service providers, which typically compete on the basis of many factors (e.g,, location, specialized service, customer relations, etc.] in ' addition to price. Assuming all firms try to pass their compliance cost on to their customers, minor price differentials of less than one-half of one percent shown in Table 10. are unlikely to adversely affect the overall competitive position of small entities. As can be seen from Table 10. the cost differential between small and large firms in over 80 percent of the SICs is anticipated to be less than 0 percent of revenue. In SICs 83 and 88 the difference is about 2 percent However, these SICs are dominated by non-profit firms which are less likely to be subject to price competition. Environmental Impacts At the time the currentHCS was promulgated In the Federal Registar(48 FR 53280), OSHA stated that the standard was unlikely to result in the occurrence of significant health or environmental impacts outside of the workplace. Hie extension of the HCS does not entail any change-bom the current HCS in tenns-of impacts outside the workplace. As concluded previously,' the labeling of containers will not have ^director significant impact on air or . water quality, land or energy use. or . solid waste disposal outside of the workplace. Similarly, the requirements for preparation of'a written compliance plan, provision and maintenance of MSDSe. and provision of information and training should have no adverse environmental impact. IV. Clearance of Infoimation Collection Requirements On March 31.1983. the Office of Management and Budget (OMB) published a new 5 CFR Part 1320. implementing the information collection provisions of the Paperwork Reduction Act of 1980,44 U-S.C. 3501 et seq. (48 FR 13880). Part 1320, which became effective on April 30.1983. sets forth procedures for agencies to follow in obtaining OMB clearance for information collection requirements. Hie sections of the Hazard Communication Standard which may create recordkeeping requirements are paragraphs (d) hazard determination; (e) written hazard communication program; (f) labels and other appropriate forms of warning: (g) material safety data sheets; (h) information and training; and (i) trade secrets. In accordance with the provisions of the Paperwork Reduction Act and the regulations issued pursuant thereto. OSHA certifies that it has submitted the information collection requirements contained in its rule on hazard .communication to OMB for review, under section 350401) of that Act - V. State Plan Applicability The 25 States with their own OSHAapproved occupational safety and health plans must adopt a comparable standard within six months of the publication date of a foul standard. These States include: Alaska, Arizona, California Connecticut (for Stateand local government employees only), Hawaii. Indiana. Iowa Kentucky, Maryland. Michigan. Minnesota Nevada New Mexico, New York (for State andlocal government employees only). North Carolina Oregon. Puerto Rico, South Carolina Tennessee, Utah,. Vermont Virginia Virgin Islands, Washington, and Wyoming. Until such time as a State standard is promulgated. Federal OSHA.will provide interim enforcement assistance, as appropriate. (Thirteen (13) of these States (Alaska California Iowa Maryland. Michigan. Minnesota New Mexico, North Carolina Oregon. Tennessee, Vermont Washington, and Wyoming) have already expanded the scope of their hazard communication standard/rightto-know law to cover private sector, non-manufacturing workplaces.) Although a State HCS becomes effective in accordance with State promulgation provisions, and is enforceable upon promulgation. OSHA must also review and approve the standard to assure that it is "at least as effective" as the Federal standard. OSHA intends to closely scrutinize State standards submitted under current or future State plans to assure not only equal or greater effectivenss. but also that any additional requirements do not conflict with, or adversely affect, the effectiveness of the national application of OSHA's standard. Because the HCS is "appliable to products" in that it permits the distribution and use of hazardous chemicals in commerce only if they are in labeled containers accompanied by material safety data sheets. OSHA must determine in its review whether any State plan standard provisions which differ bom the Federal are "required by compelling local conditions and do not unduly burden interstate commerce." Section 18(c) of the Act 29 U.S.C. 687(c). VL Authority, Signature, and the Final Rule This document was prepared under the direction of John A. Pendergrass. Assistant Secretary of Labor for Occupational Safety and Health. U.S. Department of Labor. 200 Constitution Avenue. NW, Washington. DC 20210. For the reasons set out in the preamble, and under the authority of section 41 of the Longshore and Harbor Workers' Compensation Act (33 U.S.C. 941). section 107 of the Contract Work Hours and Safety Standards Act (Construction Safety Act) (40 U.S.C. 333), sections 4.8 and 8 of the Occupational Safety and Health Act of 1970 (29 U.SXL 853.855,857). Secretary of Labor's Order No. 9-83 (48 FR 35738) and 29 CFR Part 1911. and 5 U.S.C. 553. the Occupational Safety and Health Administration hereby amends Parts 1910.1915.1917.1918.1928, and 1928 of Title 29 of the Cade-of Federal Regulations, as set forth below. List of Subjects'MJa CFR Parts 1910, 1915.1917.1918.1928, and 1928 Hazard communication. Occupational safety and health. Right-lo-know, Labeling. Material safety data sheets; Employee training. Signed at Washington. DC this 18th day of August 1987. John A. Pendergrass, Assistant Secretaryfor Occupational Safety and Health. Table 2--worker Exposure to Hazaroous Chemicals Industry Total number of Total employment Percent of workers exposed to hsztfdous chemtcais Number of exposed employees rv* 31.739 10.994 504,025 126,039 70 352.818 70 88.227 DPMC-13907 LAM 012562 Federal Register , /oL 52, No. 163 / Monday. August 24, \.J7 / Rules and Regulations 31871 Table 2.--Worker Exposure to Hazardous Chemicals--Continued industry Total number of establishment Total Percent of workers exposed to hazardous chemicals Number of exposed employees sir 07 sir mt sir na sir. ia sir is sir is sir 17 sir an sir ai SIT AO sir aa sm a* sir. aa .sir at sir aa .sir an sir *n sir si sir sir ra sir sa sir . sm aa sir at sir sa sir so sir n sir ai sir sir as Sir sasir as sir aa sir A7 sir 7n SIT 79 SIT 73 sir 7s sir 7a . sir 7a sir 7q sir. ii sir ai sir to SIT A3 sic Aa....... sir AA . SIC 89 Tntal* . .......... ................... ........... . ................ ................... .................. ............. ................ ...................... ..... .............. ` .......... - ........................... Source: U.S. Department ot Labor, OSHA, Office of Regulatory Analysis. 65,704 2,117 3.886 31.572 166,012 44,702 320,208 18,539 15,539 99,805 8446 8,691 959 30,783 22,910 15471 300,972 191,745 66,756 . 29,818 137493 173,902 99,022 93,339 ' 309.650 261,694 24,949 43,408 17,995 30,139 96406 191,400 2337 15,792 44,697 156472 284,684 121^431 57,900 15,338 58,064 365,758 119,861 23480* 66,380 1^592 83,774 112155 4,503,879 459,479 20423 13,549 591,714 1,137,853 791,692 2406416 324406 285478 1,323,495 178.013 490495 18,405 267,113 1421,118 890486 3457,168 2495,451 662,051 2430,449 2698439 1,850459 1,004.666 714464 5.479.633 2133,614 1,681,408 733401 346414 1,190,103 SM991 1,077450 13.752 138,488 1473443 1,068,670 4,094820 713,798 - 318465 216406 757,287 6,167,908 670417 1,174,052 lil8245t 39,021 724483 1400,885 58.890438 70 321,635 70 14,156 20 2710 70 414400 70 796.497 70 554,324 70 1,684,841 40 129.682 20 57,116 20 264,699 70 124,609 40 196,158 60 11,043 40 106.845 5 66,056 40 356434 10 335,717 25 573,863 50 331,026 5 111,522 20 - 539.368 60 1,110415 5 50433 5 35,713 25 1469.908 20 426,723 5 84,070 5 3&660 5 17,311 5 59,505 5 26.811 5 53,878 5 688 5 6,924 25 318,336 50 534,335 50 2,046.410 50 356,899 60 189,819 30 - 65,042 20 t51,457 60 3,700,745 5 33416 10 117^405 5 59,133 25 9,755 5 36414 5 60.044 18491,096 Table 3.--Estimated Benefits of Hazard Communication CMMont of 1985 dollars] Type of iniury/Hness .1 i Benefit*--Year 20 40 TPV NLWO: lurfril mm LWO: HUMAN CAPITAL APPROACH ... ... ................ 0.7 14 2.5 93 1.7 4.6 124 304 154 264 57.1 2094 DPMC-13908 LAM 012563 31872 Federal Register , . oL 52. No. 163 { Monday. August 24. / Rules and Regulations Table 3.--Estimated Benefits of Hazard Communication--Continued \ CMIIons of 1986 doBaral Type of injury/Mness Benefits--Year 1 20 40 TPV Chronic: ' MiwFcef Cancer Fatafittes: iner--winq Total 10.9 20.5 Z8 c o 4.4 562 292 722.8 - 143.4 65T.8 298.9 T.3 1,8872 86.5 1,365.8 404.1 1,309.6 906.4 13.0 4,158.3 1922 2267.5 582.8 1,7352 875.8 56.6 6.659.1 Men i wn CtworirfSanrer rnJ.9Mn. TMat WtLUNGNESS-TO-PAY APPROACH ................ ...... .. > ^ .. 59.6 374.4 6T.7 0 7Z9 56BJ 107.3 686.4 217X7 14.529.0 123.4 17.8207 211.9 1.371.1 4,121.6 29.6512 2552 352812 804.5 5.099.8 8.924.3 38212.0 946.9 54.587.4 Source: JACA CorporatorReport. Table 4.--Injuries, Illnesses, and Fatalities Averted by Hazard Communication in the Nonmanufacturing Sector Commu 20. 40 tative total NUMDcChronicCancer Noncancer deaths. NLWO_ LWO___ Chronic. Moncsncer dMtte. FEDERAL ANO STATE STANOAROS COMBINED ffiKACT OF FEDERAL STANOAH&ALONE 17.000 10.700 ISO 0 0 0 30200 19200 6200 8200 .4.100 20 60,600 39200 11200 17200 6200 80 1254200 865200 230,100 286200 143200 1260 0800 5200 75 0 0 0 16.000 10200 3200 4248 2100 TO 31.400 20200 6.100 8206 4.400 41 702.000 448200 119200 148.400 74200 653 Source: UL& Department of Labor. OHSA. Office of Regulatory Analysis. Table 5.--Summary of Hazard Communication Costs OMcne o( 1988 dotes! Table 5.--Summary of Hazard Communication Costs--Continued CMWone a* l966dotol Sources U& Department of Labor. OHSA. Office of Regulatory Analysis. Year Total. State OHSA Year Total State OHSA 1 12842 5972 6972 Total praaent 90 2142 1012 . 1132 value________ 2226.4 12562 1270.1 4ft 3842 ' 1842 200.0 DPMC-13909 LAM 012564 Federal Register / VoL 52, No. 163 / Monday. August 24, 1987 / Rules and Regolations 31873 Table 6.--Summary of Federal HCS Costs by Provision CMMons of 1985 doHarsl 1 90 AO........ TPV Year Main tain MSDS's ** 44.9 ......................... .......... ............ 6.0 .. .. ..................................... 13.3 .................. ........... 84.8 Label ing 12.8 20.3 35.2 170.9 Writ- Train Provide ten ing MSOS's 137.4 5.7 9.4 170.9 - 472.9 78.7 138.5 1054.6 19.3 2.5 5.6 88.9 Totals 687.2 113.2 200.0 1570.1 Source: U.S. Department of Labor. OHSA, Office of Regulatory Analysis. Table 7.--Summary of HCS Costs per Establishment Not in Compliance With HCS [1985 dollars] Industry First year Average costs per establish ment Average nosm per exposed employee Second year Average costs per . establish ment Average costs per exposed employee sir m 502 45 32 sir w 475 59 23 sir nr ................................... 490 100 28 sir m 358 54 26 sir oa................... 304 242 6 sir in ............................ ............ 497 38 72 sir is 150 31 12 sir in 225 18 34 sir it 169 32 14 sir an 603 66 51 sir- si 285 76 11 sir 45 ................... 273 96 12 SIT AA 442 30 55 SR 4S 692 40 72 sir art..... .......................... ........ 461 40 55 sir 47 398 115 15 sir a* 319 50 15 sir an 798 35 64 sir so 472 238 14 sir si 700 234 32 sir w 335 68 20 sir sn ..................... .................. 372 50 27 sir sa ..................... ............ 323 82 18 sir ss 437 68 31 sir sa 265 149 ~ $ sir S7 288 190 6 sir sa 337 76 17 sir so 321 184 7 sir an 410 61 21 sir si 217 76 9 sir a? 312 79 18 sir an 250 46 16 sir aa 236 155 5 sir as 306 186 8 sir an 238 181 5 sir a7 ......................................... 415 167 12 sir 7n 408 57 37 sir 73 ... ...................... 500 148 16 sir 73 444 62 43 sir 7* .. 381 130 14 SR 7* ........................ ....................... 325 99 15 sir 7*.......... ............... 351 83 26 sir 70 ............... ............ 346 117 20 sir an 581 57 57 sir. at 242 153 7 SR 287 46 10 sr an 337 132 11 sir aa 608 99 39 sir aa 273 149 6 3 3 6 4 $ 5 3 3 3 7 3 4 4 3 5 4 2 3 7 11 4 4 5 5 3 4 4 4 3 3 5 3 3 5 4 5 5 5 8 5 5 8 7 8 5 2 4 8 3 DPMC-13910 LAM 012565 31874 o Federal Register / Vot. 5Z No. 163 / Monday. Angus* 24, 1987 / Rules and Regulations Table 7.--Summary or HCS Costs Ptet Establishment Not in Compliance With HCS--Continued Et98Sdoltara| Industry First year Average costs per . establish ment Average costs per exposed employee Second year Average costs per -estabfeh- menf Average costs per exposed employee SIC M............... _ ...... Souce: UL& Department ot Labor, OSHA, Office of Regulatory Analysts. 312 148 10 S Industry Tabue 8.--Analysis, of Post-Tax First-Year Compuance Costs. L138SdoHMl Average annual revenue per establishment Average cost asapercentof revenue per OTTaonanmom . Average net income per estaMshment Average posttax coy per estaMshment Post tax cost as a percent ot net income per establishment SIC Qt_ SIC 02 _ SIC 07 _ SIC 08_ SC 09. SC 13SC 15SC 16SC 17_ SC 40SC 41. SC 42. SC 44. SC 45. SC 46SC 47SC 48SC 49SC 50 _ SC 51SC 52SC 53. SC S4_ SC 55 SC 56SC 57- SC 56 SC 59SC 60SC 61- SC 62SC 63SC 64- SC 65SC 66SC67- SC 70SC72SC 73 - SC7SSC76SC 76- SC 79- SC 80SC 8f_ SC82- SC83SC83-_ SC 84_ SC86- 2.794.100 0.018 103282 ` 377 11.275,400 0.004 417.190 358 2S6J50Q 9171 7.165 366 1.689.100 8021 42228 266 797.50Q 8038 19,938 226 9185*00 8008 349405 373 816.700 8018 19.601 113 1.419,700 0.016 56.788 169 372.400 8048 10200- 127 2*84,100 9023 111,116 453 411.400 8069 12165 214 730.100 9037 21.908 205 2214,300 0.028 141.715 331 5,900.000 8015- 70200 669 28569,600 0.002 1289219 348 831,900 - 8048 14,974 299 2347.900 8006 390297 239 16269.000 0.005 732105 599 1,866.900 8025 29004 354 - 3271.500 8.021 57216 525 793,800 0.042 20239 251 5.702000 8.007 139848 279 2069.700 8815 L 25.078 242 2019100 8022 19129 327 507.600 ' t 8052 19,796 199 371,406 383,500' 4 8078 0288 11213 11,122 - 216 252 829,100 0.039 20.728 241 14,970,800 8003 509207 307 2585208 8008 41265 163 1,856200 0.017 135254 234 12911.400 8002 438288 187 220.400 8107 15288 177 338,400 8090 27,749 230 661,600 8038 54251 t78 798200 8052 167.643 311 607,000 0.087 34299 308 229508 0219 10283 375 531,608 0.084 21264 338 351200 8109 9795 289 187.100 815208 8174 ft,Q43- 7271 31220 244 268 782.100 8044 .. st*ia- 268 ' .199200 - 459000 0,298 ft/VM 6242 10232 438 182 NA 8168 NA 215 . NA 1268 NA 252 njl ' 1268 NA 252 MA 0094 NA 458- NA 1.007 NA ' ' 28S- 0.36 0.09 5.13 0.64 1.14 0.11 0.57 0.30 1.17 841 1.62 0.94 823 0.94 0.03 1.99 806 0.08 1.26 0.92 1.22 0.20 0.96 2.03 1.00 1.88 2*7 t.16 0.06 0.39 0.17 804 1.11 083 833 819 888 864 1.57 3*5 818 883 850 867 T.31 NA NA NA ' NA NA DPMC-13911 LAM 012566 Federal Register /ol. 52, No. 163 / Monday, August 24. . f / Rules and Regulations 31875 Table 8.--Analysis of Post-Tax First-Year Compliance Costs--Continued 1 [1985 donors] Industry Average annual revenue per establishment Average cost asapercentof revenue per establishment Average net income per establishment Average post tax cost per establishment Post tax cost as a percent of net income per establishment <urr aq 290,500 Source: U.S. Department o< Labor, OSHA, Office of Regulatory Analysis. 0.107 11,039 234 2.12 Table 9.--Establishments With Fewer Than Twenty Employees SIC code Total number of estab lishments Number of estelh Bshments with 1 to 19 employ ees Percent of sstab- Bshments with 1 to 19 employ ees 01________ 02________ 07................ 08 09________ 13 IS........... 1 17 4fl 41 43 Ag 4S................. 4fi 47 48 4fl 50________ 31,739 10.994 65,704 2,117 2,160 31,572 166,012 44,702 320,208 18.539 1&267 94,561 8.346 8,691 959 30,783 10519 15,571 169,451 27,440 9.574 61,928 1,852 2.086 26,037 154,819 37,484 294,850 15,758 11,998 80,822 6517 *514 724 28.420 6,612 10,922 133,233 86 87 94 87 97 82 93 84 92 85 79 85 83 75 75 92 64 70 79 Table 9.--Establishments With Fewer Than Twenty Employees-- Continued SIC code Total number of estab lishments Number of estab- lislsnents with 1 to 19 employ ees Percent of estabBailments with 1 to 19 employ ees 51 5?.............. S3 54 ss SA 57 58 59............. 60 61 62 63 fU........ 65.............. fiA 67 70 191,745 66,756 14,909 137,393 173,902 28.1ST 23562 309,650 244,849 12,475 12.912 4,380 10.998 17,577 32.714 524 2.790 44,697 168.562 60,097 8,963 114,738 152,920 23,674 20,474 241582 227,803 6,318 9,561 3.079 7^63 15,608 28,099 488 2539 34,693 87 90 60 84 88 85 87 78 93 51 74 70 68 89 66 93 80 78 Table 9.--Establishments With Fewer Than Twenty Employees-- Continued SIC code Total number of estab- Number of estabSshments with 1 to 19 employ ees Percent of estab lishments with 1 to 19 employ ees 72 73 75 76 78 79 An 81 A9 83 .......... 84 86 89 158572 284,684 121.431 57500 15538 50581 365.758 21510 18561 23.148 1592 19.757 28.103 149512 249553 116544 55543 13514 42516 338596 18,659 11,197 17,068 1550 16,416 23,179 95 88 96 96 87 84 93 88 60 74 79 83 82 Source: ILS. Department of Labor, OSHA, Office of Regulatory Analysis. 1 From Chapter S of the JACA Report [4]. * Column 2 divided by Column 1. Table 10.--Analysis of impact on Smallest Versus Largest Establishments [Comparing average costs as a percent of revenue] SIC code Average cost as a percent of revenue per stabtisftroent250+ employees Average costasa -percent of revenue per establish ment 1-19 employees Difference in costasa percent ot revenue due to size ot establish ments 01 ............... 09 07 on no 19 is 16 17 iA 41 49.......... 44........... 44 4* 47 48 .............. ... ......................... ........................................... .............. .................... ........... ............... ......................... .......................... .... ................................ . ...... ........... ............ .......... .................. ...... ............. ........ ...................... .............. 0.003 0.001 0.038 0.007 0.002 Q.002 0.003 0.007 0.017 0.008 0.007 0.007 0507 0.009 0.000 0.003 0.002 0.044 0.009 0.189 0.018 0.021 0.035 0.044 0.064 0.065 0.082 0-248 0.103 0.060 0.105 0.174 a ioi 0.041 0.040 0.008 0.151 0411 0.019 0.033 0.042 0.057 0.048 0.075 0.240 0.096 0.053 0.096 0.174 0.098 0.039 DPMC-13912 lam 012567 31878 Federal Register , /ol. 52. No. 163 / Monday. August 24, i-^7 / Rules and Regulations Table 10.--Analysis of Impact oin Smallest Versus Largest Establishments--Continued (Comparing average costa as a percent of revenue] SIC code Average Average cost as a costasa percent of percent of revenue per revenue per establish estabSsb- ment 2S0+ - mem 1-19 emptoyees 'employees Difference in costasa percem of revenue due to size of establish ments an 40 SI w a... 54...... ss .... sa 57 55 ... 50 00 01 09 oa 04 os.. 00 07 . 70 79 73.. 75................... 70...... 70........ 70 o 01......... 09..... 03 :, **...... Afl on ....... ....................... ...................... .......................... . ....... .... ... .... ........ - Sourest U.SL Departmentof Libor. OHSA. Office of Regulator Analysis. .... . ...... ........... 0.002 0.003 0.006 0.00ft 0.002 0.002 0.006 0.002 0.003 0408 0.003 0.001 0.000 0.003 0.000 0.002 0.005 ft not n nrrr 0021 0.007 ftftSft 0004 ft QQQ 0.007 Q.Q1Q 0260 0,11$ 0025 0426 0 Q33* 0035 0.006 * 0.049 0.037 0.036 00*6 0.029 0.054 0.044 0.104 0.117 o.isa 0.055 Q,Q12 0.036 0 02ft Q.QfiQ 0 179 0.124 Q Qgp | 0 263 0346 0204 Q_1$1 0 2Q5 0.11a QQ71 0070 QQ77 001$ 2293 0 259 6.216 0.047 0 034 0.032 0.036 0.026 0.052 0036 0;102 0.114 0 150 0.051 Q.Q11 003a QQflS 0 069 0.177 ft 119 009Q ft 262 0 339 Qt17$ 0 146 Q_1Qft 0 055 0101 0 041 0 690 1 665 0 226 207* 0.202 OSHA.is amending Parts 1910,1915. 1917.1918.1928. and l928 of Tide 29of the Cods of Federal Regulations as follows: PART 1910--OCCUPATIONAL SAFETY AND HEALTH STANDARDS L The authority citation for Subpart Z of Part 1910 continues to read as follows: Authority: Secs. 6, A Occupational Safety and Health Act (29 ILS.C. 655.857); Secretary of Labor'i Order No. 12-71 (36 FR 8754); 8-79 (41 FR 2509); or 9-63 (48 FR 35738) as applicable: and 29 CFR Part 1911. Section 1910.1000 Tables Z-L Z-2. Z-3 alto issued under 5 ILSiC. 553. Section 1910.1000 not Issued under 29 CFR Part 1911. except for "Arsenis" and "Cotton OuaT listings in Table Z-L Section 1910.1001 not issued under See. 107 of Contract Work Hour* and Safety Standards Act 40 US. 333. Section 1910.1002 not issued under 29- U8.C. SSS or 29 CFR Part 1911: also issued under 5 U.S.C. 553. Sections 1910.1003 through 1910.1018 alto issued under 29 U.S.C. 853. Section 1910.1025 also issued under 29 UAC 853 and 5 U.S.C. 553. Section 1910.1043 also issued under 5 U.S.C.551efseg. Sections 1910.1045 and 1910.1047- also - issued under 29 U.S.C. 853. Sections 1910.1200,1910.1489and 19111500 also issued under 5 U.S.C. 553. PART 1915--OCCUPATIONAL SAFETY ANO HEALTH STANDAROS FOR SHIPYARD EMPLOYMENT 2. The authority citation for Part 1915 is revised to read aa follows: Authority: Sec. 41. Longshore and Harbor Workers' Compensation Act (33 U.S.C. 941): secs. 4.8.8. Occupational Safety and Health Act of 1970 (29 OS.C 853.655.857); Secretary of Labor's Order No. 12-71 (38 FR8754), 8-78 (41 FR 25059). or 9-83 (48 FR 35736). as applicable; 29 CFR Part 1911. Section 191599 also-issued under 5 U.S.C 553. PART 1917--MARINE TERMINALS 3. The authority citation for Part 1917 is revised to read aa follows: Authority: Sec 41. Longshore and Harbor Workers' Compensation Act (33 LLS.C. 941); secs. 4. A A Occupational Safety and Health Act of 1970 (29 OS.C. 653.855. 657); Secretary of Labor's Order No. 12-71 (38 FR 8754). 8-78 (41 FR 2S0S9). or 9-83 (48 FR 35738). as applicable; 29 CFR Part 1911. Section 1917.28 also issued under 5 U.S.C. 55A PART 1918--SAFETY AND HEALTH REGULATIONS FOR LONGSHORING 4. The authority citation for Part 1918 is revised to read as follows: Authority: Sec 41. Longshore and Harbor Workers' Compensation Act (33 U.S.C. 941): DPMC-13913 LAM 012568 ;f Federal Register / VoL 52, No. 163 / Monday. August 24, 1987 / Rules and Regulations 31877 secs. 4.6. a. Occupational Safety and Health Act of 1970 (29 IL&G 553.855.657); Secretary of Labor s Order No. 12-71 (38 FR 8754). 8-78 (41 FR 25059). or 9-83 (48 FR 35738). as applicable. Section 191890 also issued under 5 U.S.G 553 and 29 CFR Part 1911. PART 1926--SAFETY AND HEALTH REGULATIONS FOR CONSTRUCTION 5. The authority citation for Subpart 0 of Part 1926 is revised to read as follows: Authority: Sec. 107, Contract Work Hours and Safety Standards Act (Construction Safety Act) (40 UJ3.G 333); secs. 4.8,8, Occupational Safety and Health Act of 1970 (29 U.S.G 853,855,857); Secretary of Labor's Order No. 12-71 (38 FR 8754). 8-78 (41 FR 25059). or 9-83 (48 FR 35738), as applicable. Section 192899 also issued under 5ILSG. 553 and 29 CFR Part 1911. PART 1928--OCCUPATIONAL SAFETY ANO HEALTH STANDARDS FOR AGRICULTURE 8. The authority citation for Part 1928 is revised to read as follows: Authority: Secs. 8 and 8. Occupational Safety and Health Act of 1970 (29 (JS.G 655, 857); Secretary ofLabor's Orders 12-71 (38 FR 8754). 8-78 (41 FR 25059). or 9-83 (48 FR 35738), as applicable; 29 CFR Part 1911. Section 1928.21 also issued tinder 5 US.G 553. PARTS 1910,1915, 1917,1918,1926 and 1928--{AMENDED] 7. Parts 1910,1915,1917,1918. and 1928 are amended by revising i 1910.1200 aa set forth below, and by adding i 1915^9,1917.28.191890. and 1928-59 to contain foe identical text of . foe revised $ 1910.1200, including Apendices A.KC, andD of1910.1200: S liarard communication. (a) Purpose. (1) The purpose of this section is-to ensure thet the hazards of all chemicals produced or imported are evaluated, and that information concerning their hazards is transmitted to employers and employees. This transmittal of information is to be accomplished by means of comprehensive hazard communication programs, which are to include container labeling and other forms of warning, material safety data sheets and employee training. (2) This occupational safety and health standard is intended to address comprehensively foe issue ofevaluating foe potential hazards of chemicals; and communicating information concerning hazards and appropriate protective measures to employees, and to preempt any legal requirements of a state, or political subdivision of a state, pertaining to the subject. Evaluating foe. potential hazards of chemicals, and communicating information concerning section applies to these operations only as follows: ' (1) Employers shall ensure that labels on incoming containers of hazardous hazards and appropriate protective chemicals are not removed or defaced: measures to employees, may include, for (ii) Employers shall maintain copies of example, but is not limited to, provisions - any material safety data sheets that are for developing and maintaining a received with incoming shipments of foe written hazard communication program sealed containers of hazardous for the workplace, including lists of chemicals, shall obtain a material safety hazardous chemicals present: labeling of data sheet for sealed containers of containers of chemicals in foe hazardous chemicals received without a workplace, as well as of containers of material safety data sheet if an chemicals being shipped to other employee requests the material safety workplaces: preparation and data sheet and shall ensure that foe distribution of material safety data material safety data sheets are readily sheets to employees and downstream accessible during each work shift to employers; and development and employees when they are in their work implementation of employee training area(s); and. programs regarding hazards of (iii) Employers shall ensure that chemicals and protective measures. employees are provided with Under section 18 of foe Act no state or information and training in accordance political subdivision of a state may with paragraph (h) of this section adopt or enforce, through any court or (except for the location and availability agency, any requirement relating to the of foe written hazard communication issue addressed by this Federal program under paragraph (h)(l)(iii)). to standard, except pursuantto a foe extent necessary to protect them in Federally-approved state plan. foe event of a spill or leak of a (b) Scope and application. (1) This . hazardous chemical from a sealed section requires chemical manufacturers container. or importers to assess foe hazards of (5) This section does not require chemicals which they produce or import, labeling of the following chemicals: and all employers to provide (i) Any pesticide as such term is information to their employees about the defined in the Federal Insecticide, hazardous chemicals to which they are Fungicide, and Rodentidde Act (7 U.S.C. exposed, by means of a hazard 136 et seq.). when subject to foe labeling communication program, labels and requirements of that Act and labeling other forms of wanting, material safety regulations issued under that Act by foe data sheets, and information and Environmental Protection Agency; training. In addition, section (ii) Any food, food additive, color requires distributors to transmit foe additive, drug, cosmetic, or medical or required information to employers.. veterinary device, including materials (2) This section applies to any intended for use as ingredients in such chemical which is blown to be present products (e.g. flavors and fragrances), as in the workplace-in such a:mannerthat such terms are defined in foe Federal employees may be exposed under Food, Drug, andCosmetic Act (21 U.S.C. normal conditions of use or in a- 301 et seq.) and regulations issued' under foreseeable emergency. that Act when they an subject to foe- ' (3) This section applies to laboratories labeling requirements under that Act by only aa follows: the Food and Drug Administration: (i) Employers shall ensure that labels (iii) Any distilled spirits (beverage on incoming containers of hazardous alcohols), wine, or malt beverage chemicals are not removed or defaced; intended for nonindustrial use. as such (if) Employers shall maintain any terms are defined in foe Federal Alcohol material safety data sheets that are Administration Act (27 U.S.C. 201 et received with incoming shipments of seq.) and regulations issued under that hazardous chemicals, and ensure that Act, when subject to foe labeling they are readily accessible to laboratory requirements of that Act and labeling employees: and. - regulations issued under that Act by foe (iii) Employers shall ensure that laboratory employees are apprised of Bureau of Alcohol Tobacco, and Firearms; and. the hazards of foe chemicals in their (iv) Any consumer product or workplaces in accordancewith hazardous substance as those terms are paragraph (h) of this section. defined' in foe ConsumerProduct Safety (4) In work operations where Act (15 U.S.C. 2051 et seq.) and Federal employees only handle chemicals in Hazardous Substances Act (15 UJ&C. sealed containers which aranoi opened' 1281 et seq.) respectively, when subject under normal conditions of use (such as. to a consumer product safety standard are found in marine cargo handling, or labeling requirement of those Acts, or warehousing, or retail sales), this regulations issued under those Acts by DPMC-13914 LAM 012569 32878 i Federal Register / Vol. 52. No*. 1G3-/ Monday, August* 24.' 1987 A Rhles and-Regulations the Consumes Product Safety Commission. (8 Thissection doesftt apply tec (i) Any hazardous waste as such term is defined by the Solid Waste Disposal Act as amended by the Resource Conservation and Recovery Act of 1976. as amended (42.U.S.C.6901 el sq->. when subject to regulations issued under thatAct by the Environmental Protection Agency: (ii)TobaccQ* tobacco products: (iii) Wood or wood products: (iv) Articles: (v) Food.drugv rnsmetirs. os alcoholic beverages is a retail establishment which are packaged foe sale to consumers; (vi) Foods, drugs, or cosmetics intended lot personal consumption by employees while: ia the workplace* (vii) Any consumer product as hazardous substance, as those texmsars defined in the fimmiw Product SafetyAct CIS TT.S.C. 2051 tiseg-Y and Federal HazardousSubstances Act (15 USJC. 12SI et setf.1 respectively, where the employer csndcniAutBUt Ui& umcS ^ the workplace in. the same manner as normar consumer use. and which, use results in a duration and frequency of exposure which, is not jpeflles than exposures experienced by consumers: and (viii) Any drug, as that term is defined in (he Federaf Food. Drug, and Cosmetic Act (ZXUSC 301 et seq.k when it is in solid finalform for direct administration to the patient (Le. tahiets or pills); (c) Dkfmitiimr. "Artfcfe" means a manufactured item: (t) Which is fenced to a specific shape or design (hiringmanufacture: fit) which has enduse functional dependent hr. whole or in partupon its shape oc design daring-end use. and (Sitwhich does not release: or otherwise resuitm exposure to, e hazardous,chemical under nanaal comfitions ofuse "AssistantSecretary means the Assisted* Secretary of Laborfor Occupational Safety and Health.US. Department of Labor, ordesignee. "Chetnfcaf* cnegns any element, chemical compound ormixture of elements and/or compounds. "Chemfeaf manufacturer1* means an employer with a workplace where cbenricalfo} ere produced foruse ordistributiem - "Chemical name" means: the scientific designation of cfctnrica! in accordance with the nomenclature system developed bythe hiteiaetioiial Onionof -Puss aadAppiiedChemistry (HJPAC) or the Chemical AbstractsScrvile (AS) rutesi of raomsdature. or a namewhichwiB deevfy identify theehemieaf fbrthe purposed conducting a hazard evaluation "Combustibfe Squid" means any liquid having flashpoint at or above 100 *F (373 `C* but below 2t * F (933 * Cf. except any mixture having, components with flashpoints- of 20Q *F (93.3 *Q. orhigher, the totalvolume of which make up 99 percent or more of the total volume of the mixture. "Common name" means any designation oridentification such as code name, code number, trade name, brand name orgeneric name used to identify a chemical other than by its chemical name. "Compressed gas" means: (i) A gas ormixture ofgases having; in a.container. an absolute pressure exceeding 40 psi at 70 T (2I 'CJ; or (ii) a gas or mixture ofgases having, ia a container, an absolute pressure exceeding 104 psi at139 *F (54.4 *CJ regardless ofthepressure at 79 *FZU `Cfcor (iii) A liquid having a vapor pressure, exceeding 40 psr at lQO'F (373 *CI as determined by ASTM D^-323-72 "Container'* means any bag. barret, bottle; Box. can. cylinder, drum,reaction vesseLstorage tank, or the like that contains a hazardous chemical. For purposes of thissection, pipes or piping systems, andengines, fiiei tanks, oc other operating systems in a vehicle, are. not considered ta be containers. "Designatedrepresentative" means any inc&nduaf or organization ta whom an employee gives written authorization, to exercise, such employee's rights under, this section. A recognized or certified coUective bargainingagent shallb treated automaticallyasa:designated representative without regard tawritten, employee authorization. "Director" means theDirector. National-Institute for Occupational Safety and Health. IT.S Department of Health and Human Services, os designee. "Distributor'* means,a business, other than a chemical manufacturer or importer which supplies hazasdous chemicals-toother distributors or to employers "Employee"' means a worker who may be exposed to hazardous chemicals. under normal operating conditions, orin foreseeable emergencies Workers such as office-workers orbank, tellers who. encounterhazardous chemicalsonly in non-routine; Isolated instances are not covered "Employer" means s person engage in a business where chemicals ore-eiH used distributed, or are produced for use-or distribution.- including-s coutiacfoi. orsubcontrautur. "Explosive" means a chemical that causes a sudden, almost instantaneous release of pressure, gas.and heat when subjected to sudden shock, pressure, or high temperature. "Exposure" or "exposed" means that an employee is subjected to a. hazardous chemical in the course of employment through any route of entry (inhalation, ingestion, skin contact or absorption, etc.}, and includes potential (e.g. accidental or possible! exposure. "Flammable" means a chemical that falls intooneoi the following categories: (i) "Aerosol flammable" means an aerosol that when tested by the method described in 1ft CFR 1500.45. yields a flame projection exceeding ia inches at full valve opening; or a flashback (a. flame extending beck to the valve) at any degree of valve opening: (ii) "Gas. flammable" means: (A) A gas (hat at ambient temperature- and pressiae-. forms a flammable mixture-with air at e noncentratinnof thirteen (13) percent by volume or less: as (B) A gas that at ambient temperature and pressure: forms e range of flammable mixtures with air wider than twelve (12) percent by volume, regardles* oftfiA lower fowifr *t-lqpiA^flammahUw means arty liquid having a flashpoint below 100 *F (373 'C), except any mixture having componentswith flashpoints of 109 *F (373 *C) or higher; the totalof which make up 99 percent or more of the total volume of-the mixture: (iv) "Solid. Oammabla" means a. solid, other than * blasting agent or explosive asdefined hi f 1901109(a). that is. liable to cause fire through friction, absorption of moisture, spontaneous chemical change, or retained heat from manufacturing or processing, or which can be ignited readily and when ignited burns so vigorously and persistently as to creates serious hazard A chemical shall be-considered to-be a flammable so&f if. when tested by the method described hr 16 CFR150944. it ignites and burns with a seif-sustained ffame at a rate greaterthan one-tenth ofan inch per second along its major axis. "Flashpoint" means the minimum temperature atwhicha Squid gives off a .vapor in sufficient concentration to ignite when tested as follows: (0 Tagllabue dosed Tester (See American National StandardMethod of Test for FlashPoint by Tag dosed Tester. ZTL24-I979 (ASI&TD 56-79)) for liquids with a viscosity ofless, than 45 Sayboif University Seconds (SUS) at 10Q *F (373X). that do not contain, suspended solids and do not have a DPMC-13915 LAM 012570 Federal Register / t/ol. 52, No. 163 / Monday. August 24. lao7 / Rules and Regulations 31879 tendency to form a surface film under test; or (ii) Pensky-Martens Closed Tester (See American National Standard Method of Test for Flash Point by Pensky-Martens Closed Tester. Zll.71979 (ASTM D 93-79)) for liquids with a viscosity equal to or greater than 45 SUS at 100 *F (37.8 *C). or that contain suspended solids, or that have a tendency to form a surface film under test or (iii) Setaflash Closed Tester (see American National Standard Method of Test for Flash Point by Setaflash Closed Tester (ASTMD 3278-78)) Organic peroxides, which undergo autoacceleradng thermal decomposition, are excluded fiom any of the flashpoint determination methods specified above. "Foreseeable emergency" means any potential occurrence such as, but not limited to, equipment failure, rupture of containers, or failure of control equipment which could result in an uncontrolled release of a hazardous chemical into the workplace. "Hazardous chemical" means any chemical which is a physical hazard or a health hazard. "Hazard warning" means any words, pictures, symbols, or combination thereof appearing on a- label or other appropriate form of warning which convey thehazardfs) of the chemical(s) in the containers). "Health hazard" means a chemical for which therein statistically significant' evidence based on at least one study conducted in accordance with established scientific principles that acute or chronic health effects may occur in exposed employees. The term "health hazard" tnulnrl-- rhamtrjilm which are carcinogens, toxic or highly toxic agents, reproductive toxins, irritants, corrosives, sensitizers; hepatotoxins, nephrotoxins, neurotoxins, agents which act on the hematopoietic system, and agents which damage the lungs, skin, eyes, or mucous membranes. Appendix A provides further definitions and explanations of the scope of health hazards covered by this section, and Appendix B describes the criteria to be used to determine whether or not a chemical is to be considered hazardous-for purposes of thin standard. "Identity" means any chemical or common name which is indicated on the material safety data sheet (MSDS) for the chemical The identity used shall permit cross-references .to be made among the required list'of hazardous chemicals, the label and the MSDS. "Immediate use" means that the hazardous chemical will be under the control pf and used only by the person who transfers it from a labeled container and only within the work shift in which it is transferred. "Importer" means the first business with .employees within the Customs Territory of the United States which receives hazardous chemicals produced in other countries for the purpose of supplying them to distributors or employers within the United States. "Label" means any written, printed, or graphic material, displayed on or affixed to containers of hazardous chemicals. "Material safety data sheet (MSDS)" means written or printed material concerning a hazardous chemical which is prepared in accordance with paragraph (g) of this section. "Mixture'' means any combination of two or more chemicals if the combination is not in whole or in part, the result of a chemical reaction. "Organic peroxide" means an organic compound that contains the bivalent -OO-structure and which may be considered to be a structural derivative of hydrogen peroxide where one or both of the hydrogen atoms has.been replaced by an organic radical. "Oxidizer" means a chemical other than a blasting agent or explosive as defined in 1910.109(a), that initiates or promotes combustion in other materials, thereby causing fire either of itself or through the release of oxygen or other gases. "Physical hazard" means a chemical for which there is scientifically valid evidence that it is a combustible liquid, a compressed gas, explosive, flammable, an organic peroxide, an oxidizer, pyrophoric, unstable (reactive] or waterreactive. "Produce" means to manufacture, process, formulate, or repackage. "Pyrophoric" means a chemical that will ignite spontaneously in air at a temperature of 130 *F (54.4 *C] or below. "Responsible party" means someone who can provide additional information on the hazardous chemical and appropriate emergency procedures, if necessary. "Specific chemical identity" means the chemical name. Chemical Abstracts Service (CAS) Registry Number, or any other information that reveals the precise chemical designation of the substance. "Trade secret" means any confidential formula, pattern, process, device, information or compilation of information that is used in an employer's business, and that gives the employer an opportunity to obtain an advantage over competitors who do not know or use it Appendix D sets out the criteria to be used in evaluating trade secrets. "Unstable (reactive)" means a chemical which in the pure state, or as produced or transported, will vigorously polymerize, decompose, condense, or will become self-reactive under conditions of shocks, pressure or temperature. 1 "Use" means to package, handle, react or transfer. "Water-reactive'*.means a chemicul that reacts with water to release a gas that is either flammable or presents a health hazard. "Work area" means a room or defined space in a workplace where hazardous chemicals are produced or used and where employees are present "Workplace" means an establishment, job site, or project at one geographical location containing one or more work areas. (d) Hazard determination. (1) Chemical manufacturers and importers shall evaluate chemicals produced in their workplaces or imported by them to determine if they are hazardous. Employers are not required to evaluate chemicals unless they choose not to rely on the evaluation performed by the chemical manufacturer or importer for the chemical to satisfy this requirement. (2) Chemical manufacturers, importers or employers evaluating chemicals shall identify and consider the available scientific evidence concerning such hazards. For health hazards, evidence which is statistically significant and which is based on at least one positive study conducted in accordance with established scientific principles is considered to be sufficient to establish a hazardous effect if the results of the study meet the definitions of health hazards in this section. Appendix A shall be consulted for the scope of health hazards covered, and Appendix B shall be consulted for the criteria to be followed with respect to the completeness of the evaluation, and the data to be reported. (3) The chemical manufacturer, importer or employer evaluating chemicals shall treat the following sources as establishing that the chemicals listed in them are hazardous: (i) 29 CFR Part 1910. Subpart Z, Toxic and Hazardous Substances. Occupational Safety and Health Administration (OSHA); or, (ii) Threshold Limit Values for Chemical Substances and Physical Agents in the Work Environment. American Conference of Governmental Industrial Hygienists (ACGIH) (latest edition). DPMC-13916 LAM 012571 ytaaa Federal Register f A 5&. No. 163- / Monday. August 24. U. 7 Rales and Regulations The chemical manufacturer. importer, or a health hazard to employees in those (in)The methods the employes wig employer is still responsible for evaluatingthe hazards associated with concentrations, the mixture shall be --pimgdtftpraMWUhesMne hazard. use to inform the other employees) of the labelingsystem used in the the chemicals in these source lists,in (6) Chemical maaufactasen; workplace. accordance with the requirements, of importers, or employers evaluating (3) The employes mayrely on an this standard. chemicals shall describe in writing the existinghazard eoasmunication program (4) Chemical manufacturers, importers procedures they use te determine the -to comply with these requirements, and employers evaluating chemicals hazards of the chemical they evaluate* provided that it meets the criteria shall treat the following sources as The written procedures are to be mads established in thiaparagraph (e). establishing that s chemical is a available; uponrequest, te employees; (4) The employer shag make the carcinogen or potential carcinogen for their designatedrepresentatives, the written hazard communication program hazard communication purposes: Assistant Secretaryand the Director. available* upon request to employees, (i) National Toxicology Program The written descriptio* may he their designated representatives; the (NTPJ.Aotoo/Reporton Carcinogens incorporated into the writtea hazard Assistant Secretary and the Director, in (latest edition^; communication program required under - accordancewith the requirements of (ill International Agency for Research- paragraph (el of tins-section. CFR 191020(e). on Cancer (IARQ Monographs (latest (e> Written haxatdcommtxncattaa (f) Labels and otherfonns-of wanting, editions); or program. (1) Employers shall develop; (1) The chemical manufacturer, importer, (ifi)ZCFR Part 1910; Subpart Z. Implement and maintain at the or ctiatributor shall ensure that each Toxic and Hazardous Substances, - workplace, a written hazard 'container of hazardous chemicals Occupational Safety and Health communicationprogram fas their leaving theworkplace is labeled, tagged Administration. workplaces which at least describes or marked with the following Note.--Tfi Registry ofToxic Effect* of Chemical Subttances published by the National InstiWfee Occupational Safety how the criteria specified is paragraphs (fMgl. end (b) of thissection for labels and other forma of warning material information; (1) Identity of the hazardous chemical)*); and Uniteiodicalae whether a chemical ha* safety data sheets, and employee (ii) Appropriatehazard warnings: and beets bead by KTP-er tARCtobe a potential information and trainingwill be met, caRinogea. and whichalso includes the fallowing (iii) Name andaddress of the chemical manufacturer, importer; orother (5) Thechemical manufacturer, (ij A list of thehazardous chemicals responsible party. importer er employer shall determine known to be peasant usingan identity (2) Forsolid metal (such as a steel the hazards ofmixtures of chemieris as . that is referenced on the appropriate beam or a metal casting) that isnot follows; material safety data sheet (the list may exempted as as article dun to its (?) If a mixture has been tested aea be-compiled Car tha workplace asa downstream.use. therequired label may whole to determine its hazards; the whole or foe individual work areas); be transmitted to the customer at the reeaiteofad testing shall be used tar and,. time of the intial shipment, and need not datrnehie whttW&e mixture is (ii) Themethod* theanployes will aue be included with subsequent shipments hwtardeost to inform employees of the hazards of to the same employes unless the (ii) 8 a mixtare hae not been tested as noa-routine- tasks (forexample, the information an the label changes. The a whole to determine whether the cleaning of reactos vessels); and the label'may be transmitted with the initial mixture is s health hazard, the mixture hazards associated with chcosicais shipment itself orwith thematerial shall bo assumed Is present As santo contained in nnlabsisd pipns in their safetydate sheet that is to be provided health hazardsae do Aecomponents work areas. prior to or at the time of the first which rmspriee owe percent (byweight \QMtdttempl0jrerwarkpkicssi shipment. Tins exception to requiring or volume)orgreeter of the mixture; Employers who produce use. or store labels onmq container of hazardous except that t&emferteroshall bo hazardous chemicals ataworkpiaceih chemicals isoidy fartbs solid metal assumed to present s carcinogenic such a waythattheemployeesototfasr itself anddoes not apply to hazardous hazard if it contains component u employer(s) may be exposed (foe chemicalsusedto conjunction with* or concentrations of0.1 percent or greater example employees of a construction, known to be present with, the metal and which isconsidered to be e carcmognr contractor working on-site) shall to-whichemployeeshandling the metal underparayaph (d)(4) ofthis section- additionally enure that thehazard may be exposed (fraexample; cutting (Hi) If a mixture has not been tested as communication programsdeveloped asd fluids or lubricants). a wholeto determine whether the implemented undet titispaapaph (e) (3) Chemicalmanufacturers, mixture is s physical honed the indtadnthe following importers, ae distributors shall ensure chemirnl rsanafiuloiei. uaporter.or (i) The methods the employerwill use that each container of hazardous employermay newwhatever to provide theother emplayer(s)witha chemicals leaving ti*workplace is scientificallyvalid dais isavailable re copyef the materiat safetydata sheet, labeled tagged, or marked in evaluate thephysical hazard potential or tnmskeM.available at acental accordaocs with tinssection in s of the mnterae and. location is the workplace foreach mamaswhich, does not canffic* with the ttefrKAatrhamirsl miumfacturwg. hazardeea rhrnursl the other requirements of the Hazardous importer, or t employer!*)' employees may beexpoeed MaterialsTransportation Act (49 tXS*C. indicate t to while working: teat: at ray) aad regulationsissued mixture urcoacenttatiaaeof teas them (ii)The methodsthe saspfoyerwiltasn under thatAct by theDepartment of one percent (or ia the case ai to iirfonntheother employees) of any Transportation. carcinogens, lessthan 0U percent)could precautionary mraearni Ttinl nsol to be (4) lfthe hazardous chemical i be rnlrueed in mra luitinlisiis whirh taken toprotect employta iflisfagtka regutaratibyOSHAincnbstaace- would ntrseri aa established Q6HA - workplace'snormal operating speeiSrhsaitiestendasd the tbeiuice) prraiissihlost power limit iu flfTTH manufactures; iaspirlar. disrtibutos ae Threshold-limit Value: os could pussent - employer rhsrt mure dial the labeleer DPMC-13917 LAM 012572 1 Federal Register ( VoL 52. No. 163 / Monday, August 24. 1987 f Rules and Regulations 31881 otherforms of warning used are in accordance with the requirements-of that standard. (6) Except as provided in paragraph* (f)(6) and (f)(7) the employer shall ensure that each container of hazardous chemicals in the workplace is labeled, tagged or marked with, the following information: (1) Identity of the hazardous chemicals) contained therein: and (ii) Appropriate hazard warnings. (6) The employer may use signs, placards, process sheets, batch tickets, operating procedures, or other such written materials in Ueu of affixing labels to individual stationary process containers, as long as the alternative method identifies the containers to which it is applicable and conveys the information required by paragraph (f)(5) of this section to be on a labeL The written materials shall be readily accessible to the employees in their work area throughout each work shift (7) The employer is not required to label portable containers into which hazardous 'feoinvuU are transferred from labeled containers.-andwhich are- intended only for the immediate use of the employeewhs performs thetransfer. (8) The employer shall not remove or deface existing labels on incoming containers of hazardous chemicals, unless the containeris immediately marked with therequired information. (9) Theemployer shall'ensure that labels orother forms of warning are legible, in English. and prominently displayed on the container, or readily available in the work area throughout each work shift. Employers having employees who speak other language* may add the information in their language to the material presented: a* long as the information is presented in English as welL (10) The chemical manufacturer, importer, distributor or employer need not affix new labels to comply with, this section-ifexisting labels already convey the required information. (g) Materialsafety data sheets. (1) Chemical manufacturers and importers shall obtain or develop a materia) safety date sheet for each hazardous chemical they produce or import. Employers 3hall have a material safety data sheet for each hazardous chemical which- they use. (2) Each material safety data sheet shall bein Englishand shall centaurat least thefollowingmfonaaticn: (i) The identity used aotha label, and, exceptaa provided fnr in paragraph (i) of this taction-on tredesacrets:- - (A) If . utegis mhstanra. itschemical and common name(sh (B) if the hazardous chemical is a preparing the material safety data sheet mixture which has been tested as a including appropriate hygienic practices whole to determine its hazards, the protective measures during repair and chemical and common name(s) of the maintenanceof contaminated ingredients which contribute to these equipment and procedures for clean-up known hazards, and the common of spills and leaks; name(s) of the mixture itself: or. (be) Any generally applicable control (C) If the hazardous chemical is a measures which are known to the mixture which has not been tested asa chemical manufacturer, importer or whole: employer preparing the material safety (7) The chemical and common name(s) data sheet sach as appropriate of all ingredients which have been engineering controls, work practices, or determined to be health hazards, and personal protective equipment which comprise 1% or greater of the composition, except that chemicals (x) Emergency and first aid procedures; identified as carcinogens under . paragraph (d)(4) of this section shall be listed if the concentrations are Qt.1% or greater and. [2) The chemical and common name(s} of all ingredients which have been determined to be health hazards, and which comprise less than 1% (0.1% for carcinogens) of the mixture, if there is evidence that the ingredients) could be released from the mixture in concentrations which would exceedraa established OSHA permissible exposure limit or ACGIH Threshold Limit Value, or could present a health hazard to employees; and. (5) The chemical and common name(s) of aU ingredients which have been determined to present a physical hazard when present in die mixture; (ii) Physical and chemical characteristics of the hazardous chemical (socb as vapor pressure, flash point): (iii) The physical hazards.of the hazardous chemicaL mchtding the potential for fire, explosion, and reactivity; (Iv) The health hazards of the (xi) The date of preparation of the material safety data sheet or the last change to it and. (xii) The name, address and telephone number of the chemical manufacturer, importer, employer or other responsible party preparingor distributing the material safety data sheet who can provide additional information on the hazardous chemical and appropriate emergency procedures, if necessary. (3) If not relevant information is found for any given category on the material safety data sheet the chemical manufacturer, importer or employer preparing the material safety data sheet shall mark it to indicate that no applicable information was found (4) Whoa complex mixtures have similarhazards and contents (i.e. the chemical ingredients are essentially the same: but the specific composition varies from mixture to mixture), the chemical manufacturer, importer or employer may prepare one material safety data sheet to apply to all of these similarmixtures. (5) The chemical manufacturer, hazardous chemical, including signs and importer or employer preparing the symptoms of exposure, and any medical . material safety data sheet shall ensure conditions which are generally recognized as being aggravated by exposure to the chemical: (v) The primary rootefs) ofentry: that the information recorded accurately reflects the stidhtific evidence used in malting the hazard determination. If the chemical manufacturer, importer or (vi) The OSHA permissible exposure- employer preparing the material safety limit ACGIH Threshold Limit Value; data sheet becomes newly aware of any and any other exposure-fimit used or significant information regarding the recommended by the chemical hazards of a chemical, or ways to manufacturer, importer, or employer protect against the hazards, this new preparing the material safety data sheet information shall be added to the where available: material safety data sheet within three (vii) .Whether the hazardous chemical months. If the chemical is not currently is listed in the NationatTooricoiogy being produced orimported the Program (NTP)AnnuatReport om chemical manufacturer or importer shall Caniaogetu (latest edition)or haa been add the information to the material found to bea-potential carcinogen hi the safety date sheet before- the chemical is International Agency for Research on introduced into the workplace again. Cancel (IARQ Monographs- (latest (8) Chemical manufacturer! or editions), or by OSHA; . importers shall ensure that <fistributary . (vui) Any generally applicable and employere-are provided an appropriate material safety data sheet which are known tothechemical- wtilt their intitial shipment and with the manufacturer, importer os employer . first shipment after a material safety DPMC-13918 LAM 012573 31882 Federal Register / , -c 52, No. 163 / Monday. August 24, 19b. / Rules and Regulations data sheet is updated. The chemical manufacturer or importer shall either provide material safety data sheets with the shipped containers or send them to the employer prior to or at the time of the shipment If the material safety data sheet is not provided with a shipment that has been labeled as a hazardous chemical, the employer shall obtain one from the chemical manufacturer, importer, or distributor as soon as possible. (?) Distributors shall ensure that material safety data sheets, and updated information, are provided-to other distributors and employers. Retail distributors which sell hazardous chemicals to commercial customers shall provide a material safety data sheet to such employers upon request, and shall post a sign or otherwise inform them that a material safety data sheet is available. Chemical manufacturers, importers, and distributors need not provide material safety data sheets to retail distributors which have informed them that the retail distributor does not sell the product to commercial customers or open the sealed container to use it in their own workplaces. (8) The employer shall maintain copies of die required material safety data sheets for each hazardous chemical in the workplace, and shall ensure that they are readily accessible during each work shift to employees when they are in their work area(s). (9) Where employees must travel between workplaces during a workshift their work is carried out at more than one geographical location, the material safety data sheets may be kept at a central location at the primary workplace facility. In this situation, the employer shall ensure that employees can immediately obtain the required information in an emergency. (10) Material safety data sheets may be kept in any form, including operating procedures, and may be designed to cover groups of hazardous chemicals in a work area where it may be more appropriate to address the hazards of a process rather than individual hazardous chemicals; However, the employer shall ensure that in all cases the required information is provided for each hazardous chemical and is readily accessible during each work shift to employees when they are in in their work areas(s). (11) Material safety data sheets shall also be made readily available, upon request to designated representatives and to the Assistant Secretary, in accordance with the requirements of 29 CFR 191(X20-(e). The Director shall also be given access to material safety data sheets in the same manner. (h) Employee information and training. Employers shall provide employees with information and training on hazardous chemicals in their work area at the time of their initial assignment and whenever a new hazard is introduced into their work area. (1) Information. Employees shall be informed of: (i) The requirements of this section: (ii) Any operations in their work area where hazardous chemicals are present; and. (iii) The location and availability of the written hazard communication program, including the required list(s) of hazardous chemicals: and material safety data sheets required by this section. (2) Training. Employee training shall include at least (i) Methods and observations that may be used to detect the presence or release of a hazardous chemical in the work area (such as monitoring conducted by the employer, continuous monitoring devices, visual appearance or odor of hazardous chemicals when being released, etc.); (ii) The physical and health hazards of the chemicals in the work area: (iii) The measures employees can take to protect themselves from these hazards, including-specific procedures the employer has implemented to protect employees from exposure to hazardous chemicals, such as appropriate work practices, emergency procedures, and personal protective equipment to be used: and, (iv) The details of the hazard communication program developed by the employer, including an explanation of the labeling system and the material, safety data sheet, and how employees can obtain and use the appropriate hazard information. (i) Trade secrets. (1) The chemical manufacturer, importer, or employer may withhold the specific chemical identity, including the chemical name and other specific identification of a hazardous chemical, from the material safety data sheet provided that: (i) The claim that the information withheld is a trade secret can be supported; (ii) Information contained in the material safety data sheet concerning the properties and effects of the hazardous chemical is disclosed: (iii) The material safety data sheet indicates that the specific chemical identity is being withheld as a-trade secret: and. (iv) The specific chemical identity is made available to health professionals* employees, and designated representatives in accordance with the applicable provisions of this paragraph. (2) Where a treating physician or nurse determines that a medical emergency exists and the specific chemical identity of a hazardous chemical is necessary for emergency or first-aid treatment the chemical manufacturer, importer, or employer shall immediately disclose the specific chemical identity of a trade secret chemical to that treating physician or nurse, regardless of the existence of a written statement of need of a confidentiality agreement The chemical manufacturer, importer, or employer may require a written statement of need and confidentiality agreement in accordance with the provisions of paragraphs (i](3) and (4) of this section, as soon as circumstances permit (3) In non-emergency situations, a chemical manufacturer, importer, or employer shall, upon request disclose a specific chemical identity, otherwise permitted to be withheld under paragraph (i](l) of this section, to a health professional (Le. physician, industrial hygienist toxicologist epidemiologist or occupational health nurse) providing medical or other occupational health services to exposed employee(s), and to employees or designated representatives: ifi (i) The request is in writing; (ii) The request describes with reasonable detail one or more of the following occupational health needs for the information: (A) To assess the hazards of the chemicals to which employees will be exposed: (B) To conduct or assess sampling of the workplace atmosphere to determine employee exposure levels: (C) To conduct pre-assignment or periodic medical surveillance of exposed employees; (D) To provide medical treatment to exposed employees: (E) To select or assess appropriate personal protective equipment for exposed employees; (F) To.design or assess engineering controls or other protective measures for exposed employees; and, (G) To conduct studies to determine the health effects of exposure. (iii) The request explains in detail why the disclosure of the specific chemical identity is essential and that in lieu thereof the disclosure of the following information to the health professional, employee, or designated representative, would not satisfy the purposes described in paragraph (i)(3)(ii) of this section: DPMC-13919 LAM 012574 Federal Register / VoL 52. No. 163 \ Monday. August 24,1987 / Rules and Regulations. 31883 (A) The properties andeffects of the chemical: (B) Measure* for controlling workers' exposure to the chemical: (C) Methods of monitoring amt analyzing worker exposure to the chemical: and. (1 Methods of diagnosing and treating-harmful exposures to the chemical: (iv) The request includes a description of the procedures to be used to maintain the confidentiality of the disclosed information: and. (v) The health professional, and the employer or contractor of die services of the health professional (Le. downstream employer. Labor organization, or individual employee), employee, or designated representative, agree in a written confidentiality agreement that the health professional, employee, or designated representative, will not use the trade secret information for any purpoasother than the health needfs} asserted and agree not to release the information under any circumstances other than to OSHA. as provided in paragraph (i}(6) of this section, except as authorized by the terms of the agreement or by the chemical manufacturer, importer, or employer. (4) The confidentiality agreement authorized by paragraph (i)(3)(iv) of this section: (i) May restriet the useof the Infanuetima to the health purposes indicated-in the written statementof need: (ii) May provide fur appropriate legal remedies in theerent of a breach of the agreement, including stipulation of a reasonable pro-estimate of likely damages: and. fill) May not include requirements for the posting of penalty bond. (5) Nothing in this standard is meant to predade the partiesfrom pursuing non-cantractua) remediesto the extent permitted by tew. (6) If the health professional, employee, or designated representative receiving the trade secret information decides that there is a need to disclose it to OSHA. the chemical manufacturer, importer, or employer who provided the information shall be informed by the health professional, employee: or designated representative prior to. or at the same time as. such disclosure. (7J B the chemical manufacturer, importer, or employer denies a written request for disclosure of a specific chemical identity* th& yn^ffc PI Be provided to the health, professional, employee; or designated representative: within thirty days of the request: (ii) Be in writing; (iii) include evidence to support the claim that the specific chemical identity is a trade secret (iv) State the specific reasons why the request is being denied: and. fv) Explain h detail how alternative information may satisfy the specific medical or occupational health need without revealing the specific chemical identity. (8) The health professional, employee, or designated representative whose request for information is denied under paragraph (i)(3) of this section may refer the request and the written denial of the request to OSHA for consideration. (9) When a health professional, employee, or designated representative refers the denial to OSHA under paragraph (i)(8) of this section. OSHA shall consider the evidence to determine ifr p) The chemical manufacturer, importer, or employer has supported the claim that the specific chemical identity is & trade secret (ii) The health professional, employee, or designated representative haa supported the claim that there is a medical oroccupational health need for the information: and (iii) The health professional employee: ordesignated representative has demonstrated adequate means to protect the confidentiality. (10) 01 LFOSHA determines that the specific chemical identity requested under paragraph (i)(3) of this section is not a boonfide trade secret, or that it is a trade secret, but the requesting health professional, employee, or designated representative has s legitimate medical or occupational health need for the information, has executed a written confidentiality agreement, and has shown adequate " to protect the confidentiality of the information, the chemical manufacturer, importer: or employer will be subject to citation by OSHA. (11) If s chemical manufacturer importer, or employer demonstrates to OSHA that the execution ofa confidentiality agreement would not provide sufficient protection against the potential harm horn the unauthorized disclosure of a trad# secret specific chemical identity, the Assistant Secretary may issue such orders or impose sachadditionel limitations or conditions upon the disclosure of the requested chemical information as may be appropriate to assure that the occupational health services are provided without an undue risk of harm tO the rhnmirnl maiuifnrtliwr importer. or employer. (11) If a citation for a failure to release specific chemical identity information is contested by the chemical manufacturer, importer, or employer, the matter will be adjudicated before the Occupational Safety and Health Review Commission in accordance with the Act's enforcement scheme and the applicable Commission rules of procedure: In accordance with the Commission rules, when a chemical manufacturer, importer, or employer continues to withhold the information during the contest the Administrative Law Judge may review the citation and supporting documentation in camera or issue appropriate orders to protect the confidentiality or such matters. (12) Notwithstanding the existence of a trade secret claim, a chemical manufacturer, importer, or employer shall, upon request disclose to the Assistant Secretary any information which this section requires the chemical manufacturer, importer, or employer to make available. Where there is a trade secret claim, such claim shall be made no later than at the time the information is provided to the Assistant Secretary so that suitable determinations of trade secret status can be made and the necessary protections can be implemented. (13) Nothing in this paragraph shall be construed as requiring the disclosure under any circumstances of process or percentage of mixture information which is a trade secret (j) Effective dates. (1) Chemical manufacturers, importers, and distributorsshall ensure that material safety data sheets are provided with the next shipment of hazardous chemicals to employersafter September 23.1987. (2) Employers in the non manufacturing sector shall be in compliance with all provisions of this section by May-23.1988. (Note: Employers in the manufacturing sector (SIC Codes 20 through 39) are already required to be in compliance with this section.) Appends A Is i - Heelth Ha-ranl Definitions (Afanrioiaiy) Although safetf hazard* misted to the physical characteristics of a chemical can be objectively defined in tenna of testing requirements (eg. flammability), health hazard definitions are leas precise and more subjective. Health hazards may cause measurable changes in the body--such as decreased pulmonary function. These changes aw generally indicated by the occurrence of signs and symptoms in the exposed employees such as shortness of breath, s nee-measurable. subjective feeling. Employees exposed to such hazards must be apprised of both the change in body function and the signs and symptoms that may occur to signal that change. DPMC-13920 LAM 012575 31884 Federal Register / VoL 52, No. 183 / Monday. August 24, 1987 / Rules and Regulations The determination of occupational health hazards is complicated by the fact that many of the effect! or signs and symptoms occur commonly in aon-occupationally exposed populations, so that effects of exposure are difficult to separate from normally occurring illnesses. Occasionally, a substance causes an effect that is rarely seen in the population at large, such as angiosarcomas caused,by vinyl chloride exposure, thus making it easier to ascertain that the occupational exposure was the primary causative factor. More often, however, the effects are common, such as lung cancer. The situation is frirther complicated by the fact that most chemicals have not been adequately tested to determine their health hazard potential, and data do not exist to substantiate these effects. There have been many attempts to categorize effects and to define them in various ways. Generally, the terms "acute" and "chronic" are used to delineate between effects on the basis of severity or duration. "Acute" effects usually occur rapidly as a result of short-term exposures, and are of short duration. "Chronic' effects generally occur as a result oflong-term exposure, and are of long,duration. The acute effects referred to most frequently are those defined by the American National Standards Institute (ANSI) standard for Precautionary Labeling of Hazardous Industrial Chemicals (Z129.1-1882)-- irritation; corrosivity, sensitization and lethal dose. Although these.are important health effects, they do not adequately cover the considerable range of acute effects which may occur as a result of occupational exposure, such as. for example, narcosis. Similarly, the term chronic effect is often used to cover only carcinogenicity. . teratogenicity,' and mutagenicity. These effects are obviously a concern in the workplace, but again, do not adequately cover the area of chronic effects, excluding, forexample, blood dyacrasias (such as enemia). chronic bronchitis and liver atrophy. The goal of defining precisely, in measurable term, every possible health effect that may occur in the workplaceaea result of chemical exposures cannot realistically be accomplished. This does not negate the need for employees to be informed of such effects and protected from them. Appendix B. which is also mandatory, outlines the principles and procedures of hazardous assessment For purposes of this section, any chemicals which meet any of the following definitions, as determined by the criteria set forth in Appendix B are health hazards; 1. Carcinogen: A chemical is considered to be a carcinogen ifr (a) U has been evaluated by the International Agency for Research an Cancer (IARCJ, and found to be a carcinogen or potential carcinogen; or (b) It is listed as a carcinogen or potential carcinogen in the Annual Report an Carcinogens published by the National Toxicology Program (NTT) (latest edition); or. (c) It is regulated by OSHA as s carcinogen. 2. Corrosiye: A chemical that causes visible destruction of. or irreversible alterations in. living tissue by chemical action at the site of contact For example, a chemical Is considered to be corrosive it when tested on the intact skin of albino rabbits by the method described by the U.S. Department of Transportation in Appendix A to 49 GFR Part 173, it destroys or changes irreversibly the structure of the tissue at the site of contact following an exposure period of four hours. This term shall not refer to action on inanimate surfaces. 3. Highly toxic A chemical falling within any of the following categories: (a) A chemical that has a median lethal dose (LDm) of 50 milligrams or less per kilogram of body weight when administered orally to albino rats weighing between 200 and 300 grams each. (b) A chemical that has a median lethal does (LDm) of 200 milligrams or less per kilogram of body weight when administered by continuous contact for 24 hours (or less if death occurs within 24 hours) with the bare skin of albino rabbits weighing between two and three Idlograma each. (c) A chemical that has a median lethal concentration (LCm) in air of 200 parts per million by volume or less of gas or vapor, or 2 milligrams per liter or less of mist, fume, or dust when administered by continuous inhalation for one hour (or less if death occurs within one hour) to albino rats weighing between 200 and 300 grams each. 4. Irritant: A chemicaL which is not corrosive, but which causes a reversible inflammatory effect on living tissue by chemical action at the site of contact A chemical is a skin irritant it when tested on the intect skin of albino rabbits by the methods of IS 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 ifso determined under the procedure listed in IS CFR 1500.42 or other appropriate techniques. 5. Sensitizer. A chemical that causes a substantial proportion of exposed people or animals to develop an allergic reaction in normal tissue after repeated exposure to the fftnwwifJil. 5. Toxic. A chemical falling within any of the following categories: (a) A chemical that has a median lethal' dose (LDm) of more than 50 milligrams per kilogram but not more than 500 milligrams per kilogram of body weight when administered orally to albino rats weighing between 200 and 300 grams each. (b) A chemical that has a median lethal dime (LDm) of more than 200 milligrams per kilogram but not more than 1400 milligrams per kilogram of body weight when administered by continuous contact for 24 hours (or less if death occurs within 24 hours) with the bare skin of albino rabbits-weighing between two and three Idlograma each. (c) A chemical that has a median lethal concentration (LCm) in air of more titan 200 parts per million but not more than 2,000 parts per million by volume of gas or vapor, or more than two milligrams per liter but-not more than 20 milligrams per liter of mist, fume, or dust when administered by continuous inhalation for one hour (or less if death occurs within one hour) to albino rats weighing between 200 and 300 grains each. 7. Target organ effects. The following is a target organ categorization of effects which may occur, including examples of signs and symptoms and chemicals which have been found to cause such effects. These examples are presented to illustrate the range and diversity of effects and hazards found in the workplace, and the broad scope employers must consider in this area, but are not intended to be all-inclusive. a. Hepatotoxins: Chemicals which produce liver damage- Signs 4 Symptoms: Jaundice: liver enlargement Chemicals: Carbon tetrachloride: nitrosamines b. Nephrotoxins: Chemicals which produce kidney damage Signs 4 Symptoms: Edema; proteinuria Chemicals: Halogenated hydrocarbons; uranium c. Neurotoxins: Chemicals which produce their primary toxic effects on the nervous system Signs 4 Symptoms: Narcosis; behavioral changes; decrease in motor functions Chemicals: Mercury; carbon disulfide d. Agents which act on the blood or hematopoietic system: Decrease hemoglobin function: deprive the body tissues of oxygen Signs 4 Symptoms: Cyanosis; loss of consciousness Chemicals: Carbon monoxide; cyanides e. Agents which damage the hmg: Chemicals which irritate or damage the pulmonary tissue Signs 4 Symptoms: Cough: tightness in chest; shortness of breath Chemicals: Silica; asbestos t Reproductive toxins: Chemicals which affect the reproductive capabilities including-chromosomal damage . (mutations) and effects on fetuses (tentogenesis) Signs 4 Symptoms: Birth defects; sterility Chemicals: Lead; DBCP g. Cutaneous hazards: Chemicals which affect the dermal layer of the body Signs 4 Symptoms: Defatting of the skim rashes; irritation Chemicals: Ketones; chlorinated compounds h. Eye hazards: Chemicals which affect the eye or visual capacity Signs 4 Symptoms: Conjunctivitis: corneal damage Chemicals: Organic solvents: adds Appendix B to . Hazard The quality of a hazard communication program is largely dependent upon the adequacy and accuracy of the hazard determination. The hazard determination requirement of this standard is performanceoriented. Chemical manufacturers, importers, and employers evaluating chemicals are not required to follow any specific methods for DPMC-13921 lam 012576 Federal Register / VoL 52. No. 163 / Monday. August 24. 1987 / Rules and Regulations 31885 determining hazard*, but they must be able to demonstrate that they have adequately ascertained the hazards,of the chemicals produced or imported in accordance with the criteria set forth in this Appendix. Hazard evaluation is a process which relies heavily on the professional judgment of the evaluator, particularly in the area of chronic hazards. The performance-orientation of the hazard determination does not diminish the duty of the chemical manufacturer, importer or employer to conduct a thorough evaluation, examining all relevant data and producing a scientifically defensible evaluation. For purposes of this standard, the following criteria shall be used in making hazard determinations that meet the requirements of this standard. 1. Carcinogenicity: As described in parapaph (d)(4) and Appendix A of tins section, a-determination by the National Toxicology Program, the International Agency for Research on Cancer, or OSHA that a chemical is a carcinogen or potential carcinogen will be considered conclusive evidence for purposes of this section. 2. Human data Where available, epidemiological studies and case reports of adverse health effects shall be considered in the evaluation. 3. Animal data: Human evidence of health effects in exposed populations is generally not available lor tbs majority of chemicals produced or used in the workplace. Therefore, the available results of toxicological testing in animal populations shall-be used to predict the health effects that may be experienced by exposedworkers. In particular, the.definitions ofcertain acute hazards refer to specific animal testing results (see Appendix A). A. Adequacy andreporting ofdata. The results of any studieswhich ara designed and conducted according to established scientific principles, and-which report statistically significant conclusions regarding the health effects of a chemical shall be a sufficient basis for ahazard determination and reported on any material safety date sheet The chemical manufacturer, importer, or employer may also report the results of other scientifically valid studies which tend to refute the findings of hazard. Appenrfix C to I-- Information Sources (Advisory) The following is a list of available data sources which the chemical manufacturer, importer, distributor, or employer may wish to consult to evaluate the hazards of chemicals they produce or import --Any information in their own company files, sudi as toxicity testing results or illness experience of company employees. --Any information obtained from the supplier of the chemical such as material - safety data sheets or product safety bulletins. --Any pertinent information obtained from the following source list (latest editions should be used): Condensed Chemical Dictionary Van Nostrand Reinhold Co- 135 West SOth Street New York. NY 1002a The Merck Index: An Encyclopedia of Chemicals and-Drugs Merck and Company. Inc- 128 E. Lincoln Are.. Rahway. Nj 070651 [ARCponographs on the'Evaluation ofthe Carcinogenic Risk ofChemicals to Man Geneva: World Health Organization. . International Agency forResearch on Cancer. 1972-Present (Multivolume work). Summaries are available in supplement volumes. 49 Sheridan Street Albany. NY 12210. Industrial Hygiene and Toxicology, by FIA. Patty John Wiley It Sons. Inc- New York. NY (Multivolume work). Clinical Toxicology ofCommercial Products Gleason. Gassetin. and Hodge Casarett and DouWs Toxicology; The Basic Science ofPoisons Doull Klaassea and Amdur. Macmillan Publishing Co- Inc- New York, NY. Industrial Toxicology, by Alice Hamilton and. HarrietL Hardy Publishing Sciences Group, Inc- Acton. MA. Toxicology ofthe Eye. by W. Morton Grant Charles C. Thomas. 301-327 East Lawrence Avenue. Springfield. U. Recognition ofHealth Hazards in Industry William A. Burgess. john Wiley and Sons, 605 Third Avenue. New York. NY 10156. ChemicalHazards ofthe Workplace Nick H. Proctor and James P. Hughes, J.P. lipincott Company, 6 Winchester Terrace. New York. NY 10022. Handbook ofChemistry andPhysics Chemical Rubber Company. 16901 Cranwood Parkway, Cleveland. OH 44128. ThresholdLimit Valuesfor Chemical Substances andPhysicalAgents in the .... Work Eneironment andBiological Exposure Indices with IntendedChanges American Conference of Governmental Industrial Hygienists (ACGIH). 0500 .Glenway Avenue, Bldg. D-5, Cincinnati. OH 45211. Information on the physical hazards of chemicals may be found in publications of the National Fire Protection Association. Boston. MA. SwjooRAPHtc Data Bases Note.--The following documents may be purchased from the Superintendent of Documents. U.S. Government Printing Office, Washington. DC 20402. Occupational Health Guidelines NIOSH/OSHA (NIOSH Pub. No. 81-123) NIOSHPocket Guide to Chemical Hazards NIOSH Pub. No. 85-114 Registry of Toxic Effects of Chemical Substances- NIOSH Pub. No. 80-102 Miscellaneous Documents published by the National Institute for Occupational Safety and Health: Criteria documents. Special HazardReviews. Occupational Hazard Assessments. Current Intelligence Bulletins. OSHA's General Industry Standards (29 CFR Part 1910) NTP Annual Report on Carcinogens and Summary ofthe Annual Report on Carcinogens. National Technical Information Service (NTTSL 5285 Port Royal Road. Springfield. VA 22161: (703) 487-4650. Appendix D to !______Definition of "Trade Secret** (Mandatory) The following is a reprint of the Restatement of Torts section 757, comment b (1939): b. Definition oftrade secret A trade secret may consist of any formula, pattern, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not-know or use it. It may be a formula for a chemical compound, a process of manufacturing treating or preserving materials, a pattern for a machine or other device, or a lisfof customers. It differs from other secret information in a business (see } 759 of the Restatement of Torts which is not included in this Appendix) in that it is not simply information as to single or ephemeral events in the conduct of the business, as. for example, the amount or DPMC-13922 LAM 012577 31888 Federal Register / V/L 52, No. 163 / Monday. August 24. 1987''/ Rules and Regulations otter terms of a secret bid for a contract or the salary of certain employees, or the security investments Blade or contemplated, or the date fixed for the announcement of a new policy or for bringing out a new model or the like. A trade secret is a process or device for continuous use in the operations ofthe business. Generally it relates to the production of goods, as. for example, a machine or formula for the production of an article. It may. however, relate to the sale of goods or to other operations in the business, such as a code for determining discounts, rebates or other concessions in a price list or catalogue, or a list of specialized customers, ora method of bookkeeping or other office management Secrecy. The subject matter of a trade secret must be secret Matters of public knowledge or ofgeneral knowledge in an industry cannot be appropriated by one as his secret Matters which are completely disclosed by the goods which one markets cannot be Ms secret Substantially, a trade secret is known only in the particular business in wMch it is used. It is not requisite that only the proprietor of the business know it He may. without losing his protection, communicate it to employees involved in its use. He may likewise communicate it to others pledged to secrecy. Others may also know of it independently, as. for example, when they have discovered the process or formula by independent invention and are keeping it secret Nevertheless, a substantial element of secrecy must exist so that except by the use of improper means, there would be difficulty in acquiring the information. An exact definition of a trade secret is not possible. Some factors to be considered hi determining whether given information is one's trade secret are: (1) The extent to which the information is known outside of his business; (2) the extent to which it is known by employees and others involved in his businesa; (3) the extent of measures taken by him to guard the secrecy of the information: (4) the value of the information to him and Ms competitors; (5) the amount of effort or' money expended by Mm in developing the' informatton: (e) the ease or difficulty with wMch the information could be properly acquired or duplicated by others. Noveity andprior art A trade secret may be a device'or process wMch is patentable: but it need not be that It may be a device or process wMch is clearly anticipated in the prior art or one wMch is merely a mechanical improvement that a good mechanic can make. Novelty and invention are not requisite for a trade secret as they are for patentability. These requirements are essential to patentability because a patent protects against unlicensed use of the patented device or process even by one who discovers it properly through independent research. The patent monopoly is a reward to theinventor. But such is not the case with a trade secret. Its protection is not based on a policy of rewarding or otherwise encouraging the development of secret processes or devices. The protection is merely against breach of fcith and reprehensible means of leaning another's secret For this limited protection it is not appropriate to require also the kind of novelty and invention which is a requisite of patentability. The nature of the secret is. however, an important factor in determining the kind of relief that is appropriate against one who is subject to liability under the rule stated in this section. Thus, if the secret consists of a device or process which is a novel invention, one who acquiree the secret wrongfully is ordinarily enjoined horn further use of it and is required to account far the profits derived from Ms past use. IC on the other hand, the secret consists ofmechanical improvements that a good mechanic can make without resort to the secret the wrongdoer's liability may be limited to damages, and an injunction against future use of the improvements made with the aid of the secret may be inappropriate. 8. Section 1S1&97 would be revised to read as follows; } 191537 Health and sanitation. The provisions of this section shall apply to ship repairing, shipbuilding and shipbreaking, except where indicated otherwise. (a] The employer shall provide all necessary controls, and the employees shall be protected- by suitable personal protective equipment against the hazards identified under $ 1915.99 of this part and those hazards for which specific precautions are required in Subparts B, C. and of this part (b) The employer shall provide adequate washing facilities for. employees engaged in the application of paints or coatings or in other operations where contaminants can. by ingestion or absorption, be detrimental to the health of the employees. The employer shall encourage good personal hygiene practices by informing the employees of the need for removing surface contaminants by thorough washing or hands and face prior to eating or smoking. (c) The employer shall not permit employees to eat or smoke in areas undergoing surface preparation or preservation or where shipbreaking. operations produce atmospheric contaminants. (d) The employer shall not permit employees engaged in ship repair work on a vessel to work in the immediate vicinity of uncovered garbage and shall ensure that employees working beneath or on the outboard side of a vessel are not subject to contamination by drainage or waste from overboard discharges. - (e) No minor under 18 years of age shall be employed in shipbreaking or related employments. 9. Section 1928.21 would be amended by adding paragraph (a)(5) as follows: 5 192SJ11 Applicable standards In 29 CFR Part 1910. (a) * * * (5) Hazard communication-- 5 1910.1200. * * [FR Doc. 87-19137 Filed 8-19-87; 8:45 ami sauna core asio-M-ai - DPMC-13923 LAM 012578