Hazard Communication; Final Rule DEPARTMENT OF LABOR

SUMMARY: The HCS requires employers to establish hazard communication

programs to transmit information on the hazards of chemicals to their

employees by means of labels on containers, material safety data

sheets, and training programs. Implementation of these hazard

communication programs will ensure all employees have the ``right-to-

know'' the hazards and identities of the chemicals they work with, and

will reduce the incidence of chemically-related occupational illnesses

and injuries.

This modified final rule includes a number of minor changes and

technical amendments to further clarify the requirements, and thereby

help ensure full compliance and achieve protection for employees. In

particular, the rule adds and clarifies certain exemptions from

labeling and other requirements; modifies and clarifies aspects of the

written hazard communication program and labeling requirements;

clarifies and slightly modifies the duties of distributors,

manufacturers, and importers to provide material safety data sheets

(MSDSs) to employees; and clarifies certain provisions regarding MSDSs.

EFFECTIVE DATES: The amendments in this document will be effective on

March 11, 1994.

FOR FURTHER INFORMATION CONTACT: Mr. James F. Foster, Office of

Information and Consumer Affairs, Occupational Safety and Health

Administration, 200 Constitution Avenue, NW., room N3647, Washington,

DC 20210; telephone (202) 219-8151.

To aid in efforts to comply with the HCS, a single copy of the

following documents may be obtained without charge from OSHA's

Publications Office, room N3101 at the above address, (202) 219-4667:

the Hazard Communication Standard (a Federal Register reprint of

today's publication); OSHA 3084, Chemical Hazard Communication, a

booklet describing the requirements of the rule; OSHA 3117, Informacion

Sobre Los Riesgos De Los Productos Quimicos, a Spanish translation of

OSHA 3084; OSHA 3111, Hazard Communication Guidelines for Compliance, a

booklet which reprints Appendix E of the standard to further help

employers comply with the rule; and OSHA 3116, Information Sobre Riegos

Normas De Cumplimiento, a Spanish translation of OSHA 3111.

OSHA 3104, Hazard Communication--A Compliance Kit (a step-by-step

guide to compliance with the standard) is available from the

Superintendent of Documents, U.S. Government Printing Office,

Washington, DC 20402, (202) 783-3238; GPO Order No. 929-022-00000-9;

$18--domestic; $22.50--foreign.

SUPPLEMENTARY INFORMATION: References to the rulemaking record are made

in the text of this preamble. The Hazard Communication Standard docket,

No. H-022, contains eight sub-dockets--H-022A, H-022B, H-022C, H-022D,

H-022E, H-022F, H-022G, and H-022H. All of these docket files are part

of the rulemaking record. However, in this document, no specific

references are made to either Docket H-022C or H-022E (these files deal

exclusively with the issue of trade secrets), or H-022F, H-022G, and H-

022H. The following abbreviations have been used for citations to the

other record files:

H-022, Ex.: Exhibit numbers in Docket H-022, which includes H-022A

and H-022B, for exhibits collected for the original 1983 HCS for

manufacturing.

Ex.: Exhibit numbers in H-022D for exhibits collected since the

1985 Court remand related to the expansion of the scope of industries

covered. This docket includes the comments received in response to the

August 8, 1988 proposal.

Tr.: Public hearing transcript page numbers. The hearing transcript

pages from the December 1988 hearing are not numbered consecutively,

i.e., each day begins again with page 1. Transcript references will

thus include a reference to the day, and the page number for that day's

testimony. The days are numbered as follows: December 6 is Day 1;

December 7 is Day 2; December 8 is Day 3; December 9 is Day 4; December

12 is Day 5; December 13 is Day 6; and December 14 is Day 7. As an

example, a reference to testimony which appears on page 65 of the

transcript for December 8 will be indicated as ``Tr. 3-65.'' Transcript

references to hearings held between June 15 and July 31, 1982, are

consecutively numbered, and will not have a prefix number identifying

the day.

I. Background

A. Review of the Need for the Standard

The HCS was promulgated to provide workers with the right to know

the hazards and identities of the chemicals they are exposed to while

working, as well as the measures they can take to protect themselves.

OSHA has estimated that there are over 32 million workers exposed to

hazardous chemicals in over 3.5 million workplaces (48 FR 53282, 53323;

52 FR 31871). According to the National Institute for Occupational

Safety and Health (NIOSH), there are as many as 575,000 hazardous

chemical products in these workplaces (48 FR 53323). Based on the

growth rate of the chemical industry with regard to new products, this

number may now be as high as 650,000. Chemical exposures occur in every

type of industry (52 FR 31858). (See also Exs. 4-1 and 4-2.) In fact,

workers typically experience multiple exposures to numerous industrial

chemicals at one point of time or over a long period of employment. 48

FR 53323.

Besides having what OSHA considers to be an inherent right to know

about hazardous chemicals in their workplaces, exposed employees have a

need to know this information as they are at significant risk of

experiencing adverse health or physical effects in the absence of such

knowledge. Chemicals pose a myriad of hazards to exposed workers, from

mild health effects, such as irritation, to death. Some chemicals cause

or contribute to chronic diseases, such as heart disease, kidney

disease, sterility, or cancer. Many chemicals cause acute injuries or

illnesses such as rashes, burns, and poisoning. Numerous chemicals pose

physical hazards to workers by contributing to accidents like fires and

explosions.

During the HCS rulemaking, data collected about chemical illness

and injury rates in manufacturing sectors showed that some 40-50,000

manufacturing workers experienced chemical source illnesses a year, and

an average 10,000 worker compensation claims were filed annually in

connection with chemical illness or injury in manufacturing (48 FR

53285). Employees in non-manufacturing industries were estimated to

experience acute chemical illness and injury at the rate of 13,671

injuries, 38,248 illnesses, and 102 fatalities per year. 52 FR 31868.

The chronic disease rate was 17,153 chronic illnesses, 25,388 cancer

cases, and 12,890 cancer deaths per year. Id. (Compare with, Ex. 4-77

(NIOSH data indicating 136,212 work-related chemical injuries treated

in emergency rooms in 1986)).

OSHA believes that the reported data understate the extent of the

health and safety problems caused by chemicals in the workplace. Lack

of knowledge about health effects associated with chemical exposures

contributes to the chronic underreporting of occupational illnesses

(Exs. 4-44; 41). As the effects caused are diseases or physical

manifestations that may also occur in workers as a result of non-

chemical or non-occupational factors, it is often difficult to identify

such ailments as being caused by occupational exposures. Misdiagnosis

is a problem and often symptoms are treated without realizing that the

cause is an occupational chemical exposure. See, e.g., 53 FR 25973 (Ex.

4-178).

Worker turnover in many industries also increases the likelihood

that the link between a workplace chemical exposure and subsequent

illness will be overlooked and will not be reported. This is

particularly true for long-term health effects which develop over time,

or after repeated exposures. Many chronic diseases are characterized by

long latency periods of 20-30 years or longer.

In addition, health effects of some chemicals may contribute to the

occurrence of injuries that are reported but are not causatively linked

to chemical exposures. For example, central nervous system depression

due to solvent exposure may cause a painter to become dizzy and fall

off a ladder. The subsequent injury may be reported, but the solvent

exposure is not identified as the cause. (See Exs. 67 for studies on

neurobehavioral changes in painters due to solvent exposures; 4-161 for

case of injury to cosmetologist resulting from solvent exposure causing

dizziness, loss of balance, and a fall.)

B. Overview of Standard

The purpose of the HCS is to ensure that the hazards of all

chemicals produced or imported are evaluated, and that information

concerning their hazards is transmitted to employers and employees. In

broad outline, the HCS achieves its purpose by an integrated three-

pronged system. First, chemical manufacturers and importers must review

available scientific evidence concerning the physical and health

hazards of the chemicals they produce or import to determine if they

are hazardous. (Paragraph (d)). Second, for every chemical found to be

hazardous, the chemical manufacturer or importer must develop

comprehensive material safety data sheets (MSDSs) and warning labels

for containers and send both downstream along with the chemicals.

(Paragraphs (f), (g)). Third, all employers must develop a written

hazard communication program and provide information and training to

employees about the hazardous chemicals in their workplace. (Paragraphs

(e), (h)).

The three information components in this system--labels, material

safety data sheets, and worker training--are all essential to the

effective functioning of the program. The MSDSs provide comprehensive

technical information, and serve as a reference document for exposed

workers as well as health professionals providing services to those

workers. The labels provide a brief synopsis of the hazards of the

chemicals at the site where the chemical is used in the work area.

Training ensures that workers understand the information on both MSDSs

and labels, know how to access this information when needed, and are

aware of the proper protective procedures to follow. Each component

effectuates the others. See General Carbon Co. v. OSHRC, 860 F.2d 479,

481 (DC Cir. 1988).

The provision of information under the HCS about these effects and

protective measures will reduce the incidence of chemical source

illnesses and injuries in the workplace. 48 FR 53281-83. An effective

hazard communication program will accomplish this purpose through

modifying the behavior of both employers and employees. Employers, many

of whom have not been aware of the potential hazards of the chemicals

they purchase to use in their workplaces, will be able to use the

information provided under the HCS to design better protective

programs. Complete information about chemicals may allow an employer to

choose a less hazardous product, thus preventing dangerous exposures

from occurring. Exs. 4-194, 71-40. Accurate information is also needed

to properly design engineering controls, select appropriate protective

clothing, and choose an effective respirator for exposed employees. Ex.

71-40. Improved understanding of chemical hazards by supervisory

personnel results in safer day-to-day handling of hazardous substances,

and proper storage and clean-up. See e.g., Exs. 4-61, 4-75, 71-40.

Workers provided the necessary hazard information will more fully

participate in, and support, the protective measures instituted in

their workplaces. The presence of labels and material safety data

sheets in the workplace will provide each worker with the hazards of

the chemicals, as well as the means to protect themselves. The training

of workers will teach them how to use the available information

effectively. Properly trained workers will know how to read and use

labels and material safety data sheets, will know what protection is

required to work safely with the chemicals in the workplace and will

use it, and will be able to determine what actions are necessary if an

emergency occurs. (E.g., Exs. 4-75, 4-174.) Information on chronic

effects of exposure to hazardous chemicals will help workers recognize

such symptoms and seek early treatment of chronic disease.

The information provided under hazard communication will also

enable health and safety professionals to provide better services to

exposed employees. (E.g., Exs. 4-153, 71-37.) Medical surveillance,

exposure monitoring, and other such services will be enhanced by the

ready availability of health and safety information.

As OSHA has noted in Appendix E of the rule: ``For any safety and

health program, success depends on commitment at every level of the

organization. This is particularly true for hazard communication, where

success requires a change in behavior. This will only occur if

employers understand the program, and are committed to its success, and

if employees are motivated by the people presenting the information to

them.''

It is in these ways that the HCS addresses the significant risks

posed to workers handling hazardous chemicals and not knowing their

hazards or the proper methods of handling and using them. This

rulemaking is intended to promulgate minor changes and technical

amendments to the existing HCS to enhance its effectiveness.

C. History of the Rulemaking

The development of OSHA's Hazard Communication Standard (HCS) was

initiated in 1974. The process has been lengthy and is discussed in

detail in the preambles to both the original and revised final rules

(see 48 FR 53280-81 and 52 FR 31852-54), and in the August 1988 NPRM

(53 FR 29822-25). This discussion will focus on the sequence of events

which has occurred since the original final rule was published in the

Federal Register on November 25, 1983, and in particular, those which

have occurred since the NPRM was published.

The original rule, which was promulgated on November 25, 1983 (48

FR 53280), covered employees in the manufacturing sector of industry.

That rule was modified on August 24, 1987 (52 FR 31852) to expand the

coverage to all industries where employees are exposed to hazardous

chemicals. Complete implementation of the standard's requirements in

the non-manufacturing sector was subsequently delayed by various court

and administrative actions. However, the August 24, 1987, rule is now

fully effective and has been so since January 24, 1989, and is being

enforced in all industries. (See Notice of Enforcement, 54 FR 6886,

Feb. 15, 1989).

Petitions for judicial review of the original 1983 rule covering

manufacturing were filed in the U.S. Court of Appeals for the Third

Circuit (hereinafter referred to as ``the Court'' or ``the Third

Circuit'') by the United Steelworkers of America, AFL-CIO-CLC, and by

Public Citizen, Inc., representing itself and a number of labor groups.

Motions to intervene in these cases were received from the Chemical

Manufacturers Association, the American Petroleum Institute, the

National Paint and Coatings Association, and the States of New York,

Connecticut, and New Jersey. In addition, petitions for review of the

standard were filed by the State of Massachusetts in the First Circuit;

the State of New York in the Second Circuit; the State of Illinois in

the Seventh Circuit; the Flavor and Extract Manufacturers' Association

in the Fourth Circuit; and the Fragrance Materials Association in the

District of Columbia Circuit. These cases were subsequently transferred

to the Third Circuit and consolidated into one proceeding. The cases

brought by the Flavor and Extract Manufacturers' Association and the

Fragrance Materials Association were withdrawn prior to filing briefs.

The Court issued its initial decision on the challenges to the

rule on May 24, 1985 United Steelworkers of America v. Auchter, 763

F.2d 728 (3d Cir. 1985)(Ex. 4-21.) The standard was upheld in most

respects, but three issues were remanded to the Agency for

reconsideration. The decision was not appealed.

First, the Court concluded that the definition of trade secrets

incorporated by OSHA included chemical identity information that was

readily discoverable through reverse engineering and, therefore, was

``broader than the protection afforded trade secrets by state law.''

The Court directed the Secretary of Labor to reconsider a trade secret

definition which would not include chemical identity information that

is readily discoverable through reverse engineering. Secondly, the

Court held the trade secret access rule in the standard invalid insofar

as it limited access to health professionals, but found the access rule

otherwise valid. The Secretary was directed to adopt a rule permitting

access by employees and their collective bargaining representatives to

trade secret chemical identities. OSHA complied with the Court orders

regarding the two trade secret issues in a separate rule, published in

final form on September 30, 1986 (51 FR 34590). The revised trade

secret provisions were incorporated into the text of the final rule

published on August 24, 1987.

The third issue remanded to OSHA involved the scope of industries

covered by the standard. The original HCS applied to employers and

employees in the manufacturing sector. The Court directed the Secretary

of Labor to reconsider the standard's application to employees in other

industry sectors, and ``to order its application in those sectors

unless he can state reasons why such application would not be

feasible.'' 763 F.2d at 739, 743.

OSHA subsequently published an advance notice of proposed

rulemaking (ANPR) to collect comments and information on the expansion

of the scope to cover these additional sectors (50 FR 48795; November

27, 1985). In particular, the Agency sought information on the extent

employers in non-manufacturing industries had already implemented

various aspects of a hazard communication program. In addition, OSHA

wanted to obtain data regarding the applicability of the provisions as

written in the original rule to these other sectors. A total of 226

responses were received. (See Ex. 2.) OSHA also commissioned a study of

the economic impact of extending the HCS to the fifty major non-

manufacturing industry groups within its jurisdiction. (See Exs. 4-1

and 4-2.) Based on this newly acquired evidence, as well as the

previous rulemaking record, OSHA was in the process of drafting a

proposed rule.

On January 27, 1987, however, the United Steelworkers of America,

AFL-CIO-CLC and Public Citizen, Inc., petitioners in the 1985

challenge, filed a Motion For An Order Enforcing the Court's Judgment

and Holding Respondent in Civil Contempt. Petitioners claimed that the

Court's 1985 order had not authorized OSHA to embark on further fact

gathering, and that OSHA should have made a feasibility determination

based upon the 1985 rulemaking record. Petitioners also argued that

even if further fact gathering had been allowed by the Court's order,

OSHA's pace was unduly slow.

In response, OSHA noted that the Court's 1985 order did not specify

that OSHA should act on the then-existing record. OSHA believed that

seeking further evidence on feasibility in non-manufacturing was

appropriate in light of its statutory obligation to issue rules that

are well grounded in a factual record. OSHA also asserted that,

consistent with Supreme Court precedent, the Agency should be permitted

to exercise its discretion in determining the appropriate rulemaking

procedures for complying with the Court's remand order. Lastly, the

Agency argued that its schedule to complete the rulemaking was

reasonable and did not constitute undue delay.

On May 29, 1987, the Court issued a decision holding that the

Court's 1985 remand order required consideration of the feasibility of

an expanded standard without further rulemaking. United Steelworkers of

America, AFL-CIO-CLC v. Pendergrass, 819 F.2d 1263 (3d Cir. 1987) (Ex.

4-20.) The Court declared that adequate notice had been provided to

non-manufacturers during the original rulemaking that they might be

covered by the HCS, id. at 1265-1266, 1269, that the answers to the

remaining questions OSHA may have had regarding feasibility were

``self-evident'' or ``readily ascertainable'' from the original record,

id. at 1268-69, and that further fact finding was ``unnecessary'', id.

at 1268. The Court ordered the Agency to issue, within 60 days of its

order, ``a hazard communication standard applicable to all workers

covered by the OSHA Act, including those which have not been covered in

the hazard communication standard as presently written, or a statement

of reasons why, on the basis of the present administrative record, a

hazard communication standard is not feasible.'' Id. at 1270.

OSHA subsequently re-evaluated the evidence in the record and

determined that a modified final rule covering all employers subject to

the Act (i.e., both manufacturing and nonmanufacturing) was both

necessary (the Agency had determined in 1983 that all employees exposed

to hazardous chemicals without having adequate information about them

were at significant risk of experiencing adverse effects) and feasible

(both technologically and economically). The Agency therefore issued

the revised rule on Hazard Communication which was published in the

Federal Register on August 24, 1987 (52 FR 31852).

The only modifications OSHA made to the original rule in the 1987

revision were those that were related to expansion of the scope.

Publication of a final rule precluded any actions other than those

specifically required by the expansion, particularly since the Court

determined that the record it reviewed (exhibits collected through

November 1983) was a sufficient basis for the final rule. Thus evidence

collected subsequent to that time was merely cited as additional

substantiation for the expansion.

The revised final rule expanded the scope of industries covered

from just the manufacturing sector to all industries where employees

are exposed to hazardous chemicals. As OSHA stated at that time, the

Agency has evidence to indicate that there is chemical exposure in

every type of industry, lack of knowledge about those hazardous

chemicals puts employees at a significant risk of experiencing material

impairment of health, and thus employees in all industries must have

protection under the rule. (See 52 FR 31858.)

Although the standard was issued as a final rule, OSHA invited

interested parties to submit information, data or evidence regarding

the feasibility or practicality of the provisions as written when

applied to the non-manufacturing sector, as well as any recommendations

for further modification. A 60-day period was established for such

comments, and it ended on October 23, 1987. A total of 137 comments

were received (40 of them were received after the deadline), and

entered into Docket H-022D (Ex. 5). A variety of opinions was expressed

in the comments regarding a number of issues; however, most of the

comments did not contain data or evidence concerning either feasibility

or practicality. Many of the comments were questions or requests for

clarification of the provisions.

In addition to the comments submitted to OSHA, the Office of

Management and Budget (OMB) convened a public meeting under the

Paperwork Reduction Act (44 U.S.C. 35) to address the information

collection requirements of the expanded rule. The transcript of the OMB

public meeting (which was held on October 16, 1987) is entered in the

docket as Ex. 5-76, and other relevant documents (e.g., copies of

statements, etc.) are entered in Exhibit 6. (In addition, the

transcript of an April 2, 1987, public meeting on the information

collection requirements for the manufacturing sector is Ex. 4-3.) The

majority of the participants in OMB's October 16 meeting submitted

written comments to OSHA as well, so there is considerable duplication

in Exhibit 6 of opinions that had already been expressed by the same

parties in other parts of the rulemaking record.

In a letter sent to the Department of Labor on October 28, 1987,

and subsequently published by OSHA in the Federal Register on December

4, 1987 (52 FR 46075) (Ex. 4-67), OMB, under the authority of the

Paperwork Reduction Act (44 U.S.C. 3501 et seq.), disapproved certain

information collection requirements in the expanded scope rule, as of

the rule's effective date (May 23, 1988). These were based upon the

record of the October 16 public meeting and the previous meeting on

April 2, 1987 regarding the information collection requirements for the

manufacturing sector, as well as OSHA's preamble to its August 24 rule

and its justification submitted formally under the Paperwork Reduction

Act. The October 28 letter stated that OMB disapproved: (1) The

requirement that material safety data sheets be provided on multi-

employer worksites; (2) coverage of any consumer product that falls

within the ``consumer products'' exemption included in Section

311(e)(3) of the Superfund Amendments and Reauthorization Act of 1986;

and (3) coverage of any drugs regulated by the Food and Drug

Administration in the non-manufacturing sector. In addition, OMB

determined that OSHA should reopen the rulemaking on the HCS to

consider alternatives to the definition of ``article'' which was

included in both the original and revised final rules. Lastly, OMB

conditioned paperwork approval upon OSHA's consulting with the U.S.

Small Business Administration and the Department of Commerce in order

to develop a plan for a Federal administrative effort that will provide

assistance to the regulated industries to alleviate paperwork burdens

and costs. For a complete description of OMB's rationale for these

determinations, see the Federal Register notice of December 4, 1987 (52

FR 46075).

On April 13, 1988, OMB extended its approval of all information

collection requirements in the HCS through April 1991, except that OMB

continued to disapprove the three provisions previously disapproved. 53

FR 15033. OMB's approval of the existing definition of ``article'' was

limited to the clarification included in a January 14, 1988, letter

from Assistant Secretary for Occupational Safety and Health John

Pendergrass to OMB, which stated that ``absent evidence that releases

of such very small quantities could present a health hazard to

employees, the article exception to the rule's requirements would

apply.'' In response to commenters who requested that OMB not extend

approval to any requirements in the non-manufacturing sector, OMB also

stated:

The concerns of these commenters are largely based on the

possibility that the standard and OMB's decision under the PRA will

change dramatically as a result of the rulemaking. Although change

is always possible, any such change would be fully considered during

the rulemaking process. Of course, in order for OMB to grant PRA

approvals, any changes must offer sufficient practical utility to

justify any incremental paperwork burden they impose, including the

burden of revising already-developed written programs. Moreover, as

stated above, we are continuing to disapprove the previously-

disapproved provisions; the rulemaking should of course conform the

rule to these disapprovals.

On August 8, 1988, OSHA published a notice of proposed rulemaking

(NPRM) to modify its Hazard Communication Standard (HCS) (53 FR 29822).

In the NPRM, OSHA reopened the rule on all of the issues raised by

OMB in its letter in order to have an opportunity to fully discuss the

complete current record on each item, as well as to collect additional

data from the public.

The initial deadline for receipt of comments on the NPRM was

October 7, 1988. This date was later extended to October 28, 1988. OSHA

received 167 comments.

An informal public hearing was convened in Washington, DC on

December 6, 1988, and was adjourned on December 14, 1988. Over 1300

pages of oral testimony were received. Sixty days were provided for

post-hearing submissions of new information by hearing participants

(ending February 13, 1989), and an additional thirty days were allowed

for submission of summary briefs. A total of thirty-four post-hearing

exhibits have been entered into the record.

Administrative Law Judge George Fath certified and closed the

hearing record on November 9, 1990.

OSHA published two requests for comments and information subsequent

to the 1988 NPRM. On January 22, 1990 (55 FR 2166), the Agency

solicited public input related to international harmonization of

chemical safety and health information, and a proposed convention and

recommendation of the International Labor Organization (ILO). OSHA

received 52 comments in response to this notice which were used by

United States' representatives to prepare for participation in the ILO

meetings on these documents.

On May 17, 1990 (55 FR 20580), OSHA published a request for

comments on improving the effectiveness of information generated in

accordance with the HCS, and subsequently disseminated on labels and

MSDSs. Nearly 600 comments were received during the 90 day comment

period. Many commenters supported standardization of the format or

order of information on the MSDSs, and of the presentation of

information on labels. The Agency has decided that administrative or

regulatory changes to be made in response to these comments will be

done separately from this final rule.

D. Court Challenges to the Revised Final Rule

The revised final rule was challenged in the U.S. Court of Appeals

by the Associated Builders and Contractors, National Grain and Feed

Association, Associated General Contractors of Virginia, Associated

General Contractors of America, and United Technologies Corporation. A

number of interested parties intervened in the cases as well. The

challenges generally involved the appropriateness of OSHA's publishing

a final rule in response to the Third Circuit's order.

Although these cases were originally consolidated in the U.S. Court

of Appeals for the District of Columbia Circuit, they were transferred

to the U.S. Court of Appeals for the Third Circuit on May 20, 1988. The

cases were transferred to the Third Circuit because the ``revised [HCS]

was promulgated in response to orders by the Third Circuit * * * and

petitioners have raised issues similar to those already considered by

that court.''

On June 24, 1988, the Third Circuit granted a stay of the standard

as it applied to the construction industry (29 CFR 1926.59) pending the

outcome of the litigation challenging the rule. OSHA published a notice

in the Federal Register on July 22, 1988 (53 FR 27679) to provide the

public further information regarding the applicability of the stay to

construction employers and enforcement of the rule in the other

industries

After considering the merits of the challenges to the standard

which were filed by employer representatives, the U.S. Court of Appeals

for the Third Circuit issued a decision on November 25, 1988 that

denied the petitions for review. The Court stated: ``None of the

substantive or procedural challenges to the application of the hazard

communication standard to the construction or grain processing and

storage industries have merit. The petitions for review of ABC

(Associated Builders and Contractors, Inc.), AGC (The Associated

General Contractors), NGFA (The National Grain and Feed Association,

Inc.) and UTC (United Technologies Corporation) will therefore be

denied. The stay of those standards granted by a panel of this court on

June 24, 1988, shall be vacated.'' Associated Builders and Contractors,

Inc. v. Brock, 862 F.2d 63, 69 (3d Cir. 1988) (Ex. 15). Further

requests from the AGC and the ABC for a continuation of the stay were

denied by the Third Circuit and by the United States Supreme Court

(Nos. 88-1070; 88-1075). The Supreme Court also declined to review the

Third Circuit's decision (November 29, 1988). The Third Circuit's

ruling became fully effective on January 30, 1989. The standard,

therefore, is effective in all industries. 54 FR 6886.

E. Litigation Involving Provisions Disapproved With Regard to

Information Collection Requirements

As described above, on October 28, 1987, the Office of Management

and Budget (OMB), citing authority of the Paperwork Reduction Act (44

U.S.C. 3501 et seq.), disapproved certain information collection

requirements in the expanded scope rule, as of the rule's effective

date. On December 4, 1987 (52 FR 46075), OSHA published OMB's letter

describing its determination in a notice in the Federal Register. (See

also 53 FR 15033 (Apr. 27, 1988) (OMB letter to Department of Labor

dated April 13, 1988)).

The provisions that OMB disapproved were: (1) The requirement that

material safety data sheets be provided on multi-employer worksites;

(2) coverage of any consumer product that falls within the ``consumer

products'' exemption included in section 311(e)(3) of the Superfund

Amendments and Reauthorization Act of 1986; and (3) coverage of any

drugs regulated by the Food and Drug Administration in the non-

manufacturing sector. In accordance with OMB's decision, OSHA did not

enforce these three disapproved requirements.

OMB's disapproval of the HCS provisions was challenged in the U.S.

Court of Appeals for the Third Circuit. On August 19, 1988, the Court

of Appeals invalidated OMB's actions as being outside OMB's authority

under the Paperwork Reduction Act. United Steelworkers of America v.

Pendergrass, 855 F.2d 108 (3d Cir. 1988)(Ex. 4-190). The Court held

that the three disapproved HCS provisions did not require ``collection

of information'' under the Paperwork Reduction Act and embodied

substantive policy decisionmaking entrusted to OSHA. Id. at 112. The

Court ordered that: ``The Secretary [of Labor] shall publish in the

Federal Register a notice that those parts of the August 24, 1987

hazard communication standard which were disapproved by OMB are now

effective.'' Id. at 114.

On September 2, 1988, the U.S. Department of Justice filed a

petition with the Third Circuit requesting a rehearing and suggesting a

rehearing en banc, which automatically stayed the effect of the Court's

order. The Court denied the petition for rehearing (November 29, 1988),

as well as requests for stay of the decision. In addition, a further

motion by industry representatives for a stay of the decision was

denied by U.S. Supreme Court Justice Brennan (January 24, 1989), and by

the full Court upon reconsideration (February 21, 1989).

The Third Circuit's decision became effective January 30, 1989. As

ordered by the Third Circuit, OSHA published a notice in the Federal

Register on February 15, 1989 (54 FR 6886) to inform affected employers

and employees that all provisions of the HCS were in effect in all

industries. As a matter of enforcement policy, OSHA did not check for

compliance with the three provisions in programmed inspections until

March 17, 1989.

To implement the court order, technical amendments were made to the

HCS to delete from notes following the headings of the standard, and

from the parentheticals following the text of the standard, statements

that any provisions of the HCS are disapproved by OMB. The OMB-assigned

control number for the approved collection of information requirements

of the HCS remain following the text of the standard. The Paperwork

Reduction Act requires display of OMB control numbers with all

information collection provisions.

Following the decision in United Steelworkers, the Solicitor

General requested the Supreme Court on behalf of the United States

government to review the case, and the Court granted its request. In

Dole v. United Steelworkers of America, the Supreme Court affirmed the

judgment of the Third Circuit. 110 S.Ct. 929 (1990). The Court held

that the term ``collection of information'' in the Paperwork Reduction

Act refers solely to the collection of information by or for the use of

a federal agency, and does not cover rules mandating disclosure of

information to a third party. Id. at 937. Thus, the OMB-disapproved

provisions reinstated by the Third Circuit continue to be in effect.

The primary purpose for the 1988 HCS NPRM was to address the issues

related to the OMB disapproval. As the Third Circuit has invalidated

OMB's disapproval, and that decision was upheld by the Supreme Court,

those provisions are no longer considered to be information collection

requirements subject to OMB review and approval. The modifications in

this final rule are based upon OSHA's determination that clarifications

would enhance compliance and thus protection of workers. The only

information collection burdens for the rule involve access by OSHA

during inspections to records maintained by the employer. These were

approved by OMB on June 24, 1991 until April 1994 (control number 1218-

0072). As this final rule does not affect the access burden, OSHA is

not submitting this rule for further consideration under the authority

of the Paperwork Reduction Act.

F. Advisory Committee on Construction Safety and Health (ACCSH)

As discussed in the preamble to the August 1987 final rule (52 FR

31858-59), the ACCSH reviewed a draft notice of proposed rulemaking to

expand the scope of the HCS to construction on June 23, 1987. The ACCSH

went through the NPRM line-by-line, making recommendations to adapt it

to the construction industry, i.e., the document with the recommended

changes constituted an ACCSH recommended standard for hazard

communication (Ex. 4-186). A number of the recommendations were adopted

(e.g., the definition of workplace was modified to include job sites or

projects; the written hazard communication program requirements were

amended to state more clearly that the programs are to be maintained at

the site).

As the 1988 NPRM addressed issues that affect construction, OSHA

transmitted a draft of it to the ACCSH for review and comment. In a

meeting on March 30, 1988, the ACCSH did not provide specific

recommendations on the NPRM. The ACCSH reiterated its desire to have a

separate standard for construction, and appointed a subcommittee to

make further recommendations to the Assistant Secretary. However, the

ACCSH also reaffirmed that the standard as written should be

implemented on May 23, 1988 as originally scheduled.

The ACCSH-appointed subcommittee reviewed the standard again and

prepared new recommendations. The full committee voted to submit the

subcommittee's recommendations to OSHA at their meeting on November 30,

1988. Their recommendations are in the record as Exs. 14-1, 14-2, and

14-3.

The focus of their recommendations was to reorganize the

requirements of the rule by removing any provisions that apply

primarily to chemical manufacturers and importers. Their proposed draft

rule either deleted the requirements or moved them to an appendix. OSHA

does not agree that these requirements should be removed from the rule.

It is important for construction employers to be aware of what

information they are entitled to, and the distribution mechanisms.

Reorganization as suggested by the ACCSH detracts from the logical

presentation of the requirements, and makes the rule more difficult to

understand. OSHA believes that the addition of non-mandatory Appendix E

provides sufficient guidance for construction employers, as well as all

other employers using chemicals, to guide them to the applicable

provisions of the rule.

In addition, the ACCSH subcommittee suggested that a definition be

added for a ``competent person,'' and that such individuals be given

certain duties under the rule. OSHA does not believe that this is a

provision that would add to the protections of the rule. The HCS is

intended to train all workers about the hazards of chemicals and

appropriate protective measures. It is not clear what additional

training a worker would have to have to be designated a ``competent

person.'' The intent of the rule is to ensure that all workers are

trained to be ``competent.'' In addition, it was suggested that the

``competent person'' would have the authority to stop the job or

correct the hazards. This type of action is beyond the information

transmittal requirements of the HCS.

II. Pertinent Legal Authority

The primary purpose of the Occupational Safety and Health Act (the

Act) (29 U.S.C. 651 et seq.) is to assure, so far as possible, safe and

healthful working conditions for every American worker over the period

of his or her working lifetime. One means prescribed by the Congress to

achieve this goal is the mandate given to, and the authority vested in,

the Secretary of Labor to set mandatory safety and health standards.

Authority for issuance of this standard is found primarily in

sections 6(b), 8(c)(1), and 8(g)(2) of the Act. 29 U.S.C. 655(b),

657(c)(1), 657(g)(2). Section 6(b), and in particular Section 6(b)(5),

governs the issuance of occupational safety and health standards

dealing with toxic materials or harmful physical agents. Section

8(c)(1) of the Act empowers the Secretary to require employers to make,

keep, and preserve records regarding activities related to the Act and

to make such records available to the Secretary. Section 8(g)(2) of the

Act empowers the Secretary to ``prescribe such rules and regulations as

[she] may deem necessary to carry out [her] responsibilities under this

Act * * *.''

Section 3(8) of the Act, 29 U.S.C. 652(8), defines an occupational

safety and health standard as follows:

[A] standard which requires conditions, or the adoption or use of

one or more practices, means, methods, operations, or processes,

reasonably necessary or appropriate to provide a safe or healthful

employment and places of employment.

In addition, Congress specifically stated in section 6(b)(5) that:

The Secretary, in promulgating standards dealing with toxic

materials, or harmful physical agents under this subsection, shall

set the standard which most adequately assures, to the extent

feasible, on the basis of the best available evidence, that no

employee will suffer material impairment of health or functional

capacity even if such employee has regular exposure to the hazard

dealt with by such standard for the period of his working life.

Development of standards under this subsection shall be based upon

research, demonstrations, experiments, and such other information as

may be appropriate. In addition to the attainment of the highest

degree of health and safety protection for the employee, other

considerations shall be the latest available scientific data in the

field, the feasibility of standards, and experience gained under

this and other health and safety laws. Whenever practicable, the

standard promulgated shall be expressed in terms of objective

criteria and of the performance desired.

The Supreme Court has said that section 3(8) applies to all

permanent standards promulgated under the Act and requires the

Secretary, before issuing any standard, to determine that it is

reasonably necessary and appropriate to remedy a significant risk of

material health impairment. Industrial Union Dep't v. American

Petroleum Institute, 448 U.S. 607 (1980). The ``significant risk''

determination constitutes a finding that, absent the change in

practices mandated by the standard, the workplaces in question would be

``unsafe'' in the sense that workers would be threatened with a

significant risk of harm. Id. at 642. This finding, however, does not

require mathematical precision or anything approaching scientific

certainty if the ``best available evidence'' does not warrant that

degree of proof. Id. at 655-656; 29 U.S.C. 655 (b)(5). Rather, the

Agency may base its findings largely on policy considerations and has

considerable leeway with the kinds of assumptions it applies in

interpreting the data supporting it. 448 U.S. at 656.

Moreover, under the authority of Section 6(b)(7), 29 U.S.C.

655(b)(7), any standard issued by the Secretary shall contain

requirements that are essentially ``information-gathering'' in

function, including:

* * * prescrib[ing] the use of labels or other appropriate forms of

warning as are necessary to insure that employees are apprised of

all hazards to which they are exposed, relevant symptoms and

appropriate emergency treatment, and proper conditions and

precautions of safe use or exposure.

These requirements may be imposed at levels of risk below what would be

necessary for the setting of exposure limits because they serve the

purpose of ``keep[ing] a constant check on the validity of the

assumptions made in developing the permissible exposure limit, giving

it a sound evidentiary base for decreasing the limit if it was

initially set too high.'' Id. at 658 (footnote omitted). They also

provide basic protections for workers in the absence of specific

permissible exposure limits, particularly by providing employers with

guidance for designing protective programs.

After OSHA has determined that a significant risk exists and that

such risk can be reduced or eliminated by a proposed standard, it must

set a standard ``which most adequately assures, to the extent feasible

on the basis of the best available evidence, that no employee will

suffer material impairment of health * * *.'' 29 U.S.C. 655(b)(5). The

Supreme Court has interpreted this section to mean that OSHA must enact

the most protective standard possible to eliminate a significant risk

of material health impairment, subject to the constraints of

technological and economic feasibility. American Textile Manufacturers

Institute, Inc. v. Donovan (ATMI), 452 U.S. 490 (1981). The

``feasibility'' constraint has also been described simply as limiting

standards to requiring only what is ``capable of being done'' or

``achievable.'' Id. at 508-509. The Court held that ``cost-benefit

analysis is not required by the statute because feasibility analysis

is.'' Id. at 509. The Court stated that the Agency could use cost-

effectiveness analysis and choose the less costly of two equally

effective standards. Id. at 531 n.32.

A. Finding of Significant Risk

In United Steelworkers of America v. Auchter, 763 F.2d 728, 735 (3d

Cir. 1985), the U.S. Court of Appeals for the Third Circuit concluded,

as a threshold matter, that the hazard communication rule is a section

6 standard under the Act which is aimed at correcting a particular

``significant risk'' in the workplace. The HCS is not ``merely an

enforcement or detection procedure designed to further the goals of the

Act generally.'' Id. (quoting test for distinguishing standards from

regulations first explained in Louisiana Chemical Ass'n v. Bingham, 657

F.2d 777, 782 (5th Cir. 1981)). See also Associated Builders &

Contractors v. Brock, 862 F.2d at 67.

The practices mandated by the standard--hazard evaluations, written

hazard communication programs, labels and other forms of warning,

material safety data sheets, and information and training--are, at

bottom, directed not merely at the identification of workplace

chemicals, but more significantly at the correction of their hazards as

well. This correction will occur largely as a result of employee

compliance with instructions on how to protect themselves when exposed

to hazardous chemicals that are an integral part of any hazard

communication program, as well as by other hazard-reducing strategies

adopted by employers when they become more aware of the hazards in

their workplaces (e.g., chemical substitution). And because the record

clearly indicates that inadequate communication about serious chemical

hazards endangers workers, and that the practices required by this

standard are necessary and appropriate to the elimination or mitigation

of these hazards, the Secretary is able to make the threshold

``significant risk'' determination that is an essential attribute of

all permanent standards. The Third Circuit Court of Appeals agreed that

``inadequate communication is itself a hazard, which the standard can

eliminate or mitigate.'' United Steelworkers v. Auchter, 763 F.2d at

735.

A number of commenters have questioned OSHA's general finding of

significant risk. These commenters argue that OSHA needed to find

significant risk: (1) For each industry covered (e.g., Ex. 84

(construction)); (2) for each chemical covered (e.g., Ex. 11-129 (grain

dust)); and (3) for each exposure situation (e.g., Ex. 85 (mixtures,

articles)). Although these comments are addressed in more detail in

Part III of this preamble where the rule is summarized, briefly, it is

clear from the relevant court decisions that these specific findings

are not required for a standard such as this, where the risk of

inadequate knowledge is the same in every application of the standard.

In Associated Builders & Contractors v. Brock, 862 F.2d 63 (1988),

the Third Circuit responded to the first two complaints against OSHA's

significant risk finding. The Court noted that the general significant

risk finding for the original 1983 rule was appropriate for the entire

manufacturing sector, even though OSHA did not make individual findings

for each of the twenty major Standard Industrial Classification (SIC)

Code manufacturing subdivisions. Id. at 67. The Court concluded that

``[t]here is no more obvious need for industry specific significant

risk determinations for the [non-manufacturing] industries than for

subdivisions of the manufacturing sector.'' Id. at 67-68. The Court

held that for this ``performance-oriented information disclosure

standard covering thousands of chemical substances used in numerous

industries * * * the significant risk requirement must of necessity be

satisfied by a general finding concerning all potentially covered

industries. A requirement that the Secretary assess risk to workers and

the need for disclosure with respect to each substance in each industry

would effectively cripple OSHA's performance of the duty imposed on it

by 29 U.S.C. 655(b)(5); a duty to protect all employees, to the maximum

extent feasible.'' Id. at 68. OSHA was not required to assess

individually the significant risk that would be alleviated by the HCS's

application to each of the seventy major business classifications, much

less for each of the hazardous substances used in those industries.

As for arguments that OSHA should only apply the HCS where chemical

exposures pose known significant risks (e.g., Ex. 85), the Agency

concludes that neither the record evidence nor policy considerations

support such an approach. The record shows that although chemical

manufacturers or importers may know, in principle, the use to which

their product will be put, they generally do not know enough about

downstream operations to make reliable predictions about downstream

exposure levels. Therefore, information must be provided for all

hazardous chemicals to which employees may be exposed, regardless of

any judgments by the chemical manufacturer or importer about possible

levels of risk. 48 FR 53295, 53296, 53307. Furthermore, to allow

chemical manufacturers or importers to edit hazard information based on

their predictions of the extent of downstream exposures is to deprive

downstream employers and employees an opportunity to make an effective

assessment of potential hazards based on complete information on the

individual chemical and in light of any possible additive or

synergistic effects that may be posed by the presence of other

hazardous chemicals in the workplace. Id. at 53295, 53323. OSHA finds

that workers would be threatened with a significant risk of harm if

chemical manufacturers or importers are allowed to delete hazard

information based on a presumption of downstream risks, thus depriving

downstream employees and employers from having complete information on

which to base their decisions regarding control measures. See, General

Carbon Co. v. OSHRC, 860 F.2d 479 (DC Cir. 1988).

In addition, in light of Sec. 6(b)(7) of the Act requiring OSHA to

``insure that employees are apprised of all hazards to which they are

exposed,'' the Agency concludes that employees must be informed about

all potential hazards before the worker is exposed to them and not only

when there is overexposure. Linking HCS applicability to downstream

exposures posing a significant risk is contrary to the standard's very

purpose: to change downstream employer and employee behavior before

adverse health effects occur. 48 FR 53296. OSHA has concluded that

imposing informational requirements is necessary and appropriate to

protect workers even when OSHA has not determined that the level of

risk at a particular worksite warrants a substance-specific standard

that would employ more elaborate types of controls. Cf. Associated

Builders & Contractors, 862 F.2d at 67-68; United Steelworkers, 819

F.2d at 1269-70.

B. Finding of Feasibility

OSHA originally chose to direct the HCS to employers in

manufacturing, based on what were believed at that time to be relevant

policy considerations. The Third Circuit held that ``[o]nce a standard

has been promulgated, however, the Secretary may exclude a particular

industry only if he informs the reviewing court, not merely that the

sector selected for coverage presents greater hazards, but also why it

is not feasible for the same standard to be applied in other sectors

where workers are exposed to similar hazards.'' United Steelworkers,

763 F.2d at 738. Therefore, because inadequate communication of

chemical hazards is itself a significant risk, id. at 735, OSHA was

required by the Court order to apply the HCS to all workplaces where

employees are exposed to chemical hazards, to the extent feasible.

The feasibility question raised by the HCS is not difficult to

resolve. This standard does not relate to activities on the frontiers

of scientific knowledge; the requirements are not the sorts of

obligations that approach the limits of feasibility. Associated

Builders & Contractors, 862 F.2d at 68. The record on which the

original and expanded HCS's were based did not contain credible

evidence that the HCS would be technologically or economically

infeasible for any industrial sector, id., and there was substantial

evidence of feasibility, 52 FR 31855-58.

Part III of this preamble addresses in more detail the comments

which argue that individual requirements of the rule are infeasible

(e.g., Exs. 29 (distribution of MSDSs by wholesalers); 32 (provision of

MSDSs at construction sites)). As a general matter, however, OSHA

concludes that there is substantial evidence in the record that the

performance-oriented, informational provisions of the HCS are capable

of being done, and will not threaten any industry's ``long-term

profitability,'' ATMI, 452 U.S. at 531 n.55.

Certainly, the technical expertise needed to develop the chemical

hazard information is feasible for producers of the hazardous

chemicals. See, e.g., 48 FR 53296-99. Likewise, there are no

technological barriers preventing implementation of the other HCS

requirements, in that they are conventional and common business

practices that are administrative in nature. 52 FR 31855.

Moreover, OSHA concludes that the HCS administrative requirements

can be economically incorporated into present practices. OSHA believes

all businesses that produce, distribute, and use chemicals can ensure

that their containers are maintained with proper hazard warnings just

as these businesses would maintain labels or markings on containers to

ensure that downstream purchasers and workers handling or using the

chemicals comprehend the containers' contents and intended uses. Hazard

information can be sent from supplier to user just as suppliers are

able to send the chemical product itself to the user. All employers are

able to acquire and maintain up-to-date MSDSs for hazardous chemicals

just as they are able to acquire and maintain up-to-date cost

information and performance specifications on those very same products.

OSHA also concludes it is feasible for employers to inform and train

workers regarding chemical hazards present in the workplace just as

employers are capable of instructing and training their workers to

perform their jobs in an efficient and speedy manner. 52 FR 31856-57.

OSHA concludes that the record contains substantial evidence of the

economic feasibility of the HCS, including such evidence as: (1) The

numerous examples of compliance in all industries (see, e.g., id., Ex.

4-169 (71% of the 42,779 manufacturing facilities inspected by OSHA

from the initial compliance date to Feb. 1988 in full compliance; of

those cited for violating the HCS, majority had a hazard communication

program although it was deficient in some respect)); (2) the similar

implementation of other Federal communication laws and of state laws

(see, e.g., Ex. 4-183 (some 1000 employers inspected by Maryland Apr.

1, 1987 to Mar. 31, 1988, in total compliance with state law; over 1100

non-manufacturing workplaces inspected by Tennessee Oct. 1, 1987 to

June 30, 1988, in total compliance), 4-184 (over 16,000 establishments

inspected by Washington Jan. 1, 1987 to Dec. 31, 1987, in total

compliance)); (3) the detailed regulatory impact and regulatory

flexibility analyses which concluded that the costs associated with the

HCS were negligible in relation to revenues and profits of affected

industries (Ex. 4-1, 4-2. See also 52 FR 31867-76, 53 FR 29846-49); and

(4) the development of numerous guidelines and consultative services

offered by the Federal Government, States, trade associations, unions,

professional organizations, and private consultants (see e.g., 52 FR

31857, 53 FR 29848; Exs. 4-116, 4-118, 4-121, 4-122, 4-123, 4-128, 4-

129, 4-130, 4-137, 4-138, 4-139, 4-144, 4-147, 4-148, 4-149, 4-150, 4-

151, 4-154, 4-157, 4-158, 4-159, 4-160, 71-16, 71-55, 71-58, 71-61.)

OSHA has tailored the standard for a number of manufacturing and

non-manufacturing operations to ensure that its requirements are

feasible and effective in protecting all workers. See 52 FR 31858. Cf.

452 U.S. at 531, n.32 (OSHA can choose the less costly of two equally

effective standards.) Modifications adopted in this final rule also act

to tailor the rule to be more effective by incorporating language which

clarifies the requirements.

III. Summary and Explanation of the Issues and the Provisions of the

Final Rule

The regulatory text presented in this document reprints the entire

final rule with the adopted modifications incorporated into the

existing provisions. However, the discussion which follows is limited

to the adopted changes and related issues raised in the record. It does

not provide a complete summary and explanation of all of the provisions

of the rule--for such information interested parties should refer to

the preambles of the original (48 FR 53334-40) and revised (52 FR

31860-67) final rules.

While the primary purpose of publishing the NPRM was to resolve the

issues raised by OMB and presented in the proposed and alternative

provisions, OSHA also invited comment on other related issues. (As

described in the background section above, due to a decision issued by

the U.S. Court of Appeals for the Third Circuit, subsequently upheld by

the U.S. Supreme Court, the OMB disapproval has been invalidated.) In

reopening the record, OSHA recognized that it was not operating ``on a

clean slate.'' In developing the revised final rule in 1987, OSHA had

the benefit of an extensive evidentiary record. In addition, the

Agency's experience gained under the original standard, as well as

under state standards, some of which already applied to the

nonmanufacturing sector, further supported OSHA's regulatory approach.

OSHA continues to believe that the record substantially justifies the

Agency's regulatory choices, and the information presented to OSHA

since the standard was issued in 1987 has not convinced OSHA that

significant changes are warranted to comply with the OSH Act. This

final rule reflects that position. There are no substantial changes in

the requirements, and OSHA is simply promulgating clarifications and

modifications to enhance compliance.

As noted in the NPRM, OSHA retains ``almost unlimited discretion to

devise means to achieve the Congressionally mandated goal.'' United

Steelworkers of America v. Marshall, 647 F.2d 1189, 1230 (D.C. Cir.

1980), cert. denied, 453 U.S. 913 (1981). Accord, Building and

Construction Trades Dept., AFL-CIO v. Brock, 838 F.2d 1258, 1271 (DC

Cir. 1988). As the Agency determined at the time of the original final

rule in 1983 that all employees exposed to hazardous chemicals are at

significant risk of experiencing adverse health effects without the

protections of the HCS, OSHA is statutorily required to extend those

protections to those employees unless it can be shown that the

requirements are not feasible (i.e., they are not capable of being

done). In the 1987 revised final rule, OSHA determined that the

provisions are feasible in all industries. The rule's requirements had

thus been determined by OSHA to be both necessary for the protection of

all workers exposed to hazardous chemicals (i.e., they would mitigate a

significant risk of exposure), as well as capable of being done (i.e.,

are technologically and economically feasible). As a result of these

determinations, OSHA published the NPRM with the stated expectation

that the standard would not be changed significantly in this final rule

unless the Agency received substantial evidence during the rulemaking

that a regulatory modification was clearly necessary. This necessity

would have to be based on evidence that the 1987 standard is

demonstrably infeasible in a specific respect, or that the proposed

alternative would significantly increase the standard's intended safety

and health benefit or significantly improve its cost-effectiveness.

As will be discussed in detail below, the information submitted

during this rulemaking proceeding has convinced OSHA that its

regulatory choices are supported by substantial evidence and that

significant changes to the rule are unnecessary. However, some of the

comments do reflect a lack of understanding of the requirements and of

what is necessary for proper implementation of an acceptable program.

Hence OSHA is taking the opportunity in this final rule to incorporate

modifications to clarify such provisions and enhance compliance.

The discussion of the record which follows is organized in the

order the subjects are addressed in the standard for ease of reference.

Scope and Application

Coverage of all industries. As OSHA described in the preamble to

the revised final rule (52 FR 31855-59), expansion of the protections

afforded by the HCS to all nonmanufacturing industries is supported by

the rulemaking record. Evidence collected by OSHA indicates that there

is chemical exposure occurring in every type of industry covered

(although every employee may not be exposed), and that employees

exposed to hazardous chemicals without knowledge of their identities,

hazards, and appropriate protective measures are at a significant risk

of experiencing adverse effects from such exposures. Furthermore, it is

the Agency's position that all such employees are entitled to

information regarding the chemical hazards they are exposed to in the

workplace (i.e., that they have a fundamental right to know this

information), and that a uniform Federal hazard communication standard

is the best method to ensure that it is provided. OSHA's regulatory

requirements in this regard are consistent with the mandate of the Act

(to protect all employees to the extent feasible), as well as with the

Court's decisions upon review of the rule.

Despite these explicit determinations by OSHA in 1983 and 1987, as

well as by the Third Circuit in its decisions (subsequently upheld by

the Supreme Court), and a subsequent reiteration of this determination

in the NPRM, there were still some comments submitted which suggested

that certain industrial sectors should be exempted from the rule, or

only covered by limited provisions. The majority of these were from

representatives of the construction industry, and from distributors of

hazardous chemicals. The arguments generally involved the degree of

risk encountered in the industry, and the feasibility of the

requirements. OSHA has not found the arguments regarding infeasibility

to be persuasive, nor is there any justification for lessening the

protections afforded employees in the industries in question.

Coverage of the Construction Industry

Significant risk--industry perspective. As was described in the

preamble to the NPRM, representatives of the construction industry

submitted comments objecting to coverage under the revised final rule

(53 FR 29827). They argued that the rule's protections were not

required in their industry as exposures to hazardous chemicals did not

present a significant risk to workers, and construction employees are

already required to be trained under the existing construction training

standard, 29 CFR 1926.21. Therefore, according to these commenters,

whatever risk there is has already been mitigated by the existing

training, and any incremental risk remaining is not significant enough

to warrant coverage under the HCS.

The comments and testimony received subsequent to the publication

of the NPRM reiterate and expand upon this position. For example, a

number of commenters opposed the rule in its entirety, suggesting that

it is too burdensome, construction is already adequately covered, and

the requirements are not appropriate for construction. See, e.g., Exs.

11-9, 11-24, 11-29, 11-114, and 11-142. ``We believe an extension of

the Hazard Communication Standard to the non-manufacturing sector is

unwarranted and burdensome. Construction workers simply do not face a

significant risk of material harm from exposure to chemicals, and the

standard is infeasible for the construction industry to implement.''

Ex. 11-114.

A number of commenters suggested that construction should not be

covered since workers in this industry only use hazardous chemicals for

short periods of time, the quantities they use are small, and they

usually work outdoors (see, e.g., Exs. 11-1, 11-73, 11-84, and 11-97).

Similarly, other commenters suggested that only a few chemicals

used in construction are hazardous, and thus may warrant providing the

protections of hazard communication to exposed workers (Ex. 11-4,

asbestos is hazardous and employees should be trained regarding its

hazards). It was also suggested that the definition of what constitutes

a hazardous chemical be limited under the rule (Ex. 11-6), and that

OSHA cannot cover the only chemicals that pose a true hazard to workers

on the construction job site (Ex. 11-114, natural gas seepage).

The majority of the construction industry commenters stated that

there is no significant risk in the industry that requires coverage by

the HCS. The Associated General Contractors of America (AGC) (Ex. 11-

135) suggested to its members that comments submitted to OSHA in

response to the NPRM address whether the company believes construction

workers face a significant risk of material harm from exposure to

chemicals; whether the standard would reduce whatever risks from

hazardous chemicals do exist; and whether the rule is feasible. These

commenters uniformly responded to AGC's request for this information to

be submitted to the record by stating that there is no significant risk

in construction, the rule would not reduce whatever risks there are,

and the burdens are substantial (see, e.g., Exs. 11-12, 11-18, 11-20,

11-26, 11-36, 11-83, 11-97, 11-135, and 11-157). (The AGC surveyed its

membership to collect information regarding their opinions on the HCS

and associated burdens. At the time their comments were submitted, only

102 responses had been received from the 8,000 members that are general

contractors. Ex. 11-135.)

Most did not provide any specific comments on provisions of the

rule, or suggestions for solutions to the problems they identified,

other than exempting the construction industry from coverage. Providing

no evidence or substantiation for their opinions, they simply stated

that there is no significant risk, the risk would not be alleviated by

implementation of the rule, and the burden would not be feasible. For

example, at least six of this type of response were received from

officers of Charlie's Acoustical Systems, Inc. (Exs. 11-16, 11-18, 11-

19, 11-20, 11-26, 11-27, and 11-28). ``Chemicals on the construction

site are not a significant risk and the manufacturing standard is an

infeasible program to implement.'' Ex. 11-26.

The conclusions of some of the commenters on the issue of

significant risk are apparently based on their own organizations'

reports of illnesses and injuries caused by chemical exposures.

According to these industry representatives, the number of injuries

reported that are due to chemical exposures is small, and those which

do occur are caused by well known hazards (such as burns caused by

handling wet concrete). They further contend that the HCS would not

alleviate any of those injuries caused by well-known hazards since no

new information would be presented to workers. ``[T]he majority of

chemical injuries were the result of exposure to concrete. This work is

done by union workers with years of experience in this field. It is

highly unlikely that training and MSDSs would reduce concrete burns or

rashes. Most of which are an allergic reaction.'' Ex. 11-73.

An additional argument is that chemicals are already handled safely

on construction sites (Exs. 11-9, 11-83, and 11-142), and in

particular, that compliance with existing training requirements in 29

CFR 1926.21 results in adequate information being given to workers

about hazardous chemicals. ``With regard to regulating the few

chemically related injuries that do occur, OSHA's existing standards

regarding employee training (1926.21(b) 2 through 6) address these

sufficiently.'' Ex. 11-83.

In its brief summarizing the record, the AGC cites the testimony of

various construction contractors indicating that training is already

conducted as proof that no additional information is necessary (Ex.

84). They further discount reports of incidents of chemical injuries

occurring: ``AGC does not contend that there are no chemical hazards in

construction. Rather, AGC maintains that the hazards which exist are

well known to employers and employees alike, and that those hazards do

not occur with a frequency or intensity which merit the elaborate

mechanisms of the revised HCS.''

The AGC also argues that the degree of safety and health training

unions have in their apprenticeship training programs also indicates

how significant workers consider the risk to be in their particular

industry (Ex. 84). ``During the hearing, AGC sought to ascertain from

the Building and Construction Trades Department, AFL-CIO (BCTD), how

seriously its members take the risk of chemical exposure in

construction, by inquiring whether this issue is covered in

construction union apprenticeship programs. Unfortunately, BCTD refused

to provide any such information, and even objected that the question

was irrelevant. Tr. 12/13/88 pp. 134-136. It would appear, however,

that if BCTD truly believes that chemical hazard exposure is a major

risk to workers, it would readily have introduced evidence showing the

emphasis placed on these concerns in apprenticeship training. The

failure to produce any such evidence, coupled with an objection to its

relevance, speaks volumes.'' (Quoted without footnotes.)

Construction industry representatives also contend that statistics

cited by OSHA regarding the incidence of chemical source illnesses and

injuries verify that the risk in construction is not significant (see,

e.g., Ex. 11-142). By their interpretation, the number of illnesses and

injuries is too low to warrant the coverage of the HCS.

Significant risk--employee perspective. Representatives of

construction workers participating in the rulemaking do not appear to

agree with the AGC's contention that the hazards they face are well

known to them, and do not warrant coverage under the HCS. In its brief

summarizing the record (Ex. 89), the Building and Construction Trades

Department (BCTD) of the AFL-CIO states that ``although the skin rashes

and other chemical incidents these employers report are certainly of

concern, there are a myriad of other, far more serious illnesses which

our members suffer as a result of exposures on the job.'' The BCTD

further elaborates by citing scientific studies in the record (Ex. 67,

submitted by the Sheet Metal Workers' International Association) which

give epidemiological evidence of illnesses occurring in construction

workers due to workplace exposures: ``For example, welders suffer from

acute and chronic respiratory disease, and show increased rates of lung

cancer of up to 74% after 20 years in the trade. Painters, plumbers and

floor-layers experience skin conditions, as well as serious central

nervous system problems from exposures to solvents. Employees working

with man-made mineral insulation suffer from bronchitis; roofers have

skin and eye problems, in addition to increased cancers; and masons

suffer from silicosis and lung cancer. Indeed, some of these problems,

rather than being minimized by outdoor work, are exacerbated by

exposures to sunlight.'' (Quoted from Ex. 89 without footnote cites.)

In response to questions raised during their oral testimony, the

BCTD also addressed the issue of underreporting of illnesses and

injuries in construction by reference to the National Academy of

Sciences study on reporting of illnesses and injuries (Ex. 41): ``That

National Academy of Sciences study did dramatically find an under-

reporting of illnesses in the construction industry.'' Tr. 6-97.

Another report on recordkeeping prepared by the Keystone Center was

also referred to: ``And it was agreed upon by that Keystone Center, in

their report, that there are serious under-reporting of illnesses in

the construction industry. Actually, across all industries, but more

notably the construction industry, because of the latency of most of

the illnesses.'' Tr. 6-97-98.

The Sheet Metal Workers stated in their testimony: ``We, in the

Sheet Metals Workers', our contractors, and others in construction

unions, know that many more health hazards exist on a construction site

than is generally believed.'' (Tr. 5-100.) The testimony further

pointed out that products that were once considered to be fairly safe

(e.g., asbestos) were later found to be highly hazardous. ``As we

attempt to cope with the problems of our members with asbestos disease,

we are also watching closely research which is unfolding around man-

made mineral fibers. Within the past year, Johns-Manville and Owens-

Corning have modified their material safety data sheets to recommend

the use of respirators for those working around its fiberglass

products.'' (Tr. 5-101-2.) Other substances of concern include those in

welding fumes, and propellents in adhesives used in asbestos removal

work (such as methylene chloride)(Tr. 5-102). ``We want to share in the

same protections from those and other health hazards that OSHA offers

to our union sisters and brothers, and those in other walks of life.

For many obvious reasons, we can't allow the same, or similar kinds of

exposures to happen to yet another generation of sheet metal workers.''

(Tr. 5-102)

Another employee representative asked the Coalition panel to

comment on the conclusion of the NAS report, which was read into the

record as follows (Tr. 5-87-9): ``The only illness data from the BLS

annual survey that might be useful for any purpose, may be those on

occupational skin diseases, all other illnesses included on the annual

survey form are under-reported and can be used only with great

caution.'' The conclusion of the report was further quoted as reading:

``For all of these reasons, data on occupational illnesses in the

annual survey, other than those for skin diseases, are understated to

the point that they are more misleading than useful.'' The panel

declined to comment on this conclusion. The study was entered into the

record (Ex. 41).

The AFL-CIO also addressed the issue of significant risk in

construction in their oral testimony: ``Contrary to the OMB and

industry claims, it is clear that chemicals do pose a significant risk

to construction workers and to workers at multi-employer worksites--

paints, solvents, heavy metals, adhesives, put painters, iron workers,

and roofers at serious risk of disease. And these workers, like other

workers, exposed to toxic chemicals, should receive the full

protections of the standard.'' Tr. 7-44.

Significant risk--OSHA's findings. As has been discussed previously

in this preamble, as well as in the preambles to the final rules in

1983 and 1987 and the Third Circuit litigation on the HCS, OSHA has

determined that there is a significant risk to all workers exposed to

hazardous chemicals without benefit of information regarding those

hazards, the identities of the chemicals, and associated protective

measures.

This finding of significant risk applies to construction employment

as well as to every other type of industry regulated by OSHA. The sole

difference in construction is that those employers in complete

compliance with the existing construction training standard (29 CFR

1926.21) will have already done most of the training required under the

HCS. Therefore, the burden of compliance is less for construction than

for any other of the nonmanufacturing industries.

Although the AGC claims in its post-hearing brief that ``the

rulemaking record as a whole does not support the finding that the

standard is reasonably necessary to reduce significant risk'' in the

construction industry (Ex. 84), OSHA does not agree. The AGC cites as

its primary evidence the statements made by its own representatives and

those of other industry sources that the rule is not needed. OSHA

believes that the record accumulated since the 1987 rule was published

amply demonstrates that the majority of the participating

representatives of the construction industry do not want the rule to

apply to them. That, however, is quite different than demonstrating

that the rule is neither necessary nor feasible in the construction

industry. OSHA does not believe that the record evidence supports

either of those conclusions.

As OSHA established in the 1983 final rule (48 FR 53284-86),

thousands of chemical source illnesses and injuries are reported

annually in the construction industry. The numbers are substantial, and

yet all scientific indications are that the illnesses are probably

grossly underreported (47 FR 12094-95; 48 FR 53284-86; Ex. H-022: 17;

Exs. 4-1 and 4-2; Ex. 4-70; Ex. 4-44; and Ex. 41).

The Coalition of Construction Trade Industry Associations

(hereinafter referred to as ``the Coalition'')(Ex. 11-142) claims that

the reported incidence rate of chemically-related illness is too low to

be considered significant. This is not true. In fact, construction is

third after agriculture and manufacturing in terms of incidence rates,

and thus exceeds the rates of all other nonmanufacturing industries (48

FR 53285).

This has occurred despite the fact that in construction there are a

number of factors which tend to contribute to the underestimation of

chemical source illnesses and injuries. The transient nature of the

workforce minimizes the likelihood that any illness or injury that does

not produce an immediate, acute effect (such as concrete burns) is

identified and reported. Since a worker may not report back to the same

workplace the day after an exposure, even a number of acute effects

would be unreported. Thus any effect which has a latency period of more

than one day will generally not be included in the illness and injury

log and linked to occupational exposures. This is aptly demonstrated by

the anecdotal reports of injuries being limited to concrete burns and

similar ailments (Ex. 11-135; Tr. 6-20, 21; Tr. 6-28), while the

scientific epidemiological data based on studies of exposed

construction workers whose health status was followed over longer

periods of time reveal the incidence of serious, chronic health effects

(Ex. 67).

The ability of employers to identify occupational illnesses with

chemical exposures is always a concern, particularly since the effects

of exposure are effects which may also be caused by other factors. As

cited in the original NPRM preamble (47 FR 12094), the Bureau of Labor

Statistics (BLS) noted this reporting disparity in its annual report.

``The recording and reporting of illness continue to present some

measuring problem since employers (and even doctors) are often unable

to recognize some illnesses as being work related. The annual survey

includes data on only current and visible illnesses of workers; it does

not include data on illnesses which might surface later.''

So if workers being exposed to solvents have headaches and feel

nauseous, this may not be identified as being caused by their chemical

exposures when in fact they are experiencing central nervous system

depression. Part of the purpose of the HCS is to increase awareness

regarding these potential effects. In fact, improved reporting of

occupational illnesses and injuries caused by chemical exposures is

expected to be one of the positive effects of the HCS.

The comments and testimony submitted by the construction industry

suggest that some construction employers are either unaware of the

extent of potential hazardous effects in their industry, or are

attempting to minimize the evidence of the seriousness of the types of

effects which may occur as a result of employee exposure. For example,

Trio Construction Services, Inc. (Ex. 11-100) supports an exemption for

the construction industry ``because the construction industry is not a

user of today's highly toxic materials, chemicals, carcinogens,

explosives, etc.'' And yet Trio indicates further that their company

uses ``gasoline, kerosene, fuel oil, WD-40, paints, lacquers, thinners,

adhesives, concrete, oxygen and acetylene to name a few.'' By the

definitions of hazard in the rule, the types of chemicals cited do

indeed include ``highly toxic materials, chemicals, carcinogens * *

*.''

Similarly, the Ruhlin Company (Ex. 11-97) argues that ``many

chemicals utilized by Construction Contractors such as water

repellents, form release agents, concrete sealers, solvents, adhesives,

bonding agents, epoxy resins, linseed oil and curing compounds are non

toxic * * *'' This too reveals a lack of information regarding the

hazardous properties of chemicals as these types of products commonly

include numerous hazardous chemicals.

The AGC itself admitted in a newsletter to its members that there

are 82 hazardous chemicals employees involved in concrete work may be

exposed to, including such potential carcinogens as benzene and vinyl

chloride (Ex. 4-98). In addition, an AGC representative submitted about

400 MSDSs with his notice of intent to appear at the public hearing

(Ex. 13-39), including MSDSs for a number of the chemicals listed by

Trio and Ruhlin above. The hazards of the chemicals covered by those

MSDSs cover a full range of health effects, as well as physical

hazards.

Clearly, these comments and references indicate that chemical

exposures in the construction industry are extensive, and that the

hazards are not apparently as ``well known'' as the AGC has indicated

(Ex. 84).

The industry representatives argue that the transient nature of the

work force must result in unique treatment of the industry from a

regulatory standpoint, yet they do not seem to recognize that the same

industry characteristic results in an underestimation of the magnitude

of the problem with respect to chemical exposures.

For example, they argue that exposures are, in essence, relatively

isolated instances of brief duration. There is no recognition in their

comments that painters exposed on one site today and another tomorrow

throughout their working careers have a significant cumulative dose of

chemical exposures. In the industry's perspective, viewing exposures as

a finite occurrence, the need for the standard is limited and the

possibility of disease occurring as a result is remote. In fact,

professional trade workers generally use the same types of chemicals

from job to job (although the specific constituents may vary) and their

potential for long-term substantial exposure is significant. (The

industry representatives use the similarity of job exposures to argue

for ``portability'' of training, yet do not seem to recognize that it

contributes to the occurrence of chronic disease that is not reported.)

The arguments that the work is completed outdoors and is therefore

insignificant are also not persuasive. (See, e.g., Ex. 11-91.) Much

construction work is finish or repair work that is conducted indoors,

and significant exposures can occur. Outdoor exposures are not

guaranteed to be low. A recent article describing exposure to lead at

an outdoor site found that the measured levels far exceeded legal

limits (Ex. 71-31). No industry representatives submitted exposure data

to support their contentions, and it is highly likely that such data do

not exist as many of these employers do not generally measure for

exposures.

In fact, according to the Coalition, employers don't need

permissible exposure limit information on MSDSs because they don't

understand it anyway and apparently aren't interested in learning about

it (Ex. 11-142). ``Nearly all MSDSs provide PELs or TLVs (Threshold

Limit Values); none of the labels do. Neither employees nor employers

are trained chemists. Since they are incapable of quantifying job-site

exposures, PELs and TLVs are useless to them.'' Of course, PELs are

legally established exposure limits that must not be exceeded. The

purpose of including them on an MSDS is to ensure the downstream

employers and employees are alerted to the fact that the product

contains a chemical that is regulated, and thus proper protective

measures must be implemented.

AGC's argument that the significance workers attach to the risks of

chemical exposures can be determined by the number of hours included in

union apprenticeship training programs is spurious at best (Ex. 84).

And despite AGC's claims to the contrary, the BCTD's refusal to respond

to AGC's inquiries regarding such programs does not indicate that its

members do not consider the issue to be important (Tr. 6-134-36). As

counsel for the BCTD indicated, ``the employer has the responsibility

to ensure safety on the work site, and that includes the safety

training and hazard communication identification.'' (Tr. 6-135.)

Nevertheless, a member of the BCTD panel had already addressed

knowledge gained in apprenticeship programs (Tr. 6-91-3), and in

response to similar inquiries from the AGC, both the Sheet Metal

Workers (Tr. 5-113-14; Ex. 81) and the AFL-CIO (Tr. 7-77-78) confirmed

that such training is in fact included in union programs, and that the

emphasis on such information has increased in recent years.

There were suggestions in the record that unions be required to

assume some of the compliance burden. The Flat Glass Marketing

Association indicated that unions should be held responsible for

training since the contractors frequently hire employees from union

halls (Ex. 11-152). ``There is no reason why OSHA should not require

the unions to include in their apprenticeship training programs courses

on hazardous chemical identification, detection, and treatment. The

unions should be required to cooperate with the employers in developing

and conducting such programs insofar as they deal with communicating

the hazards of chemicals on the job site.''

The reason that this is not a viable option for the HCS is that

OSHA has no authority under the Act to compel employees or their

representatives to provide training. Although section 5(b) of the Act

requires ``[e]ach employee comply with all occupational safety and

health standards and all rules, regulations and orders issued under the

Act'' that are applicable, Congress ``[did] not intend the employee-

duty * * * to diminish in any way the employer's compliance

responsibilities or his responsibility to assure compliance by his own

employees. Final Responsibility for compliance with the requirements of

this [A]ct remains with the employer.'' S. Rep. No. 1282, 91st Cong. 2d

Sess. 1-11 (1970). OSHA cannot sanction employees or their

representatives for failure to provide training. Atlantic & Gulf

Stevedores v. OSHRC, 534 F.2d 541 (3d Cir. 1976).

In addition, since the majority of employees working in this

country are not members of unions, such an approach would be

ineffective for the great majority of worksites in any event. However,

as OSHA has stated a number of times with regard to the training

requirements of this rule, the HCS only requires each employer to

ensure that training has been provided to employees. If employers and

employee representatives in a particular area agree to some sort of

centralized training program so that training on the jobsite will be

minimal (limited to the information that is specific to that site), the

rule is flexible enough to permit that type of approach. Indeed, OSHA

encourages joint efforts where possible because such partnerships

result in better and more efficient information transfer. (See, e.g.,

Exs. 4-63, 4-75.) Employers will be held accountable for the adequacy

of the training provided, but need not present all of the information

themselves.

Reduction of Risk Through Current Training Requirements. Although,

as has been described herein, the construction industry representatives

claim that the risk of exposure to chemicals in construction is not

``significant,'' this conclusion is coupled with the contention that

the existing training requirements (29 CFR 1926.21) alleviate whatever

risk there may be (see, e.g., Exs. 11-135, 11-142 and 84).

The construction training requirements that apply to chemicals may

be summarized as follows:

(b)(2) The employer shall instruct each employee in the recognition

and avoidance of unsafe conditions and the regulations applicable to

this work environment to control or eliminate any hazards or other

exposure to illness or injury.

(b)(3) Employees required to handle or use poisons, caustics, and

other harmful substances shall be instructed regarding the safe

handling and use, and be made aware of the potential hazards, personal

hygiene, and personal protective measures required * * *.

(b)(5) Employees required to handle or use flammable liquids,

gases, or toxic materials shall be instructed in the safe handling and

use of these materials and made aware of the specific requirements

contained in subparts D, F, and other applicable subparts of this part

* * *.

(6)(i) All employees required to enter into confined or enclosed

spaces shall be instructed as to the nature of the hazards involved,

the necessary precautions to be taken, and in the use of protective and

emergency equipment required. The employer shall comply with any

specific regulations that apply to work in dangerous or potentially

dangerous areas.

(ii) For purposes of paragraph (b)(6)(i) of this section,

``confined or enclosed space'' means any space having a limited means

of egress, which is subject to the accumulation of toxic or flammable

contaminants or has an oxygen deficient atmosphere * * *.

As OSHA has indicated in its regulatory impact analysis (Ex. 4-1)

and in response to questions in the public hearing (Tr. 1-45), the

Agency estimated that approximately 75-80% of the training required

under the HCS is also required under the construction training

standards described above. Thus if a construction contractor was in

full compliance with Sec. 1926.21, the incremental training required to

complete compliance with the HCS would primarily be limited to the

requirements for explanation of the MSDSs, labels, and other features

of the employer's hazard communication program.

The primary difference between the two rules is that the

Sec. 1926.21 standard is very general and does not provide employers

with sufficient guidance to establish an adequate training program for

hazard communication. OSHA testified to this point in response to

questions raised at the public hearing, Tr. 1-47-8. This has been

pointed out repeatedly by members of the Advisory Committee on

Construction Safety and Health (ACCSH) (Tr. 6-78-9), and the Agency has

attempted to somewhat rectify the problems by providing additional

guidance in a compliance directive (Ex. 4-152). However, there are

still problems with enforcement due to the way the provisions were

drafted when adopted.

The AGC claims that its analysis of the enforcement statistics OSHA

entered into the record (Ex. 4-199) indicates that Sec. 1926.21 is one

of the most cited Agency rules (Ex. 84). As described in their post-

hearing brief, between fiscal year 1982 and fiscal year 1987, OSHA

issued 4,205 citations for violations of Sec. 1926.21(b), ``3,814 of

which were for Sec. 1926.21(b)(2) governing hazard training.'' A review

of the subparagraphs included in paragraph (b) raises questions

regarding the AGC's analysis. Subparagraph (b)(2) is a general one

which covers all types of hazards, including safety hazards such as

trenching, etc. The subparagraphs of primary relevance to chemical

hazard training are (b)(3) and (b)(5). When 90% of the citations that

have been issued for paragraph (b) involve subparagraph (b)(2), there

are clearly very few citations issued for subparagraphs (b)(3) and

(b)(5). In fact, in the 6 year period included in the statistics, only

156 citations were issued for violations of (b)(3) and (b)(5). (As a

point of reference, in 1990 OSHA issued over 5600 citations for

violations of the HCS training requirements. Over 4300 of those

violations were cited as being serious, and 32 were considered to be

willful.)

There is evidence in the rulemaking record that complete training

on chemical hazards is not widespread in the construction industry

despite the long-established requirements. As cited in the NPRM

preamble (53 FR 29827), the most compelling evidence is a BLS study

which indicated that only 23% of construction workers had been trained

regarding such hazards. The BLS report was based on a survey

administered to construction workers who had been injured on the job.

AGC cites the testimony of employer representatives during the

hearing as substantiating that sufficient training is occurring. In

OSHA's view, many of the submissions in the testimony and comments

support the Agency's position that the current state of chemical hazard

training in construction is not sufficient to protect employees.

Therefore, the additional training requirements of the HCS are

necessary.

Four employer representatives testified on behalf of the Coalition.

As a primary argument of construction industry representatives was that

current training sufficiently mitigates any risk of exposure that may

occur in construction, OSHA questioned these employers on present

practices. Specifically, the OSHA panelist asked each employer to

``tell me what kind of training you provide for your workers in

accordance with 1926.21, when you do it, and how you get the

information in order to do it.''

The first contractor initially indicated that his homebuilding firm

did not do any training (Tr. 5-43). He then modified his response to

indicate that the superintendents on the job were responsible for

training, and he didn't know what was included in the training program

(Tr. 5-44).

The second employer representative described in detail training

regarding scaffolding and other related safety issues for workers in

the masonry industries. When further questioned as to whether the

training included any information on chemical hazards as required under

Sec. 1926.21, he replied (Tr. 5-46): ``Not at this time. We have

conducted one session. We were cited on a Maryland job site through the

Maryland OSHA for not having, by their standards, a hazardous

communication program in place.'' He also did not appear to be aware

that in Delaware, where his firm is located, a state right-to-know law

was implemented prior to expansion of the HCS, and it covered

construction (Tr. 5-46, 5-60). It is likely his firm would have been in

substantial compliance with the HCS if it had complied with the

preexisting state law in Delaware. He further indicated later in his

testimony that he interpreted the current standard (Sec. 1926.21) as

covering safety hazards, and not training regarding chemical hazards

(Tr. 5-59-60).

The third employer was an electrical contractor, and he stated that

safety hazards related to electrical work are addressed in worker

training. Coverage of chemical hazards in current training was less

clear since he indicated there aren't many products of concern in the

electrical industry, and the employers are not sure what is a hazard

(Tr. 5-47). Apparently, employers are receiving MSDSs for many products

they use that are not actually hazardous chemicals covered by the HCS

(e.g., flashlight batteries). Products such as flashlight batteries are

exempted as articles under the rule, and thus do not have to be

included in training.

Only the fourth contractor employer on the Coalition panel, whose

business involved painting, appeared to have clearly included training

regarding chemical hazards in his program (Tr. 5-48).

The participants on the AGC's panel described chemical training

programs in their organization. The two contractor employers were from

states with pre-existing right-to-know laws (Vermont and Wisconsin),

and had apparently instituted training programs to comply with those

rules. Although they referenced training conducted prior to the right-

to-know requirements, it appeared to be safety training. There was no

description of chemical hazard training done in compliance with

Sec. 1926.21. Ex. 44.

As cited before, there are numerous indications in the comments and

testimony of the participants that the hazards in the construction

industry are not recognized by the employer representatives, thus it is

unlikely that adequate training is being done. (See, e.g., Exs. 11-97

and 11-100.) Comments submitted in response to the revised final rule,

for example, clearly indicate that companies were estimating compliance

burdens based on analyses that assumed no training had been done to

date (see, e.g., Exs. 5-10, 5-65, and 5-117).

As the ACCSH indicated in its 1980 report to OSHA regarding

occupational health standards for the construction industry (Ex. 4-4),

the construction industry's implementation of Sec. 1926.21 has been

hampered by lack of information regarding the hazards of the chemicals

in use. As OSHA noted in the preamble to the 1987 final rule (52 FR

31858-59): ``Of particular concern to the Committee at that time was

that construction employers do not have access to the necessary

information upon which to develop appropriate signs and labels or

material safety data sheets, and therefore must depend upon suppliers

for such information. `[C]onstruction employers may not always be aware

of the hazard associated with a particular product or device if the

items are not accompanied upon purchase by appropriate labels and data

sheets * * *.' OSHA agrees that this lack of information has been a

problem for all downstream users of chemicals, and thus developed the

approach incorporated into the HCS--producers or importers of chemicals

are responsible for evaluating the hazards and transmitting that

information to downstream employers or users of the materials. Under

the expanded rule, construction employers would be the recipients in

this downstream flow of information.'' The ACCSH further noted that

``such information was fundamental to the preparation of warning signs,

labels, training programs, and other important job safety and health

activities.''

OSHA's current rule is thus completely consistent with the ACCSH's

recommendations in this area. In fact, although the AGC (Ex. 84) and

the Coalition (Ex. 11-142) have repeatedly stated that the OSHA rule

``ignores'' the advice of the ACCSH, the record demonstrates that the

Agency has not only consulted the Committee but has also incorporated

their advice in a number of respects. The requirements of the rule for

labels, MSDSs available to employees on-site, and amplified training

programs are entirely consistent with substantive recommendations made

by the ACCSH in 1980, as well as when they reviewed the rule line by

line in 1987 (Exs. 4-6 and 4-186). Ex. 4-186 is an OSHA-prepared

working document in which the Agency took the ACCSH transcript from the

June 23, 1987 meeting that was a detailed review of the HCS, and

incorporated the suggested changes into the text of the rule to most

efficiently address the ACCSH comments. As noted in the preamble to the

1987 rule, a number of the suggestions made by the ACCSH were

incorporated into the regulatory text (52 FR 31858). At subsequent

meetings in 1987 (Ex. 4-74) and 1988 (Ex. 4-108), they further

reiterated their view that the rule as written be implemented.

Despite claims to the contrary, the record clearly shows that OSHA

has consulted the ACCSH repeatedly on this issue. And on the

substantive requirements, the Agency's rule has been entirely

consistent with the recommendations of the Committee. The only

difference of opinion in approach has been that the Committee would

like a separate standard to be promulgated, and the Agency has

maintained that such an approach is not appropriate on this particular

issue. A difference of opinion does not mean that the Agency has

ignored the advice of the Committee.

The AGC and the Coalition have not substantively addressed the

specific recommendations of the ACCSH, and have implied that OSHA has

not given the Committee an opportunity to present recommendations.

Close examination of the documents cited above that are related to

specific ACCSH reviews will reveal that the ACCSH's opinions have been

addressed by OSHA in the rule's requirements, and that these opinions

are quite different than those put forth by the industry

representatives who claim the ACCSH has not been properly consulted.

From the 1980 report to the most recent recommendations in November of

1988, the Committee has endorsed the need for a standard; confirmed

that such a standard is feasible; recognized that availability of

information on multi-employer worksites must be specifically addressed;

supported requirements for MSDSs, including their availability on site;

and emphasized the need for further training requirements. Thus it

appears clear that, unlike the AGC and the Coalition, the ACCSH's

recommendations for a vertical standard for construction did not mean a

rule that is less protective for construction workers than the rules

covering workers in other industries.

Employee representatives in the construction industry have also

consistently indicated that training is either not being done, or is

inadequate (see, e.g., Tr. 6-91-3). In response to a question, the

Sheet Metal Workers' representative indicated that the rule would

provide information about chemical hazards that they do not currently

have under existing regulations: ``Yes, there are adhesives that we are

not sure about, that are being used in ventilating systems for

coatings. And we are not necessarily sure what they are, except that

people will complain about noxious, or obnoxious gases on the job, for

example. And we don't know what they are.'' Tr. 5-115-16.

Thus the rulemaking record clearly indicates that the requirements

of the HCS are needed to supplement the provisions of Sec. 1926.21. As

has been discussed at length in the preamble to the original final rule

(see in particular 48 FR 53301, 53305-06, 53310), in order to ensure

that the information is effectively communicated, a hazard

communication program must include three components--labels, material

safety data sheets, and training. These provisions are interdependent,

serving different purposes and communicating the information in a

different way, thus improving the effectiveness of the program. (See

also H-022, Exs. 3 and 4; 52 FR 31855.) As indicated by the ACCSH, the

construction industry employers will benefit from the acquisition of

this information as it will enable them to enhance compliance with the

training provisions in Sec. 1926.21. As a result of the improved

programs, construction employees' significant risk of experiencing

adverse effects due to chemical exposures will be reduced. Associated

Builders & Contractors, 862 F. 2d at 68 (``We reject * * * the

contention by ABC and AGC that because the construction industry

already provides training in hazardous materials handling, there is no

significant risk in that industry. At best that argument establishes

the existence of risks, and the requirement for maintenance on the

jobsite of information on those risks can only make the existing

training more effective.'')

The training requirements of the HCS are more complete, and more

specific in terms of what is required. The additional requirements to

maintain labels and MSDSs supplied by the producers and distributors of

the products used will provide the employer with more information

regarding the hazards of the chemicals, identities, and appropriate

protective measures. Such information will enable the employer to

better protect workers from chemical hazards, as well as improve

existing training programs. They will also serve as a reference source

for workers to ensure that they truly have access to all applicable

information regarding that chemical. As discussed previously, this

standard is based primarily on the premise that all workers exposed to

hazardous chemicals have a right, and need, to know this basic

information.

Feasibility of the rule in the construction industry. In addition

to contending that there is no significant risk of exposure in the

construction industry, and that the pre-existing training rule

mitigates that risk sufficiently, industry representatives claim that

the rule as written is infeasible. See, e.g., 11- 36, 11-97, 11-98, 11-

114, 11-135, and 11-142. But see also Ex. 71-16: ``Compliance with the

OSHA Hazard Communication Standard will not be as difficult as it first

appears if you start now and follow an organized approach--in fact, you

may already have some procedures in place that comply with the

standard.'' (From compliance guidance manual prepared by AGC counsel.)

It is clear that these commenters sought to indicate the rule is

infeasible because the Court order to OSHA stated that the rule was to

be expanded unless the Secretary of Labor found it would be infeasible

to do so. OSHA explicitly determined that the rule is both

technologically and economically feasible to implement in all

industries. 52 FR 31855-58. Of course, as the Court has recognized, the

Agency had already determined that there was a significant risk to

employees in all industries where they are exposed to hazardous

chemicals without benefit of the information provided under the

requirements of the HCS.

Clearly, the HCS does not include any requirements that can be

considered to be ``technology-forcing.'' It simply requires the

development of information regarding hazardous chemicals, and the

transmittal of that information to exposed employees as well as to

downstream employers using the materials. For the construction

industry, where some training was required prior to the expansion of

the rule, the requirements simply involve the preparation of a written

program, maintenance of labels on containers within the workplace,

obtaining and maintaining material safety data sheets prepared by

chemical suppliers, and some incremental additional training of

workers. There simply are no issues of technological feasibility in

these types of requirements. 52 FR 31856-57.

OSHA completed a regulatory impact analysis prior to promulgation

of the 1987 final rule, and found that the standard is economically

feasible in all industries (Exs. 4-1 and 4-2; 52 FR 31867-76). The

analysis for this rulemaking is limited to the changes that were

proposed in the NPRM. OSHA concluded that the changes are not

significant or major, and therefore a regulatory impact analysis was

not required.

As the BCTD has pointed out (Ex. 89), employers' claims of economic

infeasibility are based on cost analyses that use inaccurate

assumptions about requirements of the rule. ``While showing that the

employer will incur some economic cost in complying with the standard,

industry representatives have fallen far short of demonstrating that

the cost they project will cause economic dislocation in the industry.

But even their projected costs are greatly inflated.'' The BCTD then

analyzed projections by the Coalition that a general contractor with

ten employees would have to spend $15,197.50 to comply the first year.

Without questioning the unit costs used, the BCTD deleted costs

assessed for activities that are not required by the rule. As a result,

using the Coalition's own figures, the costs would be reduced to

$5,053. OSHA believes that even that figure is an overestimation of the

actual costs, but in any event, the BCTD's analysis aptly illustrates

what OSHA itself has found to be true--that the construction industry's

statements regarding feasibility are based on inaccurate and inflated

assessments of activities that are not required by the rule.

In fact, statements from the industry representatives themselves

conflict on this issue. For example, although the AGC (Ex. 11-135, Ex.

84) and various members of the AGC have indicated that the rule is not

feasible, the AGC Dallas (Ex. 11-24) stated: ``All members have been

complying with the standard since 23 May, 1988 * * *.'' If the 600

members of the Dallas AGC were able to comply with the rule by May

1988, it cannot be considered to be infeasible. The Dallas AGC is

opposed to the HCS, and yet indicate that ``our members have always

trained and monitored the safe work practices of their workers which

they feel covers nearly 100% of the Hazard Communication training i.e.

safety goggles, protective gloves, respirators, etc. and believe the

regulation as it now stands is near impossible to comply with.'' It is

difficult to understand how the members could have accomplished

``nearly 100%'' of the HCS training prior to the implementation of the

rule, and yet have determined that it is ``near impossible to comply

with.''

Similarly, the Coalition has argued that the training requirements

of the rule are technologically infeasible (Ex. 11-142). And yet the

employer representatives testifying on behalf of the Coalition did not

indicate that this is the case. In response to a question from OSHA as

to whether training of workers before they actually go out on a site is

done, and is therefore feasible, the answer was yes (Tr. 5-48-9).

It is somewhat inexplicable to OSHA that the industry

representatives can claim that it is feasible to comply with the

existing training standards, and yet not with the HCS requirements.

Some of the discrepancy can be explained by the inaccurate

interpretations regarding training that persist in the industry despite

numerous clarifications and corrections by OSHA. On other issues,

however, the different positions on the rule are less clear.

For example, the Sec. 1926.21 rule does not address the so-called

``portability'' of training. There is no specific provision in that

rule for allowing employers to rely on training provided by some other

source, yet employers claim that compliance with that rule is feasible

and is being done. On the other hand, the HCS has been criticized for

not including such provisions. Ex. 84.

However, OSHA has already provided employers with guidance on this

issue in Appendix E to the rule (included in the NPRM at 53 FR 29855,

and published separately as a booklet, OSHA 3111). ``An employer can

provide employees information and training through whatever means found

appropriate and protective. Although there would always have to be some

training on-site (such as informing employees of the location and

availability of the written program and MSDSs), employee training may

be satisfied in part by general training about the requirements of the

HCS and about chemical hazards on the job which is provided by, for

example, trade associations, unions, colleges, and professional

schools. In addition, previous training, education and experience of a

worker may relieve the employer of some of the burdens of informing and

training that worker. Regardless of the method relied upon, however,

the employer is always ultimately responsible for ensuring that

employees are adequately trained. If the compliance officer finds that

the training is deficient, the employer will be cited for the

deficiency regardless of who actually provided the training on behalf

of the employer.''

In addition to this guidance in the appendix to the rule, OSHA has

also addressed this issue in its instructions to compliance officers

enforcing the rule. These instructions are publicly available, and are

included in the record at Ex. 4-170. ``Complete retraining of an

employee does not automatically have to be conducted when an employer

hires a new employee, if the employee has received prior training by a

past employer, an employee union, or any other entity.'' It continues:

``An employer, therefore, has a responsibility when hiring a new

employee who has been previously trained by someone other than the

current employer to evaluate the employee's level of knowledge against

the training, information requirements of the standard, and the

employer's own program.''

Both of these written interpretations were publicly available in

August 1988, and thus the construction industry representatives had

access to them prior to submitting comments or oral testimony. In any

event, they are also entirely consistent with all previous

interpretations of the rule on this issue provided by the Agency since

it was first promulgated in 1983. As discussed later in this preamble

in the discussion of the information and training provisions, OSHA is

clarifying the regulatory text to address this misinterpretation of the

rule's requirements. However, OSHA does not find that these claims of

infeasibility based on an apparent disregard for current

interpretations of the rule to be valid.

If employers in an area choose to establish a centralized training

program, perhaps in conjunction with local unions, the rule does not

prohibit such an arrangement. If the employers can assure themselves

that a worker has been properly trained, re-training is not required.

Another misinterpretation that persists in the industry comments

also involves training. Many of the claims of both economic and

technological infeasibility in the comments (see, e.g., Exs. 11-135,

11-142, and 84) are based on the misconception that the rule requires

training on each chemical, and subsequently each MSDS.

The 1987 HCS (as well as the 1983 rule), stated in paragraph

(h)(1): ``Employers shall provide employees with information and

training on hazardous chemicals in their work area at the time of their

initial assignment, and whenever a new hazard is introduced into their

work area.'' The training may be done in whatever way employers find

appropriate for their particular work operations, as long as all of the

elements addressed in the rule are included.

When OSHA published the 1987 rule, the re-training issue was

discussed in the preamble (52 FR 31866-67): ``One question that does

arise regarding training is whether it needs to be done specifically on

each chemical, or whether employers can train regarding categories of

hazards. Either method would be acceptable. See 48 FR 53312, 53338. If

employees are exposed to a small number of chemicals, the employer may

wish to discuss the particular hazards of each one. Where there are

large numbers of chemicals, the training regarding hazards could be

done on categories (e.g., flammable liquids; carcinogens), with

employees being referred to substance-specific information on the

labels and the MSDSs. Similarly, the re-training occurs when the hazard

changes, not just when a new chemical is introduced into the workplace.

If the new chemical has hazards which employees have been trained

about, no re-training occurs. If the chemical has a hazard they have

not been trained about, re-training would be limited to that hazard.''

This issue was also addressed in Appendix E to the proposed rule

(53 FR 29855): ``Information and training may be done either by

individual chemical, or by categories of hazards (such as flammability

or carcinogenicity). If there are only a few chemicals in the

workplace, then you may want to discuss each one individually. Where

there are large numbers of chemicals, or the chemicals change

frequently, you will probably want to train generally based on the

hazard categories (e.g., flammable liquids, corrosive materials,

carcinogens). Employees will have access to the substance-specific

information on the labels and MSDSs.''

The compliance directive included this topic as well (Ex. 4-170):

``Additional training is to be done whenever a new hazard is introduced

into the work area, not a new chemical. For example, if a new solvent

is brought into the workplace, and it has hazards similar to existing

chemicals for which training has already been conducted, then no new

training is required. Of course, the substance-specific data sheet must

be available, and the product must be properly labeled. If the newly

introduced solvent is a suspect carcinogen, and there has never been a

carcinogenic hazard in the workplace before, then new training for

carcinogen hazards must be conducted in the work areas where employees

will be exposed to it.''

Thus if an employer trains regarding all possible hazards (and

there are a total of 23 types of physical and health hazards covered

under the rule), there is no re-training required. If the employer

chooses to limit the initial training to some subset of the 23 hazards,

and a chemical is introduced into the workplace that has a hazard which

has not been addressed in the initial training, then re-training must

occur.

The construction industry's interpretation of this requirement is

not supported by available documentation. The plain reading of the text

indicates that re-training is to be done when the hazard changes, and

the hazards covered by the rule are defined, yet the industry

representatives interpret the requirement as being chemical-specific.

See, e.g., Exs. 11-6, 11-15, 11-24, 11-73, 11-84, 11-98, 11-142, and

11-152. (But see Ex. 4-106, Hazard Communication Guide for California

Construction by the Safety and Health Committee of AGC of California,

at p. 7. (``Training can be for each individual substance, chemical

families (solvents, metals), or categories of hazards.'') See also Ex.

71-16, a manual providing compliance guidance that was prepared by

AGC's counsel: ``Depending upon the types of hazardous chemicals used,

you may organize the subject matter by specific chemical, by categories

of hazard or by work area.'') The cost analyses they present to

demonstrate infeasibility are also based on this perception of the

rule's requirements (see, e.g., Ex. 11-142).

As will be discussed in the section of this preamble dealing with

information and training, OSHA is further clarifying the regulatory

text to deal with this issue. In terms of feasibility, however, the

Agency finds no evidence to indicate that the rule is infeasible with

respect to training, and particularly training of employees who will be

working on multi-employer worksites. OSHA has provided substantial

guidance to employers regarding these provisions, and such guidance was

available prior to, or at the time of, publication of the NPRM.

Infeasibility cannot be established through analyses based on

misinterpretations of the rule.

OSHA maintains that the rule is both economically and

technologically feasible. Industry claims to the contrary are based

primarily on inaccurate statements regarding the requirements of the

rule, and on assessments that do not account for training that should

have been done to comply with s1926.21 or programs that are required

under preexisting state standards. There is a cost associated with

compliance with this rule as with any other regulation. The cost is

justified by the protections that will be afforded employees as a

result of implementation of the requirements.

With regard to state requirements, OSHA included in the rulemaking

record enforcement data from a number of state plan states that

expanded the scope to construction prior to promulgation of the Federal

rule (Exs. 4-183, 4-184). As can be seen from these statistics,

construction employers in these states are found to be in compliance in

the majority of inspections. This evidence indicates that the rule is

feasible. For example, the state of Tennessee has a provision for

exchanging MSDSs on multi-employer worksites. Yet two-thirds of the

employers inspected were found to be in complete compliance with the

rule, indicating that they must be able to comply with the requirements

for exchanging MSDSs. This is confirmation that the industry arguments

discussed above are not substantiated in practice.

In summary, OSHA concludes that there is substantial evidence in

the record indicating that there is a significant risk in the

construction industry that warrants coverage under the HCS; the current

requirements for training under Sec. 1926.21 do not mitigate that risk

sufficiently; and the requirements of the rule can feasibly be

implemented in the construction workplace.

Coverage of small businesses and ``low hazard'' industries. As

discussed in the preamble to the NPRM, OSHA does not consider it to be

appropriate to determine the extent of protection afforded an employee

by the size of business he/she is employed in (53 FR 29826). Although

the Agency does have enforcement policies that take into consideration

the size of the business, as well as free consultation services that

are primarily intended for small employers without on-staff safety and

health capability (see Exs. 4-38 and 4-39), such small businesses must

still comply with regulations and ensure that their employees are

protected to the same extent as employees of larger businesses.

Several responses to the NPRM again argued that the rule is not

feasible for small businesses, and is too costly to implement (see,

e.g., Exs. 11-3, 11-39, 11-123, and 11-132). ``The HCS was enacted for

all the right reasons but has placed an unreasonable burden on small

businesses.'' Ex. 11-39. OSHA recognizes that there are costs involved

in achieving compliance, but our analyses indicate that these costs are

feasible, and the requirements are necessary to achieve employee

protection.

Congressional hearings on the impact of the HCS on small business

were convened in both the Senate and the House of Representatives under

the auspices of their small business committees. Testimony and

statements from the House hearing appear in the record in Ex. 4-198.

The Senate hearing took place in June 1989, after completion of the

rulemaking comment periods and public hearings.

Following these congressional hearings, the General Accounting

Office (GAO) was requested to conduct a study of the HCS with regard to

small business by the committee chairs, Senator Dale Bumpers and

Congressman Norman Sisisky. The GAO recently completed their

investigation, and issued two reports. While these studies are not part

of the rulemaking record on this final rule, they contain information

that is relevant to these discussions. A single copy of each report may

be received free of charge from the GAO. The first, issued in November

1991, is entitled OSHA Action Needed to Improve Compliance With Hazard

Communication Standard (GAO/HRD-92-8), and the second, issued in May

1992 is Employers' Experiences in Complying With the Hazard

Communication Standard (GAO/HRD-92-63BR). Copies may be obtained by

calling the GAO at (202) 275-6241, or writing to them at U.S. General

Accounting Office, P.O. Box 6015, Gaithersburg, MD 20877.

In the course of preparing these studies, the GAO conducted a

national survey of approximately 2,000 employers in construction,

manufacturing, and personal services. Thus the burdens and benefits

described by the GAO were self-reported by the employers surveyed. They

also collected information through other means, such as OSHA's

compliance data, and interviews with affected employers.

The congressional request for GAO to investigate had particularly

focussed on the MSDS provisions of the rule. However, GAO found that

70% of those small employers (fewer than 20 employees) who had

attempted to comply had little difficulty with the MSDS requirements.

Furthermore, while there were costs associated with compliance, the

burden was reported to be ``great'' or ``very great'' in fewer than

one-fifth of the survey responses.

In addition to assessing burdens, GAO solicited information on the

benefits of the HCS. Over 56% reported a ``great'' or ``very great''

improvement in the availability of hazard information in the workplace

and in management's awareness of workplace hazards. In addition, about

45% of all employers appearing to comply believed that the rule had

been beneficial for workers. And about 30% reported that they replaced

hazardous chemicals used in their workplaces with less hazardous ones

because of information they received on an MSDS.

Other findings of the GAO will be discussed in this preamble where

appropriate. On the whole, however, OSHA is encouraged by the results

of their study. While the GAO has suggested improvements in the

enforcement and implementation of the rule, the findings are supportive

overall of hazard communication and indicate that when employers

comply, the expected benefits do occur. Furthermore, employers

themselves reported that compliance is achievable.

Similar to the suggestions to exempt or limit coverage for small

businesses, there were suggestions that certain ``low hazard''

industries be exempted from the rule as well (see, e.g., Ex. 11-118).

OSHA believes that the rule already includes accommodations for many

types of operations that are less hazardous (for example, limited

coverage where chemicals are handled in sealed containers), but the

rule's protections are necessary for all workers exposed to hazardous

chemicals.

Coverage of pesticides. In the NPRM (53 FR 29827-28), OSHA invited

comment on an area of potential conflict that had been raised in the

comments on the 1987 rule (see, e.g., Exs. 5-6, 5-44, 5-50, and 5-66),

involving employees exposed to pesticides. Commenters maintained that

OSHA cannot cover pesticide exposures outside the manufacturing sector

as these are regulated under the Federal Insecticide, Fungicide, and

Rodenticide Act (FIFRA) (7 U.S.C. 136 et seq.) administered by the

Environmental Protection Agency (EPA). EPA requires pesticides to be

labeled, approves the specific label language, and requires the

pesticides to be applied in accordance with the labeling instructions.

EPA also has some specific requirements to protect farmworkers

exposed to pesticides (40 CFR part 1970), and proposed modifications to

provide additional protection on July 8, 1988 (53 FR 25971) (Ex. 4-

178).

OSHA invited comment in the NPRM on the relationship of the

jurisdictions of EPA and OSHA with regard to the protection of workers

exposed to pesticides. For purposes of this discussion, OSHA suggested

that its own jurisdiction could be seen to vary with the degree of

protection afforded workers under the EPA rules. (53 FR 29827-28.)

The majority of the comments received stated that EPA should retain

sole jurisdiction for farmworker exposure to pesticides (see, e.g., 11-

14, 11-30, 11-41, 11-55, 11-87, 11-96, 11-101, 11-112, 11-159). Many of

these were from state cooperative extension agents. Other commenters

indicated that OSHA and EPA should coordinate to have consistent

approaches, or that the jurisdictions need to be clarified (Exs. 11-14,

11-32, 11-102, 11-121). Worker representatives tended to believe that

OSHA coverage is needed to provide adequate protection (see, e.g., Exs.

11-21, 11-49, 11-144).

EPA and OSHA worked together to coordinate regulations in this

area. EPA issued its final Worker Protection Standard for Agricultural

Pesticides on August 21, 1992 (57 FR 38102). OSHA has agreed not to

cite employers who are covered under EPA's final rule with regard to

hazard communication requirements for pesticides. This policy is

already in effect. Agricultural employers who are otherwise covered by

OSHA will still be responsible for having a hazard communication

program for hazardous chemicals that are not pesticides.

Coverage of the agriculture industry. Representatives of the

agriculture industry (Exs. 5-6, 5-50) were also concerned that the

revised final rule did not mention the Congressional appropriations

rider under which OSHA is prohibited from promulgating or enforcing any

OSHA standards on farms with 10 or fewer employees unless the farm has

a temporary labor camp. As long as this rider is added annually to

OSHA's appropriations bill, the protections of the HCS will not apply

on those farms. However, farms with 11 or more employees, as well as

those with temporary labor camps, are covered by the rule, except

coverage of pesticides as discussed above.

Commenters on the NPRM reiterated that they believed the

appropriations rider should be specifically referenced in the rule,

rather than simply discussed in the preamble (Exs. 11-34, 11-67, 11-78,

11-87, 11-99, and 11- 101). OSHA does not agree. An appropriations

rider may change from year-to-year, and is not a determination by the

Agency that coverage of such employers is not necessary. Thus it does

not belong in the regulatory text of a rule.

Other comments related to the agriculture industry included a

suggestion that OSHA should not cite farmers until jurisdictional

problems with EPA are resolved (Ex. 11-34). OSHA is not currently

issuing citations for violations of the rule with regard to pesticide

application in the fields. All other provisions of the rule are being

enforced in the agriculture industry. As this same commenter noted,

approximately 100,000 farms will have to have programs for chemicals

other than pesticides as they have more than 10 employees.

It was also suggested that the HCS is not needed in agriculture as

exposures are limited (Ex. 11-67). OSHA does not agree. (See, e.g., 52

FR 16059-61 (Ex. 4-91); Exs. 4-28; 4-102). As discussed in the preamble

to the NPRM (53 FR 29826), the HCS is a right-to-know standard, and

employees have the right to know as long as the potential for exposure

exists in the work operation, and the chemical has been demonstrated to

be hazardous. It is also not sufficient to simply tell a worker that a

chemical is hazardous, without telling them what the hazard is (Ex. 11-

67). The appropriate response to the information presented about the

hazard will vary with the type of hazard. A chemical that is flammable

requires a different protective response than one that causes skin

burns.

Coverage of distributors. A constant feature of the HCS has been

the downstream flow of information from suppliers of chemicals to the

ultimate users. When the HCS was originally proposed in 1982, it did

not explicitly cover importers or distributors. OSHA invited comment on

coverage of these suppliers in addition to the coverage of chemical

manufacturers that was already included in the NPRM. The Agency stated

that explicit coverage may not be necessary because marketplace

pressure exerted by manufacturers needing the hazard information would,

in fact, ensure that the importers and distributors make it available

to their customers.

Rulemaking participants did not agree that this ``marketplace

pressure'' approach would work, and overwhelmingly supported explicit

inclusion of importers and distributors in the final rule (48 FR 53287-

88). As a result of those comments, OSHA required these suppliers to

ensure that containers they shipped were labeled, and under the

original rule, material safety data sheets were supplied with the

initial shipment of a chemical to a manufacturing employer.

A regulatory impact analysis of this requirement indicated clearly

that this automatic provision of information to downstream customers

was the most efficient and cost-effective way of ensuring that the

employers using the chemicals had the information before exposing

employees. OSHA considered requiring such suppliers to provide the

information on request, but information presented by employers in the

rulemaking record indicated that this approach was more costly than the

automatic transmittal, as well as being less effective. 48 FR 53330. H-

022, Ex. 184. When the rule was expanded to cover nonmanufacturing,

importers and distributors were required to provide MSDSs in accordance

with the rule to all downstream employers.

A number of representatives of distributors to the non-

manufacturing sector have requested that the rule be modified to either

exclude them from the requirements of the rule (i.e., require employers

to request MSDSs directly from the original chemical manufacturer), or

allow them to simply respond to requests rather than affirmatively

sending the MSDSs with the first shipment of a chemical to a downstream

employer. (See, e.g., Exs. 25, 28, 29, 31, 32, 60, and 62.) ``[T]he

intent of the law to provide meaningful and timely notice to employees

using hazardous materials can best be fulfilled through the

implementation of an as-needed and on-request responsibility for

transmission of MSDS's.'' (Ex. 62; Beauty and Barber Supply Institute,

Inc.)

Although OSHA recognizes that complying with this requirement does

present a burden to distributors, the rulemaking record indicates that

such an approach is the most cost-effective way to ensure that the

downstream employees are properly protected. The costs of the

distribution of the MSDSs are ultimately borne by the downstream user

obtaining the information. The recommendations of these distributors

that they either be exempted, or allowed to respond to requests only,

simply shift the burdens of compliance to other employers and create a

less efficient system of information transmittal. In particular, OSHA

believes that the distributors who wish to simply respond to requests

are assuming that the number of requests will be minimal. As all

downstream employers are now covered by the rule, this is not a

realistic assumption. Every customer they have to which hazardous

chemicals are supplied is required to have the MSDSs. If a distributor

has to respond to multiple requests from, as one commenter testified

(Tr. 3-43), 10,000 customers, the burden on both the requestors and the

distributor will be significant.

OSHA specifically recalculated the costs for distributors to the

nonmanufacturing sector to consider an ``on request'' system (Ex. 71-

70). These cost figures reiterated the findings of the original cost

analysis, i.e., this is a more costly and less efficient way to

distribute the information. Furthermore, as the downstream employers

are not supposed to use a chemical without having the MSDS, it will

cause them a delay in use of the product, or increase the probability

that employees will be inadequately protected because employers will

use the product without the MSDS. Clearly, downstream users are not as

knowledgeable about the hazards of the chemical products as the

manufacturers of those products. The best way to protect downstream

employees is for OSHA to assure that complete hazard information is

provided to the downstream employers and employees by the time they

receive the chemical.

Other comments from these employers related to ideas for

information to be included on more detailed labels, instead of MSDSs

(Ex. 28), or other specific suggestions for modification of the

distributor's duties (Ex. 22). These will be dealt with in the sections

of the preamble covering labels and material safety data sheets.

Laboratory coverage. The current HCS limits coverage of

laboratories (paragraph (b)(3)), simply requiring that labels be kept

on containers that are received labeled; that material safety data

sheets which are received be kept, and employees be given access to

them; and that employees be trained in accordance with paragraph (h) of

the rule. Paragraph(h)(2)(iii) states, among other things, that

employees are to be informed of the location and availability of the

written hazard communication program. Since laboratories are not

required to have written hazard communication programs, this part of

the information and training program would not apply to these types of

facilities. Although this would appear to be evident, OSHA has received

a number of questions regarding this, so the provision has been

modified to clarify that the location and availability of the written

hazard communication program does not have to be addressed in the

laboratory training program. The location and availability of material

safety data sheets, which is also currently addressed under paragraph

(h)(2)(iii), would still have to be included in the training program.

Two other technical amendments have been made to clarify the

laboratory provisions. In paragraph (b)(3)(iii), the current rule

states that employees are to be ``apprised of the hazards of the

chemicals in their workplaces in accordance with paragraph (h) of this

section''. Paragraph (h) requires employers to provide employees with

both information, (h)(2), and training, (h)(3), on hazardous chemicals

in their work area. Some employers have misinterpreted the use of the

word ``apprised'' in (b)(3)(iii) as only requiring hazard information

transmittal and not training. Clearly the intent of referencing

paragraph (h) in paragraph (b)(3)(iii) was to require employers to

``fully implement the training provisions of the hazard communication

standard for laboratory employees.'' 48 FR 53288. Paragraph

(b)(3)(iii), therefore, has been clarified to indicate that laboratory

employees must be provided both information and training in accordance

with paragraph (h).

Another recurring question involves a laboratory's responsibilities

as a chemical manufacturer or distributor. The limited provisions of

paragraph (b)(3) are directed to an employer's duties to laboratory

employees. They do not, in current form, affect such an employer's

duties once the material is being packaged and shipped elsewhere. At

that point, the parts of the standard that deal with distribution of

chemicals apply. In order to reiterate those requirements, OSHA has

adopted a technical amendment to clarify a laboratory's duties when

shipping or transferring a chemical out of the laboratory. In this

situation, a laboratory would be a chemical manufacturer or

distributor, and would have to evaluate the chemical's hazards under

paragraph (d) and label containers and provide material safety data

sheets in accordance with the rule if the chemical is determined to be

hazardous. This would include samples sent to another laboratory. It

must be reemphasized, however, that the HCS is based upon currently

available information. If a new chemical is developed, and it has not

been tested to determine its hazardous effects, then there is no

information to transmit. The rule does not require testing of chemicals

to be performed.

One commenter has suggested that laboratories be treated the same

as any other workplace in terms of protection (Ex. 11-125). OSHA

believes that the feasibility and practicality concerns of laboratories

warrant the approach taken (see 52 FR 31861; 48 FR 53287-89 for further

discussion).

With regard to laboratories, it should also be noted that OSHA has

finalized a specific rulemaking to address Occupational Exposure to

Toxic Substances in Laboratories (29 CFR 1910.1450). Some interested

commenters in both rulemakings were concerned about potential

duplication or conflict in the requirements of the HCS versus the

laboratory standard. The Agency drafted the final laboratory standard

in a manner that does not conflict with or duplicate the requirements

of the HCS.

Coverage of operations involving sealed containers. The 1987 rule

included limited coverage for work operations where employees only

handle chemicals in sealed containers, i.e., they are not opened in the

workplace under normal conditions of use (paragraph (b)(4)). No changes

were proposed for the provision when the NPRM was published. However,

OSHA is making a minor technical amendment in this final rule. The

provision as promulgated requires employers to request an MSDS for

chemicals received without one when employees want to have access to

the MSDS. There was no time frame included in the rule for this request

process. In this final rule, OSHA has clarified that the request is to

be made as soon as possible. OSHA has generally interpreted this to

mean within 24 hours. This is consistent with the requirement in

(g)(6)(iii) for an employer or distributor to obtain an MSDS as soon as

possible when one has not been provided with a shipment of a hazardous

chemical.

There were comments received which asked for clarifications of the

sealed container exemption. In particular, commenters questioned

whether the training requirements of the sealed container provisions

apply to retail establishments selling consumer products. Exs. 11-11

and 11-93. For those consumer products that are not otherwise

completely exempted (i.e., food, drugs, cosmetics packaged for sale to

consumers in a retail establishment), training would apply under the

rule. OSHA believes that the limited nature of the requirements are

minimally burdensome to these types of employers, but that workers need

to be told what to do in the event of a spill or leak in this

situation. The large quantities of materials present pose a different

potential exposure situation than there would be in a home where

consumers generally have smaller quantities stored. The training can be

directed to the various types of hazards, and need not be on the

specific chemicals.

Labeling exemptions. Following publication of the 1987 final rule,

the Department of Agriculture (Ex. 5-28) and the Animal Health

Institute (Ex. 5-37) requested that a specific exemption be included

for labeling of veterinary biological products. Although these

materials are considered to be drugs, the Federal Food, Drug, and

Cosmetic Act (FDCA), 21 U.S.C. 392(b) ``defers'' regulation of some

veterinary biologics to the Department of Agriculture when the

biologics are subject to the Virus-Serum-Toxin Act of 1913, 21 U.S.C.

151 et seq.

To the extent that the hazards of these materials are biological

hazards, the HCS would not apply in any event. However, there are

apparently some chemicals used in the materials that would potentially

be covered by the HCS (in particular, formaldehyde). OSHA has added an

exemption for labeling of these items when they are subject to the

labeling requirements of either the Food and Drug Administration or the

Department of Agriculture. A number of commenters supported this

clarification (Exs. 11-48, 11-60, 11-76, 11-89, 11-101, and 11-134),

and no one objected. It should be noted, however, that this exemption

is just for labeling, and to the extent chemical hazards are present in

these materials, the other provisions of the HCS would apply in terms

of employee protection.

An additional comment (Ex. 11-119) suggested that a similar

labeling exemption be incorporated for seeds that are labeled in

accordance with the Federal Seed Act administered by the U.S.

Department of Agriculture. OSHA agrees, and has added such an exemption

to this final rule.

OSHA has also added an exemption for additional labeling of

chemical substances or mixtures that are labeled in accordance with the

requirements of EPA under the Toxic Substances Control Act (TSCA). EPA

has labeling authority for such products under TSCA, and has adopted

some labeling requirements for specific substances. These specific

labeling requirements would apply.

Other Exemptions

Hazardous waste. The existing HCS includes a total exemption for

hazardous waste when regulated by EPA under the Resource Conservation

and Recovery Act (RCRA). However, the rule does not mention hazardous

waste regulated by EPA under the Comprehensive Environmental Response,

Compensation, and Liability Act (CERCLA). In order to ensure that

coverage of the rule is consistently applied, this exemption has been

modified to include hazardous substances regulated by EPA under CERCLA.

Wood dust. In the preamble to the revised final rule, OSHA

clarified that the wood and wood products exemption did not apply to

``wood dust.'' Wood dust is not generally a wood ``product,'' but is

created as a byproduct during manufacturing operations involving

sawing, sanding, and shaping of wood. Wood dust does not share solid

wood products' ``self-evident'' hazard characteristics that supported

the exemption of wood products from the HCS' coverage. Except for the

chemical additives present in the wood, products such as lumber,

plywood, and paper are easily recognizable in the workplace and pose a

risk of fire that is obvious and well-known to the employees working

with them. The potential for exposure to wood dust within the

workplace, especially with regard to respirable particles, is not self-

evident, nor are its hazards through inhalation so well-known that

hazard communication programs are unnecessary.

OSHA is technically amending the rule to clarify that the wood and

wood products exemption, paragraph (b)(6)(iv), only applies to wood or

wood products for which the chemical manufacturer or importer can show

that the hazard potential is limited to its flammability or

combustibility, and therefore the other hazards of wood dust or other

chemicals that may be emitted from treated wood would be covered.

Lumber which will not be processed is exempted. Although this has been

the Agency's enforcement policy, there have been commenters who

suggested that the rule itself should be clarified (Exs. 2-104 and 2-

105).

OSHA recognizes that there are some practical questions regarding

the appropriate application of the HCS requirements to wood dust.

First, it is obvious that exposure can only occur when the dust is

generated in airborne concentrations, in a particle size that can be

inhaled by people working in the area, such as sanding, sawing, or

grinding operations. (See, e.g., Ex. 2-211). The rule should not be

interpreted as requiring hazard communication programs for wood mulch,

which is typically made up of rather large pieces of wood, and not

processed downstream, or trace quantities of wood dust on boards that

have been cut. Secondly, it is also obvious that wood dust cannot be

labeled in these work situations since it is not ``contained.'' Work

areas could be placarded with the hazard information to provide an

immediate visual warning for workers involved in these types of

operations. The inability to label in some situations, however, does

not negate the need for a material safety data sheet and training on

the hazards and the available means of protection, and these, and all

other HCS requirements, would still apply.

The question of who should be responsible for generation of the

material safety data sheet is one which is more difficult to answer.

Several commenters suggested that the generator of the dust in a

particular operation (e.g., furniture manufacturing) should be

responsible, not the producer of the wood product (e.g., a logging

company) (Exs. 2-68, 2-104, 2-138, and 2-211). In this situation, as

well as similar situations with grain and other products which are

grown rather than produced, OSHA believes it is appropriate to place

the responsibility for development of the MSDS on the first employer

who handles or processes the raw material in such a way that the

hazardous chemical is ``produced'' and released into the work

environment. For wood, although some dust would be produced when the

tree is felled, it appears that the duty would most appropriately fall

on the sawmill, which is a manufacturing operation (SIC Codes 24 and

26). For grain dust, it would be the grain elevator. Data sheets would

thus have to be provided to the workers in these facilities exposed to

the hazards, and where these types of operations distribute the product

in a form where the hazard will be generated under further processing

(e.g. the sawmill sells boards to a furniture manufacturing facility),

then the material safety data sheet must be transmitted downstream as

well.

Articles. As discussed at length in the NPRM preamble (53 FR 29828-

33), OSHA believes that the definition of an exempted ``article'' which

was promulgated under the original final rule in 1983 is still

appropriate, but proposed a minor modification to clarify the

definition to be consistent with Agency interpretations.

The current definition of ``article'' is as follows:

``Article'' means a manufactured item: (i) Which is formed to a

specific shape or design during manufacture; (ii) which has end use

function(s) dependent in whole or in part upon its shape or design

during end use; and (iii) which does not release, or otherwise

result in exposure to, a hazardous chemical under normal conditions

of use.

The new definition will read as follows:

``Article'' means a manufactured item, other than a fluid or a

particle: (i) Which is formed to a specific shape or design during

manufacture; (ii) which has end use function(s) dependent in whole

or in part upon its shape or design during end use; and (iii) which

under normal conditions of use does not release more than very small

quantities, e.g., minute or trace amounts, of a hazardous chemical

(as determined under paragraph (d) of this section) and does not

pose a physical hazard or health risk to employees.

The new definition differs from the current one in that it includes

as articles items which release not more than very small quantities--

e.g., minute or trace amounts--of a hazardous chemical, as long as

these items do not pose a physical hazard or health risk to employees.

This definition gives manufacturers and importers more latitude in

determining whether an item is covered under the HCS, as the current

definition requires that to be considered an article, an item not

release any amount of a hazardous chemical. The proposed definition

also makes clear that fluids and particles are not articles; this is

not a change in the definition, but simply articulates this fact for

the sake of clarity.

Many of the commenters on the proposed revision supported the

changes (see, e.g., Exs. 11-1, 11-11, 11-40, 11-48, 11-50, 11-51, 11-

54, 11-86, 11-90, 11-111, and 11-133). Some commenters did not believe

that a revision was necessary in any event: ``* * * [W]e believe that

the definition of the term `article' is in danger of overelaboration.

The extant definition is sufficient. The proposed version, while

becoming wordier, would still be acceptable.'' Ex. 11-10. See also Ex.

11-136. OSHA has concluded that the additional language as proposed is

necessary in order to give employers more complete information on what

an exempted article is, and is adopting the proposed modifications in

this final rule.

As the Agency indicated in the NPRM discussion, the definition has

been in place since 1983, and chemical manufacturers and importers have

been successfully applying it to their products since that time. There

appear to have been few citations issued regarding inappropriate

application of the article exemption. The rulemaking participants

objecting to the definition have couched their objections in terms of

difficulties in applying the requirements of the rule. However, OSHA

believes, and the record accumulated since the NPRM was published

continues to support this belief, that the true objection is to the

coverage of specific products, not to whether the definition can be

applied as written. Producers of these types of products clearly can

determine that they are not articles under the HCS, and thus the

requirements of the rule apply. Their objections, therefore, are to

coverage under the rule.

OSHA discussed this issue at length in the NPRM. As indicated at

that time, the primary participants regarding this issue are The

Formaldehyde Institute (Ex. 11-37, 11-140, Ex. 86), and representatives

of other organizations associated with formaldehyde-treated products

(see, e.g., National Particleboard Association (Ex. 11-137, Ex. 74);

National Cotton Council (Ex. 58, Tr. 7-183-91, Ex. 91)). It should be

noted that both the Formaldehyde Institute and the National

Particleboard Association submitted notices of intent to appear at the

informal public hearings, but withdrew prior to presenting their

testimony. Furthermore, although their post-hearing exhibits have been

entered into the record, as a procedural matter, organizations not

participating in the hearing are not allowed to file post- hearing

exhibits. In addition, the National Cotton Council was permitted to

testify the last day of the hearing, but had not submitted a notice of

intent to appear. Consequently, testimony was not available prior to

the hearing to enable OSHA and other interested parties to prepare

questions on it. The National Cotton Council submitted a post-hearing

exhibit March 23 (8 days after the period for submission of briefs was

concluded). Since this submission was not a brief, it should have been

submitted by February 13, the date for hearing participants to present

additional information.

OSHA is not going to repeat all of the discussion regarding the

Agency's interpretation of the rule's requirements. (See 53 FR 29828-

33.) The formaldehyde-related commenters have attempted to use that

discussion to argue that OSHA's position on articles is inconsistent

with other parts of the rule or with Agency interpretations. This

simply is not the case, and the discussion stands as the Agency's

position.

The rule cannot credibly be interpreted as not covering the

products these commenters are discussing. In particular, in the

original final rule, OSHA indicated that the definition of article was

specifically worded in the fashion it was to address problems with such

products as these commenters are concerned about: ``For example, the

ACTWU (Ex. 111) described a situation involving fabrics in common use

which are treated with permanent press resins which release

formaldehyde when handled. Workers engaged in making clothing from such

fabrics should be informed about the nature and identity of their

formaldehyde exposures * * *. Therefore, the definition has been

modified to ensure that in this type of situation, hazard information

is transmitted to employees and downstream employers.'' 48 FR 53293.

Commenters' arguments that their professional judgment allowed them to

determine that downstream risks are negligible are completely contrary

to the rule as written. Professional judgment comes into play only with

regard to the weight of the evidence substantiating a hazard, not with

regard to predicting downstream exposures.

As OSHA noted in the NPRM, the definition of an article and

application of that definition to determine whether an item is

exempted, is an issue for chemical manufacturers and importers, not

non-manufacturers. Non-manufacturers have no responsibility for

applying the definition, and can rely on the evaluations performed by

their suppliers. One commenter took issue with this statement (Ex. 11-

111), and indicated that non-manufacturing is concerned about articles

as well. Some of these commenters supported the position that the

article definition should be narrowed so as to result in fewer products

being covered in non-manufacturing workplaces (see, e.g., Ex. 11-135,

11-142). That is a different issue than claiming that the definition

itself is unworkable, and OSHA is reiterating that application of the

definition to manufactured items is an issue that is solely the concern

of manufacturers. Therefore, opinions expressed by these non-

manufacturers who have no experience applying the definition, and have

no responsibility to do so, are irrelevant as to whether the definition

should be revised.

The primary alternative suggested by representatives of the

formaldehyde industry commenters is that OSHA exempt de minimis

releases so that a manufactured item which releases ``small'' amounts

of a hazardous chemical during normal conditions of use is still

considered an article and not covered by the HCS. (See, e.g., Exs. 11-

37, 11-107, 11-122, 11-127, 11-135, 11-137, 11-140, 11-142, 11-146, and

11-154) (six of these commenters are formaldehyde-related

organizations; two are construction representatives who do not have to

apply the definition; one is a mining industry representative that is

not covered by OSHA). Several commenters indicated that the changes

were a step in the right direction, but did not go far enough (Exs. 11-

38, 11-137, and 11-147).

As indicated in the NPRM, this alternative simply does not provide

sufficient protection for employees, and does not address the true

issue of concern--the exposure of employees. Manufacturers and

importers often cannot accurately predict downstream exposures to a

hazardous chemical, and individual reactions to an exposure vary. The

purpose of this standard, therefore, is to provide information on all

hazardous chemicals to which employees could be exposed.

No new arguments have been presented by these rulemaking

participants, and as discussed in the NPRM, the existing arguments are

not persuasive. As a result of comments these same participants and

others have made in the formaldehyde docket, the hazard communication

provisions of the formaldehyde rule were stayed repeatedly, and the HCS

was applied to those products. As OSHA had indicated in the NPRM, the

0.1 ppm cut-off that applied in the formaldehyde standard was a de-

regulatory provision--it resulted in the hazard communication

provisions of that rule applying to fewer products than would be

covered under the HCS. As far as OSHA is concerned, the specific

formaldehyde rulemaking addressed the concerns of the industry

producing such products by establishing a substance-specific de minimis

cut-off for formaldehyde. That cut-off was then stayed at the request

of the industry representatives. The Agency does not believe it is

appropriate to revise the generic HCS rule to address the specific

situation with regard to formaldehyde.

OSHA recently published a new final rule on formaldehyde which

revised the substance-specific hazard communication provisions (57 FR

22290; May 27, 1992). The requirements of this specific standard with

regard to hazard communication now supercede the generic HCS

provisions. As these new provisions address the unique concerns of the

formaldehyde-related industries, OSHA does not believe those

industries' concerns need be dealt with further in this rulemaking

proceeding with regard to the articl

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