October 31, 2006

Baruch A. Fellner, Esquire
Gibson, Dunn, and Crutcher, LLP
1050 Connecticut Ave., NW
Washington, DC 20036

Re: Clarification of the Hexavalent Chromium Final Rule

Dear Mr. Fellner:

Thank you for your inquiry to the Occupational Safety and Health Administration (OSHA). The Surface Finishing Industry Council (SFIC) has requested clarification of the following provisions of the final rule regarding Occupational Exposure to Hexavalent Chromium, 71 Federal Register (FR) 10100-10385 (Feb. 28, 2006): (1) regulated areas; (2) employee rotation; (3) personal protective equipment; (4) requirements for change rooms; and (5) housekeeping. In response, OSHA refers SFIC to the portions of the standard's preamble that are set forth below, referencing specific provisions of the Code of Federal Regulations (CFR). This letter constitutes OSHA's interpretation only of the requirements discussed.

1. Flexible Means of Demarcation of Regulated Areas Under 29 CFR 1910.1026(e)

In keeping with the performance orientation of this standard, OSHA has not specified how employers are to demarcate regulated areas. OSHA proposed that warning signs be posted at all approaches to regulated areas, and set forth specific language in paragraph (1) of the proposed standard to be included on the warning signs. However, OSHA has determined that other means of demarcation such as barricades, lines and textured flooring, or signs using other language can be equally effective in identifying the boundaries of regulated areas and notifying employees of associated hazards, the need to restrict access to such areas, and protective measures to be implemented. . . In the final rule, OSHA thus has provided employers with the flexibility to use the methods of demarcation that are most appropriate for identifying regulated areas in their workplace. . . Permitting employers to choose how best to identify and limit access to regulated areas is consistent with OSHA's belief that employers are in the best position to make such determinations, based on their knowledge of the specific conditions of their workplaces. . . Allowing employers to demarcate and limit access to the regulated areas as they choose is consistent with OSHA's two most recent substance-specific health standards, addressing occupational exposure to methylene chloride (29 CFR 1910.1052(e)) and 1,3-butadiene (29 CFR 1910.1051(e)). (71 FR 10343)

2. Rotation of Employees Under 29 CFR 1910.1026(f)(2)

OSHA recognizes that employers rotate workers for a variety of reasons. For example, an employer may rotate workers in order to provide cross-training on different tasks, or to allow workers to alternate physically demanding tasks with less strenuous activities. OSHA does not place any restrictions on worker rotation when it is conducted for reasons other than compliance with the PEL. The Agency does not intend for this provision to be interpreted as a general prohibition on employee rotation where workers are exposed to Cr(VI). (71 FR 10350)

3. Flexible Use of Personal Protective Equipment To Protect Against Dermal and Eye Contact Under 29 CFR 1910.1026(h)

The final rule requires the employer to provide appropriate protective clothing and equipment where a hazard is present or is likely to be present from skin or eye contact with Cr(VI), but does not specify criteria to be used for determining when a hazard is present or is likely to be present. . . . [O]nce a determination has been made that a hazard is present or likely to be present in the workplace, the employer must determine what clothing and equipment are necessary to protect employees. The employer has flexibility to select the clothing and equipment most suitable for his or her particular workplace. The type of protective clothing and equipment needed to protect employees from Cr(VI) hazards will depend on the potential for exposure and the conditions of use in the workplace. (71 FR 10353-10354)

4. Change Room Requirements When Changing Out of Street Clothes Under 29 CFR 1910.1026(i)

OSHA intends the requirement for change rooms to apply to all covered workplaces where employees must change their clothes (i.e., take off their street clothes) to use protective clothing and equipment. In those situations where removal of street clothes is not necessary (e.g., in a workplace where only gloves are used as protective clothing), change rooms are not required. (71 FR 10356)

5. Housekeeping Requirements - Allowing Wet Methods Under 29 CFR 1910.1026(j)

OSHA believes vacuuming to be a reliable method of cleaning surfaces on which dust accumulates, but other effective methods may be used. These methods may include wet methods, such as wet sweeping or use of wet scrubbers. . . . OSHA agrees that wet methods can serve to minimize exposure to Cr(VI), and has modified the language of the provisions to allow wet methods to be permitted. (71 FR 10358)

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Thank you for your interest in occupational safety and health. We hope that you find this information helpful. OSHA requirements are set by statute, standards, and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. Please be aware that OSHA's enforcement guidance is subject to periodic review and clarification, amplification, or correction. Such guidance could also be affected by subsequent rulemaking. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov. If you have any further questions regarding the enforcement of OSHA regulations, please feel free to contact the Office of Health Enforcement at (202) 693-2190.

Sincerely,



Richard E. Fairfax, Director
Directorate of Enforcement Programs