Regulations (Preambles to Final Rules) - Table of Contents|
| Record Type:||Hazard Communication|
| Title:||Section 1 - 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 decision making 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.
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