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CPL 2-2.38D - Appendix A

Clarifications and Interpretations of the Hazard Communication Standard (HCS)

This appendix includes clarifications and interpretations which answer the most frequently asked questions regarding the HCS. [You may wish to visit our MSDS FAQ as well -- ILPI] Clarifications are keyed to the most applicable paragraph of the HCS.

This version of the inspection procedures for the OSHA HazCom Standard is no longer valid. It is presented here solely for historical purposes and has been replaced by CPL 02-02-079 effective July 9, 2015. The subjects of the Appendices have also changed.

(a) Purpose, Paragraph a

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(a)(2) - OSHA's position is that State standards can be enforced only under the auspices of an OSHA-approved State plan. States without State plans are preempted from addressing the issue of Hazard Communication. Community right-to-know standards are outside the jurisdiction of OSHA and are not affected by this position. Inquiries regarding preemption that require in-depth knowledge of this subject shall be referred through the Directorate of Compliance Programs to the Office of State Programs for response.
The Agency's position regarding State standards has been described in OSHA Instruction STP 2-1.117. This should be consulted when answering questions regarding State standards.

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(b) Scope and Application, Paragraph b

(b)(2) - The phrase "known to be present" is essential to the scope of the standard. If a hazardous chemical is known to be present by the chemical manufacturer or the employer, it is covered by the standard. This includes chemicals to which employees may be exposed during normal operations or in a foreseeable emergency. This means that even though an employer was not responsible for the manufacture of the hazardous chemical, the employer has the responsibility for conveying hazards to his/her employees. For example, the standard applies in the following situations: if employees are exposed to chemicals brought onto a multi-employer worksite by other employer(s) or if service personnel are exposed to natural gas during furnace repair. An employer whose employees are exposed to chemicals "known to be present" must include in their hazard communication program information concerning the hazards of those chemicals.

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- By-products are covered by the HCS. A manufacturer's or importer's hazard determination procedures must anticipate the full range of downstream uses of their products and account for any hazardous by-products which may be formed. For example, a manufacturer of gasoline must inform downstream users of the hazards of carbon monoxide, since carbon monoxide is a hazardous chemical and is "known to be present" as a by-product resulting from the use of gasoline. Similarly, manufacturers of diesel must inform downstream users of the potential human carcinogenicity of diesel exhaust on the MSDSs for diesel fuel.
- The terminology "exposed under normal conditions of use or in a foreseeable emergency" excludes substances for which the hazardous chemical is inextricably bound or is not readily available, and, therefore, presents no potential for exposure. ("Exposure" includes accidental or possible exposure, see definition under paragraph (c) of the standard). Further, employees such as office workers or bank tellers who encounter chemicals only in "non-routine," isolated instances are not covered. However, an employee in a graphic arts department who "routinely" uses paints, adhesives, etc., would be covered by the HCS.
- OSHA does not consider either radiation hazards or biological hazards to be covered by the HCS. If, however, the radiological or biological agent is accompanied by an otherwise covered hazardous chemical , (e.g., a container with a biological sample packed in an organic solvent), then the container would be subject to the requirements of the HCS for the hazardous chemical only.
(b)(3) - The coverage of laboratories is limited under the HCS, and includes quality control laboratories, laboratories whose function is to produce commercial quantities of materials, and all laboratories connected with production processes. The CSHOs [Compliance Safety and Health Officers] may want to refer to 29 CFR 1910.1450, Occupational Exposure to Hazardous Chemicals in Laboratories (the Lab Standard). The operating definition of a laboratory is not the same for both standards. The Lab Standard covers only laboratories meeting the criteria of "laboratory use" and "laboratory scale" and excludes procedures that are part of a production process (55 F.R. 3328). The preamble to 29 CFR 1910.1450 states "...most quality control laboratories are not expected to meet the qualification for coverage under the Laboratory Standard. Quality control laboratories are usually adjuncts of production operations..." (55 F.R. 3312). Quality control laboratories would, therefore, generally be covered by the HCS.

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- Some manufacturers of chemical specialty products have interpreted the laboratory provisions as exempting them from coverage. These operations are considered to be manufacturing processes, and are not exempted. Furthermore, a pilot plant operation is also considered to be a manufacturing operation and is covered under the HCS. Establishments such as dental, photo finishing, and optical laboratories clearly are notconsidered laboratory operations for the purposes of this standard since they are engaged in the production of a finished product.
- Laboratories covered under the HCS do not have to have a written hazard communication program. Therefore, when the required training is performed, employees would be informed that written programs are not required for laboratories.
- Paragraph (b)(3)(iii) was revised to clarify the intent of the standard. Employers are required to provide laboratory employees with information and training as outlined in paragraph (h). Merely providing MSDSs to employees is not considered training for purposes of the standard. [Emphasis ours - ILPI]
- Paragraph (b)(3)(iv) was added to cover laboratory employers who ship hazardous chemicals. A laboratory shipping hazardous chemicals is considered a chemical manufacturer and must meet the hazard evaluation requirements of paragraph (d), the labeling requirements of (f)(1) and MSDS requirements of (g)(6) and (g)(7). In the event that the shipment is of a newly developed chemical, OSHA would expect the laboratory to provide all available information on that chemical. As stated in the preamble, "the HCS is based upon currently available information. If a new chemical is developed, and 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."
- Quality control samples taken in a plant must be labeled, tagged, or marked unless the person taking the sample is also going to be performing the analysis, and thus the sample would come under the portable container exemption. A hand-written label may be utilized as long as the required label information is present. The rack in which samples are placed could be labeled in lieu of labeling individual samples if the contents and hazards are similar.
(b)(4) - Since all containers are subject to leakage and breakage, employees who work in operations where they handle only sealed containers (such as warehousing) are potentially exposed to hazardous chemicals, and, therefore, need access to information as well as training. The training required for employees who handle sealed containers is dependent upon the type of chemicals involved, the potential size of any spills or leaks, the type of work performed and what actions employees are expected to take when a spill or leak occurs.
- Employers are required to obtain an MSDS for chemicals in sealed containers if an employee requests one and to maintain and make available to employees all MSDSs received. The employer's attempt to obtain an MSDS must begin promptly (normally within a day).
(b)(5) - The exemptions described under this paragraph apply to labeling requirements only and are not intended to provide a complete exemption from the standard.
(b)(6) - This paragraph totally exempts certain categories of substances from coverage under the HCS.

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- Hazardous waste - Hazardous waste is exempted from the standard when subject to regulation by the Environmental Protection Agency (EPA), under the Resource Conservation and Recovery Act (RCRA). If the waste is not regulated under RCRA, then the requirements of the standard apply. Once the material is designated as hazardous waste as defined under RCRA, it is totally exempted. Other chemicals which are used by employees at a hazardous waste site that are not hazardous waste are covered under the HCS. (An example would be an acid brought on site by the employer to neutralize a waste product.)
- Consumer Products - Ordinarily, OSHA will not cite for employee use of consumer products. A substance is considered a consumer product if it is:
  - defined as such under the Consumer Products Safety Act
  - used in the workplace as intended by the manufacturer and
  - used with the same frequency and duration of exposure expected of a typical consumer.
  The CSHO [Compliance Safety and Health Officer] must consider whether use of consumer products in the workplace greatly exceeds normal conditions of use or if the use is different than originally intended for the product.
- Articles - By definition, a manufactured item is exempted as an article if "under normal conditions of use it does not release more than very small quantities, e.g., minute or trace amounts of a hazardous chemical...and does not pose a physical hazard or health risk to employees." (See paragraph (d)(5) of this appendix for a discussion regarding the terms "health risk" versus " health hazard.") An item may appear to meet the definition of an "article," but produces a hazardous by-product during normal processing. If the cutting, burning, heating, or otherwise processing the article results in employee exposure to a hazardous chemical but such processes are not considered part of its normal conditions of use, the item would be an "article" under the standard, and thus be exempted.
  Absent evidence that releases of "very small quantities" could cause health effects in employees, the article exemption would apply. The following items are examples of articles:
  - Stainless steel table
  - Vinyl upholstery
  - Tires
  - Adhesive tape
  The following items are examples of products which would NOT be considered "articles" under the standard, and would thus not be exempted from the requirements:
  
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  - Metal ingots that will be melted under normal conditions of use.
  - Bricks for use in construction operations, since, under normal condition of use, bricks may be dry cut, drilled, or sawed, and the clay slurry of wet cutting (when dried) releases dust that contains crystalline silica.
  - Switches with mercury in them that are installed in a maintenance process when it is known that a certain percent break under normal conditions of use.
  - Lead acid batteries which have the potential to leak, spill or break during normal conditions of use, including foreseeable emergencies. In addition, lead acid batteries have the potential to emit hydrogen which may result in a fire or explosion upon ignition.
  CSHOs [Compliance Safety and Health Officers] have to consider the hazardous chemical in the item. The only information that has to be reported in these situations is that which concerns the hazard of the released chemical. Hazardous chemicals which are still bound in the article would continue to be exempted under the "article" exemption.
- Wood and wood products - The wood and wood products exemption was never intended by OSHA to exclude wood dust from coverage. This has been clarified in the final rule published February 9, 1994. (See Federal Register, Vol. 59, page 6145.) As stated in the preamble, "Wood dust does not share solid wood products' 'self-evident' hazard characteristics that supported the exemption....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." The permissible exposure limits for wood dust must be included on the MSDS, which will generally be developed by the sawmill (or the first employer which handles or processes the raw material in such a way that the hazardous chemical is "produced" and released into the work environment). Further, any chemical additives present in the wood which present a health hazard must also be included on the MSDS and/or label as appropriate.
- Particulates not otherwise regulated (PNOR) - Particulates not otherwise regulated are exempt unless evidence exists that they present a health or physical hazard. For these chemicals, the "PNOR" PEL must be included on the MSDSs.

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See also: CPL 2-2.238D - Inspection procedures for paragraph b

(c) Definitions, Paragraph c

The definitions of the HCS must be consulted to properly interpret and apply the standard.

Article - The definition has been amended to permit the release of "very small quantities, e.g., minute or trace amounts" of a hazardous chemicals and still qualify as an article provided that a physical or health risk is not posed to the employees (59 F.R. 6146). In evaluating an article, one must consider the health risk which exposure to that article presents. (The term "risk" as opposed to "hazard" is used here, since the hazard is an inherent property of the chemical and exists no matter the quantity of exposure. To be exempted as an article, exposure must not pose a risk to employee health.)
Chemical - The standard's definition of "chemical" is much broader than that which is commonly used. Thus, steel coils which are cut and processed, castings which are subsequently ground or welded upon, bricks that are dry sawed or drilled, carbide blades which are sharpened, are all examples of products which contain chemicals which, if available for exposure, are covered by the HCS.
Chemical Manufacturer - Based on this definition and that of its related terms, an employer that manufactures, processes, formulates, or repackages a hazardous chemical is considered a "chemical manufacturer." This includes those companies which blend or mix chemicals. Such companies can comply with the standard by transmitting the relevant label/MSDS for the components of their mixture (which they, in turn, received in good faith from their suppliers) to their downstream customers. Oil and gas producersare considered chemical manufacturers because they process hazardous chemicals for use or distribution.

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Container - This definition includes tank trucks and rail cars. A room or an open area is not to be considered a container and, therefore, a hazardous chemical such as wood dust on the floor of a workplace, or a pile of sand at a construction site, would not have to be labeled. Since only "containers" need to be labeled under the HCS, if there is no container, there is no requirement to label.
- Pipes or piping systems, engines, fuel tanks, or other operating systems in a vehicle are not considered to be containers. Thus, LP [liquid propane] cylinders that serve as the source of fuel used to operate lift trucks, for example, would not have to be labeled once the fuel tank is installed, although the spare LP cylinder(s) in storage must be labeled since they are containers. Even though containers of fuel such as gasoline and LP clearly are within the scope of the HCS, no requirement exists to label those containers operating the lift truck. The producer still has an obligation to assess the hazards associated with the fuels, including their by-products.
- Bricks that are palletized and bound by metal bands are considered to be containers that are to be tagged with an appropriate label.
- The standard requires all containers of hazardous chemicals leaving the workplace to be labeled with the required information. Even very small containers must be tagged or marked in a fashion that fulfills the intent of the standard.
Distributor - A distributor who blends, mixes, or otherwise changes the composition of a chemical is considered a chemical manufacturer under the HCS. Employees in these operations are considered to use hazardous chemicals. Under these conditions, the distributor will not be able to claim the sealed container provision in paragraph (b)(4) and will need to meet all applicable provisions of the HCS (including hazard determinations, MSDSs, labeling, training, and a written program).
- Paragraph 1200(g)(7) distinguishes between a "distributor" and a "retail distributor." This distinction has been made to recognize that retail establishments primarily deal with the general public. This type of operation makes it difficult to determine, at the point of purchase, whether a customer is an employer who needs a material safety data sheet (MSDS). The "on-request" system has been permitted to preclude the necessity of determining every customer's need for an MSDS at the time of purchase or of providing an MSDS to every customer.
Employee - Employees, such as office workers or bank tellers who encounter hazardous chemicals only in non-routine, isolated instances are not covered. For example, an office worker who occasionally changes the toner in a copying machine would not be covered by the standard. However, an employee who operates a copying machine as part of her/his work duties would be covered by the provisions of the HCS.
- Training provisions for temporary employees are addressed under (h)(1).
Employer - An employer who brings hazardous chemicals into the country for use in their own workplace, becomes an importer and is, therefore, responsible for conducting a hazard determination of the chemical, producing the MSDS, ensuring appropriate labeling, and all other applicable provisions of the standard.
Exposure - It is important to note for purposes of chemical manufacturers' hazard determinations and downstream use by employees, that "exposure" includes any route of entry (such as inhalation, ingestion, skin contact or absorption) and potential exposure, including exposure that could result in the event of a foreseeable emergency.
Foreseeable emergency - Foreseeable emergency does not include employee exposures in the event of an accidental fire, but does include equipment failure, rupture of containers, or failure of control equipment which could result in an uncontrolled release.
Hazardous chemicals - Hazardous chemicals , as defined by the HCS, which are grown, cultivated, or harvested (such as cotton, lumber, and grain) are covered by the HCS at the first point of processing or manufacture. The first employer meeting the definition of a "chemical manufacturer" will be responsible for performing the hazard determination, developing or obtaining the MSDSs, and labeling containers of the hazardous chemicals. For example, saw mills are considered to be the "chemical manufacturer" since they are the first employers who process the product. A saw mill processes timber into lumber thereby creating wood dust, which is a hazardous chemical under the HCS. Grain elevators also meet the definition of a "chemical manufacturer" since they treat, dry, and move grain, creating grain dust, a hazardous chemical under the standard.
Hazard Warning - The definition has been amended to include target organ effects on labels in order to convey the specific physical and health hazards of a chemical.
Produce - The definition of "produce" has been expanded and now includes blend, extract, generate, and emit in addition to manufacture, process, formulate, and repackage. This would include the extraction of naturally occurring substances, such as clay and stone which contain crystalline silica.

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See also: CPL 2-2.238D - Inspection procedures for paragraph c

(d) Hazard Determination, Paragraph d

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(d)(1) - Although the chemical manufacturer and the importer have the primary duty for hazard evaluation, some employers may choose to do their own evaluations. Whoever does the evaluation is responsible for the accuracy of the information. The evaluation must assess the hazards associated with the chemicals including hazards related to any anticipated or known use which may result in worker exposure.
- Known intermediates and by-products are covered by the HCS and must be addressed in the hazard determination. Decomposition products which are produced during the normal use of the product or in foreseeable emergencies (e.g., plastics which are injection molded, diesel fuel emissions) are covered.
- An employer may rely upon the hazard determination performed by the chemical manufacturer. Normally, the chemical manufacturer possesses knowledge of hazardous intermediates, by-products, and decomposition products that can be emitted by their product.
(d)(2) - The preparer of the MSDS/label is required to consider all available scientific evidence concerning the hazard(s) of a chemical in addition to consulting the floor of reference sources listed in paragraph (d)(3), which establishes which chemicals are hazardous under the standard. (See Appendix C of this instruction for further guidance on evaluating health effects.) No testing of chemicals to determine hazards is required; the evaluation may be based on information currently available in chemical/scientific literature.
- Any substance which is inextricably bound in a product is not covered under the HCS. For example, a hazard determination for a product containing crystalline silica may reveal that it is bound in a rubber elastomer and under normal conditions of use or during foreseeable emergencies cannot become airborne and, therefore, cannot present an inhalation hazard. In such a situation, the crystalline silica need not be indicated as a hazardous ingredient since it cannot result in employee exposure.
(d)(3) - Any chemical regulated in part 1910, Subpart Z, including those listed in the Z Tables or for which there is a TLV in the latest edition of the ACGIH, Threshold Limit Values listing, is considered to be part of the floor of hazardous chemicals covered by the standard.
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(d)(4) - A chemical manufacturer/importer has the option of reporting negative findings regarding carcinogenicity, but is required to report any positive findings of NTP and/or IARC on the MSDS. It should be noted that negative evidence generated by a producer does not nullify the positive finding by IARC or NTP.
- On December 20, 1985, OSHA published an interpretive notice in the Federal Register regarding the carcinogenicity of lubricating oils (Vol. 50 FR 51852). The notice was published in response to a number of inquiries which were received regarding the applicability of the HCS requirements to naphthenic lubricating oils which are refined using a hydrotreatment process. These types of oils may be found in a number of industrial operations, including ink manufacture and the production of synthetic rubber.
  
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  Positive findings of carcinogenicity by the International Agency for Research on Cancer (IARC) must be reported under the HCS. The IARC Monograph 33 concludes that there is sufficient evidence to indicate that mildly hydrotreated and mildly solvent refined oils are carcinogenic. Therefore, under the requirements of the HCS, producers of such materials must report such findings on the MSDS for the substance and include appropriate hazard warnings on labels.
  IARC also stated that there is inadequate evidence to conclude that severely hydrotreated oils are carcinogenic, and that there is no evidence to indicate that severely solvent-refined oils are carcinogenic. In the absence of any valid, positive evidence from sources other than IARC regarding the carcinogenicity of severely hydrotreated or severely solvent-refined oils, no reference to carcinogenicity need be included on the MSDS and label for such materials. IARC has also concluded that when an oil is refined using sequential processing of mild hydrotreatment and mild solvent refining, there is no evidence of carcinogenicity.
  The questions posed to OSHA concerned the process parameters used for mild hydrotreatment. OSHA examined the studies upon which IARC based its positive findings and concluded that any oil will be considered to be mildly hydrotreated if the hydrotreatment process was conducted using pressure of 800 pounds per square inch or less, and temperatures of 800 degrees Fahrenheit or less, independent of other process parameters. If the oil is produced within these parameters, it must be considered to be potentially carcinogenic under the requirements of the HCS.
(d)(5) - While the HCS does not require testing of chemicals to determine their individual hazards, this is allowed and some preparers of MSDSs may choose this option. If a chemical manufacturer chooses to test a mixture as a whole, a full range of tests would have to be performed, including tests to determine health risks and physical hazards. Another accepted approach to hazard determinations is for the manufacturer to test certain properties of a chemical and to rely on the literature for others.
- If the mixture has not been tested as a whole, it is assumed to present the same hazards as its individual component parts, and the manufacturer of a mixture may rely on the upstream chemical manufacturers' hazard determinations for those constituent substances. This must be stated in the hazard determination procedures of the manufacturer who is producing the mixture. The MSDS for the mixture would then be comprised of the MSDSs for each component and must be physically grouped together. Information, such as the product identity, the manufacturer's name, address, etc., must be provided on the new MSDS. If the physical characteristics of a mixture have not been objectively determined, the employer may present data in ranges; e.g., flash points range from 70 to 100 degrees Fahrenheit.
- The language in paragraph (d)(5)(iv) was amended in the February 9, 1994, Final Rule. The new language indicates that the manufacturer must consider the health risk to downstream users when components of a mixture could be released. The previous language, used the term "hazard". This language was changed since a hazard is an inherent property of the chemical, and exists no matter what quantity of the chemical is present. Health risk is a function of the inherent hazard and the exposure level. In accordance with scientific principles, concentrations which pose a health risk are always covered by HCS even though the concentrations in the mixture may be below the cut-off levels.
(d)(6) - Employers who are not planning to evaluate the hazards of chemicals they purchase can satisfy the requirements for written hazard evaluation procedures by stating in their written program that they intend to rely on the evaluations of the chemical manufacturer or importer.

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See also: CPL 2-2.238D - Inspection procedures for paragraph d

(e) Written Hazard Communication Program, Paragraph e

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(e)(1) - All employers with employees who are, or may be, exposed to hazardous chemicals known to be present in their workplaces, must develop, implement, and maintain at each workplace a written hazard communication program. Programs must be developed whether the employer generates the hazard or the hazard is generated by other employers.
(e)(2) - Multi-employer worksites are those establishments where employees of more than one employer are performing work. The MSDS information exchange or access requirements pertain to employers who introduce hazardous chemicals into the worksite and expose another employer's employees.
- Paragraph (e)(2)(i) requires an employer on a multi-employer worksite to include the methods he/she will use in his/her program to provide other employers with on-site access to MSDSs. This covers each hazardous chemical to which the other employers' employees may be exposed. Therefore, one employer does not have to physically give the other employer the MSDSs but rather must inform others of the location where the MSDSs will be maintained. (e.g., in the general contractor's trailer). The HCS allows employers to decide on the method of information exchange.
(e)(4) - Paragraph (e)(4) requires employers to make the written program available upon request to employees, OSHA and NIOSH, in accordance with the requirements of 29 CFR 1910.1020(e). This requirement means that the employer must provide a copy of the written program within the time periods discussed in 1910.1020 (i.e., no later than 15 working days after the request for access is made).

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See also: CPL 2-2.238D - Inspection procedures for paragraph e

(f) Labels and Other Forms of Warning, Paragraph f

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(f)(1) - Labels provide an immediate warning of the hazards to which employees may be exposed and also provide a link to other sources of more detailed information. Labels must contain the identity of the chemical, the name and address of the responsible party, and appropriate hazard warnings. The standard's definition of hazard warning has been amended to specifically include target organ effects: "any words, pictures, symbols, or combination thereof appearing on a label or other appropriate form of warning which convey the specific physical or health hazard(s), including target organ effects, of the chemical(s) in the container(s)." Appendix A of the HCS clearly states that employees exposed to health hazards must be apprised of both changes in body functions and the signs and symptoms that may occur to signal those changes.
- The definitions for "physical" and "health" hazard explain which hazards must be covered. The hazard warning must convey the particular hazards of the chemical , including target organ effects. Statements such as "Hazardous if Inhaled," "Caution," "Danger," are precautionary statements and are not to be considered appropriate hazard warnings. If, when inhaled, a chemical causes lung damage, then the appropriate hazard warning is "lung damage," not inhalation.
- The label is intended to be an immediate visual reminder of the hazards of a chemical. It is not necessary, however, that every hazard presented by a chemical be listed on the label. The data sheet is used for this purpose. Manufacturers, importers, and distributors will have to assess the evidence regarding the product's hazards and must consider exposures under normal conditions of use or in foreseeable emergencies when evaluating what hazards shall be put on the label. This is not to say that only acute hazards are to be listed on the label, or that well-substantiated hazards should be left off the label because they appear on the data sheet.
- The Agency believes that the American National Standards Institute's (ANSI) Standard Z129.1 - 1994 provides much useful information for employers regarding product labels and will generally be very helpful in complying with the HCS. The Agency has one concern, however, regarding ANSI's health hazard evaluation process. The ANSI standard states that labeling recommendations are not based only on the inherent properties of the chemical, but are directed to the avoidance of hazardous exposures resulting from customary and reasonably foreseeable occupational use, misuse, handling, and storage.
- Exposure calculations are not permitted in determining whether a hazard must appear on a label. If there is a potential for exposure other than in minute, trace or very small quantities, a hazard warning must be included when substantiated. Chemical Manufacturers, distributors, or importers may not exclude hazards based on presumed or perceived levels of exposure downstream (i.e., omitting a carcinogenic hazard warning because, in the supplier's estimate, presumed exposures will not be high enough to cause the effect). Exposure determines the degree of risk and should be addressed in training programs by the downstream employer.
- CSHOs [Compliance Safety and Health Officers] should note that a label incorporating a rating system is not permitted for shipped containers unless specific hazard warning information is affixed to the container.
- In situations where a hazardous chemical, the labeling information may either be posted on the outside of the vehicle or attached to the accompanying shipping papers or bill-of-lading. A label may not be shipped separately, even prior to shipment of the hazardous chemical, since to do so defeats the purpose of providing an immediate hazard warning. Mailing labels directly to purchasers by-passes employees involved in transporting and handling the hazardous chemical. (Note the exemption in (f)(2) for solid metals, plastic items, shipments of whole grain, and untreated lumber.)
- Labeling requirements apply for shipped containers leaving the workplace regardless of whether the intended destination is interstate or intrastate. Sealed containers intended for export must comply with the labeling provisions if these containers leave the workplace and if downstream employees, such as dock workers, may be exposed to the hazardous chemical(s).
(f)(2) - Solid metal, solid (untreated) wood, plastic items, and shipments of whole grain do not result in an exposure or potential exposure to employees during shipment. Therefore, labels for such items may be transmitted with the initial shipment itself or with the MSDS that is to be provided prior to or at the time of the first shipment, and need not be included with subsequent shipments unless the information changes. This applies only to solid materials which would not fall under the article exemption due to downstream use. Chemicals shipped with these materials remain covered by all labeling provisions of the standard. For example, treated lumber is covered since the lumber is not completely cured at the time of shipment and the hazardous chemical will, to a varying degree, offgas during shipment and be available for exposure to employees.

(f)(5) - An employer's obligation to label in-plant containers and of hazardous chemicals requires that appropriate hazard (f)(6) warnings appear on the label pursuant to (f)(5)(ii). Alternatively, an employer may provide general information regarding the hazards of chemicals, as long as other information required by the HCS is immediately available to employees.

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The standard recognizes the use of alternative in-plant labeling systems such as the HMIS (Hazardous Material Information System), NFPA (National Fire Protection Association), and others which may be used in industry. These systems rely on numerical and/or alphabetic codes to convey hazards and are generally non-specific. OSHA has permitted these types of in-plant labeling systems to be used when an employer's overall HCS program is proven to be effective despite the potential absence of target organ information on container labels. Under these circumstances, the employer should assure - through more intensified training - that its employees are fully aware of the hazards of the chemicals used. Additionally, employers must ensure that their training program instructs employees on how to use and understand the alternative labeling systems so that employees are aware of the effects (including target organ effects) of the hazardous chemicals to which they are potentially exposed. CSHOs [Compliance Safety and Health Officers] should determine whether workers can recognize what hazards correspond to what code ratings/symbols. This can be achieved through employee interviews.
Employers using alternative labeling systems must ensure that their employees are aware of all information required to be conveyed under the HCS. OSHA will make a plant-specific determination of the effectiveness of the complete program when an inspection is conducted. Any employer who relies on one of these types of alternative labeling systems, instead of using labels containing complete health effects information will - in any enforcement action alleging the inadequacy of the labeling system - bear the burden of establishing that it has achieved a level of employee awareness which equals or exceeds that which would have been achieved if the employer had used labels containing complete health effects information (59 F.R. 6156).
The key to evaluating the effectiveness of any alternative labeling method is to determine whether employees can correlate the visual warning on the in-plant container with the applicable chemical and its appropriate hazard warnings. The alternative labeling system must also be readily accessible to all employees in their work area throughout each work shift. For purposes of this provision, the term "other such written materials" does not include material safety data sheets used in lieu of labels.

CARCINOGEN LABELING (Subpart Z)

The labeling provisions of OSHA's comprehensive substance specific standards (Subpart Z of 1910) contain requirements which may pre-empt HCS labeling provisions. Therefore, containers of hazardous chemicals labeled in accordance with the substance- specific standard will be deemed to be in compliance with the health effects labeling requirements of the standard.
Those chemicals identified as being "known to be carcinogenic" and those substances that may "reasonably be anticipated to be carcinogenic" by NTP must have carcinogen warnings on the label and information on the MSDS. Appearing on NTP's annual list constitutes a positive finding of suspect or confirmed carcinogenicity.
IARC evaluates chemicals, manufacturing processes, and occupational exposures as to their carcinogenic potential. The IARC criteria for judging the adequacy of available data and for evaluating carcinogenic risk to humans were established in 1971 (Volumes 1-16) and revised in 1977 (Volumes 17 and following).

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- IARC monographs contain evaluations on specific chemicals or processes. At the conclusion of each evaluation, IARC provides a summary evaluation. Periodically, IARC publishes supplements in which chemicals that have already been evaluated in previous monographs are re-evaluated. In cases where a chemical has been re-evaluated, the most recent IARC evaluation shall be relied upon.
- IARC provides a summary in Supplement 7 of the chemicals which have been evaluated in Volumes 1-42. Table I of Supplement 7 provides a summary evaluation of all chemicals for which human and animal data were considered. Table I of Supplement 7 also provides a summary classification of a chemical's carcinogenic risk:
  - Group 1 - The agent is carcinogenic to humans.
  - Group 2A - The agent is probably carcinogenic to humans.
  - Group 2B - The agent is possibly carcinogenic to humans.
  - Group 3 - The agent is not classifiable as to its carcinogenicity to humans.
  - Group 4 - The agent is probably not carcinogenic to humans.
  All IARC listed chemicals in Groups 1 and 2A must include appropriate entries on both the MSDSs and on the label. Group 2B chemicals need be noted only on the MSDS.
  Individual monographs have been published subsequent to Supplement 7. For purposes of compliance with the MSDS and labeling requirements, the IARC monograph's summary evaluation for the chemical can generally be relied upon but it may be necessary to review the evaluations. In some cases, a group of compounds may be listed in the summary as carcinogenic but closer examination of the appropriate monograph will reveal that IARC had data to support the carcinogenicity of only certain compounds. Those compounds are the only ones covered by the HCS. IARC also evaluates specific industrial processes or occupations for evidence of increased carcinogenicity. Findings that an occupation is at increased risk of carcinogenicity, without identification of specific causative agents, do not affect label or MSDS requirements.

Table A1, below, represents a general guide regarding the labeling and MSDS requirements under the HCS. The existence of positive human evidence of carcinogenicity always requires carcinogen warnings on the label. In addition, the existence of one valid, positive study indicating carcinogenic potential in either animals or humans is sufficient basis for a notation on the MSDS.

Table A1 - Guidance for MSDS and Label Notations For Carcinogens
Source	MSDS	Label
Regulated by OSHA as a carcinogen	X	X
Listed on NTP carcinogen report	X	X
IARC - Group 1	X	X
IARC - Group 2A	X	X
IARC - Group 2B	X	Not Required
IARC - Group 3	Not Required	Not Required
IARC - Group 4	Not Required	Not Required
One positive study - animal only	X	Not Required
Multiple animal studies	X	Depends on evidence. National Office review needed.
One positive study - some human evidence	X	X

Thre may be instances where a carcinogen warning may be required for a chemical that is not listed by IARC or NTP, but multiple animal studies indicated carcinogenicity. Such cases shall be reviewed by the Regional Administrator and coordinated by the Directors of Compliance and Health Standards Programs.

Given the above criteria, benzene, which is regulated by OSHA as a carcinogen and for which several valid, positive human studies exist, would require carcinogen hazard warnings on both the MSDS and the label. Polyvinyl chloride resin must be labeled as a carcinogen but final molded and extruded products do not need to be (as per 29 CFR 1910.1017).

(f)(11) - A stay-of-enforcement has been placed on the requirement for revision of container labels within three months of becoming aware of significant hazard information. OSHA will alert the regulated community at the time that the stay is lifted.

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See also: CPL 2-2.238D - Inspection procedures for paragraph f

(g) Material Safety Data Sheets, Paragraph g

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(g)(1) - Chemical manufacturers/importers who choose to purchase data sheets for their products through information services (or sources such as, but not limited to, Internet providers or MSDS repositories) rather than developing the MSDSs themselves, retain responsibility for the downstream flow of information and for assuring MSDS accuracy. Distributors and employers who in good faith choose to rely upon the sheets provided to them by the chemical manufacturer/importer assume no responsibility for the content and accuracy of the MSDSs.
- The MSDS requirements apply to free samples provided by chemical manufacturers and importers since the hazards remain the same regardless of the cost to the employer.
- Even though solid metals, wood, plastic items and whole grains are covered differently under the labeling requirements, the full MSDS requirements pertain to these items.
- Chemical manufacturers and importers are not required to provide MSDSs for chemicals or articles which are not covered under HCS. If the chemical manufacturer/importer chooses to provide an MSDS for a non-covered chemical as a customer service, it should be noted on the sheet that the chemical or article has been found by the company not to be covered by the rule. For example:
- Distributors and employers are not required to maintain MSDSs for chemicals not covered by the HCS. No MSDS shall indicate that OSHA has made any findings for a product since the Agency does not make case-by-case hazard determinations. [Empahsis ours - ILPI]
- Scrap dealers are generally considered distributors and, since their products are not articles, would NOT be exempt from the HCS. If their suppliers are furnishing articles which they did not manufacture, (such as a broken refrigerator), the supplier is not required to provide a label or MSDS. However, if their suppliers added hazardous chemicals to the article, as would be the case if an employer scraps pipes containing a hazardous chemical or its residue, the supplier must provide a label and MSDSs to the scrap deale. Similarly, manufacturers are also required to pass on any information they have regarding known contaminants of the scrap, as would be the case if cutting fluids were present. In addition, "article" manufacturers that sell for scrap those produced items that fail specification or suppliers who provide, for example, metal tailings from a manufacturing process, are considered by OSHA to have the required knowledge of the item's constituents and must develop and transmit MSDSs and labels to downstream scrap dealers.
- Generally, the only requirement that the HCS places on non-manufacturing scrap dealers is that they send their downstream users those labels and MSDSs received from employers who have scrapped the materials.

(g)(2) - Information provided on MSDSs must be accurate. The safety and health precautions must be consistent with the hazards of the chemical.

The standard allows any MSDS format as long as all of the required information is included. The OSHA Form 20, obsolete since May 1986, does not meet all requirements of the current standard. The OSHA Form 20 may be used, provided all additional information required by the standard is included. OSHA has published an optional form (OSHA-174) which may be used to comply with the HCS. Additionally, the ANSI Z400.1-1993 standard for the preparation of MSDSs is a consensus standard which provides an order of presentation for MSDS information and is becoming internationally accepted. It provides guidance for preparers on the agreed order of information, document design, and other issues related to the usability of the completed MSDS. The ANSI standard provides valuable assistance to MSDS preparers, particularly small manufacturers, and is recommended for the preparation of MSDSs. [Emphasis ours - ILPI] Given the multitude of uses and users for which MSDSs provide information, the ANSI standard provides a uniform approach to addressing HCS concerns, while meeting the diverse needs of the regulated community.
MSDSs must be in English. This requirement was included to prevent importers of chemicals from supplying MSDSs in a foreign language. This requirement, however, does not prevent a chemical manufacturer/employer from translating MSDSs from English into foreign languages, in order to assist non-English speaking employees with training comprehension and hazard recognition.

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If a hazardous chemical is present in the mixture in reportable quantities (i.e., 0.1 percent for carcinogens, and 1 percent for other health hazards), it must be reported on the MSDS unless the mixture has been tested as a whole or unless the material is bound in such a way that employees cannot be exposed. For example, if crystalline silica is present in a wet mixture, it is possible that when the mixture dries, there is a potential for the silica to become airborne, and thus create a potential for exposure. In this case, the presence of silica must be indicated on the MSDS for the liquid mixture.
MSDSs do not have to report negative findings of carcinogenicity. However, if the MSDS format provides a space for a carcinogen entry, this space must be filled with accurate information as no blank spaces may be present on the MSDS.
MSDSs must include a telephone number for emergency information. There is no requirement that the responsible party staff a telephone line with personnel who can respond to an emergency 24 hours-a-day. The hours of emergency line operation are determined by the chemical manufacturer and should be set after considering the thoroughness of the MSDS, the health/physical hazards of the chemical, the frequency of use and immediacy of information needs, and the availability of information through alternative sources.

(g)(3) - MSDS preparers are required to mark all blocks on a form, even if no relevant information has been found for a given category. Computer-generated MSDSs, however, do not have to follow this requirement due to electronic formatting considerations.
(g)(4) - Where the evidence supports similar health hazards for a class or family of chemicals, it is acceptable for the MSDS to report those findings with respect to the entire class or family. Thus, a "generic" MSDS may address a group of complex mixtures, such as crude oil, natural gas, or bricks, which have similar hazards and characteristics because their chemical ingredients are essentially the same even though the specific composition varies in each mixture.
(g)(5) - The MSDS must be updated only when its preparer becomes newly aware of significant hazard information or ways to protect against the hazards of a chemical. The standard requires that these changes be added within three months of becoming aware of the information.
(g)(6) - Chemical manufacturers and importers have an affirmative duty to provide MSDSs to distributors and employers upon initial shipment and also upon request. Thus, a chemical manufacturer and/or importer shall be cited under (g)(6) if they withhold sending MSDSs to downstream users with an initial shipment, with the first shipment after updating MSDSs, or upon request pending a separate payment for the MSDSs.
(g)(7) - As in paragraph (g)(6), distributors have an affirmative duty to provide MSDSs to other distributors and downstream employers and cannot withhold sending the MSDSs pending separate payment. CSHOs [Compliance Safety and Health Officers] should be aware of various changes regulating the relationship between distributors (both retail and wholesale) and employers in the standard.

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(g)(8) - MSDSs must be readily accessible and there must be no barriers to employee access during the work shift. The Agency interprets the term "readily accessible" to mean immediate access to MSDSs [Emphasis ours - ILPI]. The employer has flexibility to determine how this will be accomplished. The use of electronic means such as computers with printers, microfiche machines, the Internet, CD-ROMS, fax machines, etc., is acceptable. Employers using electronic means to supply MSDSs to their employees must ensure that reliable devices are readily accessible in the workplace at all times; that workers are trained in the use of these devices, including specific software; that there is an adequate back-up system for rapid access to MSDSs in the event of an emergency, including power outages, equipment, and on-line access delays; and that the system is part of the overall hazard communication program of the workplace. Additionally, employees must be able to access hard copies of the MSDSs, and in the event of medical emergencies, employers must be able to immediately provide copies of MSDSs to medical personnel. Mere transmission of the requested information orally via telephone is not acceptable. [Emphasis ours - ILPI]
- Employers may use off-site MSDS management services to meet the requirements of the HCS only if MSDSs are readily available to employees, either as hard copies in the workplace or through electronic means and as long as the provisions outlined in the previous paragraph are ensured. Despite the use of an MSDS management service, the employer maintains primary responsibility for the hazard communication program, including receipt and use of the information to develop and implement a site-specific hazard communication program under paragraph (e) of the HCS.
- When immediate access to paper or hard copy MSDSs does not exist, CSHOs [Compliance Safety and Health Officers] should evaluate the performance of the employer's system by requesting a specific MSDS. Ultimately, the evaluation of an adequate system will rely on the professional judgement of the CSHO. Factors that may be appropriate to consider when determining if MSDSs are readily accessible include:
  1. Are the sheets or alternative methods maintained at a location and under conditions where employees can access them during each work shift, when they are in their work areas?
  2. If an electronic system is used for MSDS access (computer, fax, etc.) do employees know how to operate and obtain information from the system? (CSHOs [Compliance Safety and Health Officers] should request an employee to retrieve MSDSs using the electronic system.)
  3. Was there an emergency/accident where immediate access was critical?
  4. How quickly did the employer respond to the employee's request?
- Employees must have immediate access to MSDSs and be able to get information when they need it in order for an employer to be in compliance.
- On multi-employer job sites, employers who produce, use or store hazardous chemicals in such a way that other employers' employees are exposed or potentially exposed, must communicate to other employers how the means of access to MSDSs will be accomplished.
(g)(9) - Employees who work at more than one site during the work shift must be able to obtain MSDS information immediately in an emergency. MSDSs may be kept at the primary workplace facility, as long as the employer has a representative available at all times to ensure ready access to this information. This is the only situation in which an employer is allowed to transmit hazard information via voice communication. The employer must address in the written hazard communication program how MSDS information will be conveyed to remote worksites.

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See also: CPL 2-2.238D - Inspection procedures for paragraph g

(h) Employee Information and Training, Paragraph h

(h) - Employees are to be trained at the time they are assigned to work with a hazardous chemical. The intent of this provision is to have information prior to exposure to prevent the occurrence of adverse health effects. This purpose cannot be met if training is delayed until a later date.
The training provisions of the HCS are not satisfied solely by giving employee the data sheets to read. An employer's training program is to be a forum for explaining to employees not only the hazards of the chemicals in their work area, but also how to use the information generated in the hazard communication program. This can be accomplished in many ways (audiovisuals, classroom instruction, interactive video [Note: training may need to be site-specific and "hands-on" training may be required under certain circumstances - ILPI]), and should include an opportunity for employees to ask questions to ensure that they understand the information presented to them.
Furthermore, the training must be comprehensible. If the employees receive job instructions in a language other than English, then the training and information to be conveyed under the HCS will also need to be conducted in a foreign language

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Additional training is to be done whenever a new physical or health 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. As with initial training, and in keeping with the intent of the standard, the employer must make employees specifically aware which hazard category (i.e., corrosive, irritant, etc.) the solvent falls within. The substance-specific data sheet must still 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 carcinogenic hazards must be conducted for employees in those work areas where employees will be exposed.
It is not necessary that the employer retrain each new hire if that employee has received prior training by a past employer, an employee union, or any other entity. General information, such as the rudiments of the HCS could be expected to remain with an employee from one position to another. The employer, however, maintains the responsibility to ensure that their employees are adequately trained and are equipped with the knowledge and information necessary to conduct their jobs safely. It is likely that additional training will be needed since employees must know the specifics of their new employers' programs such as where the MSDSs are located, details of the employer's in-plant labeling system, and the hazards of new chemicals to which they will be exposed. For example, (h)(3)(iii) requires that employees be trained on the measures they can take to protect themselves from hazards, including specific procedures the employer has implemented such as work practices, emergency procedures, and personal protective equipment to be used. An employer, therefore, has a responsibility to evaluate an employee's level of knowledge with regard to the hazards in the workplace, their familiarity with the requirements of the standard, and the employer's hazard communication program.

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Training need not be conducted on each specific chemical found in the workplace, but may be conducted by categories of hazard (e.g., carcinogens, sensitizers, acutely toxic agents) that are or may be encountered by an employee during the course of his duties.
The training requirements also apply if the employer becomes aware via the multi-employer worksite provision of exposures of his/her employees to hazards for which they have not been previously trained.
HCS training of temporary employees is a responsibility that is shared between the temporary agency and the host employer. The host-employer holds the primary responsibility for training since the host employer uses or produces chemicals, creates and controls the hazards, and is, therefore, best suited to inform employees of the chemical hazards specific to the workplace environment. The temporary agency, in turn, maintains a continuing relationship with its employees, and would be, at a minimum, expected to inform employees of the requirements of the standard. Contracts between the temporary agency and the host-employer should be examined to determine if they set out the training responsibilities of both parties, in order to ensure that the employers have complied with all requirements of the regulation.
A frequently overlooked portion of the training provisions is that dealing with emergency procedures. The HCS training is expected to be proportional to the hazards of the workplace. If a chemical is very hazardous, more information would be expected to be provided on the MSDS. Therefore, the training for emergency procedures, including information about the characteristics of the chemical and precautions to be taken, would need to be more extensive. Section 1910.1200(h) requires training of employees on (among other things) the measures employees can take to protect themselves from hazards including emergency procedures, [ don't forget PPE - ILPI ] and an explanation of the information on the MSDSs.
Questions have arisen regarding the interface of 29 CFR 1910.120 [Hazardous Waste Operations and Emergency Response, commonly referred to as HAZWOPER] training requirements for emergency procedures and those for the HCS. The scope and extent of employee training regarding emergency procedures will depend upon the employer's emergency response plan. If the employer merely intends to evacuate the work area, the training in emergency procedures could be limited, for example, to information on the emergency alarm system in use at the worksite, evacuation routes, and reporting areas.
- In situations where employees are expected to moderate or control the impact of the emergency in a manner similar to an emergency responder, training under 1910.120 would be required. Employers who fall under the scope of HAZWOPER must have either a written emergency response plan or an emergency action plan. If employers expect their own employees to respond to a potential emergency involving a hazardous substance, then the employer must create an emergency response plan and the employees must be trained to perform the duties expected. HAZWOPER does not cover response to incidental spills that do not have the potential for becoming an emergency. Training for responding to such incidental spills would be under the HCS and would include, at a minimum, leak and spill cleanup procedures and the use of appropriate PPE.
- Employees that are required to respond to spills that have the potential for becoming an emergency, are covered by the provisions of 1910.120(q). (See definition of emergency response in 1910.120(a)(3).) Therefore, in workplaces where there is a potential for emergencies, the employer's HCS training program would have to address the HAZWOPER emergency response plan and/or emergency action plan. Training under the HCS can be adapted to encompass all of the required training competencies in 29 CFR 1910.120(q)(6)(i), the first responder awareness level, and a single training session could be fashioned to satisfy the requirements of both standards.

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See also: CPL 2-2.238D - Inspection procedures for paragraph h

(i) Trade Secrets, Paragraph i

(i)(1) - Despite the claim that a hazardous chemical, or a constituent thereof, is a trade secret, the PEL, TLV, or other designated exposure limit must be included on the MSDS.
(i)(2) - The designation of an incident as a "medical emergency" is left to the discretion of the treating physician or nurse.

See also: CPL 2-2.238D - Inspection procedures for paragraph i

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