The Occupational Safety and Health Administration (OSHA) concluded last week a three-day informal public hearing on its February 16, 2021, notice of proposed rulemaking (NPRM) to amend the Hazard Communication Standard (HCS). The NPRM was open for comment until May 19, 2021. OSHA stated that it would schedule an informal public hearing on the NPRM if a request was made during the comment period. A request was made, and OSHA scheduled the public hearing for September 21-23, 2021.

Background

The HCS is the federal-level regulation that sets forth the classification, labeling, Safety Data Sheet (SDS), and training requirements for hazardous chemicals intended to be used, handled, or stored in workplaces. The current HCS is based on the third revised edition (Rev 3) of the United Nations (UN) Globally Harmonized System of Classification and Labeling of Chemicals (GHS). The proposed changes include many significant changes intended to update the HCS to align with the seventh revised edition (Rev 7) of GHS. The transition period proposed is one year for chemical manufacturers, importers, and distributors of substances and two years for chemical manufacturers, importers, and distributors of mixtures after the effective final rule is published.

In 2012, the first update to the HCS since 1994 was published in the Federal Register. 77 Fed. Reg. 17574. The notice revised and amended the previous HCS substantially as it introduced the GHS concepts into the regulatory framework. At the time of publication, HCS 2012 was based on Rev 3 GHS. The UN updates and revises the GHS model on a biannual basis, and at this time, the most current version is Rev 9. OSHA is proposing an update to align with Rev 7 and includes several other points of clarification and revision in the notice.

Overview of Key Proposed Amendments

Highlights of several major changes include the following:

• Revisions to align with Rev 7, with consideration of specific elements of Rev 8;

• Changes to labeling, including new label elements and accommodations to address small containers and bulk shipments;

• Revisions, clarifications, and additions to definitions;

• Updates to testing methods for various endpoints;

• Considerations for concentration ranges for Trade Secrets;

• Proposed revisions to SDS content; and

• Proposal for scheduled updates to the HCS.

For a more detailed discussion on a few of the more significant changes, see our February 16, 2021, memorandum, “OSHA Proposes Amendments to the Hazard Communication Standard.”

Public Hearing Highlights

The public hearing included witnesses who expressed an interest in participating and who filed a Notice of Intent to Appear (NOITA). Given a keen interest in the changes, a fair number of the parties who appeared provided both oral remarks and written comments to the NPRM. All witness statements are available for the public to review. Witness statements tended to coalesce around several key themes, including the following:

• There was a consensus view that updates to Rev 7 are necessary and inclusion of certain elements of Rev 8 are beneficial, but some expressed the view that this mixed approach would create “confusion” with key trading partners;

• The proposal for changes to labels including adding a mandatory “date the chemical is released for shipment,” with the intent to reduce relabeling activities, was exceedingly problematic;

• The proposed expansion of the scope of hazard determination in 29 C.F.R. Section 1910.1200(d)(1) to include any hazards associated with a change in the chemical’s physical form under normal conditions of use and identification of hazards that result from a chemical reaction (changing the chemical structure of the original substance or mixture) was challenging;

• OSHA should consider alignment of terms and definitions for certain physical-chemical properties and bulk shipments with those of other U.S. regulations as the current NPRM proposed new definitions that are likely to create confusion;

• There was agreement on the idea of the accommodations for reduced labeling requirements for small containers, but there were also concerns that the NPRM does not align with current practices with key trading partners;

• Changes to trade secrets, including the mandatory use of prescribed concentration ranges that are proposed in the NPRM, were generally viewed as controversial and undesirable;

• Implementation dates should be extended from the proposed one year for substances and two years for mixtures. Witnesses offered mixed comments on how to address this issue, but all agreed the timeframe was inadequate to address the major changes proposed in the NPRM;

• Many expressed the view that OSHA’s cost estimates to implement the proposed change are inaccurate; and

• There were mixed comments on when and how OSHA should address future HCS updates.

Commentary

Many of the proposed changes were entirely predictable. OSHA previously expressed its intent to align the HCS with more recent revisions of GHS, and OSHA’s intent to issue an NPRM has appeared on the U.S. regulatory agenda since 2014. As the UN model is updated biannually, the update of the HCS to Rev 7 will still lag with the UN GHS Rev 8 and the recent publication of UN GHS Rev 9. OSHA does address key elements of Rev 8 as an option in this proposal. This approach, if adopted, will make OSHA’s approach slightly different from multiple countries that are in the process of adopting or revising legislation to align with Rev 7. As this NPRM took more than seven years to issue, stakeholders evaluated the impact of the changes, provided written comments to the NPRM, and last week many appeared before OSHA to provide public testimony on these changes.

OSHA includes in the proposal several labeling changes. Interested parties provided generally consistent testimony on these changes and the proposals that were largely considered more problematic. The introduction of new labeling elements to reduce relabeling was generally viewed as unhelpful; many indicated that these changes would create unnecessary burden without providing much worker benefit. The changes to reduce content on small packages were viewed as favorable, but most agreed that the approach did not align with the approach maintained by key trading partners and should not require proof that alternative approaches are not applicable.

The proposed changes intended to allow concentration ranges as an approach for addressing trade secrets and the inclusion of prescribed proposed ranges to create better alignment with Canada were mostly viewed as favorable, but some questioned the approach. Some witnesses testified that they were not sufficiently protective, while others expressed concern that workers may not be provided sufficient information on the chemicals they handle if these changes were implemented.

Multiple witnesses testified on the challenges of addressing hazard identification for downstream uses if the language of 29 C.F.R. Section 1910.1200(d)(1) was to be expanded. Most urged OSHA to withdraw the expansion and to address the issue as a separate item in a future HCS update. OSHA’s intent in proposing this change is to include Letters of Interpretation in the NPRM. Many testified that the practical application of this expanded scope would be burdensome and would not provide benefit to workers.

OSHA asked most witnesses to provide additional details on cost estimates and examples of supply chain and labeling to address many of the points noted. All of the testimony provided will be available for public review sometime in mid-December, after parties have had an opportunity to submit additional information before October 30, 2021, and final briefs are expected by November 30, 2021.