[Federal Register Volume 65, Number 192 (Tuesday, October 3, 2000)]
[Rules and Regulations]
[Pages 59048-59104]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-24803]



[[Page 59047]]

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Part II





Department of Labor





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Mine Safety and Health Administration



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30 CFR Parts 42, 47, 56, 57 and 77



Hazard Communication (HazCom); Interim Final Rule

Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / 
Rules and Regulations

[[Page 59048]]


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DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Parts 42, 47, 56, 57, and 77

RIN 1219-AA47


Hazard Communication (HazCom)

AGENCY: Mine Safety and Health Administration (MSHA), Labor.

ACTION: Interim final rule; request for comments.

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SUMMARY: We (MSHA) are establishing this interim final rule entitled 
``Hazard Communication (HazCom)'' (30 CFR Part 47) to reduce injuries 
and illnesses related to chemicals in the mining industry. The standard 
requires mine operators to assess the hazards of chemicals they produce 
or use and provide information to miners concerning chemical hazards by 
means of a written chemical hazard communication program; labeling 
containers of hazardous chemicals; providing access to material safety 
data sheets (MSDSs); and training miners. In response to the National 
Performance Review and President Clinton's subsequent Executive 
Memorandum on Plain Language in Government Writing, dated June 1, 1998, 
we wrote this interim final rule in a different style than the one used 
in the proposal. Most of the requirements in this interim final rule, 
however, are substantially the same as the proposed rule.
    This interim final rule reflects comments received on the Notice of 
Proposed Rulemaking, public hearings, and the notice published in the 
Federal Register on March 30, 1999 (64 FR 15144), requesting comments 
on the impact of certain regulatory mandates and related Executive 
Orders on the proposed rule. In response to the most recent re-opening 
of the record, commenters requested an opportunity to address the 
provisions of the whole rule.
    Although not legally required, we think the additional opportunity 
to comment on the interim final rule is appropriate given the new 
``plain English'' format and the passage of time since the close of the 
original comment period. For these reasons, we are allowing the public 
an additional opportunity to comment. All comments received will become 
part of the rulemaking record. We will publish our response to the 
comments received during this additional comment period in the Federal 
Register.

DATES: Effective date: This interim final rule is effective October 3, 
2001.
    Comment period: Comments on this interim final rule must be 
received by November 17, 2000 to ensure consideration.

ADDRESSES: Comments may be transmitted by electronic mail, fax, or 
mail, or dropped off in person at any MSHA office. Comments by 
electronic mail must be clearly identified as such and sent to this e-
mail address: <a href="/cdn-cgi/l/email-protection#e98a8684848c879d9aa9a4baa1a8c78e869f"><span class="__cf_email__" data-cfemail="395a5654545c574d4a79746a7178175e564f">[email protected]</span></a>. Comments by fax must be clearly 
identified as such and sent to: MSHA, Office of Standards, Regulations, 
and Variances, 703-235-5551. Send mail comments to: MSHA, Office of 
Standards, Regulations, and Variances, 4015 Wilson Boulevard, Room 631, 
Arlington, VA 22203-1984, or to any MSHA district or field office. 
Interested persons are encouraged to supplement written comments with 
computer files or disks; please contact the Agency with any questions 
about format.

FOR FURTHER INFORMATION CONTACT: Carol J. Jones, Director; MSHA Office 
of Standards, Regulations, and Variances; 703-235-1910.

SUPPLEMENTARY INFORMATION:

I. Introduction

    We identify our hazard communication standard as ``HazCom'' to 
abbreviate the term and to help readers distinguish it from the 
Occupational Safety and Health Administration's (OSHA) Hazard 
Communication Standard (HCS). In this interim final rule, ``you'' 
refers to production-operators and independent contractors, who have 
the primary responsibility for complying with our standards. Where 
needed, we use the terms ``operator'' or ``independent contractor'' to 
avoid confusion.
    HazCom's appearance is different from the 1990 proposed rule, which 
we modeled after OSHA's HCS. We have made a few substantive changes in 
the interim final rule where comments and information submitted to the 
record justified a change. Changes from the proposal are also meant to 
clarify intent, reduce burden, and eliminate unnecessary language and 
needless repetition. We have tailored provisions to better fit the 
mining industry. Despite the change of style, the substance of the 
requirements for most provisions remains the same as in the proposal. 
We tried to organize the standard in a way that optimized clarity, 
logic, and accessibility to the requirements.
    When HazCom was originally proposed as part 46 in 1990, a 
Congressional budget rider prohibited us from expending appropriated 
funds to enforce training requirements at surface nonmetal mines. The 
1999 training rider, however, authorized us to expend funds to propose 
and promulgate a final training standard for surface nonmetal mines. 
We, therefore, promulgated new training standards on September 30, 
1999, which address the exempted mining operations. We chose part 46 as 
the proper place in the Code of Federal Regulations for publication of 
this training rule so that it would be near our other training 
standards promulgated under section 115 of the Federal Mine Safety and 
Health Act of 1977. After publication of part 46, we determined that 
the proper place to publish the HazCom rule would be as a new part 47. 
This required us to move the existing part 47, National Mine Health and 
Safety Academy, to part 42 with other administrative provisions.
    The following is an outline of this HazCom preamble to help you 
find information more quickly.

I. Introduction.
    A. Overview of Rulemaking.
    B. Regulatory History.
II. Paperwork Reduction Act.
III. Discussion of the Interim Final Rule.
    A. Subpart A--Purpose and Scope of HazCom.
    B. Subpart B--Hazard Determination.
    C. Subpart C--HazCom Program.
    D. Subpart D--Container Labels and Other Forms of Warning.
    E. Subpart E--Material Safety Data Sheet (MSDS).
    F. Subpart F--HazCom Training.
    G. Subpart G--Making HazCom Information Available.
    H. Subpart H--Trade Secrets.
    I. Subpart I--Exemptions.
    J. Subpart J--Definitions.
    K. Appendices.
IV. Legal Authority and Feasibility.
    A. Statutory Requirements.
    B. Finding of Significant Risk.
    C. Finding of Feasibility.
    D. Petitions for Modification.
V. The Regulatory Flexibility Act, the Small Business Regulatory 
Enforcement Fairness Act, and Executive Order 12866.
    A. Alternatives Considered.
    B. Consultation with SBA.
    C. Compliance Costs.
    D. Regulatory Flexibility Certification and Factual Basis.
    E. Benefits.
VI. Other Regulatory Considerations.
    A. Unfunded Mandates Reform Act of 1995.
    B. The National Environmental Policy Act of 1969.
    C. Executive Order 12630: Government Actions and Interference 
with Constitutionally Protected Property Rights.
    D. Executive Order 12988: Civil Justice Reform.
    E. Executive Order 13045: Protection of Children from 
Environmental Health Risks and Safety Risks.

[[Page 59049]]

    F. Executive Order 13084: Consultation and Coordination with 
Indian Tribal Governments.
    G. Executive Order 13132: Federalism.

A. Overview of Rulemaking

    MSHA's HazCom standard expresses two safety and health principles: 
miners have a right to know about the chemical hazards where they work 
and you have a responsibility to know about the chemical hazards at 
your mine. HazCom requires you to inform miners about chemical hazards. 
Chemically-related injuries and illnesses in the mining industry 
indicate that many operators and miners are not as aware of the 
presence and nature of hazardous chemicals as they should be. Injury 
and illness reports sent to us describe instances where miners--
    <bullet> Were using inadequate or improper personal protective 
equipment,
    <bullet> Did not know what they had been exposed to that caused 
their symptoms,
    <bullet> Failed to follow instructions because they misunderstood 
or were unaware of the consequences, and
    <bullet> Inadvertently misused a chemical from an unlabeled 
container.
    We expect the HazCom program--by increasing both knowledge and 
awareness--to bolster good work procedures, foster safer behavior, and 
reduce injuries and illnesses related to chemicals. When put into 
effect at a mine, HazCom should encourage better hazard identification 
and assessment; more consistent use of personal protective equipment; 
more informed process decisions; and greater awareness and care when 
working near hazardous chemicals.
    HazCom is an information and training standard about chemical 
hazards. To be successful in reducing accidents and injuries, your 
HazCom program must give miners an understanding of chemical hazards by 
informing them about mine processes and job procedures that can lead to 
chemical exposures. This can be a difficult technical subject using 
unfamiliar terms, scientific symbols, and complex physical laws. For 
the training to be credible, it must balance scientific accuracy 
against the miner's need to understand.
1. The Need for HazCom
    Our existing standards already require you to train miners in 
occupational health, hazard recognition, and the safety and health 
aspects of tasks, among other subjects. Except at underground coal 
mines, you must also label hazardous materials. Other HazCom 
provisions, however, are not currently required for mines. For example, 
currently you are not required to collect material safety data sheets 
(MSDSs), give copies of hazard information to miners, or keep a list of 
the hazardous chemicals at your mine. This rule is intended to ensure 
that your mine has a program that emphasizes chemical hazards.
    OSHA's HCS has evolved to apply to all industries in OSHA 
jurisdiction since it was originally promulgated in 1983 and, 
consequently, it already impacts some mines. Because of the HCS, 
manufacturers began sending labeled chemicals and providing MSDSs with 
product shipments to mines. Some mine operators began labeling their 
products and sending MSDSs with their products to help customers meet 
OSHA's HCS requirements. Many operators have segments of their business 
in OSHA jurisdiction and have created company-wide programs that 
brought their MSHA properties, as well as their OSHA properties, into 
compliance with the HCS. Some operators began complying with OSHA 
requirements in anticipation of a similar MSHA standard, using the 
unregulated interval as a time to assimilate the requirements into 
their mine's standard operating procedures. Although some operators on 
their own initiative have established programs that meet HazCom's 
provisions and goals, and have integrated OSHA's HCS requirements into 
the cultures of their mines, most have not made that effort or fully 
met those objectives.
    Coal mine example. In a 1997 case investigated by MSHA, an eastern 
Kentucky coal miner was periodically assigned to seal permanent 
brattices using a highly alkaline mortar. The miner had noticed after 
these assignments that his hands felt as if they were burning. He 
thought this resulted from the mortar.
    Although the operator assigned the miner other jobs for a while, 
the burning sensation did not go away and the miner was eventually 
returned to brattice work. On the Friday night after the reassignment, 
the miner's hands were burning painfully, and the raw, irritated skin 
eventually erupted in angry, oozing sores. On Sunday, the miner was 
hospitalized and placed on an intravenous antibiotic. He spent 6 days 
in the hospital and missed 2 weeks of work.
    During his recuperation, his physician referred the miner to a 
dermatologist, who asked the miner to get a copy of the mortar's MSDS 
in order to evaluate the problem and provide the proper treatment. When 
the miner asked the company for a copy of the MSDS, the safety director 
at first said he would have to arrange for it and then later refused to 
give it to him, saying that the miner had no right to the information.
    Metal and nonmetal mine example. In another recent case at a large 
Arizona copper mine, a tailings pond was so acidic it was damaging the 
system's pumps. The company hired a contractor to place lime in the 
pond to neutralize the acid and assigned a miner to the project, a job 
he had never done, and one presenting hazards the miner had never been 
trained for.
    About 4:00 p.m., the miner, trying to get the work done, walked 
down the slope of the pond and stepped onto an area of lime that 
appeared solid. His right leg sank into the lime up to his hips and he 
had to put his other leg into the material before he could get out. No 
emergency showers were available at the pond site for washing. Covered 
in wet lime, the miner drove himself 2 miles to the front gate while 
calling for help into a two-way radio.
    Through a series of unfortunate circumstances, the victim was not 
admitted to a hospital until 5:25 p.m. After stabilizing him, the 
hospital staff moved him the next day to the burn center, where he 
spent over a month with second- and third-degree burns over the lower 
half of both legs and the upper part of his right leg. He missed more 
than 2 months of work at the mine, returning to restricted duty while 
receiving a series of skin grafts.
    Chemical hazards in mining. Between 1984 and 1989, the National 
Institute for Occupational Safety and Health (NIOSH) surveyed almost 
500 individual mines covering 70 commodities and about 60,000 miners 
for the National Occupational Health Survey of Mining (NOHSM). NOHSM 
documented over 10,000 individual hazardous chemicals and mixtures of 
hazardous chemicals to which miners could be exposed.
    Chemicals in the mining industry pose a range of hazards, from mild 
health effects to death. Some chemicals cause or contribute to chronic 
health problems, such as heart or kidney disease or cancer. The 
relationship between these injuries and illnesses and exposure to a 
chemical can be obscured by years of latency between the exposure and 
the onset of symptoms. Other chemicals cause acute injuries or 
illnesses such as dermatitis, burns, and poisonings. Some chemicals 
pose hazards by contributing to fires and explosions.
    In considering a HazCom standard, we reviewed reports of 
chemically-related injuries and illnesses reported to MSHA. From 
January 1990 through December 1999, the mining industry

[[Page 59050]]

reported over 2500 chemical burns. More than 1,200 of these burns were 
lost work time cases, involving over 50 commodities, more than 60 job 
classifications, and exposures to chemicals at all sizes and types of 
mines. Bituminous coal mines reported the most chemical burns, and 
crushed and broken limestone mines reported the most in the metal and 
nonmetal industry. This same accident and injury data indicated more 
than 400 poisonings. This data takes into account only some of the 
acute effects reported as a result of chemical exposures and does not 
include the chronic effects that we know also occur.
    Some operators have a comprehensive HazCom program in place; others 
have some elements of a HazCom program; and some have none. We intend 
the HazCom standard to ensure that all operators give all miners the 
information, training, and access needed to protect themselves from 
chemically-related injuries and illnesses. HazCom unifies, focuses, and 
clarifies existing requirements and fills voids in miner protection.
2. The Major Provisions of HazCom
    Hazard determination. You must identify the chemicals at your mine 
and determine if they can present a physical or health hazard to 
miners. If you produce a chemical, such as gold, molybdenum sulfide, 
calcium oxide (lime), sand, and phosphates, among others, you must 
review available scientific evidence to determine if the material is 
hazardous. Some of the chemicals you produce that result from a 
chemical reaction, such as nitrogen oxides from blasting, may already 
be addressed on the MSDS for the original chemical. In this example, 
the original chemical is the explosive. For a chemical or mixture 
brought to your mine, such as diesel fuel, lubricants, solvents, and 
paints, you can rely on the evaluation performed by the chemical's 
manufacturer or supplier.
    HazCom program. You must develop, implement, and maintain a written 
comprehensive plan to formalize a HazCom program. The program must 
include provisions for container labeling, collection and availability 
of MSDSs, and training of miners. It also must contain a list of the 
hazardous chemicals known to be present at the mine; how you will 
inform miners of the hazards of non-routine tasks and of chemicals in 
unlabeled pipes. If your mine has more than one operator or has an 
independent contractor onsite, it must also describe how you will 
inform them about the chemical hazards and protective measures needed.
    Container labeling. A label is an immediate warning about a 
chemical's most serious hazards. You must ensure that containers of 
hazardous chemicals are marked, tagged, or labeled with the identity of 
the hazardous chemical and appropriate hazard warnings. The label must 
be in English and prominently displayed. We are not requiring you to 
label mine products that go off mine property though you must provide 
the information if a customer asks for it.
    Material safety data sheet (MSDS). A chemical's MSDS provides 
comprehensive technical and emergency information. It serves as a 
reference document for operators, exposed miners, health professionals 
providing services to those miners, and firefighters or other public 
safety workers. You must have an MSDS for each hazardous chemical at 
your mine. The MSDS must be accessible in the work area where the 
chemical is present or in a central location readily accessible to 
miners in an emergency.
    HazCom training. You must establish a training program to ensure 
that miners understand the hazards of each chemical in their work area, 
the information on MSDSs and labels, how to access this information 
when needed, and what measures they can take to protect themselves from 
harmful exposure. You may already cover some of this information in 
your current training program. If so, you do not have to re-train 
miners in topics they have already been trained in.
    Making HazCom information available. You must provide miners, their 
designated representatives, MSHA, and NIOSH with access to the 
materials that are part of the HazCom program. These include the HazCom 
program, the list of hazardous chemicals, labeling information, MSDSs, 
training materials, and any other material associated with the HazCom 
program. You do not have to disclose the identity of a trade secret 
chemical except when there is a compelling medical need.
3. The Basis for the HazCom Interim Final Rule
    In addition to the requirements in the Federal Mine Safety and 
Health Act of 1977 (Mine Act) and other applicable legislation, we 
based our interim final rule primarily on comments received in response 
to the Advance Notice of Proposed Rulemaking (ANPRM), the Notice of 
Proposed Rulemaking, and the public hearings. We also considered--
    <bullet> The comments received in response to our recent Notice in 
the Federal Register;
    <bullet> Our experience in the mining industry; and
    <bullet> The related standards of other Federal agencies.
    To the extent practical, the substance of our HazCom requirements 
is the same as that in OSHA's HCS. We developed some provisions to be 
consistent with other MSHA standards, such as the retention period for 
training records. Two areas where our standard significantly differs 
from OSHA's are in the inclusion of hazardous waste among the chemicals 
of concern and the omission of a requirement to label products going 
off mine property. OSHA's HCS exempts certain hazardous wastes because 
there are employee protections in other rules which address these 
hazards, such as 29 CFR 1910.120, Hazardous Waste Operations and 
Emergency Response (Hazwoper) and EPA's regulations under the Resource 
Conservation and Recovery Act of 1976 (RCRA). Because we do not have 
standards that address miners' exposure to hazardous waste, we needed 
supplemental requirements to ensure that miners working with hazardous 
waste understand the associated hazards and take precautions.
    HazCom does not require you to label products that go off mine 
property. When the product leaves mine property, however, you must 
comply with the OSHA HCS which requires hazardous chemicals to be 
labeled.
    With few exceptions, if your HazCom program complies with OSHA's 
HCS, it also will comply with this interim final rule. We will publish 
a Compliance Guide to help you understand the application of this rule. 
It will contain numerous examples, suggestions, and explanations of how 
we interpret the interim final rule.

B. Regulatory History

    Petition for Rulemaking. On November 2, 1987, the United Mine 
Workers of America (UMWA) and the United Steelworkers of America (USWA) 
jointly petitioned us to adapt OSHA's HCS in both coal and metal and 
nonmetal mines and to propose it for the mining industry. They based 
their petition on the need for miners to be better informed about 
chemical hazards.
    In their petition, the UMWA and USWA argued that miners deserve 
protection equal to that of other workers. To support their position, 
the petition cited an incident in which miners at an iron ore mine were 
experiencing adverse health effects. These miners asked the operator 
for MSDSs for the flotation chemicals used at the mine to determine the 
identity of the chemical causing the symptoms. Although the State in 
which the mine was located had a right-to-know law,

[[Page 59051]]

this law did not cover mines. Because we did not have a standard to 
require the operator to provide MSDSs to miners, the operator refused 
several times to provide the requested MSDSs. The operator finally 
provided the MSDSs after lengthy negotiations. The local union used the 
information provided in the MSDSs to discuss safeguards with the 
company.
    The petition also specifically noted that work at both surface and 
underground coal and metal and nonmetal mines exposes miners to a 
variety of hazardous chemicals. For example, the petition stated that 
explosives contain organic nitrates that produce nitrogen oxides and 
ammonia when detonated; roof bolting systems contain plastic resins and 
reactants; solvents used in equipment maintenance are both toxic and 
flammable; and mill reagents can release hydrogen sulfide, cyanide, or 
other dangerous chemicals.
    Preliminary rulemaking. In response to this petition, we issued an 
advance notice of proposed rulemaking (ANPRM) on hazard communication 
on March 30, 1988 (53 FR 10256). In the ANPRM, we indicated that we 
would use the OSHA HCS as a basis for our standard and requested 
specific comments on a number of related issues. We published a notice 
of proposed rulemaking on hazard communication for the mining industry 
on November 2, 1990 (55 FR 46400). We also held three public hearings 
in October 1991--one each in Washington, DC; Atlanta, GA; and Denver, 
CO. The record closed on January 31, 1992.
    Public response. We received a wide variety of comments on our 
ANPRM and proposed rule. Commenters included both small and large 
mining companies; a variety of trade associations, including those 
representing specific minerals; State mining associations; chemical and 
equipment manufacturers; national and local labor unions; a member of 
Congress; and two Federal Agencies. There were a combined total of 121 
written comments submitted in response to the ANPRM (50), the proposed 
rule (63), and the re-opening of the record (8), as well as oral 
testimony presented at public hearings.
    Limited reopening of the record. While we were working to finalize 
this rulemaking, Congress passed several laws which affected our 
rulemaking procedures. These statutory mandates and related Executive 
Orders require us to evaluate the impact of a regulatory action on 
small mines; \1\ State, local, and tribal governments; \2\ and the 
health and safety of children.\3\
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    \1\ The Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA) Amendments to the Regulatory Flexibility Act of 1980, 
Pub. L. No. 96-354, 94 Stat. 864 (1980) (codified as amended at 5 
U.S.C. 601-612).
    \2\ The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 et 
seq.); and Executive Order 13084, Consultation and Coordination with 
Tribal Governments.
    \3\ Executive Order 13045, Protection of Children from 
Environmental Health Risks and Safety Risks.
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    In addition, we requested comments on the information collection 
and paperwork requirements of certain provisions of the proposal, now 
considered as an information collection burden under the expanded 
definition of ``information'' under the Paperwork Reduction Act of 
1995.\4\
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    \4\ Pub. L. No. 104-13, 109 Stat. 163 (1995) (codified as 
amended at 4 U.S.C. 3501-3520). When we published the HazCom 
proposal, the information collection and paperwork requirements were 
not an information collection burden under the 1980 Paperwork 
Reduction Act because they were third-party disclosures. Under the 
Paperwork Reduction Act of 1995, agency rules that require 
businesses or individuals to maintain information for the benefit of 
a third-party or the public, rather than the government, are covered 
by the Act under the definition of ``information.''
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    Most MSHA regulations do not require an evaluation of their impact 
on the environment. Health standards do, however. This was brought to 
our attention and we took this opportunity to remedy the oversight. We 
requested comments on the effect of the proposed rule on the 
environment because the proposal had not.\5\
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    \5\ The National Environmental Policy Act (NEPA) of 1969 (42 
U.S.C. 4321 et seq.).
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    We reopened the rulemaking record on March 30, 1999 (64 FR 15144) 
to receive comments on the impact of the proposed rule in accordance 
with these regulatory mandates and Executive Orders. The record closed 
on June 1, 1999.
    Public response to limited reopening. We received seven comments, 
mostly from trade associations and labor organizations, on this limited 
reopening of the rulemaking record. The National Mining Association 
(NMA) urged us to reopen the rulemaking record in its entirety because 
the information in the record is outdated since the proposal was 
published on November 2, 1990. The NMA indicated this action would 
improve the effectiveness and quality of the HazCom standard because 
sectors of the mining industry that have incorporated OSHA's HCS can 
provide us with their experience under such program. Consol, Inc., a 
large mining company, stated that we need to address in the HazCom 
standard recent changes in the OSHA HCS regarding electronic access to 
MSDSs and microfiche maintenance of these documents. The National Stone 
Association (NSA) commented on the need to promulgate a HazCom standard 
in light of our new miner training regulations applicable to surface 
aggregate mines. Finally, the United Mine Workers of America (UMWA), 
and Jim Weeks, a consultant to the UMWA, objected to the delay in 
promulgating a final standard.
    We disagreed with commenters on the need to reopen the rulemaking 
record in its entirety. Unlike general industry, the mining industry is 
narrowly composed of two sectors, coal and metal and nonmetal. Because 
of our frequent presence on mine properties, we have determined that 
there are no substantial changes in the mining industry which would 
require changes in the provisions of this final standard. Changes 
experienced by the mining industry since the publication of the HazCom 
proposal in 1990 do not rise to a level of change in ``core'' 
circumstances so material in nature as to entail a modification of the 
final standard. Substantive rulemaking issues and regulatory 
alternatives have not changed since the record closed in 1992 and, 
consequently, the evidence in the rulemaking record is current.
    We understand commenter's desire to provide more information 
regarding their experience under the OSHA HCS standard. Our rulemaking 
record, however, contains numerous comments concerning the mining 
industry's experience with OSHA's HCS. We have considered all these 
comments, and the final standard reflects the public's recommendations 
where they do not undermine the ultimate issue of protecting the safety 
and health of miners. For example, some commenters indicated their 
experience regarding OSHA's MSDS requirements and suggested that we 
include a provision on electronic access to MSDSs; simplify the 
proposal regarding the content of MSDSs; use terms that are consistent 
with the Mine Act instead of the OSH Act; simplify the requirements 
regarding inclusion of MSDSs with initial shipment of product; and 
require retention of MSDSs for a period of less than 30 years.
    In response to these comments, the HazCom final standard provides 
for electronic access to MSDSs; uses terms such as ``miner'' and ``mine 
operator'' instead of ``employee'' and ``employer'' to be more 
consistent with the language of the Mine Act; streamlines and clarifies 
the provisions on the format and content of MSDSs; and requires the 
operator to keep the MSDS at the mine for as long as the chemical is 
known to be present at the mine, instead of 30 years as OSHA requires. 
While MSHA's HazCom standard is generally consistent

[[Page 59052]]

with OSHA's HCS, we made changes to the final standard from the 
proposal in recognition of comments received from the mining industry 
concerning their experience under OSHA's HCS. These changes also 
recognize that the affected regulated community is smaller and more 
homogeneous than the industries regulated by OSHA.
    On the applicability of the new part 46 training standard, we 
concluded that hazard communication can best be accomplished by 
establishing miner training requirements separate from part 46. The new 
part 46 training regulations are broad, covering many different 
training needs. Part 46 does not cover all of the specific aspects of 
training required under this final standard. For example, part 46 does 
not require training about how to read an MSDS. We developed the 
training aspects of HazCom to be fully compatible with existing 
standards.
    HazCom does not require you to revise your part 46 training program 
or plan in order for it to be credited toward complying with the more 
specific hazard communication training requirements in this interim 
final rule. The training required under HazCom is directly applicable 
to the training in 30 CFR part 46 that involves hazard recognition and 
avoidance, mandatory health and safety standards, and warning labels. 
Hours spent on HazCom training can be credited to part 46, as well as 
part 48, training as appropriate.

II. Paperwork Reduction Act

    When we published the HazCom proposal in 1990, its information 
collection and paperwork requirements were not an information 
collection burden under the 1980 Paperwork Reduction Act because they 
were third-party disclosures. In August 1995, the Office of Management 
and Budget (OMB) published its final rule (60 FR 44978) implementing 
the new Paperwork Reduction Act of 1995 (PRA 95). These OMB rules 
expanded the definition of ``information'' to clarify that PRA 95 also 
covered Agency rules that required businesses or individuals to 
maintain information for the benefit of a third-party or the public, 
rather than the government. The requirements for information collection 
and dissemination in HazCom are now an information collection burden 
because of this expanded definition. Almost all HazCom provisions fit 
this definition: Secs. 47.11, 47.21, 47.22, 47.31, 47.32, 47.33, 47.41, 
47.42, 47.43, 47.44, 47.45, 47.51, 47.52, 47.53, 47.61, 47.62, 47.63, 
47.71, 47.72, 47.73, 47.74, 47.75, 47.76, and 47.77. The interim final 
rule also removes the labeling requirements from existing 
Secs. 56.16004, 57.16004, and 77.208. We have submitted the interim 
final rule to OMB for its review and approval under Sec. 3507 of PRA 
95.
    Request for public comments. Send your comments on the information 
collection requirements in this interim final rule to the Office of 
Information and Regulatory Affairs, OMB, Attention: Desk Officer for 
MSHA, 725 17th Street NW., Room 10235, Washington, DC 20503 by December 
4, 2000.
    Description of requirements. HazCom is primarily an information 
collection and dissemination rule. The annual information collection 
burden includes the time to inventory chemicals, determine the hazards 
of chemicals present, develop a HazCom program, develop or obtain 
labels or MSDS's as necessary, prepare training materials and train 
miners, and provide copies of HazCom materials. The information 
collection and paperwork burden encompasses each section of this part, 
as summarized in Table 1.

       Table 1.--Description of Information Collection Provisions
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          Provision                  Information collection burden
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Written HazCom Program.......  Prepare, administer, and review annually;
                                determine hazards of chemicals; list
                                hazardous chemicals at the mine.
Labels or other warnings.....  Prepare for hazardous chemicals produced;
                                maintain legibility and accuracy.
Material Safety Data Sheets..  Develop for hazardous chemicals produced;
                                obtain for other hazardous chemicals;
                                maintain availability and accuracy.
Training Program.............  Develop or obtain training courses and
                                materials; conduct initial training for
                                miners; train miners about changing
                                hazards; administer program.
Copies of HazCom information.  Distribute written HazCom program
                                information to miners, miners'
                                representatives, and customers when
                                requested; distribute to other
                                operators.
------------------------------------------------------------------------

    All written information can be either paper or electronic format 
provided that you meet access requirements.
    Description of respondents. The respondents are operators, 
including independent contractors. The interim final HazCom rule will 
be applicable to all 21,166 operations under MSHA jurisdiction: 2,459 
surface and underground coal mines; 3,801 coal contracting firms; 
11,337 surface and underground metal and nonmetal (M/NM) mines; and 
3,569 M/NM contracting firms.
    We estimate that 33% of small mines and 43% of large mines (15% of 
coal and 19% of M/NM mines employing 20 miners, 17% of coal and 33% of 
M/NM mines employing 20 to 500 miners, and 100% of coal and M/NM mines 
employing >500 miners) have an existing hazard communication program 
that complies with all or part of the provisions of HazCom. The 
percentage of mines complying with a specific HazCom requirement varies 
depending on the type of mine and the specific provision. For example, 
some mines label containers and keep MSDSs, but do not have a written 
program or provide HazCom information to miners. As a matter of 
corporate policy or to comply with State hazard communication or right-
to-know laws, most existing HazCom programs are modeled on OSHA's HCS. 
For these reasons, we believe that you can adjust your existing program 
to comply fully with HazCom with little effort and few resources.
    We assumed that most independent contractors conduct some work at 
locations under OSHA jurisdiction and would have an existing hazard 
communication program. The contractor's program, however, may need 
modification for a particular mine. The magnitude of the burden for any 
individual mine operator or independent contractor, therefore, will 
vary greatly by the size, type, and location of the operation. For the 
purpose of estimating burden, we assumed that there are existing hazard 
communication programs at 65% of small (20 miners) coal contractors, 
75% of large (<gr-thn-eq>20 miners) coal contractors, 70% of small (20 
miners) M/NM contractors, 74% of large (20-500 miners) M/NM 
contractors, and 100% of M/NM contractors employing >500 miners.

[[Page 59053]]

    Information Collection Burden. The greater portion of HazCom's 
burden accrues when you are developing and implementing the program. We 
annualized this initial burden. We summarize the total first-year, 
start-up information collection burden for HazCom in Table 2. We 
summarize the total annually recurring information collection burden in 
Table 3.

                                                   Table 2.--First-Year Information Collection Burden*
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Number of       Number of      Responses/        Hours/                        Associated
                        Provision                           respondents      responses      respondent       response      Total  hours       costs**
--------------------------------------------------------------------------------------------------------------------------------------------------------
Develop Program.........................................          14,239          14,239               1            12.2         173,366        $446,826
Review Existing Program.................................           7,620           7,620               1             6.3          48,144         125,416
Develop MSDS............................................           3,544           3,894             1.1             2.9          10,222          26,074
Develop Training Program................................          13,007          13,007               1             6.9          89,196         229,257
Prepare Initial Training................................          13,007          13,007               1             2.0          26,014          83,632
    Total...............................................  ..............          51,767  ..............             6.7         346,942        911,205
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Discrepancies due to rounding.
** Adjusted first-year costs annualized (See Regulatory Economic Analysis, Chapter VII.)


                                                   Table 3.--Annual Information Collection Burden \*\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                               Number of       Number of      Responses/        Hours/                        Associated
                 Provision                    respondents      responses      respondent       response      Total  hours       costs**
------------------------------------------------------------------------------------------------------------------------------------------
Update Program............................          14,239          14,239            1               1.7        24,767           $911,890
New Operators Develop Program.............             889             889            1              13.2        11,772            437,982
Label Containers..........................           1,717           6,712            3.9             0.20        1,343             62,309
Update MSDS...............................           3,544             974            0.27            1.5         1,460             53,211
Maintain MSDS.............................          14,239         637,720           44.8             0.05       31,886            568,744
New Operators Develop MSDS................             889           1,019            1.1             3           3,057            113,578
Manage Training Program...................          13,007          13,007            1               1.7        22,299            818,776
New Operators Prepare Training............             889             889            1               8.6         7,664            301,063
Training Records..........................          13,007         187,149           14.4             0.05        9,365            167,518
Provide Info to Miners....................          14,239          21,961            1.5             0.20        4,395             78,817
    Providing Info to Customers...........          14,239         233,860           16.4             0.20       46,772            832,582
                                           -------------------------------------------------------------------------------------------------------------
    Total.................................  ..............       1,118,419  ..............            0.15      164,780         4,346,470
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Discrepancies due to rounding.
** Adjusted first-year costs annualized (See Regulatory Economic Analysis, Chapter VII.)

III. Discussion of the Interim Final Rule

    In preparing this interim final rule, we attempted to address the 
concerns of all commenters, while ensuring that miners and operators 
have the information necessary to work in a safe and healthful 
environment.
    Commenters supported widely different ideas about a HazCom rule for 
the mining industry. Some said we do not need one because existing 
standards require hazard training and labeling; others said it is vital 
to allow miners to exercise their right-to-know. Some said the rule 
would be a great burden; others said that they already have such a 
program. Some said they want a rule just like OSHA's; others said we 
should resist the temptation to duplicate OSHA's HCS. Some wanted a 
separate standard for the coal mining industry; others recommended that 
we establish separate standards for mine operators and independent 
contractors; others wanted a single Federal standard. Some urged us to 
include specific language to ensure that individual States do not 
promulgate or enforce any requirements related to hazard communication 
that conflict with the Federal standard. Commenters recommended that 
the final rule be practical, strike a balance between providing too 
much information and too little, and allow for global harmonization 
with international standards.
    In response to the different needs for hazard communication in the 
mining industry, and the broad range of comments, the provisions of the 
interim final rule are performance-oriented and flexible enough that 
operators, including contractors, can comply using a single program to 
meet OSHA's HCS and our HazCom standard. We considered adopting the 
OSHA HCS in its entirety, but some requirements of OSHA's HCS are not 
relevant to mining. OSHA's HCS is supplemented by other OSHA standards 
for which we have no parallel. OSHA, for example, has comprehensive 
standards specifically covering hazardous waste operations, 
laboratories, and medical records. To the extent practical, the 
substance of our interim final rule is the same as that in OSHA's HCS. 
We added provisions where needed, however, to give miners the same 
protection as employees in general industry.

A. Subpart A--Purpose and Scope of HazCom

    The proposed rule included a ``scope and application'' section 
stating where HazCom applied and listing exemptions from coverage. In 
the interim final rule, we renamed this section ``operators and 
chemicals covered.'' We moved the exemptions, which were a part of the 
scope in the proposal, to the end of the HazCom interim final rule so 
that the substantive requirements would be up front where they are more 
accessible. (See Sec. 47.81 and Sec. 47.82, Exemptions.) We will 
discuss exemptions later in the preamble, consistent with their 
placement in the interim final rule.
1. Sec. 47.1  Purpose of a HazCom Standard
    A few commenters suggested that we include a ``purpose and intent'' 
section in our HazCom interim final rule, in addition to the ``scope 
and application'' section. In response, the interim final rule adds 
language to clarify our intent. The purpose of HazCom is to reduce 
chemically-related injuries and illnesses by ensuring that you--

[[Page 59054]]

    <bullet> Know what chemicals are at your mine;
    <bullet> Determine which are hazardous and the nature of their 
hazards;
    <bullet> Establish a HazCom program; and
    <bullet> Inform each miner who can be exposed, and other on-site 
operators whose miners can be affected, about those hazards and 
appropriate protective measures.
2. Sec. 47.2  Operators and Chemicals Covered
    The proposal would have applied ``to all operators who produce or 
use hazardous chemicals in their workplaces'' and to ``any chemical 
which is known to be present in the workplace in such a manner that 
employees are exposed * * *.'' The interim final rule applies ``to any 
operator producing or using a hazardous chemical to which a miner can 
be exposed * * *.'' By modifying the language in the interim final 
rule, we clarify our intent that you must find out what hazardous 
chemicals are present at your mine and evaluate whether it is possible 
for miners to be exposed under normal conditions of use or in a 
foreseeable emergency. You do not have to determine that miners are 
exposed or the level of their exposure. The interim final rule is 
consistent with the purpose of HazCom and OSHA's HCS. Although the 
proposed rule seemed to apply only where there was an actual exposure, 
the proposal defined ``exposed'' as ``subjected, or potentially 
subjected, to a hazardous chemical * * *.'' The preamble to the 
proposal further explained that this definition included ``current and 
potential (accidental and possible) exposures.''
    The potential for exposure to a hazardous chemical, such as diesel 
fuel, motor or hydraulic oils, lubricants, paints, and solvents, occurs 
at virtually every mining operation although exceptions do exist. While 
considering HazCom, we reviewed data and documents from inspections and 
investigations, chemical inventories, technical reports, accident and 
injury data, and sampling data confirming that exposure to chemicals 
occurs in all types and sizes of mines.
    If you have already implemented a HazCom program at the mine, and 
that program complies with the requirements of OSHA's HCS, it should 
also comply with our HazCom interim final rule. You will still have to 
check your existing HazCom program to make sure it complies with the 
interim final rule.
    Potential exposure. The interim final rule retains the proposal's 
intention concerning the potential for exposure. Although we interpret 
the term ``foreseeable'' broadly in the context of this rule, we also 
intend HazCom to be practical.
    NIOSH commented on our HazCom proposal and stated that the scope 
should not limit coverage of HazCom only to hazardous chemicals ``under 
normal conditions of use or in a foreseeable emergency.'' NIOSH stated 
that HazCom should cover all hazardous chemicals present on mine 
property, regardless of intended or expected exposures. Specifically, 
NIOSH stated that:

    All workers should be informed about the nature of the risks 
associated with the hazardous materials found in their workplace. 
``When working in the presence of a hazardous material, hazards are 
always present even under work situations most carefully designed to 
eliminate risk'' (NIOSH 1974a). The informed worker is prepared to 
minimize the impact of a hazardous materials incident. The 
uninformed worker is at risk of causing a hazardous materials 
incident or contributing to adverse health effects.

    We partly agree with NIOSH's comment. But we also agree with those 
commenters who expressed concern that by addressing remote or trivial 
hazards, the purpose of HazCom would be defeated and its effectiveness 
diluted. If miners are flooded with warnings about all chemical 
hazards, including those they perceive as remotely possible, they may 
be more likely to ignore warnings for the more probable hazards. We 
also believe that it would be unnecessarily burdensome to require you 
to address every conceivable chemical hazard, regardless of how 
unlikely that hazard is to materialize.
    For example, suppose a chemical liquor, or caustic, is only present 
in a certain area of your bauxite mill and you have miners in this area 
working near pipes carrying the caustic. You have other miners who work 
in the farthest area of your operation who never go near the mill or 
the caustic. Although you could conceive of circumstances where the 
miner who does not work near the pipes can be exposed, it would not be 
reasonably foreseeable. On the other hand, you can conceive of 
circumstances where the miner who works daily near the pipes can be 
exposed. The caustic can eat through a pipe; a truck can back into a 
pipe; pressure can cause joints to leak. Exposure is foreseeable under 
these circumstances: strong caustics can eat through pipes; trucks have 
run into pipes before; and pressure often causes leaks.
    Almost all miners are exposed to crystalline silica, but the 
potential for illness is related to their exposure to the respirable 
fraction of dust. For example, your miners work on a concrete floor and 
there is silica in the concrete. If no cutting, grinding, or other 
activities happen to the floor that would release the respirable 
fraction, the potential for exposure to respirable crystalline silica 
is remote, and the miners are not potentially exposed to a hazard. If 
you must remove the floor through grinding, cutting, or crushing, the 
potential for exposure is foreseeable and the concrete would become a 
hazardous chemical subject to HazCom. Base your decision to include a 
chemical in your HazCom program on its hazards and the potential for 
miner exposure, not the risk. A chemical's hazard is in its inherent 
characteristics. Risk is the likelihood of expression of that hazard in 
a given situation.
    The interim final rule sets boundaries on the chemicals and 
operators covered by HazCom. It is our judgment that these boundaries 
provide miners the protections intended by the Mine Act without causing 
you to expend resources on remote possibilities.
    Significance of exposures. One of the most frequent suggestions 
received on the HazCom proposal was that it should apply only where 
significant exposure to a chemical occurs. These commenters asserted 
that a significant exposure involved a likelihood of material 
impairment of health to a miner, such as when a miner was overexposed 
to a hazardous chemical. HazCom's most misunderstood concept was its 
relationship to risk and significant exposure. Miners are frequently 
and seriously harmed by chemicals in their work area, but HazCom is not 
a risk-based health standard for measuring exposures, requiring 
controls, or providing personal protective equipment. Other standards 
address the problems of significant risk and the methods of controlling 
it. HazCom is an information and training standard intended to diminish 
risk by ensuring that operators provide miners with a level of 
knowledge that allows them to reduce their exposures by recognizing 
potential hazards and by following safe work practices.
    HazCom is based on the premise that chemicals can have inherent 
characteristics that pose hazards and miners have a right to know what 
those hazards are and what their employer is doing to protect them. 
Many chemicals are considered to be hazardous because evidence 
indicates that they can threaten a miner's physical well-being or harm 
the miner. Determining that a chemical is hazardous is not the same as 
determining that there is a significant risk of any specific physical 
or health

[[Page 59055]]

effect occurring from its use under a particular set of circumstances 
at the mine.
    HazCom is being promulgated to anticipate the possibility of harm 
or loss from chemical exposures and provide information on ways to 
avoid them. It is not to regulate chemical use. It does not prohibit or 
limit the use of chemicals in the mining industry or prescribe controls 
to reduce exposures. HazCom's effectiveness is dependent on the 
operator's and miner's knowledge and awareness of hazards. Like any 
training or information standard, it is through hazard identification 
and awareness that HazCom addresses hazardous chemical exposure and 
prevents injuries and illnesses.

B. Subpart B--Hazard Determination

    A hazardous chemical is any chemical whose properties can pose a 
physical or health hazard. It can be a pure substance (an element or 
chemical compound), a mixture, or an ingredient in a mixture. A 
hazardous chemical can be in any physical form: Solid, liquid, or gas. 
The likelihood of harm may be greater under some circumstances than 
others, but the potential to do harm is inherent in the chemical's 
properties. We discussed exposure and its significance under ``purpose 
and scope'' in this preamble.
    HazCom's definition of hazardous chemical is consistent with the 
proposal and OSHA's HCS. We arranged the criteria for determining 
whether a chemical is hazardous in Table 47.11 and re-stated the 
proposal's language in a simpler way.
1. Sec. 47.11  Identifying Hazardous Chemicals
    HazCom is most effective when the criteria for determining the 
hazards of a chemical are applied consistently. Most physical hazards 
of elements and compounds are well-known and can be verified in a 
laboratory through testing. Physical hazards of mixtures can be 
determined the same way. Health hazards, however, are generally more 
complex, requiring studies of living systems, and can take much longer. 
Most health hazards of chemicals are determined through animal studies 
by extrapolating data from the effects on animals to predict the 
effects on humans.
    We consider a chemical to be a physical hazard when there is 
scientifically valid evidence that it is combustible; a compressed gas 
or liquid; an explosive; a flammable aerosol, gas, liquid, or solid; an 
organic peroxide; an oxidizer; a pyrophoric (capable of spontaneously 
igniting); unstable and reactive; or water-reactive. Scientifically 
valid evidence means that a study was conducted or data obtained in a 
highly reliable manner that takes into consideration the margin of 
accuracy and consistency.
    We consider a chemical to be a health hazard when there is 
statistically significant evidence that it can cause acute or chronic 
health effects. Statistically significant evidence supports a 
conclusion with a high level of confidence, typically 90% to 95%. This 
means that there is only a 5% to 10% probability that the observed 
results are due to chance. Health hazards include chemicals that cause 
cancer; irritate or corrode tissues; or cause a sensitization reaction. 
It also includes chemicals that damage the reproductive system, the 
liver, the kidneys, the nervous system (including psychological or 
behavioral problems), the blood or lymphatic systems, the digestive 
system, or the lungs, skin, eyes, or mucous membranes.
    Hazard determination methods. The final HazCom rule, like the 
proposal, includes two basic ways for determining whether or not a 
chemical is hazardous: One for chemicals brought to the mine and the 
other for chemicals produced at the mine. In every instance we 
reviewed, operators producing chemicals also brought chemicals to their 
mines. We intend that the hazard determination provisions of HazCom 
apply to all hazardous chemicals produced at the mine or brought onto 
mine property, even if they are not covered under other MSHA standards.
    A number of commenters wanted the hazard determination requirement 
in the proposal changed to read: ``Operators who ship chemicals shall 
determine the chemicals' hazards under conditions of intended use based 
on our standards in 30 CFR parts 56, 57, 71, and 75.'' A number of 
commenters wanted operators who received chemicals to determine their 
hazards based solely on whether the chemical is regulated by us and 
whether it presents a physical or health hazard under conditions of 
intended use.
    The interim final rule does not use the word ``ship'' instead of 
``produce''; does not add the phrase ``under conditions of intended 
use''; and does not limit the chemicals covered to those listed in our 
existing standards. We enforce exposure limits for chemicals listed by 
the American Conference of Governmental Industrial Hygienists (ACGIH) 
in their list of Threshold Limit Values (TLV). This list does not 
address all chemicals known to be present on mine property. These 
suggestions would have significantly changed the intent and scope of 
HazCom. It would emphasize the hazards associated with the manner or 
process in which chemicals are used by persons off mine property, 
instead of emphasizing the hazards to miners.
2. Chemicals Brought to the Mine
    The interim final rule is substantively the same as the proposal in 
its requirements for a chemical brought to a mine. Under the interim 
final rule, you must review the chemical's label for any hazard warning 
and its MSDS for more detailed information. If the label or MSDS 
indicates a hazard, consider it hazardous. You must then include the 
chemical on the list of hazardous chemicals at the mine; keep a copy of 
the MSDS accessible to miners; and train miners about the hazards, what 
you are doing to control these hazards, how to prevent or reduce the 
exposure, and how to protect themselves from injury or illness. If you 
do not want to rely on the chemical manufacturer or supplier, you may 
evaluate the chemical yourself. If you do, we will require you to 
demonstrate that you have conducted a thorough evaluation of the 
available evidence.
    The number and types of different hazardous chemicals brought to 
the mine depends on the size and type of the operation. These chemicals 
can range from bulk raw materials, such as ammonium nitrate for use in 
blasting agents, to small quantities of highly hazardous chemicals used 
in quality control laboratories. Diesel fuel, antifreeze, motor or 
hydraulic oil, brake fluid, lubricants, adhesives, paints, and solvents 
are a few of the materials commonly brought to mining operations that 
would require you to ask the question: Is this a hazardous chemical?
    The interim final rule requires you to make a hazard determination 
for each chemical at your mine to which miners can be exposed 
regardless of how the chemical is used. Based on your experience, we 
expect you to anticipate any likely misuse of the chemical, as well as 
accidents. This intention is further emphasized in the written HazCom 
program, which requires you to document how you determined the hazards 
of the chemicals at your mine and to make a list of those found to be 
hazardous. For a chemical brought to the mine, you need to review its 
label and MSDS. If, however, you intend to use the chemical in a manner 
not intended by the manufacturer or supplier, you must determine if 
your conditions of use create any different hazards.
3. Hazardous Waste
    Hazardous waste can be either brought to the mine or produced at 
the

[[Page 59056]]

mine. Hazardous waste regulated by the Environmental Protection Agency 
(EPA) under the Solid Waste Disposal Act, as amended by the Resource 
Conservation and Recovery Act, was exempt from the labeling and MSDS 
requirements under the proposal. If a hazardous waste is brought to the 
mine without an MSDS, however, and you could not obtain one, the 
proposal would have required you to determine its hazards using the 
same methods as if it had been produced at the mine: You would either 
have had to test it or have had to use any valid, available, scientific 
information. We expect that, in most cases, the shipping manifest or 
EPA permit accompanying the waste will say what it is. Even if the 
ingredients are listed generically, you should request that the 
supplier provide you with hazard information. We did not propose to 
exempt EPA-regulated hazardous waste from the training and other 
requirements of HazCom.
    Because the proposal would have required you to have information on 
the hazards of this waste, and because there is no specific format for 
the MSDS, it follows that a compilation of such information could be 
considered an MSDS. You can use this information to develop a label. 
For this reason, we did not specifically exempt EPA-regulated hazardous 
waste from the labeling and MSDS requirements in the interim final 
rule. Rather, we address such waste separately in Sec. 47.43, MSDS for 
hazardous waste. You must make sure that miners have the best 
information you can find about the waste's chemical hazards. We suggest 
for the sake of consistency that you put the hazard information in the 
same MSDS format as you use for other chemicals.
4. Chemicals Produced at the Mine
    The interim final rule, as in the proposal, defines a chemical as 
any element, chemical compound, or mixture of these and requires you to 
identify what chemicals you produce at your mine. Chemicals produced at 
your mine include--
    <bullet> Those that you mine or process to sell, such as coal or 
crushed stone;
    <bullet> The mixtures you create, such as flotation reagents or 
blasting agents;
    <bullet> The by-products of mining and milling, such as diesel 
exhaust, hydrogen sulfide, or gases from combustion or blasting; and
    <bullet> The materials discarded from mining operations, such as 
tailings.
    Every mine product is a chemical, but not all are hazardous for the 
purposes of HazCom. You must determine if the chemical has any harmful 
properties that could pose a physical or health hazard. You must 
determine what the hazards and protective measures are so that you can 
prepare an appropriate label and MSDS. Again, HazCom does not require 
you to take additional protective action, as might be required by a 
risk-based rule. HazCom requires you to inform miners about 
scientifically valid evidence concerning a chemical's hazards, from 
either your own testing or the published results of other testing or 
studies.
    For example, if your product is sand and gravel or crushed 
limestone, crystalline silica is likely to be the only hazardous 
component, and you are already training your miners about its hazards. 
Because respirable silica is so prevalent in mine products, we will be 
producing a generic MSDS for you to use if you do not want to prepare 
one yourself. You will have to ensure that your label identifies the 
product as containing crystalline silica, which is a human carcinogen. 
It is only respirable crystalline silica, however, that is a human 
carcinogen.
    Sources for identifying hazardous chemicals. The interim final rule 
requires that, if you produce a chemical, you must determine its 
physical hazards based on available evidence or testing. You must 
determine its health hazards based at least on the findings of the 
following four recognized authorities or sources:
    <bullet> Title 30 Code of Federal Regulations (30 CFR) chapter 1.
    <bullet> American Conference of Governmental Industrial Hygienists 
(ACGIH) Threshold Limit Values (TLV's) and Biological Exposure Indices 
(latest edition).
    <bullet> National Toxicology Program (NTP) Annual Report On 
Carcinogens (latest edition).
    <bullet> International Agency for Research on Cancer (IARC) 
Monographs or Supplements.
    These sources are basically identical to those listed in the 
proposal and the OSHA HCS, with the exception that MSHA standards 
regulating exposure to and use of hazardous substances are referenced 
instead of OSHA standards. The proposed rule intended that you would 
not have to look beyond these sources to determine if a chemical was a 
health hazard. In addition, you must consider a chemical a suspected or 
confirmed carcinogen if it has been evaluated and listed as such by 
ACGIH, NTP, or IARC. HazCom does not require you to determine whether 
the concentration of the chemical in the mine environment exceeds a 
limit recommended by one or more of these four sources. If there is a 
potential for harm and a potential for exposure, the chemical is 
hazardous for the purposes of HazCom. You must tell your miners about 
the hazards that are known and give them information relevant to the 
safe performance of their tasks.
    Some commenters recommended that we rewrite this provision to 
require that ``operators who produce chemicals must determine the 
chemicals' hazards'' and not specify the basis for the determination. 
These commenters felt that this language would make the requirement 
more performance oriented, would avoid incorporation by reference, and 
would allow operators to choose the best methods for this assessment 
based on the best available sources at the time of the assessment. 
Although the hazard determination criteria rely on the findings of 
respected and authoritative scientific organizations, these are minimal 
requirements. The interim final rule allows and encourages you to use 
the best methods and sources available.
    Using ACGIH, NTP, and IARC to determine if a chemical is hazardous. 
Many commenters strongly opposed including ACGIH, NTP, or IARC in the 
hazard determination section of the interim final rule. These 
commenters also objected to our use of IARC and NTP publications as 
authoritative sources for identifying certain chemicals as carcinogens. 
Some of these commenters felt that these organizations may identify a 
substance as a possible human carcinogen based upon the results of a 
single animal study and that animal studies alone should not be relied 
on to identify human carcinogens. Others felt that these organizations 
only considered positive studies (those showing an adverse health 
effect) and not negative studies (those that were inconclusive or did 
not show a health effect) when determining that a chemical is a 
carcinogen or a suspected carcinogen.
    Commenters opposed our reliance on an automatic trigger, such as a 
hazard determination made by one of these organizations, to deem a 
chemical as hazardous without considering the risk posed in a given 
situation. One commenter stated that any reference to ACGIH, NTP, or 
IARC in the rule is inappropriate because these institutions make 
determinations based on ``strength of evidence analysis'' and defer 
``weight of evidence determinations'' to regulatory authorities. This 
commenter felt that, as in our proposed air quality rule, we should 
adhere to the guidelines of the Office of Science and Technology Policy 
(OSTP) because HazCom ultimately would reference our final air quality 
standard. OSTP guidelines address the use of ``strength of evidence'' 
and ``weight of evidence'' analysis in quantitative risk assessment.

[[Page 59057]]

    Most commenters on our use of these publications opposed such use, 
stating that including references to these would be an incorporation-
by-reference without following the proper rulemaking procedures. They 
stated that ACGIH's, NTP's, and IARC's decision-making processes are 
deficient because they restrict public or peer input. They further 
stated that the absence of public comment and external peer review 
raises significant questions regarding the quality of any science-based 
decision-making process. These commenters added that our rulemaking, 
because it goes through an established process, provides the only basis 
for establishing valid references for hazard determination purposes.
    Some commenters also strongly objected to referencing either the 
latest edition or subsequent monographs or supplements of these sources 
because such references fail to advise the regulated community of the 
standard of conduct to which they are expected to conform. They 
commented further that we may only incorporate-by-reference materials 
in existence at the time we promulgate a final rule.
    In response to these comments, we wish to re-emphasize that HazCom 
is not a risk-based rule. A risk-based rule requires us to limit a 
miner's exposure to a toxic substance or harmful physical agent. This 
is an information-providing standard to ensure that operators are aware 
of potential hazards so that they can take appropriate actions to train 
miners and provide them with information about ways the operator, 
miners, and others can protect themselves from these hazards. We 
believe that miners have a fundamental right to know about the hazards 
in their work area and that operators have a fundamental duty to 
provide this information. For example, warnings concerning the presence 
of a radiation source or high-voltage electricity are commonplace, 
whether or not a person is likely to be exposed or injured. We address 
risk assessment and risk management in other standards.
    Referring to IARC, ACGIH, and NTP documents, in one sense, does 
incorporate them by reference. We refer to these sources because they 
contain lists of known hazardous chemicals. Using these lists as a 
screening tool reduces the resources you would otherwise have to devote 
to determining if a chemical is hazardous and poses no increased 
compliance obligations on you.
    The use of these references was supported by some commenters 
because the sources are renowned scientific authorities. Using the 
latest editions of the referenced sources of information to establish 
that a chemical is hazardous is appropriate because it contains the 
most recent information. We also believe it will be easier for you than 
requiring a continual, exhaustive literature search, conducting your 
own chemical testing, or trying to locate a document that is outdated 
or out-of-print.
    If the commenters objecting to the use of these references meant to 
address whether or not the chemicals are known to be hazardous, the 
chemicals are listed in the four sources because scientific studies 
have indicated that they are hazardous. We expect most hazardous 
chemicals produced at mines to be listed. Other sources not cited in 
the proposal or interim final rule also can provide valuable 
information. You can check other reputable sources of scientific 
information, such as the NIOSH ``Registry of Toxic Effects of Chemical 
Substances,'' the NIOSH ``Pocket Guide to Chemical Hazards,'' OSHA 
standards, or chemical databases on the internet.
    The alternative to using these four sources as a screening tool 
would be for you to conduct a thorough search of available literature 
to determine if the chemical is hazardous in addition to finding any 
statistically significant, scientifically valid studies that report the 
chemical's hazards. By using these sources as a screening tool, we 
intend to minimize the number of literature searches and, thus, the 
burden.
    Using ACGIH, NTP, and IARC to determine a chemical's hazards. If 
the commenters objecting to the use of the references meant to address 
the nature of the harm, the circumstances under which the chemical can 
cause harm, or the level of exposure at which harm becomes likely, we 
recognize that there may be conflicting information in the scientific 
literature. We agree that relying solely on the information from these 
four sources may not be sufficient to determine the health hazards of a 
chemical. Except for identifying certain chemicals as either 
carcinogens or suspected carcinogens, these sources contain little 
specific information on the types of health hazards posed.
    Some commenters stated that it would be a great burden on the 
mining community to find out if recent scientific studies show their 
product to be a carcinogen or other type of chemical hazard. Although 
determining the hazards of a chemical you produce could be more time 
consuming, we do not believe that it is overly burdensome, infeasible, 
or impractical. An entire segment of the publishing industry exists to 
inform the mining industry about new production equipment, legislative 
and regulatory affairs, commodity pricing, changes in construction 
specifications, bid proposals, and scientific studies that can affect 
the commercial value of mining products. We expect that the media, 
trade associations, or unions will also provide the mining industry 
with any significant new information concerning the hazards of their 
products.
    Proposed Table 1. To simplify your access to the information from 
these sources, we compiled a table of all the chemicals listed in them 
and included this table in the proposal. The table indicated which of 
the four sources would give you more information about a chemical's 
health hazards and carcinogenicity. Operators could use the proposed 
table to determine quickly if the chemical they produced was a health 
hazard rather than having to refer to the four sources. We thought this 
would save resources if the chemical was not hazardous. We intended to 
spare operators from the need to look beyond this table to determine 
whether a chemical posed a health hazard. We had intended to update 
this table as needed.
    Several commenters agreed that we should allow operators to use 
proposed Table 1 to determine if the chemicals they produce are 
hazardous. One of these commenters felt that we should publish this 
table as an appendix to the rule and that it should state explicitly 
that operators may use this table to determine whether a chemical is a 
health hazard rather than having to refer to the four sources. Another 
of these commenters suggested that we include Chemical Abstract Service 
(CAS) registry numbers in the table to help operators identify the 
chemical.
    Some commenters asked that we not include the table in the final 
rule. One commenter felt that the average person would find this list 
of hazardous chemicals difficult and impractical to use. Others 
expressed concern that the list may not indicate all the potentially 
hazardous materials produced or used at the mine and favored the OSHA 
HCS's one-study approach.
    One commenter objected to the proposal's reference to a table in 
the proposed air quality standard before we published the air quality 
standards as a final rule. Some commenters supported our intention to 
reference the final air quality standards in the hazard determination 
provision. That support, however, was contingent upon our establishing 
permissible exposure limits (PELs) at levels that prevent material 
impairment of health or functional

[[Page 59058]]

capacity. These commenters further stated:

    PEL's and carcinogens validated through the rulemaking process 
will enable operators who ship chemicals to evaluate whether those 
chemicals present a health hazard under conditions of intended use. 
When proposed 30 CFR Parts 58 and 72 are validly promulgated, MSHA 
should amend proposed 30 CFR Part 46.3(a) to incorporate those 
provisions.

    Although the interim final rule continues to reference NTP, IARC, 
and ACGIH, it does not include a table of hazardous chemicals. Upon 
further consideration, we concluded that the list will quickly become 
outdated as new hazardous chemicals come on the market or new 
information becomes available, and we could not readily update it. The 
constant need to update the table would reduce the effectiveness of 
HazCom because the update would require rulemaking. Instead, we will 
put a list of chemicals known to be hazardous in the Toolbox that 
supplements the Compliance Guide for this interim final rule. We intend 
to place both of these references on our website and provide links to 
other websites, such as university collections of MSDSs. Access to 
internet news services, libraries, and databases will allow you to 
obtain the most recent and reliable information soon after it becomes 
available.
5. Mixtures Produced at the Mine
    The best way to determine the hazards of a mixture is to test the 
mixture as a whole. You would then use the results of that testing to 
make a determination as to whether or not the mixture poses a hazard 
and the nature of the hazard. We recognize that most operators do not 
have the facilities and equipment to conduct this testing.
    For mixtures not tested as a whole, the interim final rule 
establishes the same criteria as the OSHA HCS (and as proposed) for 
determining the hazards of the mixture based on its ingredients. You 
must use available scientifically valid evidence to determine the 
mixture's physical hazards and rely on available health hazard 
information for the mixture's ingredients to determine its health 
hazards.
    <bullet> You must conclude that the mixture is a health hazard if 
at least 1% of the mixture is a chemical that is a health hazard.
    <bullet> You must conclude that the mixture is a carcinogenic 
hazard if at least 0.1% of the mixture is a chemical that is a known or 
suspected carcinogenic hazard.
    Determining the hazards of mixtures. A number of commenters wanted 
the final rule to allow you to determine the hazards of mixtures of 
chemicals in the same way you would determine the hazards of individual 
chemical compounds or elements, i.e., under conditions of intended use. 
They believed that mixtures should not be treated differently from 
other chemicals, although they may present additional health or 
physical hazards. These commenters stated that you should--
    (1) test the mixture as a whole;
    (2) if not tested as a whole, determine whether a component of the 
mixture presents a health hazard under conditions of intended use and 
if it constitutes a physical hazard; or
    (3) assume that a component presents a health hazard under 
conditions of intended use and that the mixture presents the same 
hazard, and use whatever scientifically valid evidence is available on 
the components of the mixture to determine the mixture's physical 
hazards.
    Several commenters objected to the requirement that if a mixture 
has not been tested as a whole, you must assume that it will pose the 
same health hazards and carcinogenic hazards as each of its components. 
Other commenters recommended that the health hazards of mixtures be 
based on either experimental evidence or weight of experience and, if 
known, dosage and exposure. Others argued that the concentration levels 
of 1.0% for hazardous components of a mixture, and 0.1% for 
carcinogenic components, had been chosen arbitrarily and that there are 
no studies showing relevance to these levels with regard to health 
hazards.
    Although we did not choose these levels arbitrarily, we agree that 
they are not based on specific scientific studies. The interim final 
rule sets concentration levels of 1.0% for hazardous components of a 
mixture and 0.1% for carcinogenic components, to be consistent with 
OSHA's HCS. By being consistent, HazCom reduces your burden by allowing 
you to use the label and MSDS for hazardous chemicals brought to the 
mine.
    Trace ingredients. The proposal stated that, if you have evidence 
indicating that a component of the mixture could be released in 
concentrations that would exceed an established MSHA PEL or ACGIH TLV, 
or could present a health risk to miners, you must assume that the 
mixture presents the same hazard. A number of commenters opposed the 
proposal's reference to the ACGIH TLVs and suggested that the final 
rule reference only MSHA health standards. Commenters expressed concern 
that the resources spent on determining the potential release of a 
hazardous trace component of a mixture dilutes the resources available 
to address real hazards. We contend, however, that if a trace 
ingredient can be released from the mixture at concentrations that can 
pose a health risk to miners, such as concentrations exceeding its PEL 
or TLV, this trace component is considered a hazard.
    Another commenter recommended that the final rule be more 
performance oriented and suggested that we reword this section to 
state:

    If the operator has reason to believe that lesser amounts than 
listed in item (2) could reasonably present a health risk they will 
be assumed to present the same hazard.

    In response to comments, we used more performance-oriented language 
in the interim final rule. It requires you to assume that a mixture 
presents the same hazard as a component if you have evidence that the 
component could be released from the mixture in a concentration that 
could present a health risk to miners.
    For example, the MSDS may indicate that a particular trace 
component reacts with other components, diffuses into the packaging, or 
evaporates over time. In this example, if the trace component is 
hazardous, you must inform miners about this information and its 
implications for them, and comply with the applicable HazCom 
provisions.
    We do not intend that you conduct research for chemicals brought to 
the mine; however, you must obtain an MSDS for them to determine 
whether or not a trace component can be released from the mixture in a 
hazardous concentration. Our intent is that, if you determine the trace 
ingredient to present a hazard, then you must include this information 
in your HazCom training. However, you must determine potential hazards 
from trace ingredients in hazardous chemicals you produce, including 
mixtures and by-products of mining activities. This is consistent with 
MSHA's HazCom proposal and OSHA's HCS.
    The interim final rule eliminates unnecessary language but retains 
generally the same requirement as the proposal. This provision 
recognizes that even trace components of a mixture could cause harm if 
a sufficient quantity is released from the mixture.
    Crystalline silica. A number of commenters expressed concern that 
IARC has designated respirable crystalline silica as a probable human 
carcinogen. Several commenters were concerned that the requirements for 
determining the hazards of mixtures that had not been tested as a whole 
did

[[Page 59059]]

not take into account that a chemical is hazardous only when it is 
encountered in a specific physical state or form. Specifically, they 
felt that the proposed rule would have required you to determine that 
any untested mixture that contains 0.1% or greater of crystalline 
silica is carcinogenic, even when the concentration of respirable 
crystalline silica in the mixture is less than 0.1%. They pointed out 
that IARC's Monograph No. 42 and Supplement 7 and NTP's proposal to add 
this substance to its list in its 6th Edition address only the 
respirable crystalline form of silica as a human carcinogen and not 
other forms of crystalline silica.
    We agree that it is the respirable form of crystalline silica that 
is designated as a human carcinogen in the sources listed in the 
interim final rule. Therefore, if the mixture contains 0.1% or greater 
of crystalline silica, you must determine the percentage that is 
respirable or capable of being liberated. Any required label and MSDS 
for products containing concentrations of 0.1% or more of respirable 
crystalline silica must indicate this potential health hazard. This is 
consistent with OSHA's HCS. HazCom also requires you to inform miners 
about the carcinogenic hazard from exposure to respirable crystalline 
silica.
    Physical hazards. Comments on the proposal indicated that you may 
find it difficult to categorize the physical hazards of some mixtures 
because of the stratification or deterioration that may occur in these 
mixtures during storage and handling. To ensure that all hazards of a 
mixture are properly addressed, this commenter felt that we should 
require you to use persons who are qualified by education, experience, 
and training to determine the hazards of a mixture with respect to its 
use in mines. We expect that most of the information necessary to 
determine the hazards of a mixture are available in MSDSs or other 
publications. Because you are the person responsible for making this 
determination, and often the most qualified, we expect that you will 
make the determination yourself or select a competent person to do it.
    The proposed rule stated that if a chemical is not tested as a 
whole, you must use ``whatever'' scientifically valid evidence is 
available to determine the mixture's physical hazard. The word 
``whatever'' was removed from the interim final rule at the request of 
commenters.
6. Hazardous Chemical
    One commenter felt that ``chemical'' may be interpreted 
restrictively to mean that only the chemicals you produce require a 
hazard determination. This commenter felt that we should state clearly 
that all mining products, including minerals, ore, and miscellaneous 
materials, require a hazard determination. Another commenter 
recommended that we use the term ``hazardous material'' rather than 
``hazardous chemical'' because operators and miners are more likely to 
associate that term with minerals, ores, and other materials that occur 
naturally.
    We use the term ``hazardous chemical'' in HazCom to be consistent 
with its use in OSHA's HCS. It is used by a wide variety of industries 
and has been the subject of much clarification in the 15 years since 
OSHA promulgated its HCS. We believe that the definition of 
``chemical'' in the proposed and interim final rules is more widely 
applicable and less open to misinterpretation than the alternatives 
suggested.

C. Subpart C--HazCom Program

    All mines must have a written HazCom program, even if it only 
documents that you looked at each chemical at the mine, made a hazard 
determination, and found none to be hazardous. The written program does 
not have to be lengthy or complicated, and some operators may be able 
to rely on existing HazCom programs to comply with the requirements of 
the interim final rule. As mining processes change and as new chemicals 
are brought onto mine property, you must update your written program to 
reflect these changes.
1. Sec. 47.21  Requirement for a HazCom Program
    This section of the interim final HazCom rule is substantively the 
same as the proposal and consistent with OSHA's HCS. It requires you to 
develop, establish, and maintain a written HazCom program. You must 
ensure that you have an effective method to communicate hazards to 
miners and other operators at the mine if their miners can be exposed 
to your hazardous chemicals. You must also retain the written program 
for as long as a hazardous chemical is known to be at the mine and 
exposure is possible.
    The scope of HazCom, Sec. 47.2, clearly states that the interim 
final rule applies to all operators with miners who can be exposed to a 
hazardous chemical ``under normal conditions of use or in a foreseeable 
emergency.'' The scope applies to all sections of HazCom and all 
operators at a mine, including contractors. Therefore, we did not need 
to repeat the language of the scope in the requirements for the 
contents of the written program.
    You must make the written program available to miners, their 
designated representatives, and MSHA and Department of Health and Human 
Services (HHS) personnel. In the interim final rule, the provisions on 
access and copies are in a new, separate subpart on making HazCom 
information available.
    Generic programs. Some commenters stated that development of the 
written HazCom program was beyond the capabilities of most operators 
and would impose a technological and financial burden. Other commenters 
suggested that we develop a generic written HazCom program for use as 
an example.
    You are responsible for developing a HazCom program for the 
chemicals that you produce or bring to the mine. Your written program 
must include all the information that you need--
    <bullet> To implement the HazCom program;
    <bullet> To provide hazard information to miners so that they will 
know what is expected and can participate in supporting the protective 
measures in place; and
    <bullet> To ensure that other operators at the mine receive the 
HazCom information they need.
    Although the development and implementation of a HazCom program may 
pose a technological and financial burden on some small operators, we 
determined that the interim final rule is feasible. We discuss the 
issue of technological and economic feasibility in the Regulatory 
Economic Analysis (REA) for this rule. This preamble includes a summary 
of the REA as Section IV. Of this preamble. The REA is posted on our 
website (www.msha.gov). You can download it or request a hard copy from 
the MSHA Office of Standards, Regulations, and Variances at the address 
in the front of this preamble.
    To relieve the burden for small operators, we have planned an 
extensive outreach effort, developed a wide variety of compliance aids, 
and delayed the effective date of the rule for 1 year. As part of these 
efforts, we will provide several examples of a written HazCom program 
in the HazCom Toolbox for this rule. You can adapt the programs 
developed to meet OSHA's HCS because the two standards are similar. You 
also may obtain assistance from organizations that have developed 
generic guides to meet OSHA's HCS. The availability of generic programs 
reduces your technical and financial burden.

[[Page 59060]]

2. Sec. 47.22  HazCom Program Contents
    Under the interim final rule, like the proposal, your HazCom 
program has to describe how you meet the HazCom standard for hazard 
determination, labels and other forms of warning, MSDSs, and training. 
It also must include a list of the hazardous chemicals that you produce 
or bring to the mine and use the same identity for the chemical on this 
list, the label, and the MSDS.
    Exchanging HazCom information. Where more than one operator works 
at a mine, your HazCom program also has to describe--
    <bullet> How you inform these other operators about the chemical's 
hazards and any protective measures for both normal work and 
foreseeable emergencies;
    <bullet> How you provide other operators with access to your 
written HazCom materials, especially MSDSs; and
    <bullet> How you identify hazards on labels and other warnings (the 
system or symbols you use).
    Several commenters expressed concern about how information would be 
exchanged between operators. One commenter wanted the final rule to 
give the primary operator at the mine the latitude to determine how to 
exchange information. Another commenter wanted us to prescribe how 
operators exchange information.
    The interim final rule deliberately uses performance-oriented 
language to give you the flexibility to establish how to exchange 
information with other operators and tailor your written program. At 
many mines, contractors, service personnel, and production miners are 
exposed to hazards of chemicals from many sources. For example, when 
independent contractors bring hazardous chemicals onto mine property, 
it is their responsibility to provide the primary operator and other 
operators (such as other independent contractors at the same site) with 
a written plan containing information about those chemicals. Likewise, 
it is the responsibility of the primary operator to inform these 
independent contractors about the chemical hazards at the mine. A 
systematic and orderly transfer of information ensures that all miners 
are informed. Specific, detailed requirements could reduce flexibility 
and become unnecessarily burdensome.
    Hazard determination procedures. One commenter wanted the final 
rule to require you to describe, in writing, the procedures you use to 
determine the hazards of the chemicals you evaluate and to maintain 
these written procedures. This commenter stated that these detailed 
written procedures would be a valuable source of information for 
workers, their representatives, and the government. This commenter also 
stated that such a record is the means to determine if you are 
following procedures to assess the hazards associated with a chemical's 
inherent properties and not how you use it. Another commenter said that 
we do not need to know the basis of your hazard determination.
    The interim final rule requires that your HazCom program include 
how you are putting the provision for hazard determination into 
practice at your mine. This requirement is performance oriented; it 
does not specify format or criteria. Although we agree with commenters 
that detailed procedures are valuable, HazCom does not require them. We 
expect your description of your hazard determination procedures to be 
sufficient to allow others to understand how you made the 
determination.
    Hazardous chemical list. The interim final rule requires you to 
compile a list of hazardous chemicals and maintain it for as long as a 
hazardous chemical is at the mine. You are responsible for listing only 
the hazardous chemicals that you produce or bring to your work areas. 
The list, or inventory, of hazardous chemicals is a quick reference so 
that you, miners, other operators working at your mine, and MSHA and 
HHS personnel can see what hazardous chemicals are present. It also 
must use a chemical identity that permits cross-referencing between the 
list, a chemical's label, and its MSDS. For example, if a chemical is 
identified by a trade name on the MSDS or the label, the list must be 
indexed and the chemical identified using the same trade name.
    You can compile the list for the mine as a whole or you can compile 
lists for individual work areas. For example, if few chemicals are used 
in one work area, such as a mine's quarry, and many are used in another 
work area, such as its shop, lists for the individual work areas would 
avoid confusing the miners in the quarry who would have no exposure to 
most of the chemicals that would be on a comprehensive list. You are in 
the best position to judge the most effective and efficient way to 
maintain this list. In maintaining this list, you must keep it up-to-
date, whether for the whole mine or a specific work area.

D. Subpart D--Container Labels and Other Forms of Warning

    Labeling containers of hazardous chemicals is a major provision of 
HazCom. A label is an immediate source of information about a hazardous 
chemical in the work area, providing the identity of the chemical and a 
brief summary of the chemical's most serious hazards. The labeling 
requirements in the interim final rule are substantively the same as in 
the proposal and consistent with OSHA's HCS. Labels that comply with 
OSHA's HCS will meet HazCom's requirements.
    The proposed rule contained the labeling exemptions under the 
``Scope and Application'' and again under ``Labels and Other Forms Of 
Warning.'' In response to comments, we eliminated this repetition. We 
also put the labeling exemptions in a table, so that they are visually 
more accessible, and restated the proposal's provisions using clearer 
language. We moved the table to a separate Exemptions subpart near the 
end of the rule rather than placing them in the ``Scope'' section at 
the front of the rule. Except for ``raw materials being mined or 
processed while on mine property,'' the chemicals listed are exempt 
from labeling under HazCom because they are covered by the labeling 
requirements of other Federal agencies. These exempt chemicals, 
therefore, are already labeled when you receive them at the mine. We 
will discuss these exemptions in detail later in the section called 
``Exemptions from Labeling'' (Sec. 47.82).
    The proposal contained provisions addressing a miner's and 
designated representative's right to examine the labeling information 
and have a copy without cost. In response to comments, we consolidated 
HazCom's provisions on access and cost for copies in a new, separate 
subpart, Making HazCom Information Available (Sec. 47.61 through 
Sec. 47.63).
    The interim final rule does not include proposed Sec. 46.5(d), 
which would have required you to ensure that the label for a hazardous 
chemical complies with the labeling requirements in an MSHA substance-
specific standard, rather than the labeling requirements in HazCom. We 
do not currently have a substance-specific standard that requires 
labeling. Upon consideration of the comments, we determined that this 
provision was premature. If we promulgate such a standard, we will 
reconcile any differences from those in HazCom.
1. Labeling Requirement in General
    Among those commenters supporting a HazCom labeling requirement, 
many urged us to be consistent with OSHA's HCS. Several of these 
commenters, especially those with operations in both mining and general 
industry, said that it would be extremely burdensome if they

[[Page 59061]]

had to comply with two significantly different requirements. For 
example, they said that it would be a great burden if you had to re-
label incoming containers of hazardous chemicals to meet unique MSHA 
requirements. The interim final rule is consistent with the proposal, 
as well as OSHA's HCS. Labels that comply with OSHA's HCS will meet our 
labeling requirements because HazCom requires the same information on a 
label as OSHA's HCS. Likewise, we expect that labels meeting MSHA's 
HazCom criteria will meet OSHA's requirements for labels under its HCS.
    Among those commenters generally opposed to labeling requirements 
under HazCom, many stated that our existing labeling standards are 
adequate and HazCom is redundant. Other commenters stated that they 
already are providing labeling information and MSDSs consistent with 
OSHA's standard because their customers are asking for them. By 
unifying labeling requirements for hazardous chemicals in HazCom, we 
intend to clarify requirements for all mines and to help you understand 
your compliance responsibilities.
2. Sec. 47.31  Requirement for Container Labels
    The interim final rule, consistent with the proposal, requires that 
each container of a hazardous chemical be labeled, tagged, or marked 
with the identity of the hazardous chemical and appropriate hazard 
warnings. You should only have to deal with three categories of labels: 
labels on containers of hazardous chemicals brought to the mine; labels 
on mixing, storage, or transport containers on mine property; and 
labels on the containers that you use to ship a hazardous chemical that 
you produce.
    Existing container labels. MSHA believes that hazardous chemicals 
brought to the mine will arrive with labels or labeling information. We 
expect that the label on the original container of a hazardous chemical 
provides adequate information about its hazards. The Environmental 
Protection Agency (EPA), the Consumer Product Safety Commission (CPSC), 
OSHA, and other Federal agencies have rules addressing the labeling of 
hazardous chemicals. For this reason products or chemicals subject to 
their standards are exempt from labeling under HazCom.
    Commenters' suggestions about label content and format indicated 
that they perceived the proposed rule as requiring much more operator 
labeling than we intended. Some seemed to think that we required 
operators to evaluate and label containers of hazardous chemicals 
brought to the mine. One commenter pointed out that manufacturers may 
not identify new information on the label and MSDS they provide and 
stressed that operators should not have to update existing labels.
    The interim final rule also contains exemptions from labeling. The 
interim final rule does not require you to re-label containers of 
hazardous materials that are labeled in accordance with other Federal 
standards or are otherwise marked or tagged with the required 
information. You are not responsible for inaccurate information on a 
label prepared by the chemical's manufacturer or supplier, which you 
accept in good faith. We do not expect, and HazCom does not require, 
you to update the hazard warnings on labels you did not prepare. We do 
expect, however, that as you replace your inventory, you will do so 
with containers already labeled by the manufacturer with the new 
information. If the manufacturer sends you a new label with 
instructions to replace the existing label, you must do so.
    Labels on mine products. Commenters expressed concern that some 
operators might be unable to prepare the label for their mine's 
products because they lack the technical knowledge to do so. You should 
already know the hazard information for the chemicals produced at your 
mine because our existing standards require you to label hazardous 
materials and train miners about the safety and health aspects of their 
job. While underground coal mines are not required to label hazardous 
materials, they do conduct miner training. In the HazCom Toolbox, we 
will provide language that you can copy for labels for hazardous 
chemicals commonly produced at mines, such as respirable crystalline 
silica and ammonium nitrate-fuel oil (ANFO) mixed on mine property.
    A commenter asked that we clarify whether the requirement to update 
the label with significant new hazard information within 3 months 
applied to small quantities of hazardous chemicals in transfer 
containers. The availability of significant new hazard information on a 
hazardous chemical is a relatively infrequent occurrence. Most new 
information confirms, clarifies, or expands knowledge about the hazards 
already known. If you have to label the container of a hazardous 
material, it is our intent that you ensure that the label is accurate 
and update the label when you become aware of significant new hazard 
information.
    Maintenance. Some commenters stated that labels would be difficult 
to maintain in a mining environment or that they would be difficult for 
miners to read and understand. Although it may be difficult to maintain 
labels in some areas of the mining environment, these labeling 
requirements are realistic and achievable. OSHA's HCS provisions are 
successfully met at heavy and highway construction sites as well as at 
tunneling operations, situations that are comparable to mining sites. 
Many of the containers coming onto mine property will have permanent 
labels affixed, suitable for use in the mining environment, and 
effective training will help miners to understand the labeling 
information.
    HazCom requires you to check the label on a chemical brought to the 
mine to determine if it is hazardous so you will know whether you need 
to obtain and keep an MSDS, list the chemical on the list of hazardous 
chemicals, and train miners about the chemical. You also must ensure 
that the labels and other forms of hazard warning are legible. You do 
not have to re-label these containers unless there is no label or it is 
unreadable. Likewise, you must not remove or deface the labels on 
hazardous chemicals brought to the mine unless you immediately mark the 
container with the chemical's identity and its hazards. You must also 
ensure that the container remains labeled as long as you use it to 
contain a hazardous chemical.
3. Sec. 47.32  Label Contents
    HazCom requires that you label containers of the hazardous 
chemicals you produce. Although the hazard warnings on the labels 
should be concise and easy to see, they also must convey the chemical's 
identity and its physical and health hazards. The label, tag, or other 
marking that you prepare must communicate enough information to users 
of your product and other employers so that they can recognize the 
hazards and make correct decisions about safe procedures and protective 
equipment. We do not intend the label to be the only or most complete 
source of information on the hazardous chemical.
    We recognize that it may not be feasible to include every hazard on 
the chemical's label that is listed in the MSDS. We expect, however, 
that you will address all hazards in the training program. The 
selection of hazards to be highlighted on the label will involve some 
assessment of the weight of the evidence regarding each hazard. This 
does not mean, however, that only acute hazards are to be covered on 
the label or that well-substantiated hazards can be omitted from the 
label because they

[[Page 59062]]

appear on the MSDS. As one commenter stated:

    We urge you to consider the possible effects of a world in which 
every conceivable threat is labeled, stickered, highlighted until 
the senses are saturated and the desired effect of the entire 
message is lost. We are rapidly creating such a world, and we 
caution you against needlessly furthering this unnerving trend.

    For those chemicals posing multiple hazards, we expect you to 
prioritize the hazards and use that as the basis for the warnings. At a 
minimum, you must specify all serious hazards on the label. For 
example, if chromium (VI) in a welding fume is carcinogenic, causes 
liver and kidney damage, and blood abnormalities, as well as 
respiratory irritation, perforation of the nasal septum, damage to the 
eyes, sensitization dermatitis, and skin ulcers, the label could say: 
``Causes cancer, liver and kidney damage, blood abnormalities, and 
irritation of the skin, eyes, and mucous membranes.'' The warning about 
it causing sensitization dermatitis, respiratory irritation, skin 
ulcers, perforation of the nasal septum, or conjunctivitis could be 
covered by the less specific phrase, ``irritation of the skin, eyes, 
and mucous membranes.''
    You may have to reconcile inconsistent information in different 
sources by evaluating the evidence used in making the hazard 
classification. For example, if the chemical causes severe burns upon 
contact with skin, eyes, or mucous membranes, you would not also have 
to say that some evidence reported it to be a skin irritant. You also 
may need to distinguish between acute and chronic hazards. For example, 
some chemicals present a hazard only from prolonged exposure to high 
concentrations. When you determine what hazard information to include 
on a label, you should make an assessment of the information you report 
on the MSDS and coordinate the two documents.
    Hazard warning. The definition of ``hazard warning'' states that 
the warning must convey the specific hazard of the chemical. Consistent 
with the proposal, the hazard warning can be any type of message, 
words, picture, or symbol that provides at least general information 
regarding the hazards of the chemical in the container such as 
``flammable'' or ``suspected human carcinogen''. If applicable, the 
warning must include the organs affected. For example, if the chemical 
causes lung damage when inhaled, then ``causes lung damage'' is the 
appropriate warning. ``Lung damage'' would be the hazard and ``do not 
inhale'' would be the protective measure. Phrases such as ``caution,'' 
``danger,'' or ``harmful if inhaled'' are precautionary statements.
    Some commenters suggested that the labels would need to state the 
container's contents and provide a general hazard warning, using words 
like ``combustible,'' ``flammable,'' or ``poison.'' A general 
statement, however, would not convey enough information to enable 
miners to adequately protect themselves. Other commenters believed that 
only a precautionary statement, such as ``Danger!'' would be needed. 
Some suggested that we require operators to include precautionary 
statements on the label, in addition to the other information. A few 
commenters stated that warning labels should summarize acute and 
chronic health effects and safety hazards and should provide advice and 
a phone number in case of emergency. Others recommended that labels 
include the target organ(s) affected by the chemical.
    We intend that the label include the target organ effects, if such 
information is available. There are some situations where the specific 
target organ effect is not known. When this is the case, you can use a 
more general warning statement. For example, if the only information 
available is an LC<INF>50</INF> test result, ``harmful if inhaled'' is 
appropriate. (An LC<INF>50</INF>, or the lethal concentration by 
inhalation for 50% of the animals tested, is the exposure concentration 
at which half of the animal test subjects died.)
    Our existing standards (Secs. 56/57.16004; Secs. 56/57.20012; 
Sec. 77.208) require you to label hazardous materials appropriately. In 
addition to the required information, we encourage you to include other 
helpful information on the label. For example, the symbols on the label 
representing precautionary measures or safe work practices, such as 
``chemical goggles,'' ``respiratory protection,'' or ``use only in a 
well-ventilated area,'' serve as reminders about the hazard and 
increase the likelihood that miners will use these measures.
    Label format. Many commenters suggested various format criteria and 
coding schemes for labels, affirming the benefits of uniformity. 
Consistent with the proposal, we recognize that there are a variety of 
different labeling systems to warn persons of chemicals and their 
hazards. Some systems rely on numeric codes and specific colors to 
convey the hazards of chemicals. These systems, however, usually convey 
the degree of risk that a chemical poses and not specific hazard 
information. You can use these types of systems for labels used at the 
mine if you communicate the specific physical and health hazards of the 
chemicals through other parts of the HazCom program, such as MSDSs and 
training. These systems are appropriate for labels to downstream users 
if you also provide them the other labeling information and the way to 
understand your labeling system.
    Recognizing that a specific system is not necessary to communicate 
the chemical's identity and its hazards, and that some mine operators 
already have a labeling system, HazCom's labeling requirements are 
performance oriented. The interim final rule is deliberately flexible 
to allow for the adoption of an international system for classifying 
and displaying hazard information, when it becomes available. Although 
the interim final rule does not require a specific labeling system, we 
encourage you to adopt a label format that is in accordance with an 
established standard. In its comments on the proposal, the Chemical 
Manufacturers Association (CMA) suggested that operators use the 
``American National Standard for Industrial Chemicals--Precautionary 
Labeling'' (ANSI Z129.1-1988) for their labeling system. Uniformity in 
the format, content, and terminology of MSDSs and labels aids 
understanding and simplifies their development. It also allows miners 
and others to find critical information quickly. Consistent domestic 
labeling requirements between MSHA and OSHA will make communication 
among industries more effective and will make it easier for them to 
adopt global hazard communication standards.
    Other languages. The interim final rule, consistent with OSHA's HCS 
and the proposal, requires that the label be in English. If a 
significant number of your miners do not read English, or if their 
English is poor, you should provide the labeling information in another 
language in addition to English or add symbols to communicate the 
chemical's hazards. For example, if your workforce speaks Spanish, you 
should add a label in Spanish that gives the chemical's identity and 
hazard information or provide a translation of the labeling information 
to the affected miners. If your workforce speaks several different 
languages, or there are other literacy issues, you should add symbols 
to the label to communicate the chemical's hazards. You must ensure 
that the workforce understands the meaning of the symbols.
    Carcinogen labeling. As discussed under ``Identifying Hazardous 
Chemicals,'' the HazCom proposal, interim final rule, and OSHA's HCS 
all require that the employer consider a chemical to be hazardous if it 
is listed

[[Page 59063]]

in the specified ACGIH, NTP, or IARC publications or regulated under 
agency standards. You must include a carcinogenic warning on the label 
if one of these sources classifies the hazardous chemical as a 
potential or confirmed carcinogen.
    Many commenters suggested that we allow operators to determine what 
should be listed on the label based on an assessment of the weight of 
the evidence. Several pointed out that both IARC and NTP acknowledge 
that their classification evaluations are not complete hazard 
assessments. IARC and NTP use a strength-of-evidence approach that does 
not take into consideration negative studies for evaluating a 
chemical's carcinogenic hazard. In regard to the use of ACGIH, one 
commenter stated:

    ACGIH lists chemicals identified as carcinogens from ``other 
sources'' without identifying these sources. The ACGIH documentation 
of TLV's and BEI's lists five sources of information on carcinogens 
(IARC, MAK, NTP, NIOSH, and TLV). Since these sources often use each 
other as their reference point rather than come to independent 
conclusions, we believe that the ``carcinogen'' tag can be 
inappropriate unless there is conclusive evidence of 
carcinogenicity. While fuller explanations may be given on an MSDS, 
we believe that automatic triggers should not be used to determine 
warnings on labels.

    Although some commenters specifically objected to using IARC, NTP, 
or ACGIH as a trigger for cancer labeling, others supported carcinogen 
labeling based on the judgment of these organizations, but only for 
those chemicals identified as known human carcinogens. Another 
commenter objected to carcinogen labeling for those chemicals listed in 
IARC Group 2A. Group 2A carcinogens (probably carcinogenic) are known 
to induce cancer in animals, but the evidence of human carcinogenicity 
is limited. These commenters believed that requiring carcinogen 
labeling for potential or probable carcinogens would result in ``over-
labeling'' and detract from the focus that should be given to more 
serious hazards. In addition, one pointed out that ``over-labeling'' 
could have the adverse marketplace consequence of encouraging shifts to 
unlabeled products, typically without an assessment of whether the 
unlabeled product is, or is not, safer than the labeled product. 
Several commenters supported including IARC, NTP, and ACGIH's 
carcinogenicity findings on the MSDS, but not on the label. A few 
commenters, however, recommended that we require labeling for all 
carcinogens, including those listed as potential or probable.
    In considering the comments, we find that IARC, NTP, and ACGIH base 
their cancer classifications on valid scientific evidence. This 
evidence warrants informing miners of the cancer hazard associated with 
any chemical on these lists. Miners have a right to know about this 
hazard information. If one or more of these organizations has 
associated a potential, probable, or confirmed carcinogenic hazard with 
a chemical at the mine, you must inform the miners who can be exposed. 
A fuller discussion about the use of these organizations as sources is 
in the Hazard Determination section of this preamble.
    Silica labeling. IARC is one of the authoritative sources listed in 
HazCom for establishing whether a chemical is a carcinogen. In 1997, 
IARC classified inhaled (respirable) crystalline silica as Group 1, a 
confirmed human carcinogen.
    A number of commenters expressed concern that the proposal would 
have required the labeling of silica as a carcinogen. Several argued 
that labeling silica as a carcinogen was both impractical and 
unnecessary. One of these commenters stated:

    Silica is, as MSHA recognizes, a natural substance occurring in 
the great majority of the earth's crust and labeling over one 
billion tons annually of naturally occurring stone produced by 
American quarries would clearly be impractical and unnecessary by 
the standards of good science.

    Some commenters stressed that the labeling requirement should apply 
to respirable silica because the size of the silica particle determines 
whether or not it is a health hazard. One commenter stated:

    OSHA has taken the position in interpreting its HCS that it 
applies only to crystalline silica available for respiration. * * * 
Mr. Gerald F. Scannel, Assistant Secretary of Labor for OSHA, stated 
that kaolin dust products containing less than 0.1% respirable 
crystalline silica would be exempt from coverage under the provision 
of paragraph (d) of the [OSHA's] HCS, ``Hazard Determination.''

    In addition, this commenter cited a statement by Dr. David Rall of 
the NTP that, ``Only crystalline silica in respirable form will be 
added to the list of substances in the [NTP] 6th annual report.''
    The interim final rule does not address the labeling of containers 
of hazardous chemicals off mine property. You will have to label 
containers of any product containing 0.1% or more of respirable 
crystalline silica as a carcinogen to meet OSHA's HCS labeling 
requirements for your customers. The HazCom interim final rule exempts 
the raw material being mined or processed from labeling while on mine 
property. For example, if you operate a silica flour mill, you do not 
have to label containers of the raw material, such as crushers, bins, 
or hoppers.
    Under HazCom's hazard determination criteria, you must consider 
crystalline silica to be a human carcinogen when it is in respirable 
form and capable of being released in the work area or when an 
activity, such as crushing, would create respirable dust. Although you 
do not have to label it for purposes of HazCom, you must train miners 
about silica's carcinogenicity.
    Providing copies. The proposal would have required you to provide a 
copy of the labeling information with the initial shipment of a 
hazardous chemical to an employer. You could include this labeling 
information with the chemical's shipping papers rather than attach it 
to each container. If you became aware of any significant new 
information concerning the hazards of the chemical, you had to 
incorporate this new information, as appropriate, into a new label 
within 3 months and provide it with the next shipment of the chemical 
to the employer. In addition to the identity of the hazardous chemical 
and appropriate hazard warnings, the proposal also would have required 
you to provide the employer with your name and address or the name and 
address of a responsible party who could provide additional information 
about the hazardous chemical. The proposal did not specifically address 
customers who were not employers.
    Some commenters said that HazCom should require this labeling 
information on all containers shipped from the mine. They stated that 
it would be easier to label each shipment to avoid the extra 
recordkeeping associated with tracking which shipments to employers 
must contain labeling information. Several commenters stated that 3 
months is too long and that you should inform miners immediately of 
significant new hazard information. These commenters suggested 5 days, 
30 days, and 45 days as adequate time for you to incorporate the new 
information into a new label.
    Several commenters wanted us to cover hazardous chemicals shipped 
from a mine in a way that was consistent with the OSHA HCS. Some 
questioned our authority to require you to provide labels on products 
leaving mine property.
    The interim final rule requires you to make label information 
available upon request. Our experience indicates that

[[Page 59064]]

mine products are already labeled and MSDSs are sent in a manner 
consistent with OSHA's HCS. We believe that market forces and the 
requirements of other agencies will serve to ensure that you label your 
product appropriately for downstream users. Although you are 
responsible for the accuracy of the information on any label you 
prepare, you are not responsible for the accuracy of labels a 
manufacturer prepared for a hazardous chemical brought to your mine. We 
agree with those commenters who felt that you should inform miners 
immediately of any significant new information about the hazards of the 
chemicals in their work area, whether or not you have to update the 
label.
4. Sec. 47.33  Label Alternatives
    HazCom requires that the hazardous chemical's label warn miners 
about the presence, chemical identity, and specific health and physical 
hazards of the chemical. Neither the proposal nor the interim final 
rule includes specific criteria for the format of the label. The 
interim final rule requires that the label be prominently displayed, 
legible, accurate, and in English; display appropriate hazard warnings; 
and use a chemical identity that permits cross-referencing between the 
list of hazardous chemicals, a chemical's label, and its MSDS. In the 
case of a trade secret, you must comply with the requirements of 
Secs. 47.71 through 47.77 (trade secrets).
    Commenters supplied a wide variety of suggestions for a label 
format. Several recommended that we require a standardized label 
format. Some commenters suggested that a coding or rating system might 
be helpful. Some requested that we permit flexibility in our labeling 
requirements and allow batch labeling, color coding, standardized 
containers, or stenciling a generic name on the container. Others did 
not support the use of a coding or rating system on labels because they 
thought that miners would find such a system confusing. Some commenters 
suggested that we require labels to have large bold print with 
pictorial or color warnings. Another suggested that operators could 
label containers using markers or paint.
    The label requirements in the interim final rule are performance-
oriented, flexible, and consistent with the proposal and OSHA's HCS. 
Labels made with markers or paint are acceptable as long as they 
identify the hazardous chemical and its hazards and are maintained in 
legible condition. Any name may be used to identify the chemical 
contents of a container as long as it can be cross-referenced with the 
MSDS and the hazardous chemical list. You may substitute various types 
of standard operating procedures, process sheets, batch tickets, blend 
tickets, and similar written materials for container labels on 
stationary process equipment. The alternative, however, must identify 
the container to which it applies, communicate the same information as 
required on the label, and be readily accessible throughout each work 
shift to miners in the work area. You can post signs or placards that 
convey the hazard information if there are a number of stationary 
containers within a work area that have similar contents and hazards.
5. Sec. 47.34  Temporary, Portable Containers
    The interim final rule, consistent with the proposal and OSHA's 
HCS, does not require you to label a portable container into which a 
hazardous chemical is transferred from a labeled container, if the 
portable container is for the immediate use of the miner who performs 
the transfer. To clarify compliance responsibilities, we replaced the 
word ``immediately'' with the phrase ``during the same work shift'' in 
the interim final rule.
    Most commenters supported the proposed portable container 
exemption, but some claimed that it was too restrictive. These 
commenters recommended that we not require labeling of portable 
containers if they are subject to operating procedures that provide a 
means of alerting miners to their contents. Other commenters 
recommended that we expand this exemption to include any designee of 
the miner who performs the transfer. One of these commenters stated 
that adding the word designee would allow those individuals working 
with the miner who transferred the hazardous chemical, also to use that 
chemical. Otherwise, each miner working on the job would need his or 
her own portable container, perhaps creating a bigger hazard. Another 
commenter opposed expanding the portable container exemption to include 
the miner's designee because of concern that the miners would not 
communicate the hazard information to each other.
    Other commenters opposed our proposal to exempt portable 
containers, believing that it was too lenient and could create a 
serious hazard. Commenters expressed concern--
    <bullet> That unattended, misplaced, or forgotten unlabeled 
portable containers could present a high risk of exposure to hazardous 
materials due to inappropriate handling or disposal by other workers;
    <bullet> That unlabeled portable containers could be potentially 
dangerous because of the residues left in them;
    <bullet> That if the chemical in the portable container was not 
completely used by the end of the shift, we should require that the 
unused portion be returned to a labeled container;
    <bullet> That all containers of hazardous chemicals be labeled 
under this law or other applicable laws; and
    <bullet> That this section should be clarified because it seems to 
imply that you have no responsibility to maintain labeling information 
if a product is repackaged or transferred to another container at the 
mine site.
    After considering the comments and observing the use of portable 
containers in mining, we determined that allowing the miner who 
performs the transfer to use a hazardous chemical from an unlabeled 
container will not reduce that miner's protection. One common use of 
temporary, portable containers is when a miner transfers a lubricant 
from a 55-gallon drum into a small plastic or galvanized container in 
order to safely access and properly service machinery. We recognize 
that it would be impractical, or at least inconvenient in some 
instances, to access many pieces of equipment without the use of these 
containers.
    In response to commenters concerns and contrary to the proposal and 
OSHA's HCS, we expanded this exemption in the interim final rule. Under 
HazCom, you can allow other miners to use a hazardous chemical from an 
unlabeled, temporary, portable container provided you ensure that they 
know the chemical's identity, its hazards, and the protective measures 
needed; and that the container is left empty at the end of the shift. 
You can leave the chemical in the portable container for the next shift 
if you label the container. For example, if a container is emptied by 
one miner and refilled by another miner, you do not have to label the 
container before the second miner uses it. On the other hand, if you 
leave the hazardous chemical in the temporary, portable container, 
expecting to use it the next day, the container would have to be 
labeled.
    We expect that you already have labeled many of your portable 
containers because our existing standards require you to label 
containers of hazardous materials. Such labeling also is a safe work 
procedure to keep miners from placing a chemical in a container you had 
previously used for an incompatible chemical.

[[Page 59065]]

E. Subpart E--Material Safety Data Sheet (MSDS)

    The MSDS is a detailed information bulletin that serves as the 
principal source of important information about hazardous chemicals 
used or produced at the mine. This interim final rule requires you to 
have an MSDS for each hazardous chemical to which a miner can be 
exposed under normal conditions of use or in a foreseeable emergency. 
Although we revised the format and language of HazCom's MSDS 
requirements to reduce redundancy and use plain language, the interim 
final rule is substantively the same as the proposal and OSHA's HCS. An 
MSDS that complies with OSHA's HCS will meet our MSDS requirements 
because HazCom requires the same information on the MSDS as OSHA's HCS. 
Likewise, we expect that MSDSs meeting MSHA's criteria will meet OSHA's 
criteria for MSDSs under its HCS.
    In the proposed rule, provisions for determining hazards of single 
substances and mixtures were repeated under both ``hazard 
determination'' and ``MSDS.'' To eliminate this duplication, the 
interim final rule includes these provisions in the hazard 
determination section only. Also, in response to comments, we 
consolidated HazCom's provisions on access and cost for copies of MSDSs 
in a new, separate section on ``Making HazCom Information Available'' 
(Secs. 47.61 through 47.63).
1. Sec. 47.41  Requirement for an MSDS
    The interim final rule requires you to have an MSDS for each 
hazardous chemical at the mine. If you do not have an MSDS for a 
chemical brought to the mine and its label indicates that it is 
hazardous, the interim final rule requires that you obtain one from the 
manufacturer or supplier before using the chemical. You must prepare an 
MSDS for any hazardous chemical produced at the mine.
    Chemicals brought to the mine. The proposed rule would have allowed 
you to request, but not require you to obtain, an MSDS prior to using a 
hazardous chemical. Several commenters stated that requesting an MSDS 
was not sufficient and that you should have to obtain the MSDS before 
using the chemical on mine property. As indicated in the proposal, 
commenters on the ANPRM urged us to adopt MSDS requirements identical 
to OSHA's. Consequently, MSHA's provisions [in the proposal] on MSDS's 
are substantially similar to those in OSHA's standard. In response to 
comments and to make HazCom consistent with OSHA's HCS, we changed the 
word ``request'' to ``obtain'' in the interim final rule. You must have 
an MSDS available to miners in their work area for each hazardous 
chemical to which they may be exposed.
    Another commenter suggested that we allow you the flexibility to 
have either an MSDS or appropriate information about the chemical's 
hazards, safe work procedures, means of control, and first aid and 
emergency procedures immediately available. Substituting the 
information suggested by the commenter for the MSDS would not be 
sufficient because the MSDS contains much more information. OSHA 
requires MSDSs for hazardous chemicals produced at non-mining 
operations. For this reason, we expect that most, if not all, MSDSs 
prepared by chemical manufacturers or suppliers are readily available 
by fax or from the internet. If you have a document available to miners 
that contains all the information required in Sec. 47.42 (MSDS 
contents), we would consider that to be an MSDS. HazCom does not 
require a specific MSDS format, but the MSDS must contain all the 
information required to the extent that it is available.
    Several commenters stated that we should require MSDSs to be 
accurate. You are responsible for the accuracy of MSDSs that you 
prepare for a hazardous chemical produced at your mine. HazCom does not 
require you to be responsible for the accuracy of an MSDS that you 
receive with a shipment of a hazardous chemical and accept in good 
faith. Because OSHA requires that information contained in MSDSs 
accurately reflect the scientific evidence that formed the basis for 
determining that the chemical is hazardous, we believe that chemical 
manufacturers and suppliers develop MSDSs correctly. On the other hand, 
considering that you are responsible for communicating accurate health 
and safety information about the mine and the job to the miner, the 
MSDS that you maintain must include any new information the 
manufacturer sends you.
    Commenters stated that manufacturers do not indicate what 
information is new on the MSDS and it is impractical and overly 
burdensome to require operators to update MSDSs they do not prepare. We 
do not see this as a problem. The MSDS will show the date it was 
prepared or last changed. If you receive an MSDS that has a later date 
than the one you have on file, you should keep the one with the most 
recent date and discard the older. If you receive an MSDS that is 
obviously inaccurate or which you suspect is inaccurate, or if a 
category of information is missing, you should bring this to the 
attention of the party responsible for preparing the MSDS. There should 
be an address and telephone number on the MSDS.
    Some commenters stated that requiring MSDSs as part of HazCom would 
be burdensome to operators and of no real value to miners because of 
the complexity of information required to be provided on the MSDS. 
Another commenter stated that to keep track of which materials may or 
may not require MSDSs places an overwhelming burden on operators.
    MSDSs are essential in supplying information to the miner, as well 
as to the mine operator and independent contractor. Information, such 
as the chemical's properties, for example, may not be found on labels. 
The MSDS contains the information that we require you to communicate to 
miners about the hazardous chemicals to which they may be exposed. 
Although it may be an administrative burden to keep track of MSDSs, 
obtaining the MSDS from the manufacturer or supplier of the hazardous 
chemical relieves you of conducting independent searches for the 
required information. We expect that MSDSs will be an important 
resource for you in writing the HazCom program and modifying or 
developing training courses.
    As a result of the OSHA HCS, MSDSs have become widespread in 
general industry and many operators voluntarily obtain and use them. We 
suggest that you check the list of all the hazardous chemicals at your 
mine against the MSDSs that you have collected to discover if there are 
any MSDSs missing. If the list indicates that you use a hazardous 
chemical at the mine, but do not have an MSDS for it, you must contact 
the manufacturer or supplier to obtain the missing MSDS.
    Chemicals produced at the mine. The interim final rule requires you 
to prepare an MSDS for each hazardous chemical produced at the mine and 
update this MSDS with significant new information within 3 months of 
becoming aware of it. This provision is the same as the proposal and 
OSHA's HCS. A few commenters requested that the final rule remove the 
reference to ``significant'' and ``new'' information and add the phrase 
``scientifically valid'' to prevent the incorporation of questionable 
information into the MSDS. We intend that the MSDSs you prepare 
accurately reflect the available scientific evidence that formed the 
basis for your determination that the chemical is hazardous (Sec. 47.11 
contains criteria for determining a chemical's hazards). If the 
chemical presents more than one

[[Page 59066]]

hazard, you have to address each of them on the MSDS.
    One commenter indicated that his operation updates the MSDS every 3 
months. This time period is consistent with provisions in the interim 
final rule, the proposal, and OSHA's HCS for including significant new 
information on the MSDS and label and in the miner's training. In 
addition, some States have HazCom programs that are identical to OSHA's 
and require the use and distribution of MSDSs. Many mine operators are 
supplying MSDSs with their product as a good business practice, in 
response to requests from their customers, or to comply with State or 
local laws. We encourage you to check regularly for new information on 
the hazardous chemicals you produce.
    MSDSs for common minerals. In the proposal, we requested comments 
on the usefulness of requiring operators to develop or provide MSDSs 
for common minerals such as sand and gravel, crushed stone, or coal. 
These minerals are the hazardous chemicals produced by over 90% of the 
mines. We also requested comments on whether we should develop MSDSs 
for common minerals and provide them upon request to all interested 
parties. A few commenters agreed that we should develop MSDSs for 
common minerals. Two commenters said that we should not develop them. 
One of these stated that generic MSDSs would not be useful and that we 
should not require MSDSs for these common minerals.
    If you determine that a common mineral is hazardous using the 
criteria in Sec. 47.11, hazard determination, you must comply with the 
provisions of HazCom to the extent applicable.
2. Sec. 47.42  MSDS Contents
    In the interim final rule, as in the proposal, we require that 
MSDSs be in English, but do not otherwise include a requirement for the 
format. Although the proposal did not specifically require that the 
MSDS be legible and accurate, we added these terms in the interim final 
rule to clarify your compliance responsibilities.
    Some commenters suggested that we require MSDSs to be made 
available in alternative languages. Although the MSDS must be in 
English, you also may provide it in other languages. Just as you have 
to communicate job duties and work procedures to those miners who may 
not read or understand English, you must communicate the required 
information about a hazardous chemical to them. MSDSs for hazardous 
chemicals brought to the mine are probably available in Spanish or 
other languages from the manufacturer or supplier or other sources, 
such as trade associations and websites. If available, you must provide 
the MSDS in a language the miner can understand. If you employ miners 
who do not read English but read another language, having an MSDS in 
the language the miner can read makes it easier for you to communicate 
the chemical's hazards. At those mines where multiple languages are 
spoken, we suggest you use symbols to help communicate the nature of 
the hazard and protective measures, and reinforce the miner's 
understanding of this information.
    Similarly, some commenters claimed that miners would be unable to 
understand the MSDS because the language is too technical. As stated 
earlier, you must balance technical accuracy against miner 
understanding. For example, you can use simple, clear language when 
preparing the MSDS: you could use ``lungs'' as a route of entry rather 
than ``inhalation'' or ``causes nerve damage'' rather than 
``neurotoxin.''
    Information required in MSDS. HazCom requires that each MSDS 
include the following information about the chemical:
    1. Identity. The chemical and common names of the hazardous 
chemical if it is a single substance and of the hazardous ingredients 
if it is a mixture. The identity used must permit cross-referencing 
between the list of hazardous chemicals at the mine (Sec. 47.22), a 
chemical's label (Sec. 47.32), and its MSDS.
    2. Properties. The chemical's physical and chemical properties as 
appropriate, such as boiling point, melting point, vapor pressure, 
evaporation rate, solubility in water, appearance and odor, flash 
point, and flammability limits.
    3. Physical hazards. The hazardous chemical's potential for fire, 
explosion, and reactivity.
    4. Health hazards. The hazardous chemical's potential to cause an 
illness or injury, such as its acute and chronic health effects, signs 
and symptoms of exposure, any medical conditions that are generally 
recognized as being aggravated by exposure to the chemical, the primary 
routes of entry (for example, the lungs, the stomach, the skin or 
eyes).
    5. Carcinogenicity. The hazardous chemical's carcinogenic 
classification, if any, such as whether the chemical is listed as a 
potential, probable, or human carcinogen in the sources specified in 
Sec. 47.11 (identifying hazardous chemicals).
    6. Exposure limits. The MSHA limit and any other exposure limit 
used or recommended by the preparer of the MSDS, where available, such 
as its ACGIH TLV, OSHA PEL, or NIOSH recommended exposure limit.
    7. Safe use. Any generally applicable precautions for safe handling 
and use that are known to you or the responsible party preparing the 
MSDS, such as appropriate hygienic practices, protective measures 
during repair and maintenance of contaminated equipment, procedures for 
clean-up of spills and leaks, and special disposal requirements.
    8. Control measures. Generally applicable control measures, such as 
ventilation, process controls, restricted access, protective clothing, 
respirators, and goggles.
    9. Emergency information. Emergency procedures, such as special 
instructions for firefighters; first-aid procedures; and your name, 
address, and telephone number, or that of a responsible party who can 
provide additional information about the hazardous chemical and 
appropriate emergency procedures.
    10. Date prepared. The date of preparation of the MSDS or the last 
change to it.
    This information is substantively the same as the proposal and 
OSHA's HCS. One difference is that HazCom requires you to list the MSHA 
exposure limit for the chemical, if there is one.
    Numerous commenters asked that additional information be required 
on the MSDS, such as Department of Transportation (DOT) requirements, 
IARC and NTP conclusions, CAS numbers, NIOSH Recommended Exposure 
Limits, Hazardous Material Information System (HMIS) hazard code 
information, upper and lower explosive levels, and how products are 
covered by other agencies' programs, such as EPA requirements under the 
Comprehensive Environmental Response, Compensation and Liability Act 
(CERCLA), Resource Conservation and Recovery Act of 1976 (RCRA), and 
Superfund Amendments and Reauthorization Act of 1986 (SARA).
    We did not include additional requirements for the content of the 
MSDS in the interim final rule. The interim final rule requires MSDS 
contents that are consistent with the proposal and OSHA's HCS. The 
requirements are well-known, and adding to the contents could obscure 
crucial information needed for miner protection. To aid understanding, 
we included additional important examples (solubility in water, 
appearance and odor, flammability limits, and explosive limits). We 
encourage you to include additional helpful information, such as the 
DOT labeling requirements, the HMIS hazard codes, special instructions

[[Page 59067]]

for firefighters, or special disposal requirements.
    Standardized format. Neither the interim final rule nor the 
proposal prescribe a specific format for the MSDS. Both HazCom and 
OSHA's HCS allow the preparer to determine the format, provided that it 
addresses all the required categories.
    Numerous commenters requested that we require a standardized format 
for MSDSs. Several of these commenters stated that they wanted us to 
adopt OSHA's MSDS form (OSHA-174), and others recommended ANSI Z400-1 
``Guide for Preparing Material Safety Data Sheets.'' Another commenter 
recommended that we require operators who prepare MSDSs to present the 
same information in the same manner for the same hazardous chemical. 
One commenter was concerned that you would have to prepare duplicate 
MSDSs: one for OSHA and one for us.
    There are numerous sources for MSDSs in addition to the 
manufacturer or supplier: university databases, chemical information 
services, trade association or union collections. We established 
minimum requirements for information that must be on the MSDS. Each 
MSDS must contain the same minimum categories of information.
    If you cannot find the appropriate information to complete a 
specified category or if the category is not applicable to the chemical 
involved, you must indicate on the MSDS that no applicable information 
was found. For example, if the chemical does not have an exposure limit 
or is not classified as a carcinogen, mark these spaces ``not 
applicable.'' The MSDS must not contain blanks, even if you choose to 
use a form with categories beyond those required, because blanks may be 
interpreted. This requirement is the same as in the proposal and OSHA's 
HCS. HazCom allows you the flexibility to develop an MSDS in any format 
you wish, as long as it contains all required information. We encourage 
you to use a standardized format and suggest OSHA's non-mandatory MSDS 
form (OSHA-174) as a guide.
    Alternatives. In HazCom, as in the proposal, we allow you to use a 
single MSDS for a class or family of mixtures with similar hazards and 
contents, such as one in which the ingredients are the same, but their 
percentages vary from mixture to mixture, for example, organic solvents 
or lubricants. The few commenters on this provision agreed with the 
proposal.
    Also, as in the proposal, HazCom allows you to use a single MSDS to 
address the hazards of a process rather than individual hazardous 
chemicals when it is more appropriate. For example, the chemical 
composition of a flotation reagent changes as it evolves through the 
processing of a mineral. A few commenters objected to this option, but 
we decided to allow it for several reasons:
    <bullet> We saw this option as relating to format, not scope.
    <bullet> It is an option, not a requirement, intended to maximize 
flexibility and to acknowledge the practical limitations of dealing 
with chemicals.
    <bullet> For the purposes of HazCom, ``hazards of a process'' refer 
to the physical and health hazards of chemicals in the process. If you 
choose to prepare an MSDS for a process, you have to include all the 
chemical hazards created during the process and any likely to be 
created if there is a malfunction or accident, even if the hazardous 
chemical is a short-lived intermediate.
3. Sec. 47.43  MSDS for Hazardous Waste
    A number of mine operators have EPA permits to burn hazardous waste 
in their kilns or to dispose of hazardous waste in tailings. If you 
have hazardous waste at your mine, the interim final rule requires you 
to provide exposed miners and designated representatives with ready 
access to any materials you have that can help them know about the 
hazardous waste. Suppliers typically send a manifest and MSDS with 
hazardous waste. If no MSDS is available, however, you must give the 
miner access to any information about hazardous waste which--
    <bullet> Indicates its identity or that of its components;
    <bullet> Describes its physical and health hazards; or
    <bullet> Specifies the appropriate protective measures.
    Our proposal would have exempted EPA-regulated hazardous waste from 
HazCom's labeling and MSDS requirements. It still would have required 
you to determine the nature of the waste's hazards and instruct miners 
about them. Proposed Sec. 46.3 (hazard determination) stated:

    (b) Operators who receive chemicals shall determine their 
hazards based on the chemicals' material safety data sheets and 
container labels, except that the procedures in paragraph (a) of 
this section shall be followed for hazardous waste received by 
operators when a material safety data sheet cannot be obtained.

    Paragraph (a) contained the criteria for determining the hazards of 
chemicals produced at the mine.
    OSHA's HCS includes an exemption for hazardous waste regulated by 
EPA under the Solid Waste Disposal Act, as amended by the Resource 
Conservation and Recovery Act of 1976 (RCRA), as amended (42 U.S.C. 
6901 et seq.). Although OSHA's HCS excludes coverage of hazardous waste 
regulated by EPA, OSHA has other specific standards directed to 
hazardous waste operations (29 CFR 1910.120). OSHA was required to 
issue these standards by Sec. 162, Title 1 of the Superfund Amendments 
and Reauthorization Act of 1986 (SARA), as amended (29 U.S.C. 655 
note). We do not have similar statutory requirements or standards 
regarding hazardous waste operations.
    EPA standards require training of personnel at a hazardous waste 
facility, but this training appears to be directed primarily at 
limiting environmental impact. EPA standards also require an analysis 
of the hazardous waste as part of the process for obtaining a permit to 
burn or dispose of it. EPA does not require that this analysis specify 
the chemicals' hazards to workers or that the employer make this 
analysis available to employees.
    Some commenters expressed concern that exempting EPA-regulated 
hazardous waste from HazCom would omit a segment of the mining 
population that is exposed to hazardous waste on a routine basis. These 
commenters believed that MSDSs should be available to miners exposed to 
hazardous waste, including miners working at facilities where hazardous 
waste is processed or used as a fuel.
    As with other hazards exempt from HazCom, such as radiation, you 
have the responsibility to provide adequate hazard information and 
training to miners potentially exposed to EPA regulated hazardous waste 
in their work area. Our existing training standards require health and 
safety training and hazard training. To clarify that you must inform 
miners about the hazards associated with hazardous waste, even when the 
waste is exempt from labeling and MSDSs, we included a requirement to 
that effect in the interim final rule.
    Operations disposing of hazardous wastes receive a manifest with 
each shipment. This manifest contains much of the information found on 
an MSDS, often in greater detail. Similarly, if you collect waste 
chemicals from your mining operation, you should know what these wastes 
contain and the hazards of the ingredients. The interim final rule 
requires that, if you are unable to obtain or prepare an MSDS for 
hazardous waste, you must ensure that you provide each potentially 
exposed miner with any information you have that--
    1. Indicates the identity of the waste or its components,

[[Page 59068]]

    2. Describes its physical or health hazards, or
    3. Specifies the appropriate protective measures.
4. Sec. 47.44  Ready Access to an MSDS
    The interim final rule requires that you provide miners with access 
to MSDSs while they are in their work area. You can keep MSDSs at a 
central location if you ensure that they are readily accessible to 
miners in an emergency. The proposal had allowed you to keep MSDSs at a 
central location when it was not practical to maintain the MSDSs in the 
work area, if the miners had access to them at some time during their 
work shift, and if you ensured that miners could obtain the required 
information in an emergency.
    Numerous commenters requested that the MSDSs be kept in a central 
location when mining conditions were not favorable for keeping these 
documents in the work area. A few commenters said that we should not 
specify how MSDSs are to be made available to miners, only that they 
should be available. Several commenters asked that access to MSDSs be 
available through electronic means, such as computers.
    The purpose of requiring MSDSs in the work area where the chemical 
is stored, handled, or used is so that miners have quick access to 
critical information in emergency situations. The interim final rule 
provides flexibility for you to determine the best way to meet this 
requirement. We recognize that independent contractors especially need 
this flexibility because they work at different types of mines, 
typically multiple employer sites. Independent contractors, therefore, 
must coordinate the accessibility of MSDSs to other operators and 
miners, as well as their own.
    The interim final rule allows you to maintain paper copies of the 
MSDSs, keep copies on a computer or on microfiche, use fax or other 
data transmission means, or any other method for providing access. You 
may keep MSDSs wherever you think appropriate and accessible as long as 
any miners who can be exposed can readily obtain a copy in an 
emergency. If you keep MSDSs in the mine office, you must tell the 
miners where they are and how to access them. Access means that the 
office must remain open while miners are working or you must make 
provisions for them to immediately unlock the office if needed. If the 
MSDS information is kept on a computer, it may be necessary to train 
the miner to access the information from the computer or make provision 
for backup electrical power in the event of an emergency.
5. Sec. 47.45  Retaining an MSDS
    The interim final rule requires that you keep the MSDS for as long 
as the chemical is at the mine. The proposal would have required that 
you notify miners at least 3 months prior to disposing of the MSDS. The 
proposal did not specify how you were to notify the miner about the 
intent to dispose of these MSDSs. You would have had the flexibility to 
use any method that notified each miner who may have been exposed.
    Several commenters suggested that the proposed 3-month retention 
period was not sufficient because the chronic effect of a hazardous 
chemical may take years to manifest itself. Some commenters recommended 
that we be consistent with OSHA and require a 30-year retention period. 
One commenter suggested a retention period of 20 years. A few 
commenters agreed with the proposed 3-month retention period and others 
felt that there should be no retention requirement at all. One 
commenter suggested that these notices be posted.
    The intent of the proposal's requirement to notify miners prior to 
disposing of an MSDS was to ensure a miner had the opportunity to 
request a copy. The miner could then retain this information for future 
reference and you would not have had to maintain the MSDS for an 
extended period of time.
    We considered a 30-year retention period to be consistent with OSHA 
requirements. The OSHA retention period for MSDSs derives from that 
agency's generic rule on recordkeeping, (29 CFR 1904), which was not 
developed specifically for hazard communication purposes. As an 
alternative to retaining the MSDS for 30 years, OSHA's recordkeeping 
rule allowed employers to keep a record of the identity of the 
chemical, where it was used, and when it was used.
    Because of the nature of the mining industry, mines open and close 
frequently and there is a large turnover in miners each year. The 
records from closed mines would be impractical, if not impossible, to 
retain if the mine operator does not continue in business and there is 
no succeeding operator. Also, it would be impractical, if not 
impossible, to find the miners who may have been exposed to the 
chemical if the miner were no longer employed at the mine.
    A requirement to retain MSDSs for a lengthy period of time could 
result in the accumulation of a great number of MSDSs. Manufacturers 
may change the formulation of some chemicals as processes or new 
technologies improve, requiring a revision to their MSDS. We expect 
operators to keep the current MSDS for the chemicals they use. 
Maintaining many MSDSs for a single brand name that has changed 
composition a number of times could lead to confusion and potentially 
cause greater harm than not having the old MSDSs available in case a 
miner develops a disease 10, 20, or 30 years after exposure. Some mines 
use a large number and variety of chemicals briefly, depending on which 
product is cheapest or which the distributor is carrying at a specific 
time.
    For the above reasons, we believe the 30-year retention period 
would be excessively burdensome for the mining industry. We also 
believe, however, that it would not be a great burden for you to notify 
miners 3 months before disposing of an MSDS.
    The interim final rule requires that you maintain the MSDS at the 
work area or a central location as long as the hazardous chemical is at 
the mine, and notify miners at least 3 months before you dispose of an 
MSDS. We require you to provide copies of MSDSs to miners because they 
have a right to specific information about their chemical exposures. We 
determined that this access provision is adequate to ensure that a 
miner could obtain a copy of the MSDS if the miner wanted one.
    We believe miners request copies of MSDSs because they are 
concerned about a chemical's effect on their health. If a miner has a 
health concern, he or she usually requests a copy immediately rather 
than later. The effects of some chemicals, however, have a long latency 
period between the exposure and the onset of a disease. Miners can get 
a copy at any time the chemical is at the mine, but may not think to 
get a copy until you notify them that you intend to dispose of it. You 
may use any effective method to notify the miners, such as a verbal 
announcement in a safety meeting, a personal written notice, an all-
employee newsletter, or a notice posted on the mine bulletin board.

F. Subpart F-HazCom Training

    Training is the foundation of the HazCom standard, the principal 
means of conveying HazCom information to the miners. A premise of this 
interim final rule is that miners will make safer and more healthful 
decisions about their work when they know more about the chemicals in 
their work area. When you provide effective training, miners will know 
how to read and understand labels and MSDSs, how to get chemical 
information, and how to use it. They

[[Page 59069]]

will understand the risks of exposure to chemicals in their work areas, 
as well as the means of prevention and protection. You must develop and 
administer a training program that ensures that miners receive and 
understand this vital information about chemical hazards.
1. General Comments and Responses
    The principal training standards that apply at your mine are found 
in parts 46 or 48, depending on the commodity you produce and the type 
of mine that you have. We proposed HazCom in 1990 as part 46. 
Subsequently, we promulgated training standards for some segments of 
surface mining as part 46. The fundamental goals and the statutory 
basis for our training standards in parts 46 and 48 are the same. 
Although commenters could not have anticipated this new part 46, we 
considered their comments on part 48 as applicable to part 46.
    The burden of HazCom training. Under parts 46 or 48, you must 
provide miners initial training, annual refresher training and, 
whenever a new task is assigned, task and hazard training. The existing 
training standards provide an outline of subjects to be addressed for a 
successful safety and health training program: occupational health, 
hazard recognition, the safety and health aspects of the task, and 
safety and health standards, among others.
    Several commenters felt that the proposal would be a heavy burden 
given the existence of these other training requirements. Some 
anticipated difficult administrative problems both in conducting and 
documenting the training. Some suggested that we not promulgate 
training requirements under HazCom, asking us to amend part 48 (and 46) 
to specify HazCom contents instead. Some suggested that language be 
included that ``operators are permitted to satisfy the training 
provisions of [HazCom] by incorporating those requirements into 
provisions of Part 48--Training and Retraining of Miners.'' One 
commenter explained that by permitting--

    * * * operators to choose incorporation of the training aspects 
of [HazCom] into Part 48, each operator can retain the flexibility 
to evaluate the practicality and appropriateness of using the Part 
48 training scheme as the training administrative vehicle. Some 
elements which may be important to this evaluation are: the volume 
and variety of hazardous chemicals requiring hazard communication; 
the extent to which training required by [HazCom] is currently 
accomplished through Part 48; and the need to establish a separate 
training scheme with accompanying recordkeeping systems.

    We intend HazCom to emphasize chemical hazards and to dovetail with 
parts 46 and 48. You are in the best position to know the training 
needs of your miners and we have tried to grant you as much discretion 
as possible under HazCom to tailor your training program to fit these 
requirements. We expect this flexibility to improve training and, as a 
result, the ability of your miners to protect themselves. Although we 
expect most operators to integrate HazCom training into parts 46 or 48, 
you have the flexibility to conduct HazCom training independent of 
those requirements. We urge you to combine HazCom training requirements 
with existing requirements to unify your program, equipping better 
focused and informed miners to work safely with chemical hazards.
    We disagree with the recommendation that all HazCom training 
requirements should be incorporated under parts 46 and 48 and that the 
training should not be addressed independently. The number of 
chemically-related injuries and illnesses indicates to us that, 
industry-wide, training on chemical hazards may be inadequate. HazCom 
provides a new emphasis in miner training--hazardous chemicals--that 
can be incorporated into your existing program, but can stand alone as 
well. Training is one of several interdependent aspects of a HazCom 
program. If we were to promulgate HazCom without training provisions, 
it would lose an integral part of the program and reduce its overall 
effectiveness. In response to comments, however, we added language 
specifically to clarify that you could credit relevant training 
conducted to comply with parts 46 and 48 and OSHA's HCS to meet HazCom 
requirements.
    Your training and your approved training plan may have to be 
modified to add this new focus. The new HazCom training requirements 
are not automatically interchangeable with parts 46 and 48. In most 
instances, however, you should not have to revise your training plan to 
conduct HazCom training. We developed the training aspects of HazCom to 
be fully compatible with existing standards. If you train miners to 
recognize a chemical hazard, this is Hazard Recognition training. If 
you train miners about the HazCom standard, this is Mandatory Health 
and Safety Standards training. You must consider the hazardous 
chemicals at your mine, the conditions under which they are used, and 
what your approved plan says. We expect, however, that this interim 
final rule will have minimal impact on the mining industry with regard 
to increased training and administrative burdens.
    Instructor qualifications. Some commenters recommended that we 
require you to conduct HazCom training using only qualified or 
certified trainers. One of these commenters stated that we should 
require OSHA qualification for HazCom instructors in mining and that we 
should require you to have hazard coordinators who maintain their 
qualifications by attending formal education or training courses. A 
commenter expressed concern that unqualified mine supervisors may be 
conducting HazCom training. Another commenter objected to the burden 
created by having to hire trainers and personnel to perform chemical 
identifications.
    Under existing standards, we require every mine to have an MSHA-
approved instructor for part 48 and a competent person designated by 
the operator for part 46. These trainers teach diverse and complex 
mine-specific courses. Although HazCom does not specifically require 
you to use qualified instructors, we expect that you will use the 
trainers on your staff to train miners about chemical hazards. MSDSs 
and labels are supposed to come with every container of a hazardous 
chemical brought to your mine. They will provide information for hazard 
identification and you should not have to hire or train additional 
persons. If you produce chemicals at your mine, we expect you to know 
which are hazardous and to train your miners on them. We recognize that 
training in chemical hazards will present challenges and you may have 
to obtain special HazCom training for your trainer.
    Simplified HazCom training. In the proposal, we specifically asked 
for comments on additional ways to simplify HazCom training, especially 
for small operators and independent contractors, while retaining or 
improving the effectiveness of it. Several commenters recommended that 
we develop training materials, including sample MSDSs, plans, videos, 
and modules on chemicals. Some of these commenters suggested that we 
produce generic written HazCom and training programs for you to adapt 
to your needs. Another commenter suggested that we expand and use the 
State Grants Program to assist you in developing HazCom programs.
    In response to these comments, we intend to develop a number of 
aids for the mining industry to use in implementing a successful HazCom 
program. Many of these aids are available now and the remainder will be 
available soon. You can contact the National Mine Health and Safety 
Academy at 304-256-3257 or visit our

[[Page 59070]]

website at www.msha.gov to find out what is available. Also, OSHA has 
developed training materials for its industries. Some are available 
from OSHA's website at www.osha.gov and can be adapted for use at 
mining operations.
    Hazardous waste. The interim final rule does not exempt hazardous 
waste from training. Miners handling this type of hazardous material 
need all the information available to protect themselves from chemical 
hazards and from inadvertent exposure.
    There are a number of sites under MSHA jurisdiction, particularly 
cement operations, which EPA licenses to burn hazardous waste. These 
operations typically use the waste as a supplemental fuel for their 
kilns. We specifically requested comments on the appropriateness of 
requiring HazCom training for miners who are exposed to EPA-regulated 
hazardous wastes.
    One commenter supported our proposed hazardous waste training 
requirements. Another stated that we should use RCRA information for 
training purposes and copy OSHA's HCS. One commenter recommended that 
we not require HazCom training unless a miner is exposed to the 
hazardous waste. Another commenter stated that HazCom training in 
addition to EPA training may be redundant.
    Uniformity in training. Some commenters recommended that we 
administer training for you because it would result in a higher level 
of consistency and quality in the training. Other commenters 
recommended the adoption of uniform training to help you and to provide 
consistency.
    Over the past 15 years, various organizations have developed 
informational materials, training aids, and model training programs to 
assist industry in complying with OSHA's HCS. Due to the similarity 
between the OSHA HCS and HazCom, you should be able to use much of this 
material to assist you in developing and conducting miner training. 
Also, our State Grants Program may be a source of miner training and 
informational materials. Although we do not intend to conduct this 
training for you, we will provide information and assistance to 
trainers through our Mine Health and Safety Academy, Educational Field 
Services, the MSHA district offices, and State grantees.
2. Sec. 47.51  Requirement for HazCom Training
    The interim final rule requires you to instruct each miner about 
the hazardous chemicals in his or her work area; we proposed that you 
provide exposed employees with training on hazardous chemicals in their 
work area. As with numerous other parts of the interim final rule, we 
believe that the scope and purpose clarifies how and to whom the 
provisions of HazCom apply and that the resulting change in language is 
not a change in meaning. Except for clear expression, we intend no 
difference between a requirement to ``instruct,'' for example, and a 
requirement to ``provide training.'' You must train a miner about the 
hazards of those chemicals to which he or she can be exposed.
    Before first assignment to an area. The interim final rule requires 
you to provide HazCom training to miners before you assign them to work 
in an area that has a hazardous chemical. A number of commenters 
interpreted the proposal to mean that a miner had to complete HazCom 
training before an initial assignment to an area. Commenters expressed 
the view that the best way to impart knowledge and understanding is on-
site while the miner is learning and doing the work.
    The compatibility of HazCom with our principal training 
requirements includes the three forms of instruction to address 
different training needs: initial, refresher, and task. You must 
conduct initial training before a person is assigned to work; you must 
conduct refresher training within a year after the initial training. 
You must conduct task training both on-site before work is started and 
continue after a miner begins the assignment. We agree with commenters 
that valuable training can occur at the site at the time of assignment 
or after assignment. The requirement that you train miners before their 
first assignment to an area refers to general training appropriate to 
HazCom and may in fact supplement fuller on-site training. What 
comprises on-site training and how you allocate the time for each 
subject depends on the chemical hazards, the workforce, the processes 
at your mine, and the problems you foresee. It will vary depending on 
the mine.
    We want to stress again, however, that HazCom is meant to work 
through the anticipation of risk. To reduce chemically-related injuries 
and illnesses, a miner must know about the hazards of the job and how 
to safely perform it before being left to work alone. The safety and 
health purpose of HazCom cannot be met if you delay the proper training 
until after an exposure has occurred.
    New chemical hazards. The interim final rule requires you to train 
miners whenever you introduce a new chemically-related hazard into 
their work area. Introducing a new hazard, however, is not the same as 
introducing a new hazardous chemical. For example, you have trained 
your mechanics in the hazards of a solvent they use at the mine. If you 
replace the solvent with a new solvent that presents the same hazards 
as the old and is going to be used in the same way and at the same 
locations, you are not required to conduct new training. You must, 
however, put the new solvent on your list of hazardous chemicals and 
keep a copy of the MSDS available. HazCom specifically states that you 
do not have to repeat training previously provided. If the new solvent 
poses a new hazard, you must train your mechanics about the new hazard. 
If you use the new solvent in a different way from the way you used 
your old solvent, you must train miners about any hazards that 
different use implies. If you will use the new solvent in a different 
location or process within their work area, you must inform them about 
this change and any hazards this new use implies.
    HazCom training and exposure. Some commenters suggested that miners 
should have the information and training only for exposures that are 
planned or that would result from a foreseeable emergency or a mine 
disaster. Others recommended that HazCom training focus on chemicals 
known to be hazardous when miners are handling them, and where 
exposures are likely. Some commenters suggested that we base training 
on hazard recognition and avoidance at the work site where there is a 
potential for injury. Another commenter recommended that we base 
training on a risk assessment method applied to the hazards at the 
mine.
    The interim final rule requires training for miners who work where 
there is a potential for exposure to a hazardous chemical. We are 
promulgating HazCom to anticipate the possibility of harm or loss from 
chemical exposures, not to regulate the risk of chemical use. Like any 
training or information standard, it is through this anticipation of 
risk that we mean for HazCom to address hazardous chemical exposure and 
prevent injuries and illnesses. We discuss the issue of potential 
exposure more fully under ``Sec. 47.2 operators and chemicals covered'' 
in this preamble.
    Significant new information. Some commenters stated that the 
proposal was not clear in requiring operators to train miners about 
significant new information. In response to comments, we added language 
to the interim final rule to clarify that you must train your miners 
about significant new information about a chemical's hazards whenever 
you become aware of the new

[[Page 59071]]

information. You can give examples of this information at formal 
classroom training, informal safety meetings, or by a supervisor on the 
job. It can be written or verbal. We had intended in the proposal that 
you would update this information. The interim final rule, however, 
gave us an opportunity to make our intention clearer to you.
    Significant new information about a chemical is rare. The physical 
properties of chemicals have been known for a long time and they almost 
never change. Most acute health effects are also known. Latent effects 
are more difficult to attribute to a chemical because of the time, 
environment, and other factors that obscure the relationship between 
the exposure and the disease. When new effects are found, they are 
generally significant. A recent example is IARC's reclassification of 
respirable crystalline silica as a probable human carcinogen. When 
these latent or other effects become scientifically accepted, you have 
a duty to tell your miners about them.
    Credit for other training. To allow for the effective use of 
resources, as discussed above, the interim final rule includes language 
to clarify that you can credit relevant training conducted for 
compliance with OSHA's HCS or other parts of this chapter to meet 
HazCom's training requirements.
3. Sec. 47.52  HazCom Training Contents
    The interim final rule's requirements for the contents of HazCom 
training is the same as the proposal, but was restated in clearer 
language. One commenter suggested that groupings of substances by types 
of health effects would aid you in developing a training program. 
Another commenter requested that you be allowed to train miners on 
chemical groups or on individual chemicals. This commenter stated that 
product substitution does not necessarily mean that a new hazard has 
been introduced.
    We intend HazCom to allow you to determine the best way to instruct 
your miners on how to identify and protect themselves from hazards 
associated with chemicals in their work area. If miners are exposed to 
a small number of hazardous chemicals, you could conduct their training 
specifically on each chemical. If miners are exposed to a large number 
of hazardous chemicals, you could conduct the training by categories of 
hazards and by referring miners to the substance-specific information 
on the labels and MSDSs and the locations or operations within their 
work areas where such chemicals are used. HazCom does not restrict 
training to the hazards of a specific chemical or the hazards of a 
group of chemicals.
    Several commenters supported the requirement that you train miners 
on the location and availability of the written HazCom program, written 
labeling information, and MSDSs. A commenter recommended that you 
periodically review the written program with all miners. Another stated 
that you should conduct HazCom training annually. The interim final 
rule requires HazCom training to address the HazCom standard, how you 
apply it at the mine, and how you make HazCom materials available.
    Several commenters supported the required use of MSDSs in miner 
training and several objected to requiring the use of MSDSs in 
connection with miner training. A commenter recommended that we require 
hands-on practice with MSDSs. The interim final rule does not require 
you to include the actual MSDS when conducting the training. MSDSs are 
designed to be an excellent, concise source of information about a 
chemical and its hazards. We believe that MSDSs will often provide the 
most specific and reliable information about a hazardous chemical and 
you will find them a particular help when developing your training 
program. The interim final rule requires HazCom training to contain an 
explanation of the MSDS and its location and availability, but does not 
require hands-on practice. The interim final rule gives you the 
flexibility to provide additional training, including hands-on 
practice.
    Some commenters suggested that miner training include the right to 
access MSDSs and that miners be advised of the retention time for 
MSDSs. As in the proposal, the final HazCom standard requires you to 
train miners about the requirements of HazCom, including the provisions 
addressing the miner's right to access the written HazCom program, 
written labeling information, and MSDSs.
    Another commenter stated that you should keep MSDSs with training 
records to help prove that the chemical was present at the time of 
training. The interim final rule does not include this requirement 
because MSDSs may be kept in the work area where the hazardous chemical 
is present. Also, requiring you to maintain duplicate MSDSs with the 
training record could prove burdensome.
4. Sec. 47.53  HazCom Training Records
    MSHA and many commenters have a common concern about paperwork 
requirements and the recordkeeping burden this places on them. Congress 
requires us to reduce the amount of paperwork you must keep or submit 
to us. That requirement is balanced against our need to function 
effectively in meeting the goals of the Agency. Aside from that, 
however, we wanted all MSHA training requirements, including records, 
to be as consistent and interchangeable as possible to keep the rule 
simple, reduce the burden, and eliminate any potential confusion for 
you. In view of those factors, we made a substantive change to the 
requirements for making and retaining training records. The proposal 
would have required the person responsible for conducting the training 
to certify the date and type of training given to each miner. You then 
had to keep this record for as long as the miner was exposed to a 
hazardous chemical.
    The interim final rule is more performance-based in its 
recordkeeping requirements than the proposal in that it does not 
specify any format or require specific data for these records. We also 
reduced the record retention time significantly. Under the interim 
final rule, you must keep a copy of the HazCom training record for 2 
years which makes this requirement the same as those in 30 CFR parts 46 
and 48. We believe this considerable relief from your paperwork burden 
is justified because we verify records during mine inspections, twice 
or four times per year. Besides fitting in with the retention period 
for parts 46 and 48, we determined that 2 years was a reasonable amount 
of time for miners to access their training records.
    MSHA Form 5000-23. For part 48 training, you must use our training 
certificate, MSHA Form 5000-23, or an approved equivalent, as a record 
of your training. Part 46 also requires documentation of training, but 
does not prescribe a specific form. If you incorporate HazCom training 
into parts 46 or 48 training, you can use Form 5000-23 or an approved 
equivalent to document the training. For purposes of HazCom, however, 
you may use any documentation that will convey adequate information for 
an inspector, miner, or miner's representative about who was trained, 
when, and what was covered. A copy of Form 5000-23 is available from 
our website.
    Availability of records. The proposal also would have required you 
to make the certified training record available to miners, designated 
representatives, and MSHA. A commenter stated that the maintenance of 
certified training records should conform to the OSHA rule. We 
recognize that training and certification of training may be of 
particular concern to independent

[[Page 59072]]

contractors working at locations regulated by MSHA, as well as other 
locations regulated by OSHA. To alleviate their concern, if a miner is 
exposed to the same chemical hazards at both an OSHA and MSHA site, we 
will credit relevant training given the employee at the OSHA site as 
meeting our requirements. The employee's training record, however, must 
be clear that the subject of the training was relevant to both HazCom's 
requirements and the circumstances on mine property. We modified the 
proposal's provision for maintaining the certified record to indicate 
that a record, not a certification, must be available, and we moved 
this provision to subpart G, Making HazCom Information Available.
    We intend that HazCom training cast light on chemical hazards. You 
should anticipate, therefore, that this training focus may cause miners 
to voice new concerns. You should prepare to respond to these questions 
with the best information you can gather: MSDSs, health sampling 
results for your mine, and data from whatever reliable sources are 
available to you.

G. Subpart G--Making HazCom Information Available

    The proposal defined ``access'' as the right to examine and copy 
records. The interim final rule uses this same language. In providing 
access, the proposal required you to make written HazCom information 
available, but the requirements were repeated under each major 
provision. In response to comments, we consolidated these requirements 
in a single place in the interim final rule. We included language in 
the labeling and MSDS sections to emphasize the need to have this 
critical information readily available.
    Hazard determination and awareness, labels and MSDSs, and training 
provide miners with essential information about hazardous chemicals. 
Each of these components of the HazCom program complements the others. 
They, along with the requirements for a written program and access to 
the HazCom materials, are necessary for the effective communication of 
chemical hazard information to miners and operators.
    Chemical information can be complex and lead to confusion. When you 
give miners access to your written HazCom materials, you will have 
taken an important step toward eliminating the mystery, clarifying any 
misinformation and erroneous concepts, and defusing worker concerns 
about these chemicals. If miners are not given access to the 
information, they can grow suspicious about what you tell them and may 
disregard the information entirely, thus reducing the effectiveness of 
the HazCom program. If you give miners access--to examine the material, 
copy it, and review it when they have time--they are more likely to 
share in the goals of the program, follow safe and healthful work 
procedures, and seek early medical help in case of exposure.
1. Sec. 47.61  Access to HazCom Materials
    The proposal required you to give miners and their designated 
representatives access to written HazCom materials: the written HazCom 
program, the list of hazardous chemicals, labeling information, MSDSs, 
and training records. The proposal also explicitly required that you 
give representatives of the Secretaries of Labor and Health and Human 
Services access to HazCom materials.
    Some commenters asked that we not require operators to copy records 
for miners, citing an administrative burden. Others suggested miners 
put their requests for access in writing to ``verify and effectively 
communicate actual requests for copies.'' Commenters also pointed out 
that Sec. 103(a) of the Mine Act already gives representatives of the 
Secretaries of Labor and Health and Human Services access to HazCom 
materials.
    This provision in the interim final rule is the same as the 
comparable provisions in the proposal, and is consistent with OSHA's 
HCS. Providing access means that if the miner requests a copy of any of 
the material associated with the HazCom program, you must give the 
miner a copy, as well as a copy of all updates. If you prefer, you can 
give the miner the records and the use of a copy machine so that he or 
she can make a copy. If you have an internet website, you could put the 
MSDSs on the website for access by your miners and customers, thus 
reducing the number of requests for paper copies.
    As in the proposed standard, the final access provisions require 
operators to provide a copy of the records, in a relatively short 
period of time, for the miner to examine or to retain a copy. In the 
interest of flexibility, the interim final rule does not specify the 
time period in which you have to provide copies. Because you are 
required to keep all these HazCom materials available at the mine, 
including those available by computer, you should be able to provide 
them to miners, designated representatives, and Federal officials on 
the same day or, at most, within 24 hours of receiving the request.
    While we agree that a written request would ``verify'' and 
``effectively communicate * * * an actual request'', there are numerous 
ways to achieve this goal other than having the miner put the request 
in writing. Requiring a written request is unnecessary because better 
alternatives are available. For example, you can have miners sign a 
receipt for the copies or initial a log. Requiring written requests 
could delay miners' access to essential HazCom materials. Therefore, 
the interim final rule does not require requests for copies of HazCom 
materials to be in writing.
    Although it is not stated, you must provide access to 
representatives of the Secretaries of Labor (e.g., MSHA inspectors) and 
Health and Human Services (e.g., NIOSH investigators). In response to 
comments, the interim final rule does not explicitly include this 
provision because it is mandated under the Mine Act.
2. Sec. 47.62  Cost for Copies
    The interim final rule, as in the proposal, requires you to provide 
one copy of any written HazCom material without cost to the miner. This 
includes a single copy of any revisions or updates. Some commenters 
were concerned that operators would have to provide copies at no cost 
to the miner. They stated that this was not reasonable and recommended 
that we require you to provide one copy, but not additional copies of 
the same document, at no cost. For this reason, if the miner or 
designated representative requests another copy of material you have 
already given them, the interim final rule allows you to charge for 
subsequent copies of the same material. These administrative fees must 
be reasonable and they must be the same for everyone. You may not 
refuse to provide these additional copies. These provisions will ensure 
that miners have access to information about hazardous chemicals 
without placing an undue burden on you.
3. Sec. 47.63  Providing Labels and MSDSs to Customers
    If you produce a hazardous chemical, HazCom requires you to provide 
the labeling information and the MSDS to customers when they request 
them. If you have an internet website, you could put the labeling 
information and MSDSs on the website for access by your miners and 
customers, thus reducing the number of requests for paper copies. You 
also have the option of sending copies by e-mail or facsimile (fax).
    We had proposed that you send labeling information with the first 
shipment of the product to a downstream user and updated information 
with the next shipment.

[[Page 59073]]

The proposal would have required you to send an MSDS upon request.
    After further consideration of the comments, we concluded that a 
requirement to automatically send labeling information to customers is 
unnecessary. Our experience indicates that many operators currently 
include hazard information on their product's label in response to 
market forces generated by the labeling requirements of other Federal 
agencies, primarily OSHA's HCS.

H. Subpart H--Trade Secrets

    The Trade Secrets subpart balances two important interests: the 
miner's interest in obtaining information on hazardous chemicals to 
prevent or treat adverse effects, and your proprietary interest in 
protecting your business. In general, we believe miner safety and 
health is best served by full disclosure of a chemical's identity. We 
recognize, however, the need to protect trade secrets. Once a trade 
secret is disclosed, its value may be lost. Under the Trade Secrets 
subpart:
    <bullet> You may always protect information about trade secret 
processes and percentages of mixture.
    <bullet> You may protect trade secret chemical identities except in 
emergency and specified non-emergency situations.
    <bullet> You must always disclose the properties, the safe use, and 
the safety and health effects of trade secret chemicals.
    Our proposal was, in essence, a restatement of the existing OSHA 
trade secret provision. The OSHA rule has worked for other industries 
for years, has withstood the test of experience, and can ensure that 
legitimate trade secrets will not be disclosed beyond what is necessary 
to protect miners. The comments we received on this subpart were 
generally supportive. The interim final rule, while revised 
stylistically, retains the substance of the proposal and the OSHA rule.
    We understand that most operators are probably not concerned with 
trade secrets. One commenter said that the Trade Secrets subpart had 
limited utility for the coal industry. Another commenter said the 
provision was unnecessary for crushed stone. Both of these commenters 
wanted us to delete the trade secret provisions.
    We disagree with those commenters. To the operators who create 
unique processing compounds, trade secret protection may be vitally 
important. One commenter thought that we were downplaying that 
importance by anticipating limited interest in the provision. On the 
contrary, we recognize the value of trade secrets where they exist. 
Although the subpart may appear elaborate, it provides a proven 
framework to accommodate both the interests of protecting trade secrets 
and miners' health and safety. We have considered all comments 
submitted and determined that the Trade Secrets subpart will 
effectively provide for the investigation and settlement of disputes.
1. Sec. 47.71  Provisions for Withholding Trade Secrets
    Once a particular chemical has been classified as a trade secret, 
HazCom allows you to withhold the chemical name and other specific 
identification of the hazardous chemical from the written HazCom 
program, label, and MSDS, provided that--
    <bullet> You identify the trade secret chemical in a way that it 
can be referenced without disclosing the secret;
    <bullet> You disclose the properties and effects of the chemical in 
the MSDS;
    <bullet> You indicate in the MSDS that the chemical's identity is 
being withheld as a trade secret; and
    <bullet> You make the chemical's identity available to MSHA, health 
professionals, miners, and designated representatives following other 
provisions in this subpart.
    HazCom does not require you to disclose process or percentage of 
mixture information. The interim final rule incorporates the language 
of the proposal with a few editorial changes.
2. Sec. 47.72  Disclosure of Trade Secret Information to MSHA
    This section requires you to disclose to us any information 
required by this subpart. If you are going to make a trade secret 
claim, it must be made no later than when you provide the information 
to us so that we can determine the validity of the claim and provide 
the necessary protection. We moved this provision for disclosing 
information to MSHA in order to keep all the disclosure sections 
together in the interim final rule. There were no comments on giving 
trade secret information to MSHA.
3. Sec. 47.73  Disclosure in a Medical Emergency
    You must immediately disclose the identity of a trade secret 
chemical to a health professional in a medical emergency. You are 
required to make this disclosure when the professional is treating the 
miner and determines that--
    <bullet> A medical emergency exists, and
    <bullet> The specific chemical identity is necessary to provide 
adequate treatment.
    The proposal required you to identify the trade secret chemical to 
a treating ``physician or nurse'' in the event of an emergency. One 
commenter suggested that we revise the provision to read ``physicians'' 
assistants and other health-care professionals who provide treatment'' 
instead of ``physician or nurse'' so that HazCom includes other health-
care professionals involved in treatment and patient care. This subject 
is also addressed in the Definitions subpart of this preamble under 
health professional.
    You must provide the chemical's identity to the treating health 
professional immediately in an emergency. After the emergency, however, 
HazCom allows you to require that the health professional provide you 
with a written statement of need, as well as enter into a 
confidentiality agreement to protect against the unauthorized 
disclosure of trade secret information. In general, the statement of 
need verifies that the health professional will be using the trade 
secret information only for the needs permitted by HazCom. The 
confidentiality agreement ensures that the health professional will not 
make any unauthorized disclosures of the trade secret.
    Under Sec. 47.74, non-emergency disclosure, we state that you may 
be subject to a citation. One commenter recommended that similar 
language be added for unwarrantable failures if disclosure is denied in 
an emergency. We did not adopt this recommendation in the interim final 
rule. The Sec. 47.74 citation provision is part of a procedure for 
reviewing denials of disclosures and balancing interests, which applies 
only to non-emergency situations. In any event, a violation of the 
emergency disclosure standard would, like other violations of mandatory 
standards, be subject to Mine Act enforcement.
4. Sec. 47.74  Non-emergency Disclosure
    Commenters agreed with the proposed provisions for non-emergency 
disclosure of trade secret chemical identity and we included these 
provisions in the interim final rule. In a non-emergency situation, you 
must disclose the trade secret information to a health professional 
providing medical or other occupational health services to a miner if 
they give you a written statement of need requesting the information. 
Under this section, miners and designated representatives also have the 
same access. The statement of need must address the reasons specified 
in the rule, and explain why other available information will not 
suffice. In addition, the requester has to enter into a confidentiality 
agreement.

[[Page 59074]]

5. Sec. 47.75  Confidentiality Agreement and Remedies
    The confidentiality agreement may restrict the use of the trade 
secret chemical identity to the health purposes indicated in the 
statement of need, and may provide for legal remedies in the event of a 
breach of confidentiality. You may not require a penalty bond in the 
confidentiality agreement; however, you may pursue other non-
contractual remedies to the extent permitted by law.
    You must allow the health professional, miner, or designated 
representative to disclose the trade secret chemical identity to MSHA 
if they decide there is a need. You may also provide in the agreement, 
however, that they must let you know before or at the time they make 
the disclosure. We proposed this last item as a mandatory requirement. 
It is not mandatory in the interim final rule because we determined 
that we could not enforce it. Accordingly, we are leaving it to the 
parties entering the confidentiality agreement to determine if it is 
needed. This provision only applies to disclosure of the trade secret 
chemical identity. In any event, miners and miners' representatives 
have the right under the Mine Act to confidentially report an imminent 
danger or health and safety violation to MSHA and explain how a trade 
secret chemical may be involved.
6. Sec. 47.76  Denial of a Written Request for Disclosure
    You may deny a written request for disclosure of trade secret 
information in non-emergency situations. Your denial must--
    <bullet> Be in writing, which includes e-mail and facsimile (fax) 
communication;
    <bullet> Be given to the person requesting the information within 
30 days of the request;
    <bullet> Include evidence that the chemical's identity is a trade 
secret;
    <bullet> State why the request is being denied; and
    <bullet> Explain how alternative information will satisfy the 
medical or occupational health need identified in the request.
    Commenters agreed with the proposed provisions for denying a 
request for non-emergency disclosure of trade secret information and we 
included these provisions in the interim final rule.
7. Sec. 47.77  Review of Denial
    If you deny a request for trade secret information, the person or 
organization making the request can refer the denial to us for review. 
In order for the request to be reviewed, it must include a copy of the 
request for disclosure, the confidentiality agreement, and your written 
denial. We will consider the appropriateness of the denial based on the 
evidence you submit to support your claim that the chemical's identity 
is a trade secret, the medical or occupational health need for the 
information, and the proposed means to protect confidentiality.
    If we determine that you wrongfully denied the request for 
disclosure, you will be subject to a citation. If you can demonstrate 
to us that the execution of a confidentiality agreement would not 
protect you against the potential harm of an unauthorized disclosure of 
the trade secret information, we may set conditions to ensure that 
medical services are provided without undue risk of harm to you.
    Finally, if you contest a citation for failure to disclose trade 
secret information, the Mine Safety and Health Review Commission will 
review the citation.
    Commenters agreed with the proposed provisions for reviewing a 
denial and we included these provisions in the interim final rule.

I. Subpart I--Exemptions

    The proposal included both the exemptions from the rule and the 
exemptions from labeling in the section on ``scope.'' It then repeated 
the labeling exemptions under ``labeling.'' Commenters remarked that 
this repetition was unnecessary. In the interim final rule, we placed 
each set of exemptions in a table in a separate Exemptions subpart near 
the end of the rule. This change in format brings the compliance 
requirements closer together at the beginning of the rule while, at the 
same time, eliminating repetition and making the exemptions more 
noticeable.
1. Sec. 47.81  Exemptions from the HazCom Standard
    The interim final rule exempts the following materials from the 
full scope of the standard. These exemptions are substantively the same 
as proposed.
    Articles. We proposed to exempt articles from the full scope of 
HazCom. This proposed exemption, however, merely listed ``articles'' 
and contained no description or criteria under the ``scope and 
application'' section of the rule. The definition for ``article'' 
contained both the description and criteria for exempting an article, 
the same as in OSHA's HCS. The proposed definition described 
``article'' as a manufactured item, other than a fluid or particle, 
that is formed to a specific shape or design during manufacture and has 
end-use functions dependent upon its shape or design. For example, even 
though polyaromatic hydrocarbons are hazardous chemicals, their 
presence in a plastic bucket or seat cushions or ventilation curtains 
is exempt from HazCom because the bucket, seat cushions, and 
ventilation curtains are articles. Polyaromatic hydrocarbons in diesel 
exhaust or adhesives, however, are covered by HazCom. Even though 
chromium is a hazardous chemical capable of causing poisoning, chromium 
in a steel bar or chisel would be exempt from HazCom, regardless of its 
percent composition, because the bar and the tool are articles.
    The definition also included paragraph (c), which stated that an 
article is exempt if, under normal conditions of use, it releases no 
more than trace amounts of a hazardous chemical and presents no 
physical or health hazard. For example, chromium in a welding rod is 
not exempt. Even though the welding rod is formed to a specific shape 
or design during manufacture and has end-use functions dependent upon 
its shape or design, the rod releases more than trace amounts of the 
hazardous chemical under normal conditions of use.
    Commenters generally agreed with the exemption of ``articles'' and 
with its definition in the HazCom proposal. Some commenters suggested 
that we eliminate the criteria in paragraph (c) of the definition 
because they are unnecessary and contrary to the thrust of the 
exemption for articles. Other commenters suggested, however, that the 
definition must address risk for this exemption to be effective. To 
determine when an article is a hazardous chemical, some commenters 
suggested that the definition include a de minimis provision 
establishing a low threshold concentration below which the rule would 
not apply. Other commenters wanted a significant risk provision. 
Several commenters recommended that we link this provision to the Mine 
Act by stating that an article is exempt if it ``does not release a 
quantity of a hazardous chemical that poses a risk of material 
impairment of health or functional capacity to miners.'' Another 
commenter suggested that HazCom clearly state our intent to exempt 
trivial risks. This commenter cited a court decision on OSHA's HCS 
which interpreted this exemption to mean that ``any amount of release 
that could conceivably cause damage eliminates exemption as an 
`article'.''
    Commenters also questioned what we meant by the terms ``minute'' or 
``trace'' as applied to releases of chemicals from

[[Page 59075]]

an article and by the phrase ``normal conditions of use.''
    These commenters stated that we must clarify this provision for the 
HazCom interim final rule to be effective. One commenter stated that--
    * * * If exposures are negligible, labeling products as 
hazardous causes needless concern to workers. If warnings are 
provided for all measurable releases of chemicals, regardless of 
risk, workers will be unable to distinguish between meaningful/
significant and trivial risks and the standard will be severely 
diluted.

    We agree with commenters' concerns that paragraph (c) of the 
proposed definition of article is unclear about how much of a hazardous 
chemical released from a manufactured item under normal conditions of 
use would constitute either very small, minute, trace, or de minimis 
quantities. In many cases, it may be both time consuming and difficult 
to accurately determine whether an item is an article or a hazardous 
chemical. For example, one commenter stated that ``[u]sing present day 
analytical chemical technology, extremely low levels of chemicals can 
be detected everywhere.''
    To clarify our intent, we separated the criteria for exemption from 
the definition for article. We also used the term ``insignificant 
amount'' instead of ``very small quantity'' and ``minute or trace 
amounts.'' By using these terms, we intend to shift the emphasis from 
the quantity of a hazardous chemical release to the significance of the 
release as it relates to risk. We believe that these language changes 
do not change the substantive intent of this exemption. Although we do 
not intend to regulate trivial risks, we recognize that the meaning of 
``trivial'' is subjective.
    Biological hazards. We proposed to exclude biological hazards from 
the HazCom standard, consistent with OSHA's HCS. We received a few 
comments supporting this exemption. Some commenters objected to our 
exemption of biological hazards because there are dangers at the mine 
associated with these substances, and information concerning their 
hazards should be communicated to miners.
    Although fungus, molds, and poison ivy have caused problems, there 
is little evidence to indicate that biological substances on mine 
property present any significant physical or health hazards. These 
biological hazards are not occupationally-related so much as they are 
ubiquitous. If there is a hazardous chemical present in addition to the 
biological hazard, it would be subject to the requirements of HazCom. 
For example, a bottle containing a biological sample in a hazardous 
solvent would have to be labeled for the hazardous solvent. This 
specific exemption is included in the final HazCom. This is consistent 
with our proposal and OSHA's HCS.
    Consumer products. We proposed to exempt consumer products and 
hazardous substances from the full scope of HazCom when operators or 
miners use them at the mine in the same manner as an ordinary consumer 
(normal consumer use). The proposal would have exempted consumer 
products as defined in the Consumer Product Safety Act (15 U.S.C. 2051) 
and hazardous substances as defined in the Federal Hazardous Substance 
Act (15 U.S.C. 1261), when they are subject to consumer product safety 
standards or labeling requirements issued under these Acts. The Federal 
Hazardous Substances Act (FHSA), administered by the Consumer Products 
Safety Commission (CPSC), regulates hazardous substances in interstate 
commerce. The CPSC specifically exempts pesticides subject to the 
Federal Insecticide, Fungicide, and Rodenticide Act, and foods, drugs, 
and cosmetics subject to the Federal Food, Drug, and Cosmetic Act, from 
the term ``hazardous substance'' under FHSA. In the proposal, we also 
specifically requested comments on the need to exclude from coverage 
any consumer product excluded by Congress from the definition of 
hazardous chemical under Sec. 311(e)(3) of the Superfund Amendments and 
Reauthorization Act (SARA) of 1986, Pub. L. 99-499.
    Commenters suggested that we define the term ``consumer product'' 
using a working definition for exempt materials rather that referencing 
statutes that mean nothing to most operators. One commenter stated that 
the EPA's consumer product exemption under SARA represents a more 
reasonable approach than that in the proposal and urged us to 
incorporate SARA's definition of consumer products. SARA defines a 
consumer product as--

    * * * any substance to the extent it is used for personal, 
family or household purposes, or is present in the same form and 
concentration as a product packaged for distribution and use by the 
general public.

    This commenter reasoned that keying the consumer product exemption 
to consumer packaging and concentration would achieve the same result 
as the proposed exemption, but without requiring you to demonstrate 
that your miners use the consumer product as an ordinary consumer.
    Another commenter indicated that many mining uses of consumer 
products may result in exposure that was not contemplated by the 
manufacturer packaging the product for consumer use. Some commenters 
questioned how individuals using consumer products in an unintended 
manner would affect our exemption of consumer products from HazCom. 
Another recommended that we delete the requirement that you must 
demonstrate that the consumer product is being used in the same manner 
as in normal consumer use. The commenter further stated that there is 
no evidence to demonstrate that significant risks are present where 
such materials are used in a manner or amount not consistent with 
normal consumer use.
    Commenters objected to the term ``normal consumer use'' in the 
proposal and recommended that we delete it from the interim final rule. 
Another commenter stated that requiring an additional determination, as 
to whether the product is used at the mine in the same manner as in 
normal consumer use, places an exceptional burden on you and 
recommended that we exempt all consumer products from HazCom. One 
commenter stated that consumer products should be included in the final 
rule because workplaces use the materials more frequently and in larger 
quantities than do private homes. Another stated that comparing the use 
of a consumer product by a miner with its use by a normal consumer is 
neither practical nor possible, because the duration and frequency of 
use are highly variable.
    There appears to be a misconception that by virtue of being 
marketable to consumers, consumer products are inherently safe and 
their use does not require you to provide additional information to 
miners using them at the mine. Consumer products, however, are not 
inherently safe. We recognize that there are situations where a miner's 
exposure is significantly greater than that of an ordinary consumer and 
that, under these circumstances, consumer products or hazardous 
substances which are safe for contemplated consumer use may pose unique 
hazards at the mine. For this reason, we limit the exemption in such 
cases to labeling. You must comply with the other requirements of 
HazCom, such as those concerning an MSDS and training, to inform miners 
about the hazardous chemical. This is consistent with OSHA's HCS.
    The interim final rule exempts consumer products from HazCom when 
you use them as an ordinary consumer. If you use the consumer product 
longer or in greater quantities or concentrations than an ordinary 
consumer, it is still exempt from labeling when it is already labeled 
under CPSC. If you want to

[[Page 59076]]

apply this exemption to a consumer product used at your mine, you must 
be able to show that miners use it in their work areas in the same 
manner as in normal consumer use and that the use results in a duration 
and frequency of exposure which is not greater than exposures 
experienced by ordinary consumers.
    Many mines buy consumer products to use in their daily operations. 
The consumer products exemption is not dependent on whether you 
purchase it wholesale or retail. For example, a 5-gallon container of 
paint from a retailer may not have an MSDS. If you purchased this paint 
from an industrial supplier, it would be labeled to comply with HazCom 
and the supplier would probably provide an MSDS.
    If you use a consumer product the way the manufacturer intended and 
the miner is not exposed to the chemical more often or for longer than 
an ordinary consumer, it is exempt from HazCom. The hazardous nature of 
a chemical and the potential for exposure are the factors that 
determine whether a chemical is covered. If the chemical is not 
hazardous, or if there is no potential for exposure, HazCom does not 
include it. For example, if you assign a miner to paint a hazard 
warning on an explosives magazine using a can of spray paint, that use 
would be one time and of short duration, just as it would be if an 
ordinary consumer used the product. If the miner's job is painting, 
requiring the use of spray paint frequently throughout the work shift 
or daily, this use does not qualify as ``normal consumer use'' and the 
hazardous chemicals in the paint would be included in the rule.
    We expect you to know whether the use of a consumer product on mine 
property is unusual, of longer duration, or more frequent than home 
use. Although a complete exemption may be easier to comply with and 
enforce than a partial one, the issue of concern to us is whether 
miners have sufficient information to use the hazardous chemical 
safely.
    In response to comments that we define ``consumer products,'' we 
decided to incorporate CPSC's definition, rather than SARA's, because 
both HazCom and OSHA's HCS reference CPSC's definition. The CPSC's 
definition clarifies the exemption, is compatible with HazCom and 
OSHA's use of the term, and provides the necessary protections for 
miners.
    Items for personal consumption. We proposed to exempt foods, 
drinks, drugs, cosmetics, and tobacco or tobacco products from HazCom 
when they were intended for personal consumption or use by miners while 
on mine property. Commenters generally supported these exemptions. One 
commenter recommended that HazCom exempt distilled spirits, consistent 
with OSHA's exemption. Other commenters recommended that this exemption 
also include the condition that the product be packaged for retail sale 
and for use by the general public. A few commenters recommended that we 
not exempt any hazardous chemical.
    The proposal did not specifically exempt alcoholic beverages sold, 
used, or prepared in a retail establishment, because we thought these 
exemptions did not apply to mining. Our existing standards for metal 
and nonmetal mines (Secs. 56.20001 and 57.20001) prohibit intoxicating 
beverages in and around mines. Because we do not have standards for 
coal mines which specifically address intoxicating beverages, we have 
included an exemption for alcoholic beverages in the interim final rule 
to be consistent in both mining sectors and to avoid confusion.
    The interim final rule exempts foods, drinks, including alcoholic 
beverages, drugs, cosmetics, tobacco, and tobacco products intended for 
personal consumption or use by miners while on mine property. For 
example, HazCom does not cover items such as aspirin in a first aid kit 
or food served at a mine cafeteria or vending machine.
    Nuisance particulates. We proposed to exempt nuisance particulates 
that do not pose a covered health or physical hazard from the full 
scope of HazCom. Many commenters supported the exemption of nuisance 
particulates and nonspecific mine dust. Commenters stated that nuisance 
particulates do not present any known irreversible health effects and 
that there are no standards in existence to use as a baseline. Several 
commenters stated that inclusion of nuisance particulates in HazCom 
could reduce the effectiveness of a HazCom program by transmitting too 
much information to employees and diluting the focus on more serious or 
less recognized chemical hazards.
    A number of commenters objected to the exclusion of nuisance 
particulates and nonspecific mine dust from HazCom. These commenters 
stated that many particles thought to be nuisances are found later to 
be important health problems and that if the hazard exists at the mine, 
regardless of the amount, it should be subject to the provisions of 
HazCom. One commenter stated that nuisance particulates are not 
excluded by OSHA and we should not exclude them. This commenter stated 
further that it would be useful to have MSDSs for nuisance particulates 
to provide miners with reliable information. Another commenter 
recommended that we omit the nuisance particulate exemption from the 
standard because there is no proper classification of these substances.
    We did not include an exemption for nuisance particulates from the 
provisions of HazCom because they can pose a covered health or physical 
hazard when the dose is high enough. For this reason, the proposal was 
misleading. Operators who produce low hazard chemicals, such as 
limestone or salt, could have wrongly concluded that their product was 
not covered by HazCom. There is evidence that exposure to an excessive 
amount of respirable dust, even dust that does not cause health effects 
at lower exposure concentrations, can produce reversible health 
effects. Also, in a mine environment, nuisance particulates are often 
contaminated with other hazardous chemicals.
    ACGIH considers the term ``nuisance particulates'' as obsolete. In 
the past, the ACGIH defined and listed examples of nuisance 
particulates to provide guidance to industry for the purpose of 
controlling inhalation exposures to those dusts. Based on the 1973 
ACGIH Threshold Limit Values, we currently enforce an exposure limit 
for nuisance dusts of 10 milligrams per cubic meter (mg/m<SUP>3</SUP>) 
as a time-weighted average (TWA). The current edition of the ACGIH 
TLV's does not list substances as nuisance particulates. In addition, 
our proposed air quality standard (54 FR 35760), published August 29, 
1989, would have established a 5 mg/m<SUP>3</SUP> respirable mine dust 
limit applicable to all nonspecific dusts, including those currently 
regulated as nuisance particulates. These current and proposed rules 
demonstrate that MSHA has considered nuisance particulates as a health 
hazard for at least 20 years. Because the HazCom proposal would have 
covered dusts that posed a covered safety or health hazard, even if the 
dust had previously been categorized as a nuisance particulate, we 
consider the HazCom interim final rule to be consistent with our 
proposal and OSHA's HCS.
    Radiation hazards. We proposed to exclude ionizing or non-ionizing 
radiation hazards from HazCom, consistent with OSHA's HCS. We have also 
incorporated this exemption in the interim final rule.
    Some commenters suggested that we not exempt radiation from HazCom 
because, if radiation is a potential hazard in the work area, this 
should be communicated to miners. Another commenter suggested an 
exemption for

[[Page 59077]]

non-product-specific physical hazards, such as noise, vibration, and 
hot environments, associated with the mining environment.
    Radiation hazards are covered under other Federal requirements and 
we have standards for metal and nonmetal mines that require hazard 
notification for radiation hazards, including the posting of hazard 
warning signs. A chemical with radioactive properties that also 
presents other types of health and physical hazards is not exempt from 
HazCom. We do not consider non-chemical-specific physical hazards (such 
as heat stress, ergonomic hazards, or hearing loss) relevant to this 
rulemaking because HazCom is meant to address chemical hazards.
    Wood and wood products. We proposed to exempt from HazCom wood or 
wood products which do not release or otherwise result in exposure to a 
hazardous chemical under normal conditions of use. We did not receive 
comments regarding this exemption.
    Wood products, such as lumber, plywood, and paper, are easily 
recognizable in the work area and pose a risk of fire that is obvious 
and well known to the miners working with them. Wood dust is not 
generally a wood ``product'' but is created as a byproduct during 
sawing, sanding, and shaping of wood. We believe that it is necessary 
for you to inform miners about the hazards of wood dust and chemically-
treated wood and precautionary measures to minimize or prevent 
exposure.
    The interim final rule contains specific language clarifying that 
wood dust and wood treated with a hazardous chemical, such as wood 
preservatives or pesticides, are not exempt from HazCom. This exemption 
is consistent with OSHA's HCS on the coverage of wood and wood 
products. In response to comments, we exempted wood and wood products 
from the labeling requirements.

2. Hazardous Waste

    We had proposed an exemption for hazardous waste from both the 
labeling and MSDS requirements when the waste is covered by the 
Environmental Protection Agency (EPA) under the Solid Waste Disposal 
Act, as amended by RCRA. Under EPA standards, a waste analysis is 
required as part of the permit to burn or dispose of hazardous waste. 
However, EPA does not require the waste analysis to specify the 
chemicals' hazards or provide that it be made available to employees. 
MSHA indicated in the preamble to the proposal, that OSHA also excluded 
hazardous waste regulated by EPA from coverage under its rule. MSHA 
requested comments on the appropriateness of exempting other hazardous 
waste not regulated by EPA from the labeling and MSDS requirements of 
the proposal. A number of mine operators have EPA permits to burn 
hazardous waste in their kilns as a supplemental fuel source or dispose 
of hazardous waste in their tailings.
    We received numerous comments on this exemption. Some commenters 
supported the proposed hazardous waste exemption in general, agreeing 
with our rationale. Commenters suggested the following specific 
revisions to our proposed hazardous waste exemption:
    <bullet> That we exempt wastes not regulated by EPA, particularly 
those reused on-site or sent off-site for recycling, such as waste oil, 
antifreeze, and solvents.
    <bullet> That we exempt process-related waste, such as tailings, 
mine waste, and other hazardous waste generated by the mine, because 
they are already regulated by us and EPA and the inclusion of these 
materials in HazCom labeling and training requirements could lead to 
serious conflicts with other standards.
    <bullet> That we define hazardous waste to include garbage, refuse, 
sludge, and other discarded materials including solid, liquid, 
semisolid, or contained gaseous material resulting from mining because 
you should inform potentially exposed miners about the hazards 
associated with scrap and discarded material at the mine.
    <bullet> That we extend our exemption to include hazardous waste 
regulated under State programs pursuant to the requirements of RCRA.
    Several commenters suggested that we treat hazardous waste 
exposures as OSHA does, by not requiring HazCom training for those 
miners who are exposed to EPA regulated hazardous waste. One commenter 
specifically suggested that we follow OSHA's requirements for hazardous 
waste operations in 29 CFR 1910.120(e) by requiring training only for 
specific hazardous waste operations and not for all types of hazardous 
waste handling.
    Since our proposal was published, an increasing number of mining 
operations have obtained permits to burn hazardous wastes in their 
kilns. Some bury waste in a landfill or dispose of their own wastes 
from the mining process. There are 55 mining operations burning 
hazardous waste and waste products with an average of 16 miners per 
site. Wastes burned include biological wastes, pesticides, herbicides, 
waste oil, heavy metals, and tires. Some, but not all, of these 
hazardous wastes are regulated by EPA. A few operations have EPA issued 
permits that allow them to burn hundreds of kinds of hazardous wastes, 
up to 260 different kinds. Many are burning thousands of gallons of 
waste products a year in their kilns. Two operations handle more than 
15 million gallons per year and 12 operations handle more than 1 
million gallons per year. Most handle either liquid or solid wastes; 
some can accommodate both. Some of these wastes would meet HazCom's 
definition of a health or physical hazard or both.
    NIOSH stated that hazardous waste not regulated by the EPA or other 
existing statutes should not be exempt from HazCom because to do so 
would be contrary to the intent of HazCom. The rulemaking record 
indicates the need for miners working with hazardous waste to be 
informed of its hazards either as a mixture or its individual 
components. We have determined that, for HazCom to be effective, it 
must include all hazardous chemicals to which miners may be exposed 
and, therefore, the interim final rule does not exempt hazardous waste 
regulated by the EPA. Other waste chemicals are subject to the same 
requirements as every hazardous chemical on site.
    After a careful review of all comments received on this issue, we 
have determined that it is necessary to cover hazardous waste under our 
standard. Although OSHA excludes coverage of hazardous waste regulated 
by EPA, OSHA has other specific standards directed to hazardous waste 
operations. (29 CFR 1910.120). OSHA was required to issue these 
standards by Sec. 162, title 1 of the Superfund Amendments and 
Reauthorization Act of 1986 (SARA). We do not have similar statutory 
requirements or standards regarding hazardous waste operations and 
believe that we would be denying protection to miners handling 
hazardous waste if we were to exempt it from coverage. Labels are an 
important component of an effective hazard communication system. 
Requiring all hazardous waste to be labeled will eliminate any 
confusion as to whether the waste is covered by the EPA. Accordingly, 
the interim final rule does not exempt hazardous waste from coverage.
    Under the interim final rule, you must provide each potentially 
exposed miner with MSDS information about the hazardous waste to the 
extent that it is available. You must make any information available to 
the miner or designated representative which identifies its hazardous 
chemical components, describes its physical or health hazards, or 
specifies appropriate protective measures. If the chemical is

[[Page 59078]]

a hazardous waste and an MSDS is unavailable, the chemical is hazardous 
if any of the sources in the Identifying Hazardous Chemicals, Table 
47.11, indicates it is a physical or health hazard. We believe that 
this change in the interim final rule does not impose an additional 
burden on you because existing labels on containers of hazardous waste 
brought onto mine property that meet the comparable requirements of 
other Federal or State regulations will fulfill the labeling 
requirements of this interim final rule.
    HazCom requires you to provide the information needed for labels 
and MSDSs, through any available information and training, to miners 
who work with hazardous waste. Some of this information is available 
from the EPA permit, your analysis of the waste, or the supplier of the 
waste material. If the supplier of the hazardous waste prepares any 
document for compliance with EPA or OSHA standards that contains the 
same types of information as required for the label and MSDS, we expect 
you to obtain a copy of these documents and to provide miners with 
access to them.
3. Sec. 47.82  Exemptions From Labeling
    We proposed to exempt from HazCom's labeling requirements those 
hazardous substances regulated and labeled under the authority and 
standards of other Federal agencies. Commenters objected to the 
proposal's referencing the laws and standards of other organizations 
and agencies, considering their inclusion to amount to ``incorporation-
by-reference.'' They stated that the rule does not include these 
documents, that they are not useful in understanding HazCom, and that 
our rules will become dependent on out-of-date material or require 
rulemaking to keep them current. The proposal had referenced the 
Consumer Product Safety Act; the Federal Hazardous Substances Act; the 
Federal Food, Drug, and Cosmetic Act; the Federal Insecticide, 
Fungicide, and Rodenticide Act; the Solid Waste Disposal Act; and the 
Resource Conservation and Recovery Act. Commenters suggested that we 
replace these references with simple operational definitions that would 
be understood by the miner.
    The interim final rule includes these references to clarify which 
toxic materials, hazardous substances, and consumer products are exempt 
from HazCom labeling. We consider these references as informational 
because they inform you of the limits of your responsibility rather 
than imposing an obligation. To the extent practical, the interim final 
rule simplifies the references by not including legal citations. Use of 
these references to specify exemptions from HazCom means that another 
Federal agency requires labeling of the hazardous chemical. A simple 
operational definition would be that you do not have to further label a 
hazardous chemical brought onto mine property if it already has a label 
indicating its identity and appropriate hazard warnings.
    We expect that most hazardous chemicals regulated by another 
Federal agency are labeled by the manufacturer with information about 
their identity, hazards, precautions for normal use and emergencies, 
and phone numbers for additional information. To avoid duplicate 
Federal standards, we will accept pre-existing hazard labels that 
comply with the labeling requirements of another Federal statute or 
standard for compliance with HazCom. For example, if a hazardous 
substance or waste is produced at the mine, and it is covered by the 
standards of another Federal agency, you must label it first in 
accordance with those standards. Consistent with the purpose of HazCom, 
if the hazardous chemical is not labeled in accordance with another 
Federal statute or standard, you must label it in accordance with the 
requirements in Sec. 47.32 (label contents) of HazCom.
    Raw material. We proposed to exempt the raw material mined or 
milled from the labeling requirements of HazCom while on mine property. 
Many commenters strongly supported the proposed raw material exemption. 
Some of these commenters recognized the impracticality of affixing and 
maintaining labels on every ore car or on each bin or hopper containing 
the mined material and believed that such labels would be of little 
benefit. One commenter stated that they currently labeled bins of their 
raw material but found that the labels were difficult to read due to 
the dust covering them. Other commenters believed that, generally, 
operators inform miners about the hazards of the raw material being 
mined and this information could be considered common knowledge. 
Another commenter stated that while they did not disagree with a 
labeling exemption for the raw material mined--

    * * * the final rule should re-state the operator's duty to 
train and inform miners about the hazards inherent in the mineral 
being mined and by-products of the mining process such as 
crystalline silica, radon progeny, etc.

    This commenter stated further that you should at least make an MSDS 
on these substances available and warn miners in a variety of ways. 
Among those commenters supporting the raw material exemption, one 
recommended that we clarify that a container of a raw material that has 
undergone a chemical reaction with other constituents, and thus is not 
a mixture, would not have to be labeled even if a hazardous chemical 
may have been added to it during processing at the mine. This commenter 
further stated that--

    [w]hile the process container where the hazardous chemical is 
added may need to be labeled (at least where the process does not 
result in an instantaneous chemical reaction), the container 
subsequently holding the commodity produced for sale by the operator 
would not constitute a ``mixture'' and should not be labeled.

    A few commenters disagreed with our proposed raw material exemption 
and requested that HazCom require labeling of all containers of 
hazardous raw material. One of these commenters expressed concern about 
the legibility and adhesion of labels, yet was confident that you could 
develop workable solutions. Other commenters stated that unlabeled 
containers of hazardous chemicals must be labeled under our existing 
labeling standards.
    The interim final rule exempts containers of raw materials from 
labeling while they are on mine property. For any raw material that is 
determined to be a hazardous chemical, you must supply labeling 
information when requested to downstream users, to maintain MSDSs, and 
to train miners about its physical and health hazards. We expect that 
miners are familiar with the hazards of the material being mined 
because they must receive training on the health and safety hazards of 
their job under 30 CFR parts 46 or 48. If you add a hazardous chemical 
to a container of raw material, however, you must label the container 
for the hazardous chemical added if the mixture or the newly created 
compound meets the criteria in the hazard determination section of 
HazCom (Sec. 47.11).
    Pesticides, food, and consumer products. The proposal included 
exemptions from labeling for pesticides; food, food additives, and 
color additives; and consumer products which are required to be labeled 
under standards issued by other Federal agencies. The interim final 
rule is generally consistent with the proposal and with OSHA's HCS. The 
applicable definitions of the substances addressed in these exemptions 
are those provided by the governing statutes and standards.

[[Page 59079]]

    Although there were some commenters who addressed these exemptions, 
few had specific comments. Among those who did comment, many supported 
our exemption of consumer products. Several suggested that we not 
require coal mine operators to include consumer products in HazCom 
programs because this would result in meaningless storage of countless 
MSDSs. Another believed that we should clarify that you have a 
responsibility to maintain the labels that come on these hazardous 
materials.
    Commenters agreed with our intent to have a similar provision with 
OSHA's HCS, stating that separate rules for consumer products would be 
redundant and serve no purpose. Another commenter suggested that we 
also exempt, as per OSHA's standard, drugs, cosmetics, medical or 
veterinary devices, and materials intended for use as ingredients in 
such products (e.g., flavors and fragrances). In regard to our proposed 
consumer product exemption, one commenter stated:

    * * * consumer products already possess adequate labels with 
hazard identification and safe use instructions. Since no one knows 
the hazards of a product better than its manufacturer, the safest 
possible use of the product is in accordance with the manufacturer's 
recommendations * * *. Using products according to manufacturer's 
recommendations would result in exposures that are very small (this 
is minute or trace amounts) and would not pose a physical or health 
risk to miners.

    We received a few comments objecting to the exemption of consumer 
products from HazCom's labeling requirements. A few commenters 
suggested that consumer product labels provided by manufacturers may 
not provide adequate warning, given the use of these products at the 
mine. One of these commenters stated:

    * * * consumer products with warnings on adequate ventilation or 
that require the use of personal protective equipment cannot be 
presumed safe for use in the underground mining environment. 
Further, many mining uses of consumer products may result in 
exposures that were not contemplated by the manufacturer packaging 
the product for consumer use. * * * Many consumer products are 
potential fuel sources for fires (e.g., aerosol solvents or paints). 
Further, exposure to these volatile solvents may adversely affect 
the seals and insulators on permissible equipment or adversely alter 
the explosive characteristics of the atmosphere in underground coal 
mines.

    In response to the concerns expressed by commenters, the interim 
final rule states specifically that consumer products are exempt from 
labeling when they are labeled under the standards of another Federal 
agency, such as the Consumer Product Safety Commission. Consumer 
products are exempt from HazCom where you can demonstrate that they are 
used at the mine in the same manner as in normal consumer use. Because 
consumer products are labeled under the authority of another Federal 
agency, and these labels generally provide for the listings of chemical 
identities and hazard warnings, there is no need for additional 
labeling standards.
    One commenter suggested that we provide operators with a list of 
exempt products commonly found on mine property. We have determined 
that a list of exempt products commonly found on mine property is 
neither simple nor appropriate. These products are only exempt when 
used in the same way as they would normally be used by a consumer. A 
list could lead you to believe these were exempt under all 
circumstances. Some exempt items could be overlooked and some that are 
exempt from labeling may not be exempt from other provisions of HazCom. 
Even for exempt products, for example, you may not deface or remove 
labels from containers of hazardous chemicals brought onto mine 
property. If they are repackaged or transferred at the mine, you must 
communicate such labeling information to the miner and, if necessary, 
label the new container.
    The interim final rule also includes an exemption from HazCom's 
labeling requirements for pesticides labeled under standards issued by 
other Federal agencies. As long as the pesticide is kept in the 
original container with its label intact and legible, it is exempt from 
the labeling provisions of this rule. We believe that this partial 
exemption informs and protects the miner and does not place an undue 
burden on you. We intend that all pesticides be labeled with their 
identity, hazards, and precautions for safe use. We believe that 
existing labels on containers of pesticides brought onto mine property 
that meet the labeling requirements of other Federal or State standards 
will fulfill the labeling requirements of HazCom.
    The purpose of pesticide labeling is mainly the protection of 
workers exposed to the pesticide either while handling it or through 
inadvertent contact with something that has been treated with it. In 
the case of the other substances, the purpose of the labels is more 
general consumer protection. The interim final rule does not include a 
specific labeling exemption for foods, food additives, and color 
additives used for personal consumption because they are exempt from 
the full scope of HazCom. A full discussion of this issue is in the 
Exemption section of the preamble.
    Other suggested exemptions. Many commenters specifically 
recommended that we exempt de minimis exposures to, or de minimis 
amounts or concentrations of, hazardous chemicals from the labeling 
requirements. Most of the commenters believed that labeling should 
focus on serious risks rather than on those that are trivial. Some 
commenters suggested that we use 5% silica in the mined ore as a de 
minimis threshold below which labeling would not be required. One 
commenter recommended 1% silica, rather than 5%, for a de minimis 
threshold. Another commenter recommended basing a de minimis threshold 
on a chemical's TLV or PEL. This commenter suggested that employers 
would simply need to assess whether a hazardous chemical is present in 
the work area at a level meeting or exceeding its PEL or TLV. Further, 
this commenter stated that if the chemical did not have a PEL or TLV, 
no de minimis threshold would apply.
    We determined that a de minimis threshold for silica is 
inappropriate because respirable crystalline silica is a human 
carcinogen and the potential for exposure is too great. We discuss this 
issue more fully in the next section of this preamble (4. Other 
exemptions discussed in proposal).
    Commenters also recommended that we exempt treated wood products 
from any labeling requirements because labeling every timber in a mine 
would create an excessive burden on operators with no increase in 
protection to the miner.
    In response to comments, we are exempting from labeling 
requirements wood and wood products that have been treated with a 
hazardous chemical and wood which may be sawed or cut, generating dust. 
Wood and wood products, including lumber, that do not present a health 
or physical hazard are exempt from the full scope of HazCom as an 
``article.''
4. Other Exemptions Discussed in Proposal
    In the preamble to the proposed rule, we requested comments on a 
variety of options for the scope of the HazCom standard. These 
alternatives covered exemptions for the size of the mine, the commodity 
extracted, the work area, or the amount of hazardous substance. For the 
most part, the interim final rule does not adopt these exemptions for 
the reasons discussed in the following paragraphs.
    Small mines. The rulemaking record contains a number of comments 
suggesting that we exempt small mines

[[Page 59080]]

from HazCom. Commenters stated that HazCom would create additional 
expenses and recommended that we modify the interim final rule to 
exempt small operations, especially those with a workforce of 10 or 
fewer.
    We do not exempt small mines from overall compliance with HazCom 
because chemical hazards are present at all mines, regardless of size, 
and miners at small operations have the right to know if they are 
exposed to hazardous chemicals. To address the needs of small mines, 
however, as well as the variability in the mining industry, the interim 
final rule allows you to design the HazCom program for the conditions 
at your mine. To further assist you, and especially small mine 
operators, we will prepare generic HazCom programs and MSDSs. Many of 
these aids are available now and the remainder will be available soon. 
You can contact the National Mine Health and Safety Academy at 304-256-
3257 or visit our website at www.msha.gov to find out what is 
available. Also, OSHA has developed training materials for its 
industries, such as a generic MSDS form, a model hazard communication 
program, and the HCS Compliance Guide. Many are available from OSHA's 
website at www.osha.gov and can be adapted for use at mining 
operations. You can use these as models for your own program.
    Depending on the size of the mine and the number of hazardous 
chemicals at the mine, you may have little to add to the generic 
program. We anticipate that, with minimal effort, the majority of small 
mines will be able to prepare the written program, MSDSs, and labels, 
and integrate HazCom training into their established training programs.
    Common minerals. We considered an exemption from HazCom for certain 
common minerals (such as coal, sand and gravel aggregates, crushed 
stone aggregates, and clay) and those minerals containing less than 5% 
silica and no other hazardous chemicals. In the preamble to the HazCom 
proposal, we requested comments on--
    <bullet> The appropriateness of exempting certain minerals;
    <bullet> The appropriate criteria for making a determination for 
exemption;
    <bullet> The degree to which miners are aware of the hazards of 
these minerals;
    <bullet> The level of silica in such minerals necessary before the 
mineral would be considered hazardous;
    <bullet> How these minerals are used and handled by downstream 
employers; and
    <bullet> How we could best publicize and provide hazard information 
on these substances to you and miners.
    A number of commenters addressed the scope of the common minerals 
exemption. Some expressed support for the exemption and stated that 
natural rocks and minerals should not be classified as chemicals for 
the purpose of an MSDS or other HazCom requirements. Others stated that 
the exemption for minerals containing less than 5% silica is warranted 
because these minerals do not constitute a hazard, and the exemption 
would preclude duplicate regulatory requirements and unnecessary 
expenditures. One commenter stated that such an exemption is especially 
appropriate for minerals designated as carcinogenic merely because they 
contain greater than 0.1% silica. Another commenter stated that 
labeling common minerals is unnecessary because 30 CFR part 48 (and 
part 46) requires miners to be trained to recognize the hazards of the 
product being mined.
    Commenters also suggested that we exempt specific minerals from 
HazCom. For example, one commenter stated that we should exempt coal 
and limestone. In addition, with regard to exempting coal, other 
commenters stated that the hazards of respirable coal mine dust are 
strictly controlled through extensive sampling and monitoring programs. 
Other commenters recommended that we modify the standard to exempt 
dimension stone quarries and iron ore pellets. One commenter urged us 
to specify which minerals are of concern to us and suggested an 
exemption for silica flour or certain industrial sands based upon their 
purity and particle size.
    Several commenters objected to our proposed exemption of common 
minerals. One stated that most mining products are used by OSHA-
regulated facilities and, as such, OSHA already requires that these 
facilities keep MSDS forms up-to-date for customers, label containers, 
and fill out the appropriate transport forms. Another commenter 
expressed concern that, if operators are responsible for preparing the 
MSDSs and labels, the common minerals exemption could lead to 
violations of the OSHA HCS for downstream general industry customers. 
Others objected to the common minerals exemption because it would send 
conflicting signals to miners; it is inconsistent with OSHA triggers 
and MSDS requirements; and it fails to provide health protection for 
miners in the sand and gravel, stone, clay, and shell dredging 
operations. One commenter stated that these minerals still present 
sufficient hazards to require MSDSs and training and HazCom should 
cover them, even though they are common or silica is present in small 
proportion to the total material.
    Some commenters suggested that we exempt or provide limited 
coverage to mining industry sectors with a low degree of risk. One 
suggested specifically that we exempt the brick industry from HazCom 
because the risk posed to miners in the brick industry is lower than 
that experienced in other mining operations due to the way the industry 
handles the clay and shale. According to this commenter, there is no 
reason to regulate clay and shale, the brick industry's principal raw 
materials, because HazCom relates to free silica and most clay and 
shale have <ls-thn-eq>5% free silica. In addition, this commenter 
indicated that MSDSs are unnecessary because exposure to silica is a 
primary part of the training programs administered by brick 
manufacturers.
    We do not agree that the overall degree of risk encountered by 
miners in a given industry segment is a viable argument for totally 
exempting an entire mine or commodity from coverage under HazCom. A 
major concern is that miners are exposed to chemicals without knowing 
their hazards and, thus, they may not follow the proper procedures for 
handling or using these chemicals. The extent of risk is not a 
determining factor in deciding whether or not you have to communicate 
information on hazardous chemicals. Miners have the right to know that 
they are being exposed to a potential hazard. As long as the potential 
for exposure exists in the work area and the chemical is hazardous, 
HazCom applies.
    For these reasons, the interim final rule does not exempt minerals 
containing 5% silica or less or other hazardous chemicals or certain 
common minerals, such as coal, clay, and dimension stone. The 
promulgation of such an exemption would imply that these minerals could 
not pose a health hazard to exposed miners. On the contrary, depending 
on the airborne concentration of the dust and other circumstances 
regarding exposure, respirable crystalline silica in these minerals or 
respirable coal mine dust may cause pneumoconiosis or cancer. The 
interim final rule is consistent on this point with OSHA's HCS.
    Nonfuel mining. One commenter recommended that we exempt the 
nonfuel mining industry from HazCom. This commenter questioned whether 
we have demonstrated that such a broad-based standard is necessary for 
the nonfuel mining industry, given that HazCom would duplicate our 
existing training and labeling standards.
    Based on the findings of the NIOSH National Occupational Health 
Survey of Mining (NOHSM) and our experience in the mining industry, we 
concluded that

[[Page 59081]]

a HazCom rule applicable to coal, metal, and nonmetal mines is 
appropriate because all mines use hazardous chemicals, and there are a 
number of hazardous chemicals common to all types of mines, including 
non-fuel mines. Fuel oil, solvents, and paint are just three examples 
of hazardous chemicals used at non-fuel mines. Non-fuel mines report 
the most chemical burn injuries to MSHA. HazCom is broadly written and 
performance oriented in recognition of the diversity among mining 
operations and independent contractors. Our intent is that all miners, 
including those working in the nonfuel mining industry, have access to 
information about the chemical hazards to which they are exposed at the 
mine. This decision is consistent with the mandate of the Mine Act to 
protect all miners to the extent feasible.
    De minimis requirements. In the HazCom proposed rule, we solicited 
comments on whether we should establish de minimis criteria for 
hazardous chemical exposure in general. De minimis or trivial risks are 
those below the threshold of regulatory concern.
    A few commenters stated that, for HazCom to be effective, the final 
rule must contain an exemption for de minimis chemical exposures. These 
commenters urged us to specify minimum quantities for the substances 
covered by the standard. Commenters suggested that we exclude exposures 
that are less than one-half of any applicable PEL or ACGIH TLV, or 
where the health risk is not significant. Some felt that HazCom should 
address only those chemicals that exceed a PEL or ACGIH TLV. One 
commenter stated that a meaningful de minimis provision could be 
provided--
    <bullet> By clarifying the definition of article similar to that 
found in the mixture definition;
    <bullet> By defining a significant health risk; and
    <bullet> By stating a reasonable and consistent interpretation of 
the terms ``minute'' or ``trace.''
    A few commenters recommended that we exclude trivial exposures to 
avoid unnecessary and misleading labeling and the creation of the 
functional equivalent of a ``Delaney Clause.''

[Note: The Delaney Clause is an amendment to the Food, Drug, and 
Cosmetic Act (21 U.S.C. 348). It requires the Food and Drug 
Administration to prohibit the use of any food additive that is 
carcinogenic without regard to the quantitative level of risk.]

    Commenters wanted us to set a de minimis concentration below which 
you would not have to consider whether a substance is hazardous. There 
are highly toxic substances, however, which can cause adverse health 
effects from the absorption or inhalation of tiny amounts. HazCom is 
intended to address all hazardous chemicals at mines. The range of 
hazards and concentrations are too diverse to address through a single 
measurement. A de minimis exemption, therefore, would not provide 
sufficient protection to miners and would not address the true issue of 
concern, informing miners of potential hazards.
    Likewise, requiring information disclosure only in situations where 
exposure might exceed a PEL or ACGIH TLV is not consistent with the 
purpose of the rule. Exposure limits address a limited number of the 
hazardous chemicals encountered at the mine. Also, PELs are used to 
control inhalation exposures. Because the definition of exposure in 
HazCom includes absorption through the stomach or skin, in addition to 
the lungs, the exposure limits might be unrelated to the total exposure 
experienced by a miner. In certain circumstances, the most significant 
route of exposure may be through the stomach or skin. We have received 
reports of injuries and illnesses among miners as a result of skin 
contact with cyanide solutions, cement and trona dusts, and mercury, 
and as a result of ingesting lead litharge.
    Laboratories. The proposal requested comments on whether 
laboratories should be exempt from HazCom, primarily because OSHA's HCS 
[29 CFR 1910.1200(b)(3)] partially exempted laboratories. OSHA, 
however, regulates laboratories under both its HCS (29 CFR 1910.1200) 
and its laboratory standard (29 CFR 1910.1450). The laboratory standard 
supplements the HCS.
    The OSHA HCS requires labels, MSDSs, training, and access. The 
heart of the OSHA laboratory standard is the Chemical Hygiene Plan. The 
Plan, which contains elements similar to HazCom's written program, must 
be reviewed annually. It also requires detailed descriptions of 
personal protective equipment, standard operating procedures, and 
engineering controls. Whatever OSHA does not cover under its HCS, it 
covers in its laboratory standard. The OSHA laboratory standard 
requires training; access to the plan and ``all known reference 
material * * * including, but not limited to, Material Safety Data 
Sheets * * *; labels and MSDSs; hazard determination for chemicals 
produced, including by-products; hazard determination, labels, and 
MSDSs for chemicals produced for users outside the lab itself; and 
records of exposure monitoring and medical exams.
    Unlike OSHA, we do not have specific standards addressing hazardous 
chemicals in laboratories. At this time, we do not plan to develop a 
separate standard to address laboratory hazards.
    Several commenters urged us to exempt laboratories. One commenter 
stated that small laboratories are exempt from OSHA's standards. 
Another commenter stated that both OSHA's HCS and EPA's SARA exempt 
laboratories of any size when under the direct supervision of a 
technically qualified individual. Some commenters supported the 
application of training requirements to laboratories on mining property 
unless the lab has trained chemists. Others recommended that we exempt 
laboratory use of chemicals from HazCom because such use is unique and 
our training standards already cover laboratory hazards.
    Most commenters, however, supported our coverage of laboratories 
within HazCom. Some commenters found our approach reasonable because 
covering mine laboratories would preclude the need for us to develop a 
separate standard to address laboratory hazards, as was done by OSHA.
    We agree that laboratories in mining should be subject to the full 
scope of the standard, including training, with no specific exemptions. 
Laboratories found in the mining industry differ in several respects 
from those common to general industry, such as research facilities. 
Although there may be a few large-scale laboratories in the mining 
industry supervised by trained chemists, our experience indicates that 
most mine laboratories are small-scale operations devoted to quality 
control or process control, with relatively few trained chemists.
    Compared to research facilities or laboratories in the chemical 
manufacturing industry, quality control laboratories in the mining 
industry use relatively few chemicals and analytical methods. Most of 
these mine laboratory workers receive on-the-job training. This 
training can be inadequate in addressing the hazards of the chemicals 
to which the laboratory workers are exposed. MSHA data, reported under 
the requirements of 30 CFR part 50, cite illnesses or injuries in 
laboratories caused by improper mixing of chemicals, mercury spills, 
use of inadequate or inappropriate personal protective equipment, use 
of improper procedures, and improper use of controls or inadequate 
ventilation.
    The interim final rule does not exempt laboratories on mine 
property,

[[Page 59082]]

but gives you the latitude to create a training program based upon the 
hazards identified. We recognize that these programs may differ from 
work area to work area because of the different chemicals used. We 
expect your training program to vary depending on the miners' training 
needs. To exclude miners working in laboratories from HazCom would not 
be in keeping with our mandate to prevent mine-related occupational 
injuries and illnesses. After reviewing the comments and the rulemaking 
record, and based on the presence of hazardous chemicals in the 
laboratories, we have concluded that it is necessary to include mine 
laboratories under the scope of the interim final rule.

J. Subpart J--Definitions

    HazCom is an information and training standard focused on chemical 
hazards. Table 47.91 defines the terms needed for understanding the 
concepts and requirements in the standard. We defined some terms to 
have a special meaning for this standard, but tried to stay consistent 
with the ordinary meaning of the terms.
1. Using MSHA and OSHA Terms
    We used employee in the proposed rule to identify the working 
person who may be exposed to a hazardous chemical. The proposal 
included a sentence to clarify that the standard did not apply to 
individuals, such as office workers, who encounter hazardous chemicals 
in non-routine instances.
    Commenters recommended that we use the term miner instead of 
employee. Many commenters pointed out that miner is defined in the Mine 
Act, and that using this term would be consistent with our statute. 
Because the term miner, as defined in the Mine Act, means any 
individual working in a coal or other mine, including office workers, 
some suggested that we could add an exemption for office workers in a 
separate section.
    In response to comments, we replaced the term employee with the 
term miner throughout the interim final rule, where we thought it was 
appropriate. The term miner does include office workers. We do not 
intend to exempt office workers from HazCom. The proposal had attempted 
to clarify that HazCom does not apply to individuals exposed to a 
hazardous chemical in extraordinary, non-routine situations. We 
intended this statement in the proposal to complement the scope and 
emphasize that individuals exposed to a hazardous chemical under normal 
conditions of use or in a foreseeable emergency, regardless of their 
job category, are covered by HazCom. For example, you must ensure that 
hazardous chemicals normally used in or around an office, such as toner 
for the copy machine, are labeled appropriately; obtain an MSDS for 
them, and instruct the exposed office workers about their hazards and 
safe work procedures. Other Federal agencies regulate hazardous 
chemicals used in or around an office and, therefore, they should 
already be labeled and have an MSDS available from the supplier.
    We defined employer in the proposal as a person engaged in a 
business where chemicals are either used, distributed, or are produced 
for use or distribution, including a contractor or subcontractor. We 
intended the term to describe independent contractors on-site, as well 
as downstream or OSHA jurisdiction customers. In response to the 
general comment that we should rely on mining terms, in the interim 
final rule we use the more familiar designation operator to mean both 
the mine operator and independent contractor as defined in the Mine 
Act. In the preamble, we often use the term ``you'' instead of 
``operator.'' We use the separate terms mine operator and independent 
contractor when we want to differentiate between the mine operator 
responsible for the whole operation and the contractors and 
subcontractors who have the responsibilities of an operator for 
specific aspects of the mining operation. We determined that a 
definition was not necessary for customer because we use the term as it 
is commonly understood to mean the downstream users who purchase your 
products.
    We defined workplace in the proposal to mean a mine, establishment, 
job site, or project at one geographical location containing one or 
more work areas. The term mine is defined by the Mine Act and, like 
miner, is more familiar to the mining industry. Mine means the same 
thing as workplace for purposes of HazCom. Accordingly, we have 
substituted the term mine for workplace throughout the interim final 
rule.
    Some commenters suggested that we add definitions for terms not 
proposed. Several commenters requested that coal mine be defined. The 
definition for mine in the Mine Act includes coal mines and coal 
preparation facilities. A number of commenters wanted independent 
contractor defined. This term is defined and commonly used in other 
MSHA standards and is well-understood by the mining industry. Separate 
definitions for these terms are unnecessary.
2. Material Impairment and Significant Risk.
    Commenters suggested revising definitions for exposed, hazardous 
chemical, and health hazard, among others, so the terms would include 
the concepts of material impairment and significant risk. They 
suggested deleting the phrase ``or potentially subjected'' from the 
definition of exposed. (The definition would then read: ``Being 
subjected to a hazardous chemical in the course of employment * * *.'') 
Commenters also objected to the proposal's definition of hazardous 
chemical because it addressed ``any chemical, in any quantity, at any 
time.'' A health hazard, according to a commenter, should be a health 
hazard only under conditions of intended use.
    If these changes were made in HazCom, the interim final rule would 
have taken a significant departure from its intended purpose. A fuller 
discussion of material impairment and significant risk is found under 
Purpose and Scope in this preamble. We did not change the definitions 
for exposed, hazardous chemical, and health hazard in HazCom to include 
the concepts of material impairment or significant risk.
3. Sec. 47.91  Definitions of Terms used in this Part
    A number of the terms defined in HazCom are commonly used by 
chemists, physicists, and health and safety professionals to identify 
and describe specific types of physical hazards or physical properties 
of chemicals. In keeping with the plain language initiative, we have 
defined terms in the clearest way we could, sometimes balancing 
technical precision with general clarity. We believe this subpart 
provides you with the information you need to understand what HazCom 
requires and to comply with it.
    Access. The interim final rule, like the proposal, defines access 
as the right to examine and copy records. One commenter wanted this 
definition to specify that you must provide access without cost to the 
miner. Another commenter did not want the definition to include the 
right to copy records. Other commenters suggested that we consolidate 
the access provisions in a single subpart rather than repeat them for 
each subpart.
    HazCom contains the term access principally in the subpart Making 
HazCom Information Available where, in response to comments and for 
clarity and ease of use, we consolidate access requirements from 
several sections of the proposal. Because of the potentially

[[Page 59083]]

large amount of detailed, technical HazCom material, particularly 
MSDSs, we believe that the intent to provide information to miners is 
best served if miners have the right to a copy of the material. The 
HazCom material may be too voluminous to understand without an 
opportunity to review it all thoroughly. The cost for providing free 
copies is a condition for providing access and not appropriate in a 
definition.
    Article. Article was defined in the proposal to clarify that many 
manufactured products commonly found on mine property are exempt from 
HazCom. Under the proposal, we defined article to mean a manufactured 
item other than a fluid or a particle that--
    (a) Is formed to a specific shape or design during manufacture;
    (b) Has end-use functions dependent upon its shape or design; and
    (c) Under normal conditions of use, releases no more than very 
small quantities (that is, minute or trace amounts) of a hazardous 
chemical, such as the off-gassing of plastic pipes, and does not pose a 
physical or health risk to employees.
    Numerous commenters agreed with the definition in the proposed 
rule, except for paragraph (c). Commenters claimed that paragraph (c) 
was unclear about how much of a hazardous chemical released from a 
manufactured item under normal conditions of use would constitute 
either very small, minute, trace, or de minimis quantities. Commenters 
also asked that we clarify that article means conveyor belts, repair 
steel, and other equipment and supplies commonly found at mines. To 
determine when an article is a hazardous chemical, some commenters 
suggested that the definition include a de minimis provision, while 
other commenters wanted a significant risk provision. One commenter 
wanted the term ``under normal conditions of use'' deleted from the 
definition because it limits the scope of the standard.
    Another commenter expressed concern that iron ore pellets would be 
considered a hazardous chemical under HazCom. Iron ore pellets, like 
bricks, are manufactured articles. Before they are pellets, however, 
the iron ore is a raw material which contains respirable crystalline 
silica. Both the respirable dusts of iron ore and silica are inhalation 
hazards because they can cause lung damage. When they can pose a hazard 
to exposed workers, these raw materials are covered by HazCom. As raw 
material, iron ore is exempt from labeling under HazCom while on mine 
property. The pellets are exempt from HazCom when they are formed into 
articles, provided that they do not release more than insignificant or 
trace amounts of a hazardous chemical and do not pose a physical or 
health hazard.
    We agree with commenters that the definition created confusion. We 
believe that the confusion arose because the defined term also included 
the criteria for exemption, which was contrary to the ordinary 
understanding of the word. An article is first of all a class of 
material things. An item manufactured to a shape or design that 
determines its end-use functions will be an article, in the ordinary 
sense of the word, whether it gives off trace amounts of a hazardous 
chemical or larger amounts. The exemption of an article, however, is 
dependent on how the article is used.
    To clarify the standard's intent, we moved proposed paragraph (c) 
from Definitions to Exemptions to indicate that only articles that give 
off no more than insignificant or trace amounts of a hazardous 
chemical, and are neither a physical nor a health hazard, are exempt. 
The definition in the interim final rule describes manufactured goods, 
other than a fluid or particle, without regard to the chemical hazard 
produced. The Exemptions subpart now addresses the distinction between 
exempt and non-exempt articles. We believe that this change is non-
substantive, and clarifies the interim final rule. The interim final 
rule uses the same language as the proposal except for the movement of 
the last provision to Exemptions.
    To illustrate the intent of the change, suppose you purchase a tire 
and use it on a haul truck. While on the truck, the tire may give off a 
trace amount of a hazardous chemical. Under this use, the tire is an 
article exempt from HazCom. When the tire is worn out and can no longer 
be safely used on the truck, you may send it to a mine that uses tires 
to supplement the fuel for a kiln. While burning, the tire gives off 
significant amounts of hazardous chemicals. The tire is still an 
article, but no longer exempt from HazCom. The miners working at the 
other mine's kiln must be trained about the chemical hazards associated 
with the burning tire.
    Chemical. The interim final rule, like the proposal, defines 
chemical as any element, chemical compound, or mixture of these. One 
commenter assumed that, for the purposes of HazCom, the definition of 
chemical could be interpreted broadly to include the byproducts of 
chemical reactions. Byproducts of chemical reactions are separate 
chemicals. We intend that you address any byproducts as you address 
other chemicals you produce. You can either include the byproducts on 
the MSDS and label or, if appropriate, develop a separate MSDS and 
label.
    Chemical name. The proposal defined chemical name as the scientific 
designation of a chemical in accordance with the nomenclature system 
developed by the International Union of Pure and Applied Chemistry 
(IUPAC) or the Chemical Abstracts Service (CAS) rule of nomenclature, 
or a name that will clearly identify the chemical for the purpose of 
conducting a hazard evaluation. A commenter recommended that the 
definition specify Registry of Toxic Effects of Chemical Substances 
(RTECS) numbers, as well as CAS numbers. Although RTECS numbers are not 
as widely accepted as CAS numbers as a means of identifying a specific 
chemical, they are unique and precise and may be used, as well as IUPAC 
numbers. HazCom retains the proposed definition for chemical name.
    Common name. In the proposal, we defined common name as any 
designation or identification, such as a code name, code number, trade 
name, brand name, or generic name, used to identify a chemical other 
than by its chemical name. Commenters generally supported the proposed 
definition for the term common name, which remains the same in the 
interim final rule. This definition is consistent with the OSHA HCS.
    Consumer product; food; food additive; color additive. We used the 
terms color additive, food additive, consumer product, and food in the 
proposed rule and commenters requested that we define them. One 
commenter suggested that ``EPA's consumer products definition is more 
practical than MSHA's and achieves the result MSHA intended.'' The 
interim final rule includes a definition for consumer product which is 
essentially the same as the one in the Consumer Product Safety Act (15 
U.S.C. 2051 et seq.). We do not define food, food additive, or color 
additive in the interim final rule. They are common terms and we use 
them in the sense in which they are normally understood.
    Container. As proposed, the interim final rule defines container as 
any bag, barrel, bottle, box, can, cylinder, drum, reaction vessel, 
storage tank, or the like that contains a hazardous chemical. The 
definition further states that pipes or piping systems; conveyors; and 
engines, fuel tanks, or other operating systems or parts on a motor 
vehicle (such as tires) are not considered to be containers.
    One commenter wanted pipes that contain hazardous chemicals to be 
considered containers. We consider it impractical to label pipes and 
piping

[[Page 59084]]

systems containing hazardous chemicals. In numerous cases, these 
systems are used for different chemicals at different times, depending 
upon the needs of the operation. Our training standards require you to 
train miners about the hazardous chemicals to which they may be exposed 
in their work area. These are the same chemicals that would be 
transported in pipes and piping systems. In addition, the training 
requirements in this interim final rule specifically cover the hazards 
of chemicals contained in pipes or piping systems in the miners' work 
areas.
    Designated representative. The interim final rule, like the 
proposal, defines designated representative as any individual or 
organization to whom a miner gives written authority to exercise that 
miner's right of access to records. A miner's representative, to 
contrast the two terms, is any individual or organization representing 
two or more miners.
    Many commenters wanted to limit the miner's choice of a designated 
representative to the duly-selected collective bargaining 
representative and, if none, a member of a safety and health committee 
who has been chosen by the miners or an individual miner who has been 
selected as the walkaround representative by the miners at the same 
mine. We feel that, by adopting these suggestions, we would restrict a 
miner's options and that each miner should be allowed to select his or 
her own designated representative.
    The definition of designated representative in the interim final 
rule does not limit miners to their collective bargaining or miners' 
representatives. We anticipate that in most instances, the designated 
representative will be one of those, but it could also be a miner's 
personal physician, attorney, or other person or organization of the 
miner's choosing. The interim final rule revises the proposed 
definition to allow the miner to choose anyone as the designated 
representative, including a representative of miners under 30 CFR part 
40.
    Employee; employer. The proposal defined employee as any individual 
working in a mine who may be exposed to a hazardous chemical. 
Individuals such as office workers who encounter hazardous chemicals in 
non-routine instances were not covered. We use the term miner rather 
than employee in the interim final rule. HazCom, therefore, does not 
include a definition for employee.
    The proposal defined employer as a person engaged in a business 
where chemicals are either used, distributed, or are produced for use 
or distribution, including a contractor or subcontractor. We use the 
term operator rather than employer in the interim final rule. HazCom, 
therefore, does not include a definition for employer.
    Exposed. The proposed rule defined exposed as being subjected, or 
potentially subjected, to a hazardous chemical in the course of 
employment through any route of entry, such as inhalation, ingestion, 
or skin absorption, during normal operating conditions or in a 
foreseeable emergency.
    A number of commenters wanted the phrase ``or potentially 
subjected'' deleted from the definition of exposed because it is vague 
and open to interpretation. Other commenters wanted to modify the 
definition to read ``reasonably foreseeable emergency,'' and several 
commenters wanted to delete the entire phrase. Another commenter wanted 
the term exposed to be defined as being subjected, or potentially 
subjected, to exposure equal to or above the MSHA limit for a hazardous 
chemical.
    Excluding potential exposure to a hazardous chemical, when the 
chemical does not have an MSHA limit or when the exposure may be below 
the limit, would circumvent the intent of HazCom. In addition, other 
MSHA standards address and regulate the miner's exposure to hazardous 
chemicals. The interim final rule does not incorporate these suggested 
changes, nor does it retain the phrase ``during normal operating 
conditions or in a foreseeable emergency'' in the definition of 
exposed. As with the changes in the definition of article, this phrase 
addressed a condition of use and confused the normal understanding of 
the term ``exposed.'' The phrase ``potentially subjected'' covers those 
situations where the threat of exposure to hazardous chemicals exists. 
We use the phrase ``during normal operating conditions or in a 
foreseeable emergency'' with the term exposed in Sec. 47.2 to describe 
when HazCom applies.
    Foreseeable emergency. The proposed rule defined foreseeable 
emergency as any potential occurrence for which you would normally 
plan, such as equipment failure, rupture or spill of containers, or 
failure of control equipment, that could result in an uncontrolled 
release of a hazardous chemical into the work area. Many commenters 
stated that the phrase ``for which operators would normally plan'' is 
vague and open to interpretation and abuse and should be removed from 
the definition. Several commenters wanted to substitute ``reasonably 
plan'' for ``normally plan.''
    The interim final rule retains the definition of foreseeable 
emergency as proposed. We consider an emergency to be foreseeable if we 
can reasonably expect you to know that it could occur due to the nature 
of the mining operation. You are already required to prepare for 
emergencies through a number of our standards (e.g., fire, ventilation, 
mine rescue, and training, among others). We believe the term emergency 
is well understood in the mining industry. We expect you to make 
preparations to address the foreseeable emergencies that can be related 
to chemicals, should they occur.
    Hazard warning. The proposed rule defined hazard warning as any 
word, picture, or symbol appearing on a label or other appropriate form 
of warning that conveys the specific physical and health hazards of the 
chemical in the container, including target organ effects. (See the 
definitions for physical hazard and health hazard for examples of the 
hazards that must be communicated.)
    One commenter suggested that appropriate protective measures should 
be required as part of hazard warnings. Although giving information 
about protective measures is a vital part of HazCom, we address this 
information in the provisions for MSDSs and training. The purpose of 
the hazard warning in labeling is to convey critical information 
immediately. We believe that the most critical information for labeling 
is the name of the chemical and its hazards.
    The interim final rule defines hazard warning as any words, 
pictures, symbols, or other forms of warning that convey the specific 
hazards of the chemical. We removed the text specifically referencing 
target organ effects or containers from the definition for hazard 
warning in the interim final rule because it was redundant. Labeling 
requirements in subpart D of HazCom address containers, and the 
definitions of health hazard and physical hazard address the effects of 
hazardous chemicals, including target organs.
    Hazardous chemical. In the proposed rule, we defined hazardous 
chemical as any chemical that is a physical hazard or a health hazard. 
We also defined physical hazard and health hazard.
    One commenter suggested that the definition of hazardous chemical 
convey the concept that a chemical be considered hazardous based on 
whether it exists in a quantity or is used in a manner that could 
present a reasonable risk of overexposure to a miner. Several other 
commenters suggested that the definition exempt coal and related raw 
materials and consumer products. Another commenter wanted hazardous 
material to be substituted for hazardous

[[Page 59085]]

chemical, stating that it would be more readily understood. As an 
example, this commenter stated that asbestos and gasoline are highly 
hazardous, yet they are not commonly referred to as chemicals.
    If we based the application of HazCom on the quantity of a chemical 
present, it would allow you to ignore chemicals with known hazards if 
they are in small quantities. Some hazardous chemicals are not evenly 
dispersed in a mixture of dusts, liquids, or gases, and pockets of high 
concentration can pose a hazard even if the quantity is low. For 
example, if a hazardous chemical settles in layers near the ground, a 
measurement of it near the breathing zone of the miner may lead to a 
faulty conclusion that the chemical does not present a reasonable risk 
of overexposure. We believe that it is far more protective, and 
necessary to prevent illness, to train miners about the presence of the 
chemical, signs and symptoms of exposure, safe work practices, 
precautionary measures, and the need to keep engineering controls in 
proper working order, rather than argue about what level of risk is 
reasonable or significant and then wait until there is a reasonable or 
significant risk to inform the miners about it.
    Exemptions of coal, raw materials, and consumer products from the 
definition of hazardous chemical would, in effect, exempt these 
substances from HazCom. In conjunction with the definition of chemical 
in this interim final rule, the definition of hazardous chemical 
adequately addresses our intent that common hazardous substances, such 
as gasoline, are to be considered hazardous chemicals.
    To be consistent with changes in the definitions of health hazard 
and physical hazard, we changed the definition of hazardous chemical in 
the interim final rule to mean any chemical that can present a physical 
hazard or a health hazard. We included the criteria for determining 
whether a chemical is hazardous in Sec. 47.11, Identifying hazardous 
chemicals.
    Hazardous substance. The proposal did not define the term hazardous 
substance, but used it in the provisions for exemptions. A number of 
commenters felt that hazardous substance should be defined because it 
is used in the rule. We use the term in this standard specifically to 
exempt hazardous substances regulated by EPA as defined in the 
Comprehensive Environmental Response, Compensation, and Liability Act 
(CERCLA) (42 U.S.C. 9601 et seq.) and the Federal Hazardous Substance 
Act (15 U.S.C. 1261 et seq.). We do not define hazardous substance in 
the interim final rule; however, its meaning and use is the same as in 
the proposal and consistent with OSHA's HCS.
    Hazardous waste. Hazardous waste was defined in the proposed rule 
as any chemical regulated by the Environmental Protection Agency (EPA) 
as a hazardous waste, as such term is defined by the Solid Waste 
Disposal Act, as amended by the Resource Conservation and Recovery Act 
of 1976, as amended (42 U.S.C. 6901 et seq.). Many commenters wanted 
hazardous waste re-defined to include only those chemical wastes which, 
because of their quantity, concentration, or physical, chemical, or 
infectious characteristics, may result in death or serious illness or 
pose a substantial hazard to human health or the environment when 
improperly treated, stored, transported, disposed of, or otherwise 
managed. One commenter requested that HazCom include an operational 
definition for hazardous waste.
    We believe that an operational definition of hazardous waste 
specifically for mining operations would cause confusion for you in 
complying with other Federal and State standards. Other wastes from the 
mining operation or brought to the mine that are not regulated by EPA 
also can contain hazardous chemicals. The primary difference between 
the hazardous waste regulated by EPA from those unregulated by EPA is 
the amount of information that you can expect from the supplier. 
Although HazCom exempts EPA-regulated hazardous wastes from labels and 
MSDSs, you must instruct miners who can be exposed about their hazards. 
We are especially concerned that you obtain enough information to 
instruct miners about those wastes that are brought to mine property, 
the content and hazards of which may be unknown to you.
    The interim final rule uses the same definition of hazardous waste 
as proposed. We intend that our use of the term hazardous waste be 
consistent with both OSHA's and EPA's use of this term.
    Health hazard. The term health hazard is used in the proposal and 
the interim final rule to describe those chemicals that can present a 
risk of disease or other harmful health effects to an exposed miner. 
The proposed rule defined health hazard as ``[a] chemical for which 
acute or chronic health effects may occur in exposed employees.'' The 
proposal then listed the types of illness or injury that we consider to 
be health hazards.
    A few commenters wanted health hazard defined (as in OSHA's HCS) as 
a chemical for which there is statistically significant evidence of 
significant risk based on at least one valid study. One commenter 
stated that much of the information in the definition was overwhelming 
and that the inclusion of Appendix A and Appendix B as part of the 
definition was inappropriate and confusing. Some commenters suggested 
that the final rule reference 30 CFR parts 56, 57, 70, 71, and 75 
instead of Appendices A and B.
    We agree with the commenters and drafted the definition to be 
clearer. We also deleted the appendices to eliminate that potential 
source of confusion. We added for the sake of clarity that there must 
be statistically significant evidence that the chemical can do harm and 
described the types of illness and injury in plain language. We believe 
that the interim final rule clarifies the intent, meaning, and use of 
the proposed definition.
    Health professional. We use the term health professional in the 
subpart on Trade Secrets in addressing two situations: an emergency 
situation when the trade secret information may be needed to save a 
life, and a non-emergency situation when the information may be needed, 
but not immediately. The term in the proposed rule referred to a 
treating physician or nurse. We received comments that others, such as 
emergency medical technicians, may need access to this information in 
an emergency. One commenter essentially asked that ``occupational'' not 
be used restrictively to limit health professional. Another commenter 
asked that health professionals be licensed individuals. This would 
eliminate industrial hygienists, for example, who may be board 
certified, as well as some otherwise qualified nurses and technicians.
    Some commenters asked that we include ``safety professionals'' 
among those who must be given trade secret information that may 
otherwise be withheld. They stated that it is necessary to add safety 
professionals to the definition of health professional because many 
mines do not have industrial hygienists; their safety professionals 
monitor, review, and make corrective recommendations.
    In response to comments, we have defined a new term, health 
professional, in the interim final rule to include a physician, nurse, 
physician's assistant, emergency medical technician, industrial 
hygienist, toxicologist, epidemiologist, or other person qualified to 
provide the medical or occupational health services based on education, 
training, and experience. This definition is deliberately flexible to

[[Page 59086]]

allow you to make decisions that focus on the needs of the miner. The 
interim final rule does not require that the health professional be 
licensed. We believe that the definition in the interim final rule is 
restrictive enough to protect trade secret information about the 
chemical composition of a material, but broad enough to give access to 
those who need it.
    We expect that trade secret chemical information may be needed when 
a miner is being treated as a result of a chemically-related injury or 
illness. Only persons involved in treatment, researchers looking into 
the causes of injuries or illnesses, or the exposed miners or their 
designated representatives must have access to this critical 
information when it is necessary. Information appropriate to a safety 
professional would be available on the MSDS. In any event, a safety 
professional charged by you with a responsibility for chemical hazard 
communication should already have access to the chemical information.
    Identity; specific chemical identity. The interim final rule 
retains the proposed definition of identity as a chemical's common or 
chemical name, which must permit cross-references among the required 
list of hazardous chemicals, the label, and the MSDS. The proposed rule 
defined specific chemical identity as the chemical name, CAS number, or 
any other designation that precisely identifies the chemical. One 
commenter suggested that the definition of specific chemical identity 
duplicate that of identity.
    For purposes of HazCom, we determined that specific chemical 
identity was an unnecessary term because the interim final rule, as did 
the proposal, defines the terms identity, chemical name, and common 
name which duplicate its definition. The proposed rule had defined 
chemical name to include CAS numbers, common name to include other 
designations, and identity to include the chemical name and common 
name. We do not use or define the term specific chemical identity in 
the interim final rule.
    Immediate use. The term immediate use in the proposal clarified 
under what conditions it would be appropriate to use an unlabeled, 
temporary, portable container. In the proposal, immediate use meant 
that the miner who transferred the substance from a labeled container 
into a temporary, portable, unlabeled container must use it during the 
same work shift. We removed this term from the Definitions subpart in 
the interim final rule and, instead, incorporated the proposed 
definition in the standard.
    Label. The proposal defined label as ``any written, printed, or 
graphic material, displayed on or affixed to containers of hazardous 
chemicals.'' We define label in the interim final rule in essentially 
the same way. For the final HazCom rule, however, we added the phrase 
``to identify its contents and convey other relevant information'' and 
deleted the phrase ``of hazardous chemicals'' in an effort to make this 
definition consistent with the common understanding of this term. A 
label on a container usually identifies its contents, whether or not it 
contains a hazardous chemical.
    Material safety data sheet (MSDS). We defined material safety data 
sheet (MSDS) in the proposal as written or printed material that an 
operator prepares in accordance with HazCom's requirements, or which 
the manufacturer or supplier prepares under OSHA's HCS for hazardous 
chemicals brought to the mine. One commenter urged us to include an 
operational definition for MSDS rather than reference HazCom's 
requirements or OSHA's HCS. An operational definition, without 
reference to the standards, misses the fact that we intend the MSDS to 
be an information fact sheet that conforms to the cited regulatory 
requirements. Although HazCom does not require a specific format, we do 
encourage you to use an established format for consistency within the 
mining industry and to be in accord with other industries, your 
customers. In the interim final rule, we revised the definition of MSDS 
without changing its requirements by expanding the reference to OSHA 
standards and by referencing Table 47.42, which contains the 
requirements for the contents of an MSDS.
    Mixture. The interim final rule retains the proposed definition of 
mixture as ``any combination of two or more chemicals which is not the 
result of a chemical reaction.'' We intend that the definition of 
mixture be applied broadly to include both solutions of chemicals and 
combinations of chemical solids. A characteristic of any mixture is 
that its individual components could be separated by mechanical or 
physical methods.
    One commenter felt that this definition would include those 
chemical byproducts or impurities in trace amounts that are contained 
in otherwise pure chemicals and that we should clarify the definition. 
We intend that you treat pure compounds or elements as individual 
chemicals, rather than as mixtures, even when they contain small 
amounts of other chemicals as impurities. This treatment is similar to 
our treatment of trace releases from articles and is consistent with 
OSHA's HCS.
    Operator; miner. As discussed above, HazCom uses the mining terms 
operator and miner as defined in the Mine Act instead of employer and 
employee. The Mine Act defines operator as ``any owner, lessee, or 
other person who operates, controls, or supervises a coal or other mine 
or any independent contractor performing services or construction at 
such mine,'' and miner as ``any individual working in a coal or other 
mine.'' Because they are defined in the Mine Act, we do not define 
these mining terms in HazCom.
    We removed the definitions for employer andemployee from the 
interim final rule. Although not included in the definitions, we use 
these terms in the context of their ordinary meaning.
    Ordinary consumer use. In response to comments, we are defining the 
phrase ordinary consumer use. For the purpose of HazCom, ordinary 
consumer use means:
    (1) The product or article is packaged and sold by the manufacturer 
or retailer for use in or around a residence, a family, or a school; in 
recreation; or elsewhere for personal use or enjoyment, as opposed to 
business use.
    (2) The miner's exposure is the same as it would be for an ordinary 
consumer using the product as the manufacturer intended.
    To be considered ordinary consumer use, the miner could not be 
exposed to the product at more than the same concentration, frequency, 
and duration of time than an ordinary consumer would. For example, 
using an organic solvent that is an ingredient in a hand soap in a 
washroom would be considered normal consumer use. Using that same 
solvent as a detergent in a flotation reagent is not.
    Pesticide. The term pesticide appears in the interim final rule to 
clarify that pesticides are regulated by another Federal agency and are 
exempt from HazCom. We do not define this term.
    Physical hazard. The term physical hazard is used in the proposal 
and the interim final rule to describe those chemicals with properties 
that can present a risk of injury to a miner. The proposal listed 
examples of chemical reactions, such as flammability, that are physical 
hazards. The interim final rule lists the chemical reactions and then 
further defines each of them: a combustible liquid, a compressed gas, 
an explosive, a flammable, an organic peroxide, an oxidizer, a 
pyrophoric, an unstable (reactive), or a water reactive material. As 
normally used, physical hazard means the actual physical effect

[[Page 59087]]

that a chemical can cause, rather than the chemical itself. The 
proposed definition differed from this common meaning. To eliminate 
possible confusion or ambiguity, the interim final rule defines 
physical hazard consistent with its common meaning by listing examples 
of the types of chemical reactions that can cause physical harm to 
miners.
    (1) Combustible liquid. We defined combustible liquid in the 
proposal as a liquid with a flashpoint at or above 100 deg.F (100 
degrees Fahrenheit) which is 37.8 deg.C (37.8 degrees centigrade). The 
proposal listed the following three classes of combustible liquids:
    (a) Class II liquids--those having flashpoints at or above 
100 deg.F (37.8 deg.C) and below 140 deg.F (60 deg.C).
    (b) Class III A liquids--those having flashpoints at or above 
140 deg.F (60 deg.C) and below 200 deg.F (93.4 deg.C).
    (c) Class III B liquids--those having flashpoints at or above 
200 deg.F (93.4 deg.C).
    OSHA's HCS had defined a combustible liquid as a liquid having a 
flashpoint at or above 100 deg.F but below 200 deg.F, except any 
mixture having components with flashpoints of 200 deg.F or higher, the 
total volume of which make up 99% or more of the total volume of the 
mixture. Commenters stated that it would be preferable to have our 
definition of combustible liquid coincide with OSHA's definition, 
because many facilities are covered by both rules.
    We believe that the proposed definition of combustible liquid is 
compatible with OSHA's definition. We had proposed to list the various 
classes of combustible liquids to match the definition in other MSHA 
standards. In response to comments, however, the interim final rule 
does not list these classes of combustible liquids. The interim final 
rule defines combustible liquid as a liquid having a flashpoint at or 
above 100 deg.F (37.8 deg.C) and below 200 deg.F (93.3 deg.C) or a 
liquid mixture having components with flashpoints of 200 deg.F 
(93.3 deg.C) or higher, the total volume of which make up 99% or more 
of the mixture. The definition in HazCom is the same as in OSHA's HCS.
    (2) Compressed gas. We defined compressed gas to mean a contained 
gas or mixture of gases with an absolute pressure exceeding 40 psi 
(pounds per square inch) [276 kPa (kiloPascals)] at 70 deg.F 
(21.1 deg.C) or 104 psi (276 kPa) at 130 deg.F (54.4 deg.C) regardless 
of pressure at 70 deg.F. In addition, we consider a liquid to be a 
compressed gas when its vapor pressure exceeds 40 psi (276 kPa) at 
100 deg.F (37.8 deg.C), as determined by ASTM D-323-72. This definition 
is consistent with OSHA's HCS and is unchanged in the interim final 
rule.
    One commenter stated that the definition of compressed gas includes 
compressed air in motor vehicle tires and air compressors. Although 
compressed air meets the definition in HazCom for a compressed gas, an 
inflated tire is an article and exempt from HazCom. Also, an inflated 
tire is part of a motor vehicle and, thus, is not a container under 
HazCom. Neither do we consider compressed air in a tire or compressor 
to be a hazardous chemical under HazCom. A shop compressor contains 
compressed, ambient air and, unlike compressed gas cylinders, it is 
equipped with a safety valve to release excess pressure. We recognize 
that serious hazards exist when working with inflated tires and 
compressed air receivers, but we address these hazards in our safety 
standards. We do not require an MSDS or a label for compressors or 
compressed air.
    (3) Explosive. We defined explosive in the proposed rule in the 
same way as it is defined in OSHA's HCS and added a reference to 
Department of Transportation requirements. There were a number of 
comments that objected to the use of an incorporation by reference. In 
response to comments, we eliminated this reference in the interim final 
rule and rely on the more familiar definition of explosive as a 
chemical that undergoes a rapid chemical change causing a sudden, 
almost instantaneous release of pressure, gas, and heat when subjected 
to sudden shock, pressure, or high temperature. We intend this 
definition to cover the same substances that were covered in the 
proposal, and we believe the term will be better understood by the 
mining industry.
    (4) Flammable. We defined flammable in the proposed rule as a 
chemical that is an aerosol, a gas, a Class I liquid, or a solid that 
would meet specific criteria relating to its capability to ignite, to 
burn, and to sustain a flame. The proposal referenced testing methods 
in 16 CFR and classifications of explosives in 49 CFR, but did not 
include a specific publication date. A commenter requested that we 
include the dates of publication for references in the definition of 
flammable. This commenter also stated that unless--

    * * * operational definitions are included in the rule, it is 
difficult to understand, and becomes a deterrent to compliance. The 
mine supervisor should be able to look at the definition and 
determine if an item such as a conveyor belt is flammable.

    As with the term explosive, we recognize that the proposed 
definition was highly technical and that a simpler, more generally 
understood definition would better serve the industry. Accordingly, and 
in response to comments, the interim final rule defines a flammable 
chemical as one that will readily ignite and, when ignited, will burn 
persistently at ambient temperature and pressure in the normal 
concentration of oxygen in the air. We intend that this definition 
include the same chemicals as would have been included under the 
proposed definition and under OSHA's HCS. We will include the more 
technical definition in the Compliance Guide for this rule.
    We did not define flashpoint in the interim final rule. We believe 
that qualified persons who already know the meaning of the term will be 
determining a chemical's flashpoint.
    (5) Organic peroxide. The proposal defined organic peroxide as an 
explosive, shock sensitive compound or an oxide that contains a high 
proportion of oxygen-superoxide. We received no specific comments on 
this definition. It is unchanged in the interim final rule except for 
the addition of the word ``organic'' to the description of the 
chemical. We intend the definition in HazCom to be essentially the same 
as in OSHA's HCS. OSHA defined organic peroxide as--

    * * * an organic compound that contains the bivalent -O-O- 
structure and which may be considered to be a structural derivative 
of hydrogen peroxide where one or both of the hydrogen atoms has 
been replaced by an organic radical.

    (6) Oxidizer. The proposal defined oxidizer as a chemical other 
than a blasting agent or explosive as classified in 49 CFR 173.53, 
173.88, 173.100 or 173.114(a) that initiates or promotes combustion in 
other materials, thereby causing fire by itself or through the release 
of oxygen or other gases. This definition is consistent with the 
definition for oxidizer in OSHA's HCS. A commenter objected to our 
referencing 49 CFR in our definition of this term. In response to 
comments, we eliminated the reference from the interim final rule. We 
will include these further explanatory details in the Compliance Guide 
for HazCom.
    (7) Pyrophoric. The interim final rule retains the proposed 
definition of pyrophoric with minor editorial changes. This definition 
is consistent with that in OSHA's HCS.
    (8) Unstable (reactive). We defined unstable (reactive) in the 
proposal and interim final rule as a chemical which in the pure state, 
or as produced or transported, will vigorously polymerize, decompose, 
condense, or become self-

[[Page 59088]]

reactive under conditions of shock, pressure, or temperature. This 
definition is consistent with OSHA's HCS.
    (9) We defined water-reactive in the proposal and interim final 
rule as a chemical that reacts with water to release a gas that is 
either flammable or a health hazard. This definition is consistent with 
that in OSHA's HCS.
    Produce. We defined produce in the proposal as to ``manufacture, 
process, formulate, or repackage.'' This definition, together with the 
definition for use, is intentionally broad to include any situation 
where a hazardous chemical is present in such a way that a miner may be 
exposed.
    We received a few comments supporting the proposed definition and 
no comments specifically opposing it. Other comments, however, are 
applicable to this issue. For example, one commenter suggested that we 
exempt certain mine emissions, such as diesel exhaust and welding 
fumes, from the MSDS requirements of HazCom. This commenter stated that 
the composition of these produced chemicals can vary so much that not 
even ``* * * generic MSDSs, created by MSHA as assistance to mine 
operators, will be very useful.'' Another commenter on the definition 
of chemical also assumed that it includes the byproducts of mining 
activities, such as diesel exhausts. This commenter stated that 
``constituent ingredients in diesel exhaust--nitrogen, carbon, and 
sulfur oxides, organic vapor, diesel particular matter--would have to 
be subject of this standard also.''
    The interim final rule defines produce as to ``manufacture, 
process, formulate, generate, or repackage.'' By adding the term 
``generate'' to the proposed definition, we clarify our intent that 
HazCom apply to byproducts of mining activities. For example, HazCom 
would apply to diesel emissions, the inadvertent generation of cyanide 
in a storage tank, or welding fumes from construction or repair of 
machinery. As explained under the definition for chemical, the 
byproducts of mining activities may be covered in the MSDS for the 
initial chemical or separately for the hazardous chemical byproduct 
itself. Also, you may develop an MSDS for a process if that is more 
relevant to the chemical hazard. For the most part, solid waste sites 
and tailings ponds are covered by other MSHA, Federal, or State 
standards. You already must train miners about these hazards and 
appropriate safe work practices and protective measures.
    Raw material. In the proposal, we defined raw material as a 
mineral, or combination of minerals, that is extracted from natural 
deposits by mining or is upgraded through milling. The proposed 
definition added that the term applied to the ore and valuable minerals 
extracted, as well as to the worthless material, gangue, or overburden 
removed during the mining or milling process. One commenter agreed that 
this definition correctly includes the tailings from crushed stone, and 
sand and gravel operations. Another commenter wanted to substitute the 
word ``material'' for ``mineral'' in the definition of raw material, 
stating that--

    The term ``mineral'' has different uses in different areas of 
mining and geology that imply different definitions. The term 
``material'' should be substituted in this definition as a more 
generic and less restrictive term for ``mineral.''

The interim final rule does not incorporate this suggestion, but 
retains the proposed definition of raw material with minor editorial 
changes. Our intent is that raw material be limited to minerals.
    Trade secret. Like the proposal, the interim final rule defines 
trade secret as any confidential formula, pattern, process, device, 
information, or compilation of information that is used by the operator 
to give him or her an opportunity to obtain an advantage over 
competitors who do not know or use it. This definition is taken from 
the Restatement of Torts Sec. 757, comment b (1939). HazCom allows you 
to withhold the identity of the chemical declared a trade secret under 
certain conditions. It requires that you provide the miners with all 
other pertinent HazCom information, though not process or percentage of 
mixture information.
    One commenter was concerned that trade secret, as defined in the 
proposal, would allow you to arbitrarily restrict access. This 
commenter also recommended that the final rule include Appendix D from 
OSHA's HCS, which would reprint the entire Restatement of Torts 
comment, to guide you in applying the trade secret definition. Another 
commenter saw extremely limited utility and could find no reason to 
include this appendix.
    We do not believe that this appendix is necessary. As stated in the 
preamble to the proposal, the Restatement of Torts indicates that there 
are at least six well-accepted factors in establishing a trade secret 
claim. Those six factors are--
    (1) The extent to which the information is known outside of the 
business;
    (2) The extent to which information is known by employees and 
others involved in the business;
    (3) The extent of measures taken by the business to guard the 
secrecy of the information;
    (4) The value of the information to the business and its 
competitors;
    (5) The amount of effort and money expended in developing the 
information; and
    (6) The ease or difficulty with which the information could be 
properly acquired or duplicated by others.
    We believe these principles provide sufficient guidance in 
determining the legitimacy of a trade secret claim without publishing 
an appendix. We considered including several of the proposed appendices 
in the interim final rule. We determined, however, that the overall 
effect of these additions was to obscure rather than clarify the 
requirements. Instead, we intend to publish a Compliance Guide, a 
Toolbox, and other information apart from HazCom to assist the industry 
in complying.
    Use. We defined use in the proposal as ``to package, handle, react, 
or transfer.'' OSHA has defined use as ``to package, handle, react, 
emit, extract, generate as a byproduct, or transfer.'' We did not 
include the terms ``extract, emit, or generate as a byproduct'' because 
we believe they are already covered under the definition for produce. 
The interim final rule is the same as the proposal in this respect. We 
intend this definition to be broad enough to include any situation 
where a hazardous chemical is present in such a way that a miner may be 
exposed.
    Work area. We defined work area in the proposal as a room or 
defined space in a workplace (now a mine) where hazardous chemicals are 
produced or used and where employees (now miners) are present. The 
interim final rule changes the definition of work area to mean any 
place in or about a mine where a miner works or a chemical is used or 
produced to make HazCom's definition more consistent with common 
understanding and retain its application to the presence of chemicals. 
The definition is consistent with the intent of the proposal, but 
clarifies the conditions that must be present for a work area. We were 
going to use the more familiar term ``working place,'' but it has 
different meanings for different segments of the mining industry.
    Workplace. The proposal defined workplace as a mine, establishment, 
job site, or project at one geographical location containing one or 
more work areas. HazCom uses the term mine instead of workplace. 
Because the interim final rule does not include the

[[Page 59089]]

term workplace, we removed its definition.

K. Appendices

    The proposal contained three appendices. Appendix A, Health Hazard 
Definition, a mandatory section providing additional details for the 
proposal's definitions. Appendix B, Information Sources, was a 
comprehensive advisory list of sources to evaluate the physical hazards 
of chemicals and their specific health effects. Appendix C, Guidelines 
for Operator Compliance, provided additional advisory guidance for 
complying with the HazCom standard. The interim final rule does not 
include these appendices. We also included a table of Hazard 
Communication Chemicals, identified in the proposal as Table 1, which 
was intended to help determine if a chemical was hazardous by listing 
chemicals from MSHA's health standards, the ACGIH, the NTP, and IARC. 
Table 1 has been deleted from the interim final rule. Much of this 
information will be included in a HazCom Toolbox to be published 
separately from the interim final rule.

IV. Legal Authority and Feasibility

    The primary purpose of the Federal Mine Safety and Health Act of 
1977 (Mine Act) is to ensure safe and healthful working conditions for 
the Nation's miners. One means established by Congress to achieve this 
goal is the authority vested in the Secretary of Labor (Secretary) to 
set mandatory safety and health standards. The HazCom interim final 
rule is being promulgated as a mandatory safety and health training and 
information standard under Sec. 101 and Sec. 115 of the Mine Act.

A. Statutory Requirements

    Section 101(a)(6)(A) of the Mine Act applies to all mandatory 
standards involving toxic materials or harmful physical agents. It 
requires us to set standards to ensure that a miner will not suffer a 
material impairment of health or functional capacity as a result of 
exposure to the hazard, even if the miner is exposed for his or her 
working life. We must also consider the latest scientific data in the 
field, feasibility of the standard, and experience gained under this 
and other health and safety laws.
    Material impairment. Section 101(a)(6)(A) of the Mine Act and 
Sec. 6(b)(5) of the Occupational Safety and Health Act (OSH Act) 
contain similar statutory language. Both statutory sections contain 
provisions indicating that mandatory standards must be designed to 
prevent ``material impairment of health or functional capacity * * *''
    The Supreme Court has indicated, in discussing significant risk of 
material impairment of health in the context of litigation under 
Sec. 6(b)(5) of the OSH Act, that the significant risk determination 
constitutes a finding that, absent the change in practices mandated by 
the standard, the workplaces in question would be ``unsafe'' in the 
sense that workers would be threatened with a significant risk of harm. 
[Industrial Union Dept. v. American Petroleum Institute, 448 U.S. 607, 
642 (1980) (Benzene)]. This finding, however, does not require 
mathematical precision or anything approaching scientific certainty if 
the ``best available evidence'' does not warrant that degree of proof. 
[Id. at 655-656]. Rather, the agency may base its findings largely on 
policy considerations and has considerable leeway with the kinds of 
assumptions it applies in interpreting the supporting data. [Id. at 
656].
    Feasibility. The Mine Act and the OSH Act also have similar 
statutory requirements regarding ``feasibility.'' While Sec. 6(b)(5) of 
the OSH Act requires that standards assure, ``to the extent feasible, * 
* * that no employee will suffer material impairment of health or 
functional capacity,'' Sec. 101(a)(6)(A) of the Mine Act requires us to 
consider ``the feasibility of the standard * * *.'' In addition, the 
legislative history of the Mine Act specifically cites feasibility 
cases decided under the OSH Act and strongly suggests that 
``feasibility'' principles applicable to OSHA standards are also 
applicable to MSHA standards. [S. Rep. No. 95-181, 95th Cong., 1st 
Sess. 21 (1977)]. The legislative history of the Mine Act also states 
that:

    In adopting the language of [this section], the Committee wishes 
to emphasize that it rejects the view that cost benefit ratios alone 
may be the basis for depriving miners of the health protection which 
the law was intended to insure. Id.

    Though the Mine Act and its legislative history are not specific in 
defining feasibility, the Supreme Court clarified its meaning in 
American Textile Manufacturers' Institute v. Donovan [452 U.S. 490, 
508-509 (1981) (Cotton Dust)]. In that case, the Court defines the word 
``feasible'' as ``capable of being done, executed, or affected.'' The 
Court stated, however, that a standard would not be considered 
economically feasible if it threatened an entire industry's competitive 
structure. In promulgating standards, agencies do not have to rely on 
hard and precise predictions regarding feasibility. We need only base 
our projections on reasonable inferences drawn from existing facts. 
Thus, to establish the economic and technological feasibility of a new 
rule, we must assess the likely range of costs that it will impose on 
mines, and show that a reasonable probability exists that a typical 
mine will be able to meet the standard.
    Also, the 11th Circuit, in National Mining Association v. Secretary 
of Labor [153 F.3d 1264 (1998) (single sample)], has stated that we are 
required to comply not only with the procedural provisions of Sec. 101 
of the Mine Act when developing, promulgating, and modifying mandatory 
safety and health standards, but with all provisions of that section, 
including showings of feasibility, best available evidence, latest 
available scientific data, and experience. Accordingly, when 
developing, promulgating, and modifying mandatory standards, we must 
enact the most protective standard possible to eliminate a significant 
risk of material health impairment, subject to the constraints of 
technological and economic feasibility.
    Also, Sec. 101(a)(7) requires that any health or safety standard 
promulgated under the authority of Sec. 101(a) of the Mine Act must--

    * * * prescribe the use of labels or other appropriate forms of 
warning as are necessary to insure that miners are apprised [sic] of 
all hazards to which they are exposed, relevant symptoms and 
appropriate emergency treatment, and proper conditions and 
precautions of safe use or exposure.

These requirements provide basic protections for workers in the absence 
of specific permissible exposure limits.

B. Finding of Significant Risk

    We have determined that hazardous chemicals are found in all mining 
environments and that many operators and miners are not sufficiently 
aware of the presence of these hazardous chemicals nor the nature of 
the hazards. Also, we have determined that this lack of knowledge 
increases a miner's risk of suffering a chemically-related occupational 
illness or injury, because precautions and appropriate protective 
measures are used only when the presence of a chemical hazard is known. 
Communicating this information to miners is intended to reduce the 
incidence of chemically-related occupational illnesses and injuries in 
the mining industry by changing the workplace behavior of miners and 
mine operators to reduce the risk of harmful exposures.
    The provisions of this interim final rule--hazard evaluations, 
written

[[Page 59090]]

HazCom programs, labels and other forms of warning, MSDSs, and miner 
training--are directed not only at the identification of hazardous 
chemicals at the mine, but more significantly at the mitigation of 
their hazards. The probability of harm will decrease largely as a 
result of operators' and miners' increased awareness of the hazardous 
nature of the chemicals and the protective measures to avoid harmful 
exposures. Increased care and use of protective measures when working 
around hazardous chemicals will reduce the incidence of chemically-
related illnesses and injuries at mines.
    The information provided under this interim final rule also will 
enable health and safety professionals to provide better services to 
exposed miners. The ready availability of health and safety 
information, such as signs and symptoms of exposure, will aid medical 
surveillance and the early detection and treatment of problems. It also 
will help you make better decisions regarding exposure monitoring, 
process or exposure controls, and appropriate personal protective 
equipment. Because our rulemaking record clearly indicates that 
inadequate communication about serious chemical hazards endangers 
miners, and that the requirements of this standard are necessary and 
appropriate for the elimination or mitigation of these hazards, we are 
able to make the threshold ``significant risk'' determination.
    Several commenters indirectly suggested that we needed to find 
significant risk for each chemical covered and for each exposure 
situation. We address these comments in more detail in our discussion 
of Sec. 47.2, Operators and chemicals covered. It is clear from 
relevant court decisions involving OSHA's HCS, however, that a specific 
finding of significant risk is not required for a standard such as 
this, where the significant risk being regulated is that of inadequate 
knowledge.
    In Associated Builders & Contractors v. Brock [862 F.2d 63 (1988)], 
industry confronted the 3rd Circuit Court with a similar argument 
involving the OSHA HCS and OSHA's general finding of significant risk. 
Industry argued that the standard was invalid because OSHA had 
promulgated it without a significant risk determination. Industry also 
claimed that OSHA needed to find significant risk for each chemical 
covered and for each industry covered. The court disagreed with 
industry and ruled that the general significant risk finding for the 
original 1983 rule was appropriate for the entire manufacturing sector, 
and that it was also applicable to each of the 20 major Standard 
Industrial Classification (SIC) Code manufacturing subdivisions [Id. at 
67].
    The court also stated that OSHA was not required to determine 
significant risk for each chemical covered under the rule because the 
rule was not a substance based rule, but an information disclosure 
standard. The court concluded that--

    * * * there is no more obvious need for industry specific 
significant risk determinations for the (non-manufacturing) 
industries than for subdivisions of the manufacturing sector. [Id. 
at 67-68]

Specifically, the court held that:

    * * * for this performance-oriented information disclosure 
standard covering thousands of chemical substances used in numerous 
industries, the significant risk requirement must of necessity be 
satisfied by a general finding concerning all potentially covered 
industries. A requirement that the Secretary assess risk to workers 
and the need for disclosure with respect to each substance in each 
industry would effectively cripple OSHA's performance of the duty 
imposed on it by 29 U.S.C. 655(b)(5); a duty to protect all 
employees, to the maximum extent feasible. [Id. at 68]

    OSHA was not required to assess individually the significant risk 
that would be alleviated by the HCS's application to each of the 
seventy major business classifications, much less for each of the 
hazardous substances used in those industries. In addition, OSHA's 
application of the 1983 general finding of significant risk to the 
construction and grain processing and storage industries was upheld by 
the 5th Circuit in National Grain and Feed Association v. OSHA [866 
F.2d 717 (1989)(petition for review of OSHA's modified HCS as it 
applied to the construction and grain processing and storage 
industries)].
    Because our HazCom rule was modeled on OSHA's HCS, and the Mine Act 
and OSH Act are similar with respect to the regulatory requirements for 
the promulgation of mandatory safety and health standards, we believe 
that we have satisfied our statutory threshold of significant risk with 
our general finding of risk presented in this section. We conclude that 
neither the record evidence nor policy considerations support the 
argument that we should apply HazCom only where chemical exposures pose 
known significant risks. We find that the risk of harm to miners will 
increase if operators allow a condition or situation to develop that 
poses a significant risk of harm to miners before providing the 
potentially exposed miners with chemical hazard information.
    In addition, in light of Sec. 101(a)(7) of the Mine Act which 
requires us to ``insure that miners are apprised [sic] of all hazards 
to which they are exposed,'' you must inform miners about all hazards 
before the miner could be exposed to them. Linking the application of 
HazCom to a risk level is contrary to the standard's purpose--to change 
operator and miner behavior before an illness or injury occurs by 
preventing exposure.
    Likewise, requiring information disclosure only in situations where 
exposure might exceed a PEL or ACGIH TLV is not consistent with the 
purpose of the rule. HazCom is intended to address all hazardous 
chemicals at mines. The range of hazards and concentrations are too 
diverse to address through a single measurement. Also, some chemicals 
are highly hazardous even in small amounts or low concentrations. A de 
minimis exemption, therefore, would not provide sufficient protection 
to miners and would not address the true issue of concern--informing 
miners of potential hazards. Exposure limits address a limited number 
of the hazardous chemicals encountered at the mine. Also, PELs are used 
to control inhalation exposures. Because the definition of exposure in 
HazCom includes absorption through the stomach or skin, in addition to 
the lungs, the exposure limits might be unrelated to the total exposure 
experienced by a miner. In certain circumstances, the most significant 
route of exposure may be through the stomach or skin.
    These HazCom requirements are both necessary and appropriate to 
protect miners, even when we have not determined that the level of risk 
from a particular chemical exposure warrants a substance-specific 
standard that would require more complex and costly types of controls. 
We conclude that operators must obtain information for all hazardous 
chemicals to which miners can be exposed and provide it to miners, 
regardless of any judgments about possible levels of risk.

C. Finding of Feasibility

    Only one commenter claimed that a provision was infeasible, stating 
that those working in isolated workplaces could not have immediate 
access to MSDSs. The interim final rule allows MSDSs to be kept in a 
central location, as well as electronic access.
    The record contains substantial evidence of feasibility. We 
conclude that these administrative requirements can be merged 
economically into present practices. The performance-oriented, 
informational provisions of HazCom are capable of being done and

[[Page 59091]]

will not threaten the viability or long-term profitability of the 
mining industry.
    This standard does not relate to activities on the frontiers of 
scientific knowledge. The informational requirements contained in this 
interim final rule are not the sorts of obligations that approach the 
limits of feasibility. There are no technological barriers preventing 
implementation of the HazCom requirements because most of these 
requirements are accepted, common business practices that are 
administrative in nature.
    As estimated in our Regulatory Economic Analysis (REA) supporting 
this HazCom interim final rule, the mining industry will incur costs of 
about $5.7 million annually to comply with the interim final rule. 
These compliance costs represent much less than 1% (about 0.01%) of 
mining industry annual revenues of $59.7 billion and provide convincing 
evidence that the interim final rule is economically feasible.
1. Compliance Burden
    We intend a number of factors to reduce the compliance burden 
associated with MSHA's HazCom interim final rule. The rule is closely 
modeled on OSHA's HCS and informational materials, training aids, and 
model training programs, developed and made widely available by both 
OSHA and commercial sources, will help mine operators comply. We are 
developing a HazCom Toolbox, designed particularly for small mine 
operators, that will provide MSDSs, labels, and formal programs for 
ease-of-use and ready adaptability. We will focus state grants on 
including HazCom training and informational materials, and will have 
trainers and videos available. Although we do not intend to conduct 
HazCom training for the mining industry, we will provide information 
and assistance to trainers through our Mine Health and Safety Academy, 
Educational Field Services, and the MSHA district offices.
    Finally, we have simplified the language of the rule to make it 
easier to understand and, thus, easier to comply with.
2. Flexibility of Program
    We wrote or revised the major provisions of the HazCom rule to 
provide the most flexibility possible that also ensured an enforceable 
interim final rule.
    List of chemicals. Mine operators can compile the list for the mine 
or individual work areas. We did not specify a format or chemical 
identification system, which will allow operators great latitude in how 
they identify their chemicals.
    Hazard determination. We did not specify the format and criteria 
for establishing hazard determination procedures. Operators have 
considerable discretion in how they conduct the determination, so long 
as others can understand how they made their determinations.
    Exchanging information. We used performance language rather than 
specification language in requiring operators to establish a way to 
exchange information with other operators on-site.
    Labels. The label requirements in the interim final rule are 
performance-oriented, flexible, and consistent with the proposal and 
OSHA's HCS. Therefore, labels that comply with OSHA's HCS will comply 
with HazCom. The interim final rule does not require operators to label 
for downstream users; re-label containers of hazardous materials that 
are labeled in accordance with other Federal standards; update labels 
that they did not prepare; nor label chemicals in a particular format. 
They may substitute various types of standard operating procedures, 
process sheets, batch tickets, blend tickets, and similar written 
materials for container labels on stationary process equipment. The 
interim final rule is deliberately flexible to allow for the adoption 
of an international system for classifying and displaying hazard 
information, when it becomes available. We are not requiring that 
operators label raw materials at a mine.
    Training. Relevant training that meets OSHA's HCS will comply with 
HazCom. Operators can combine HazCom training with pre-existing 
requirements under parts 46 and 48. We delayed the HazCom rule's 
effective date until 1 year from its date of publication in the Federal 
Register to allow operators the flexibility to include HazCom training 
in their annual refresher training under parts 46 and 48. Operators can 
use instructors already on staff qualified under parts 46 and 48.
    MSDS. We did not require that MSDSs be in a particular format, only 
requiring certain basic information. Operators must only provide an 
MSDS for a mine product upon request. We are also allowing the MSDS to 
be in an electronic medium.
    Hazardous waste. Operators are not required to have an MSDS for 
hazardous waste although they must make any relevant information 
available to the miner.

D. Petitions for Modification

    Our classification of HazCom as both a safety and a health standard 
impacts whether operators or representative of miners can petition us 
for a modification. Under Sec. 101(c) of the Mine Act, operators or 
representatives of miners may petition us to modify the application of 
a mandatory safety standard, but not a health standard. Because the 
HazCom standard is being promulgated as both a health and safety 
standard, operators may not petition us for a modification. To allow as 
much compliance flexibility as possible, the final HazCom requirements 
are performance oriented. We cannot envision any equally protective 
alternatives that HazCom does not already allow.

V. The Regulatory Flexibility Act, the Small Business Regulatory 
Enforcement Fairness Act, and Executive Order 12866

    The Regulatory Flexibility Act (RFA) requires a regulatory agency 
to evaluate each proposed and final rule and to consider alternatives 
so as to minimize the rule's impact on small entities (businesses and 
local governments). Under the RFA, we must use the Small Business 
Administration's (SBA) definition of a small entity in determining a 
rule's economic impact unless, after consultation with SBA, we 
establish a different definition.
    In the preamble to our HazCom proposal, we certified that this rule 
would not have a significant economic impact on a substantial number of 
small mining operations. The preamble also included a full discussion 
of the regulatory alternatives that we were considering and invited the 
public to comment.
    In 1996, Congress enacted the Small Business Regulatory Enforcement 
Fairness Act (SBREFA) amending the RFA. SBREFA requires a regulatory 
agency to include in the preamble to a rule the factual basis for that 
agency's certification that the rule has no significant impact on a 
substantial number of small entities. The agency then must publish the 
factual basis in the Federal Register, followed by an opportunity for 
public comment. Although SBREFA did not exist when we published the 
HazCom proposal, we published a notice reopening the record in March 
1999, to give you an opportunity to comment on the factual basis for 
our previous certification that the HazCom proposal would pose ``no 
significant impact.''
    This rule has been drafted and reviewed in accordance with 
Executive

[[Page 59092]]

Order (E.O.) 12866, Sec. 1(b), Principles of Regulation. E.O. 12866 
requires a regulatory agency to assess both the costs and benefits of 
proposed and final rules and to complete a Regulatory Economic Analysis 
(REA) for any rule having major economic consequences for the national 
economy, an individual industry, a geographic region, or a level of 
government. We prepared a REA and Regulatory Flexibility Certification 
Statement to fulfill the requirements of the RFA and E.O. 12866. Based 
on our REA, we determined that this interim final rule is not an 
economically significant regulatory action pursuant to Sec. 3(f)(1) of 
E.O. 12866. Because it affects all mining operations, almost all of 
which are small businesses using SBA's definition of a small business, 
we determined that this interim final rule is significant under 
Sec. 3(f)(4) of E.O. 12866. This section defines a significant 
regulatory action as one that may--

    * * * Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
this Executive Order.

    The REA is available on request from MSHA, Office of Standards, 
Regulations, and Variances, 4015 Wilson Boulevard, Arlington, VA 22203 
or from our Internet Home Page at www.msha.gov.

A. Alternatives Considered

    In accordance with Sec. 604 of the RFA, we are including a 
discussion of the regulatory alternatives considered in developing this 
interim final rule. We used OSHA's HCS as a model for the proposed 
rule. For the interim final rule, we also considered suggestions from 
commenters to the proposal. In part, the limited impact of the interim 
final rule on small mines reflects our decision not to require more 
costly alternatives. Most of the alternatives addressed the scope of 
the standard--what would be covered and what would be exempt. The 
interim final rule did not adopt any alternatives that were not 
discussed in the proposal. In response to comments, we did adopt 
several provisions that differ from the proposal or OSHA's HCS.
    1. The proposal would have exempted hazardous waste regulated by 
EPA under the Resource Conservation and Recovery Act from both the 
labeling and MSDS provisions of HazCom. The interim final rule does not 
exempt hazardous waste regulated by EPA from labeling and MSDSs. We 
determined that such an exemption would put miners at risk of a 
potential injury or illness.
    2. As proposed, the interim final rule exempts the raw material 
being mined or milled from labeling while on mine property.
    3. The proposed rule exempted from HazCom's labeling requirements 
certain hazardous substances regulated and labeled under the authority 
and standards of other Federal agencies. These hazardous substances 
include cosmetics, drugs, tobacco products, foods, food additives, and 
color additives which are labeled in accordance with the requirements 
of the Food and Drug Administration or the Department of Agriculture. 
The interim final rule extends these exemptions to the full scope of 
the rule rather than to labeling only.
    4. To be consistent with OSHA's HCS, we included exemptions from 
labeling for hazardous substances that EPA or other Federal agencies 
require to be labeled for hazards.
    5. The proposal would have allowed you to not label temporary, 
portable containers of a hazardous chemical that was to be used only by 
the miner who transferred it from its labeled container. The interim 
final rule allows other miners to use the hazardous chemical from the 
unlabeled container if you ensure that all miners know the chemical's 
identity, its hazards, and protective measures; and that you ensure the 
container is left empty at the end of the shift.
    6. In the proposal, we would have required you to label containers 
of your hazardous product or provide a copy of the labeling information 
with the first shipment to an employer. The interim final rule does not 
require you to label your hazardous product for sale to customers who 
are employers. Rather, we require you to provide the label or labeling 
information and an MSDS when requested.
    7. The interim final rule allows you to credit relevant training 
provided for compliance with other MSHA standards or OSHA's HCS to meet 
HazCom's training requirements and we require training records.

B. Consultation With SBA

    The RFA requires regulatory agencies to consult with SBA's Chief 
Counsel for Advocacy about regulations that have an impact on small 
entities. The RFA also requires us to use SBA's definition of a small 
entity in determining a rule's economic impact. To comply with this 
law, we consulted with SBA about this rule and our certification of no 
significant economic impact on small mines. For the mining industry, 
SBA defines ``small'' as a business with 500 or fewer employees (13 CFR 
121.201). Almost all of the coal and M/NM mines fall into this 
category. To establish an alternative definition for the mining 
industry, after consultation with SBA, we must publish that definition 
in the Federal Register providing an opportunity for public notice and 
comment.
    Traditionally, for regulatory purposes over the past 20 years, we 
have considered a mine ``small'' if it employs fewer than 20 miners and 
``large'' if it employs 20 or more. These small mines differ from 
larger mines not only in the number of employees, but also, among other 
things, in economies of scale in material produced, in the type and 
amount of production equipment, and in supply inventory. Their costs of 
complying with the interim final rule and the impact of the interim 
final rule on them will also differ. It is for this reason that ``small 
mines,'' as traditionally defined by the mining community, are of 
special concern to us.
    For purposes of the REA and to comply with the RFA, we analyzed the 
impact of the interim final rule on mines using SBA's definition of 
``small,'' as well as our traditional definition.

C. Compliance Costs

    We estimate that the total net yearly cost of the final HazCom rule 
(30 CFR part 47) will be about $5.7 million. Table 4 summarizes our 
estimate of the yearly costs by mine size and by major provision. These 
costs reflect first year (one-time, start-up) costs of $15 million and 
annually recurring costs of $4.7 million. HazCom will affect all coal 
and M/NM mines; some only insignificantly.

[[Page 59093]]



                             Table 4.--Yearly Costs for HazCom Interim Final Rule by Provision, Commodity, and Mine Size \*\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                             Provision
                                                         --------------------------------------------------------------------------------
                        Mine size                             Written                                         HazCom                           Total
                                                              program         Labels           MSDSs         training         Access
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Coal Mines and Independent Contractors
--------------------------------------------------------------------------------------------------------------------------------------------------------
20......................................................        $375,300         $15,700        $134,400        $284,300        $137,500        $947,300
<gr-thn-eq>20...........................................         258,500           6,231          84,900         261,000         132,200         742,800
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                      M/NM Mines and Independent Contractors (M/NM)
--------------------------------------------------------------------------------------------------------------------------------------------------------
20......................................................       1,062,900          31,800         450,700         963,000         486,100       2,994,400
<gr-thn-eq>20...........................................         244,300           9,200          94,700         352,900         309,100       1,010,100
                                                         -----------------------------------------------------------------------------------------------
    All Mining..........................................       1,941,000          63,000         764,600       1,861,100       1,064,900      5,694,600
--------------------------------------------------------------------------------------------------------------------------------------------------------
\*\ Values are rounded.

D. Regulatory Flexibility Certification and Factual Basis

    Based on our analysis of costs and benefits in the REA, we certify 
that this HazCom interim final rule will not have a significant 
economic impact on a substantial number of small mining entities using 
either SBA's or our traditional definition of ``small.''
1. Derivation of Costs and Revenues
    In this interim final rule, both coal and M/NM mines must absorb 
compliance costs. We examined the relationship between costs and 
revenues for the coal and M/NM mine sectors as two independent 
entities, rather than combining them into one category. All cost 
estimates in this chapter are presented in 1998 dollars.
    For this interim final rule, we estimated the one-time costs, 
annualized costs (one-time costs amortized over a specific number of 
years), and annual costs. One-time costs are those that are incurred 
once and do not recur. For example, the cost to develop a written 
procedural program occurs only once. For the purpose of this REA, we 
amortized one-time costs over an infinite life resulting in an 
annualized cost equal to 7% of the one-time cost. Converting one-time 
costs to annualized costs allows us to add them to annual costs in 
order to compute a combined yearly cost for the rule. Annual costs are 
those that normally recur annually. Three examples of annual costs are 
maintenance costs, operating expenses, and recordkeeping costs.
    Commenters to the recent request for information on the economic 
impact of HazCom on small mines expressed their belief that we 
underestimated the costs. Commenters stated that costs for gathering 
MSDSs and keeping them updated could cost thousands of dollars per 
year; that we had not included a cost for lost production; that 
operators could not train miners or label containers for the $10 per 
miner that we estimated as the cost of the rule; and that the wage 
rates were two to three times too low because consultants, not mine 
employees, would be conducting the hazard evaluation.
    We believe that the cost estimates in the final REA, $5.7 million 
affecting about 193,000 miners or about $30 per miner, represent a 
reasonable approximation of the burden on operators for the following 
reasons.
    First, we have existing standards for training. We did not 
calculate a cost for miners to attend training or for lost production 
because the HazCom training can be accomplished during annual refresher 
training or task training, both of which require operators to cover 
health and safety hazards. Our recent final training rules, both the 
new part 46 and the modified part 48, give operators more flexibility 
in developing training courses to meet the changing needs of the miners 
and the changing hazards of the mine environment. For example, these 
training standards allow the operator to adjust the amount of time 
spent on each topic. This, in turn, allows the operator to spend more 
of the training time on mine-specific, task-specific, or new 
information, tailored to their assessment of the miners' training 
needs. Operators can credit relevant training already provided to 
comply with HazCom training requirements. In addition, we delayed the 
effective date of the rule for one year to give operators the time 
needed to incorporate the HazCom training into their mines' training 
cycles. Training costs for HazCom include the time to develop a HazCom 
training course, time for the instructor to prepare the lesson, the 
cost for training materials, and the time for making a record of the 
training.
    Second, we have existing standards for labeling. We calculated only 
a small cost for labels because most hazardous chemicals are already 
labeled by the manufacturer or supplier before they are brought to the 
mine, our existing standards require hazardous materials to be labeled, 
and HazCom exempts the raw materials being mined or milled from 
labeling. The small cost is for labeling storage tanks of bulk 
hazardous materials and portable transport containers, as necessary, 
and for replacing damaged or missing labels.
    Third, OSHA's HCS has had widespread impact on State right-to-know 
regulations and, indirectly, on the mining industry. All operators 
already comply with some of the provisions of this interim final rule 
(at least labeling and training). Some comply with most or all of the 
provisions because of existing Federal, State, or local regulations; 
voluntarily because of corporate policy; or because they work in 
industries under OSHA jurisdiction, as well as in the mining industry.
    Finally, we are developing compliance aids to reduce the burden on 
operators, especially small operators. These include generic HazCom 
programs, MSDSs for common minerals and common hazardous chemicals at 
mines, generic training programs, training materials, and videos (some 
to help the operator develop a HazCom program and some to use in 
training the miner). We will also provide training and compliance 
assistance through state grants, MSHA health specialists, and our 
Educational Field Services so that you can understand the rule and 
comply yourself. The benefit we see is that if you develop your program 
yourself to meet the unique needs of your operation, you will be better 
prepared to maintain it. HazCom's effective date is one year after the 
publication of the rule. During this period, we will make

[[Page 59094]]

every effort to help the industry gain compliance before HazCom goes 
into effect.
    Because of our commitment to help the mining industry, especially 
small operators, implement a HazCom program with minimum burden, we do 
not anticipate a need for them to hire consultants. We anticipate that 
the vast majority of hazard determinations will be made by reading the 
MSDS and label and acting accordingly. We assumed in our calculation of 
wage rates that mine employees will conduct the hazard determination 
rather than consultants and this is appropriate for the industry.
    In determining revenues for coal mines, we multiplied mine 
production data (in tons) by the estimated price per ton of the 
commodity ($17.58 per ton in 1998). We obtained production data from 
our CM441 reports \6\ and the price estimates from the Department of 
Energy.\7\ Because we do not collect data on M/NM mine production, we 
took the total revenue generated by the M/NM industry ($40 billion) \8\ 
and divided it by the total number of employee hours to arrive at the 
average revenue per hour of employee production ($104.86). We then took 
the $104.86 and multiplied it by the employee hours in specific size 
categories to arrive at the estimated revenues for the size category.
---------------------------------------------------------------------------

    \6\ MSHA's 1998 CM441 Report, cycle 1998/198.
    \7\ U.S. Department of Energy, Energy Information 
Administration, Annual Energy Review 1998, July 1999, p. 203.
    \8\ U.S. Department of the Interior, U.S. Geological Survey, 
January 1999, pp. 3 and 6.
---------------------------------------------------------------------------

2. Factual Basis for Certification
    Whether or not compliance costs impose a ``significant'' impact on 
small entities depends on their effect on the profits, market share, 
and financial viability of small mines. To address these issues, we had 
to determine whether compliance with HazCom will place small mines at a 
significant competitive disadvantage relative to large mines or impose 
a significant cost burden on small mines.
    The first step in this determination is to establish whether the 
compliance costs impose a significant burden on small mines in absolute 
terms. For this purpose, we began with a ``screening'' analysis of 
compliance costs relative to revenues for small mines. When estimated 
compliance costs are less than 1% of estimated revenues, we conclude 
that there is no significant impact on a substantial number of small 
entities. When estimated compliance costs approach or exceed 1% of 
revenue, we conclude that further analysis is needed.
    The second step in this determination is to establish whether 
compliance with HazCom will impose substantial capital or first-year, 
start-up costs on small mines. Because financing is typically more 
difficult or more expensive to obtain for small mines than for large 
mines, initial costs may impose a greater burden on small mines than on 
large mines. HazCom, however, does not require engineering controls or 
other items requiring a substantial initial capital expenditure. The 
initial costs associated with HazCom are those necessary to develop and 
implement a HazCom program. Because this cost is well below 1% of 
revenues, we do not consider it to be significant.
    The third step in this determination is to establish whether there 
are significant economies of scale in compliance that place small mines 
at a competitive disadvantage relative to large mines. We investigated 
economies of scale by calculating whether compliance costs are 
proportional to mine employment. Although the annual compliance cost 
per miner is greater for small operations than for large, this 
difference is unlikely to provide strategic leverage because small 
mines generate over 95% of the revenues in their respective markets. 
Furthermore, total compliance costs will be greater, on average, for a 
large mine than for a small mine.
3. Results of Screening Analysis
    In all cases, the cost of complying with the interim final rule is 
well below 1% of revenues.
    <bullet> For coal mines with fewer than 20 miners, the estimated 
average yearly cost of HazCom is $190 per operation, which is about 
0.14% of the average annual revenue per operation.
    <bullet> For coal mines with 500 or fewer miners, the estimated 
average yearly cost is $270 per operation, which is about 0.01% of the 
average annual revenue per operation.
    <bullet> For M/NM mines with fewer than 20 miners, the estimated 
average yearly cost of HazCom is $230 per operation, which is about 
0.02% of the average annual revenue per operation.
    <bullet> For M/NM mines with 500 or fewer miners, the estimated 
average yearly cost is $270 per operation, which is less than 0.01% of 
the average annual revenue per operation. As shown in Table 5, 
compliance costs represent only about 0.01% of the value of mine 
production.

                                Table 5.--Compliance Costs Compared to Revenue *
----------------------------------------------------------------------------------------------------------------
                                                                   Total yearly
               Small mines (1-500)                 Average cost        cost        Total revenue   Cost as % of
                                                     per mine       (millions)      (millions)        revenue
----------------------------------------------------------------------------------------------------------------
Coal............................................            $270           $1.69         $18,252           0.009
M/NM............................................             269            4.00          35,137          0.011
----------------------------------------------------------------------------------------------------------------
* Includes independent contractors and their employees.

    Because the cost of HazCom as a percentage of revenue is 
considerably less than 1%, we believe that this result, in conjunction 
with the previous analysis, provides a reasonable basis for the 
certification of ``no significant impact'' in this case.

E. Benefits

    In considering a HazCom standard, we reviewed chemically-related 
injuries and illnesses reported to MSHA between January 1983 and June 
1999. During this period, the mining industry reported almost 4,700 
chemical burns crossing 57 commodities and 70 job classifications and 
involving exposures to chemicals at all sizes and types of mines. This 
same accident and injury data indicated more than 800 poisonings, 2,600 
eye injuries, and 2,100 cases of dermatitis or skin injury as a result 
of chemical exposures. These data only account for the acute effects of 
chemical hazards, not the chronic effects which we know exist.
    We conclude that miners face a significant risk from exposure to 
hazardous chemicals. We further conclude that compliance with this rule 
will prevent a substantial number of acute illnesses, injuries, and 
fatalities, as well as long term cancer cases.
    HazCom is an important means of ensuring that both operators and 
miners are aware of the chemical hazards to

[[Page 59095]]

which they may be exposed at the mine. We anticipate that our HazCom 
standard will enhance both operator and miner awareness of the safety 
and health hazards associated with hazardous chemical substances in 
such a way that both parties will take positive steps to lower 
exposures, resulting in lower incidence of chemically-related injuries 
and illnesses. Also, if the miner and operator know the potential 
health effects from exposure to a chemical, they can forewarn their 
doctor to watch for signs and symptoms of exposure and further reduce 
the risk of injury by obtaining early diagnosis and treatment.
    Based on our review and analysis of the available data, we estimate 
that compliance with this rule will prevent one fatality every four 
years, beginning when the rule takes effect, as well as an annual 
average of 57 chemically-related acute injuries and illnesses (15 in 
coal mines and 42 in M/NM mines). Of these 57 injuries and illnesses, 
32 will result in 386 lost workdays and 25 will not require lost 
workdays.
    In addition, we expect that HazCom will prevent 76 cancer deaths 
(51 in coal and 25 in M/NM) from year 11 through year 20 after 
promulgation and 13.8 cancer deaths every year thereafter.

VI. Other Regulatory Considerations

    We recognize that the mining industry has changed since 1990 when 
we developed the Preliminary Regulatory Impact Analysis (PRIA) and 
published the HazCom proposal. Most of the changes, however, decreased 
the impact of HazCom on the mining industry. For example, the number of 
mines and miners has decreased while the number of independent 
contractors has increased. Independent contractors are more likely than 
mines to have an existing hazard communication program because they are 
more likely to work in operations under OSHA jurisdiction, as well as 
in mines under MSHA jurisdiction. Similarly, more mines have a hazard 
communication program now than in 1990 because the parent company also 
has operations in industries subject to OSHA's HCS, or the mine is 
located in a State with a State right-to-know law that covers mining. 
We believe that these existing programs decrease the economic impact of 
HazCom on the mining industry.
    Another change that affects the hazard communication environment is 
increased public awareness due to the length of time that the OSHA HCS 
has been in effect. There is an abundance of hazard communication 
information, supplies, training, and training aids readily available to 
the public off-the-shelf or through the Internet.
    On March 30, 1999, we reopened the rulemaking record (64 FR 15144) 
for the limited purpose of receiving comments on several regulatory 
mandates, some of which were not in existence when the Agency published 
the hazard communication proposal in 1990. These statutory mandates and 
Executive Orders require the Agency to evaluate the impact of a 
regulatory action on small mines; on State, local, and tribal 
governments; on the environment; on constitutionally protected property 
rights; on the Federal court system; on children; on Indian tribal 
governments; and on Federalism.

A. The National Environmental Policy Act of 1969

    The National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et 
seq.) requires each Federal agency to consider the environmental 
effects of its actions. NEPA also requires an agency to prepare an 
Environmental Impact Statement for major actions significantly 
affecting the quality of the environment. We have reviewed HazCom in 
accordance with the requirements of NEPA, the regulations of the 
Council on Environmental Quality (40 CFR 1500), and the Department of 
Labor's NEPA regulations (29 CFR 11). As a result of this review, we 
determined that this interim final rule has no significant 
environmental impact.

B. Unfunded Mandates Reform Act of 1995

    For purposes of the Unfunded Mandates Reform Act of 1995, this rule 
does not include any Federal mandate that may result in increased 
expenditures by State, local, and tribal governments in the aggregate 
of more than $100 million, or increased expenditures by the private 
sector of more than $100 million.

C. Executive Order 12630: Government Actions and Interference With 
Constitutionally Protected Property Rights

    HazCom is not subject to E.O. 12630 because it does not involve 
implementation of a policy with takings implications.

D. Executive Order 12988: Civil Justice Reform

    We have reviewed E.O. 12988 and determined that the HazCom interim 
final rule will not unduly burden the Federal court system. We wrote 
HazCom to provide a clear legal standard for affected conduct and have 
reviewed it carefully to eliminate drafting errors and ambiguities.

E. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    We have evaluated the environmental safety and health effects of 
the rule on children and have determined that the interim final rule 
will have no disproportionate effect on children.
    HazCom is a health and safety information and training rule. It 
does not set exposure limits or require controls. It can, however, 
benefit children indirectly. One commenter to the reopened record 
supported the interim final rule stating that--
    <bullet> Parents exposed to a genotoxic material could have their 
reproductive genes damaged which, in turn, could result in miscarriages 
or congenital or developmental impairments in their children;
    <bullet> Parents could bring home hazardous chemicals on their 
clothing or their person which could result in children being injured 
by contact with the parent; and
    <bullet> If parents knew that a chemical could adversely affect 
their children, they would take more precautions to prevent their own 
and their children's exposure.

F. Executive Order 13084: Consultation and Coordination With Indian 
Tribal Governments

    We certify that the interim final rule does not impose substantial 
direct compliance costs on Indian tribal governments.
    Further, MSHA provided the public, including Indian tribal 
governments which operated mines, the opportunity to comment during the 
proposed rule's comment period. No Indian tribal government applied for 
a waiver or commented on the proposal.

G. Executive Order 13132: Federalism

    We have reviewed this rule in accordance with E.O. 13132 regarding 
federalism, and have determined that it does not have ``federalism 
implications.'' The rule does not ``have substantial direct effects on 
the States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.''

List of Subjects

30 CFR Part 42

    Education, Intergovernmental relations, Mine safety and health.

30 CFR Part 47

    Chemicals, Hazard communication, Hazardous substances, Labeling,

[[Page 59096]]

Material safety data sheets, Mine safety and health, Reporting and 
recordkeeping requirements, Right-to-know, Training.

30 CFR Part 56

    Chemicals, Electric power, Explosives, Fire prevention, Hazardous 
substances, Metals, Mine safety and health, Noise control, Reporting 
and recordkeeping requirements.

30 CFR Part 57

    Chemicals, Electric power, Explosives, Fire prevention, Gases, 
Hazardous substances, Metals, Mine safety and health, Noise control, 
Radiation protection, Reporting and recordkeeping requirements.

30 CFR Part 77

    Communications equipment, Electric power, Emergency medical 
services, Explosives, Fire prevention, Mine safety and health, 
Reporting and recordkeeping requirements.

    Dated: September 22, 2000.
J. Davitt McAteer,
Assistant Secretary for Mine Safety and Health.

    For the reasons set out in the preamble, and under the authority of 
the Federal Mine Safety and Health Act of 1977, we are amending chapter 
I of title 30 of the Code of Federal Regulations as follows.

PART 47--[REDESIGNATED AS PART 42]

    1. The authority for part 47 continues to read as follows:

    Authority: 30 U.S.C. 957.


    2. Part 47--National Mine Health and Safety Academy is transferred 
to subchapter G--Filing and other administrative requirements, and 
redesignated as part 42.

PART 56--[AMENDED]

    3. The authority citation for part 56 continues to read as follows:

    Authority: 30 U.S.C. 811.


    4. Section 56.16004 is revised to read as follows:


Sec. 56.16004  Containers for hazardous materials.

    Containers holding hazardous materials must be of a type approved 
for such use by recognized agencies.


Sec. 56.20012  [Removed]

    5. Section 56.20012 is removed.

PART 57--[AMENDED]

    6. The authority citation for part 57 continues to read as follows:

    Authority: 30 U.S.C. 811.


    7. Section 57.16004 is revised to read as follows:


Sec. 57.16004  Containers for hazardous materials.

    Containers holding hazardous materials must be of a type approved 
for such use by recognized agencies.


Sec. 57.20012  [Removed]

    8. Section 57.20012 is removed.

PART 77--[AMENDED]

    9. The authority citation for part 77 continues to read as follows:

    Authority: 30 U.S.C. 811.


    10. Paragraph (c) of Sec. 77.208 is revised to read as follows:


Sec. 77.208  Storage of materials.

* * * * *
    (c) Containers holding hazardous materials must be of a type 
approved for such use by recognized agencies.
* * * * *

PART 47--HAZARD COMMUNICATION (HAZCOM)

    11. Add a new part 47 to subchapter H in chapter I, title 30 of the 
Code of Federal Regulations to read as follows:

PART 47--HAZARD COMMUNICATION (HAZCOM)

Subpart A--Purpose and Scope of HazCom
Sec.
47.1  Purpose of a HaZCoM standard.
47.2  Operators and chemicals covered.
Subpart B--Hazard Determination
47.11  Identifying hazardous chemicals.
Subpart C--HaZCoM Program
47.21  Requirement for a HazCom program.
47.22  HazCom program contents.
Subpart D--Container Labels and Other Forms of Warning
47.31  Requirement for container labels.
47.32  Label contents.
47.33  Label alternatives.
47.34  Temporary, portable containers.
Subpart E--Material Safety Data Sheet (MSDS)
47.41  Requirement for an MSDS.
47.42  MSDS contents.
47.43  MSDS for hazardous waste.
47.44  Access to an MSDS.
47.45  Retaining an MSDS.
Subpart F--HazCom Training
47.51   Requirement for HazCom training.
47.52   HazCom training contents.
47.53   HazCom training records.
Subpart G--Making HazCom Information Available
47.61   Access to HazCom materials.
47.62   Cost for copies.
47.63   Providing labels and MSDSs to customers.
Subpart H--Trade Secret Hazardous Chemical
47.71   Provisions for withholding trade secrets.
47.72   Disclosure of trade secret information to MSHA.
47.73   Disclosure in a medical emergency.
47.74   Non-emergency disclosure.
47.75   Confidentiality agreement and remedies.
47.76   Denial of a written request for disclosure.
47.77   Review of denial.
Subpart I--Exemptions
47.81   Exemptions from the HazCom standard.
47.82   Exemptions from labeling.
Subpart J--Definitions
47.91   Definitions of terms used in this part.

    Authority: 30 U.S.C. 811, 825.

Subpart A--Purpose and Scope of HazCom


Sec. 47.1  Purpose of a HazCom standard.

    The purpose of this part is to reduce injuries and illnesses by 
ensuring that each operator--
    (a) Identifies the chemicals at the mine,
    (b) Determines which chemicals are hazardous,
    (c) Establishes a HazCom program, and
    (d) Informs each miner who can be exposed, and other on-site 
operators whose miners can be exposed, about those hazards and 
appropriate protective measures.


Sec. 47.2  Operators and chemicals covered.

    This part applies to any operator producing or using a hazardous 
chemical to which a miner can be exposed under normal conditions of use 
or in a foreseeable emergency. (Subpart I lists exemptions from 
coverage.)

Subpart B--Hazard Determination


Sec. 47.11  Identifying hazardous chemicals.

    A hazardous chemical is any chemical that is a physical or health 
hazard. The operator must evaluate each chemical brought onto mine 
property and each chemical produced on mine property to determine if it 
is hazardous as specified in Table 47.11 as follows:

[[Page 59097]]



              Table 47.11.--Identifying Hazardous Chemicals
------------------------------------------------------------------------
                                            Basis for determining if a
                Category                      chemical is hazardous
------------------------------------------------------------------------
(a) Chemical brought to the mine.......  (1) The chemical is hazardous
                                          when its MSDS or container
                                          label indicates it is a
                                          physical or health hazard; or
                                          the operator may choose to
                                          evaluate the chemical using
                                          the criteria in paragraph (b)
                                          or (c) of this table.
                                         (2) If the chemical is a
                                          hazardous waste and an MSDS is
                                          unavailable, the chemical is
                                          hazardous if any of the
                                          sources in paragraph (b) of
                                          this table indicates it is a
                                          physical or health hazard.
------------------------------------------------------------------------
(b) Chemical produced at the mine......  The chemical is hazardous if
                                          any one of the following
                                          indicates that it is a hazard:
                                         (1) Available evidence
                                          concerning its physical
                                          hazards.
                                         (2) MSHA standards in 30 CFR
                                          chapter 1.
                                         (3) American Conference of
                                          Governmental Industrial
                                          Hygienists (ACGIH),
                                          ``Threshold Limit Values and
                                          Biological Exposure Indices''
                                          (latest edition).
                                         (4) National Toxicology Program
                                          (NTP), ``Annual Report on
                                          Carcinogens'' (latest
                                          edition).
                                         (5) International Agency for
                                          Research on Cancer (IARC),
                                          Supplement 7 ``Overall
                                          Evaluations of
                                          Carcinogenicity: An Updating
                                          of IARC Monographs Volumes 1
                                          to 42,'' or any subsequent
                                          IARC ``Monographs'' or
                                          ``Supplements''.
------------------------------------------------------------------------
(c) Mixture produced at the time.......  (1) If a mixture has been
                                          tested as a whole to determine
                                          its hazards, use the results
                                          of that testing.
                                         (2) If a mixture has not been
                                          tested as a whole to determine
                                          its hazards--
                                         (i) Use whatever scientifically
                                          valid evidence is available to
                                          determine its physical
                                          hazards;
                                         (ii) Assume that it presents
                                          the same health hazard as a
                                          component that makes up 1% or
                                          more (by weight or volume) of
                                          the mixture; and
                                         (iii) Assume that it presents a
                                          carcinogenic hazard if a
                                          component considered
                                          carcinogenic by ACGIH, NTP, or
                                          IARC makes up 0.1% or more (by
                                          weight or volume) of the
                                          mixture.
                                         (3) If evidence indicates that
                                          a component could be released
                                          from a mixture in a
                                          concentration that could
                                          present a health risk to
                                          miners, assume that the
                                          mixture presents the same
                                          hazard.
------------------------------------------------------------------------

Subpart C--HazCom Program


Sec. 47.21  Requirement for a HazCom program.

    Each operator must--
    (a) Develop and implement a written HazCom program;
    (b) Maintain it for as long as a hazardous chemical is known to be 
at the mine; and
    (c) Share relevant HazCom information with other operators whose 
miners can be affected.


Sec. 47.22  HazCom program contents.

    The HazCom program must include the following:
    (a) How this part is put into practice at the mine through the use 
of--
    (1) Hazard determination,
    (2) Labels and other forms of warning,
    (3) Material safety data sheets (MSDSs), and
    (4) Miner training.
    (b) A list or other record of the identity of all hazardous 
chemicals known to be at the mine. The list must--
    (1) Use a chemical identity that permits cross-referencing between 
the list, a chemical's label, and its MSDS; and
    (2) Be compiled for the whole mine or by individual work areas.
    (c) At mines with more than one operator, the methods for--
    (1) Providing other operators with access to MSDSs, and
    (2) Informing other operators about--
    (i) Hazardous chemicals to which their employees can be exposed,
    (ii) The labeling system on the containers of these chemicals, and
    (iii) Appropriate protective measures.

Subpart D--Container Labels and Other Forms of Warning


Sec. 47.31  Requirement for container labels.

    (a) The operator must ensure that each container of a hazardous 
chemical has a label. If a container is tagged or marked with the 
appropriate information, it is labeled.
    (1) The operator must replace a container label immediately if it 
is missing or if the hazard information on the label is unreadable.
    (2) The operator must not remove or deface existing labels on 
containers of hazardous chemicals.
    (b) For each hazardous chemical produced at the mine, the operator 
must prepare a container label and update this label with any 
significant new information about the chemical's hazards within 3 
months of becoming aware of this information.
    (c) For each hazardous chemical brought to the mine, the operator 
must replace an outdated label when a revised label is received from 
the chemical's manufacturer or supplier.
    (d) The operator is not responsible for an inaccurate label 
obtained from the chemical's manufacturer or supplier.


Sec. 47.32  Label contents.

    If an operator must make a label, the label must--
    (a) Be prominently displayed, legible, accurate, and in English;
    (b) Display appropriate hazard warnings; and
    (c) Use a chemical identity that permits cross-referencing between 
the

[[Page 59098]]

list of hazardous chemicals, a chemical's label, and its MSDS.


Sec. 47.33  Label alternatives.

    The operator may use signs, placards, process sheets, batch 
tickets, operating procedures, or other label alternatives for 
individual, stationary process containers, provided that the 
alternative--
    (a) Identifies the container to which it applies,
    (b) Communicates the same information as required on the label, and
    (c) Is readily accessible throughout each work shift to miners in 
the work area.


Sec. 47.34  Temporary, portable containers.

    The operator does not have to label a temporary, portable container 
into which a hazardous chemical is transferred from a labeled container 
provided that--
    (a) The operator ensures that the miner using the portable 
container knows the identity of the chemical, its hazards, and any 
protective measures needed; and
    (b) The portable container is left empty at the end of the shift.

Subpart E--Material Safety Data Sheets (MSDS)


Sec. 47.41  Requirement for an MSDS.

    (a) The operator must have an MSDS for each hazardous chemical 
before using it. The MSDS may be in any medium, such as paper or 
electronic, that does not restrict access.
    (b) For each hazardous chemical produced at the mine, the operator 
must prepare an MSDS and update this MSDS with significant new 
information about the chemical's hazards or protective measures within 
3 months of becoming aware of this information.
    (c) For each hazardous chemical brought to the mine, the operator 
must replace an outdated MSDS when a revised MSDS is received from the 
chemical's manufacturer or supplier.
    (d) Operators may choose to rely on the MSDS received from the 
chemical manufacturer or supplier. Alternatively, operators may develop 
their own MSDS or they may obtain one from another source. The operator 
is not responsible for an inaccurate MSDS obtained from the chemical's 
manufacturer or supplier.


Sec. 47.42  MSDS contents.

    If an operator must prepare an MSDS, the MSDS must--
    (a) Be legible, accurate, and in English;
    (b) Use a chemical identity that permits cross-referencing between 
the list of hazardous chemicals, the chemical's label, and its MSDS; 
and
    (c) Contain information, or indicate if no information is 
available, for the categories listed in Table 47.42 as follows:

                      Table 47.42.--Contents of MSDS
------------------------------------------------------------------------
                                         Requirements, descriptions, and
                Category                            exceptions
------------------------------------------------------------------------
(1) Identity...........................  The identity of the chemical
                                          or, if the chemical is a
                                          mixture, the identities of all
                                          hazardous ingredients. See
                                          Sec.  47.11 (identifying
                                          hazardous chemicals).
------------------------------------------------------------------------
(2) Properties.........................  The physical and chemical
                                          characteristics of the
                                          chemical such as vapor
                                          pressure and solubility in
                                          water.
------------------------------------------------------------------------
(3) Physical hazards...................  The physical hazards of the
                                          chemical including the
                                          potential for fire, explosion,
                                          and reactivity.
------------------------------------------------------------------------
(4) Health hazarads....................  The health hazards of the
                                          chemical including--
                                         (i) Signs and symptoms of
                                          exposure;
                                         (ii) Any medical conditions
                                          which are generally recognized
                                          as being aggravated by
                                          exposure to the chemical; and
                                         (iii) The primary routes of
                                          entry for the chemical, such
                                          as lungs, stomach, or skin.
------------------------------------------------------------------------
(5) Exposure limits....................  For the chemical, or for the
                                          ingredients of the mixture--
                                         (i) The MSHA permissible limit,
                                          if there is one, and
                                         (ii) Any other exposure limit
                                          recommended by the preparer of
                                          the MSDS.
------------------------------------------------------------------------
(6) Carcinogenicity....................  Whether the chemical or an
                                          ingredient in the mixture is a
                                          carcinogen or potential
                                          carcinogen. See the sources
                                          specified in Sec.  47.11
                                          (identifying hazardous
                                          chemicals).
------------------------------------------------------------------------
(7) Safe use...........................  Precautions for safe handling
                                          and use including--
                                         (i) Appropriate hygienic
                                          practices,
                                         (ii) Protective measures during
                                          repair and maintenance of
                                          contaminated equipment, and
                                         (iii) Procedures for clean-up
                                          of spills and leaks.
------------------------------------------------------------------------
(8) Control measures...................  Generally applicable control
                                          measures such as engineering
                                          controls, work practices, and
                                          personal protective equipment.
------------------------------------------------------------------------
(9) Emergency information..............  (i) Emergency medical and first-
                                          aid procedures, and
                                         (ii) The name and telephone
                                          number of a person who can
                                          provide additional information
                                          on the hazardous chemical and
                                          appropriate emergency
                                          procedures.
------------------------------------------------------------------------
(10) Date prepared.....................  The date the MSDS was prepared
                                          or last changed.
------------------------------------------------------------------------
------------------------------------------------------------------------


[[Page 59099]]

Sec. 47.43  MSDS for hazardous waste.

    (a) If an MSDS is not available for hazardous waste and the 
operator is unable to obtain or develop one, the operator must provide 
each potentially exposed miner with the information specified in Table 
47.42 for the hazardous waste to the extent that it is available.
    (b) If the mine produces or uses hazardous waste, the operator must 
provide each exposed miner and designated representative with access to 
any HazCom material which--
    (1) Identifies its hazardous chemical components,
    (2) Describes its physical or health hazards, or
    (3) Specifies appropriate protective measures.


Sec. 47.44  Access to an MSDS.

    The operator must provide miners with access during each work shift 
to the MSDS for each hazardous chemical to which they may be exposed 
either--
    (a) At each work area where the hazardous chemical is produced or 
used, or
    (b) At a central location, provided that a miner can readily access 
it in an emergency.


Sec. 47.45  Retaining an MSDS.

    The operator must--
    (a) Retain its MSDS for as long as the hazardous chemical is known 
to be at the mine, and
    (b) Notify miners at least 3 months before disposing of the MSDS.

Subpart F--HazCom Training


Sec. 47.51  Requirement for HazCom Training.

    (a) The operator must instruct each miner about the hazardous 
chemicals in his or her work area--
    (1) Before the miner's first assignment to that work area;
    (2) Whenever the operator introduces a new hazardous chemical into 
the miner's work area, unless the operator has previously trained the 
miner about the hazard; and
    (3) Whenever the operator becomes aware of new and significant 
information about a chemical's hazards.
    (b) Relevant training conducted in compliance with other parts of 
this chapter or with OSHA's Hazard Communication Standard can be used 
to meet the requirements of this part. Relevant training conducted in 
compliance with this part can be used to meet the requirements of other 
parts of this chapter.


Sec. 47.52  HazCom training contents.

    HazCom training must include instruction on the following:
    (a) The physical and health hazards of chemicals in the work area.
    (b) The requirements of this part.
    (c) The mine's HazCom program, including an explanation of the 
labeling system and MSDSs and how miners can obtain and use this hazard 
information.
    (d) The location and availability of the written HazCom program, 
the list of hazardous chemicals, labeling information, and MSDSs.
    (e) The operations or locations where hazardous chemicals are 
present in the miner's work area, such as unlabeled pipes, stockpiles, 
conveyors, rod or ball mills, containers of raw materials, and non-
routine tasks, such as the cleaning of a storage tank that had 
contained a hazardous chemical.
    (f) The methods and observations that can be used to detect the 
presence or release of a hazardous chemical in the work area.
    (g) The measures that a miner can take to protect himself or 
herself from these hazards.
    (h) The specific procedures, such as work practices, engineering 
controls, emergency procedures, and use of personal protective 
equipment, in place at the mine to protect miners from hazardous 
chemical exposure.


Sec. 47.53  HazCom training records.

    The operator must make a record of each miner's HazCom training and 
keep the record for 2 years.

Subpart G--Making HazCom Information Available


Sec. 47.61  Access to HazCom materials.

    Upon request, the operator must provide access to all HazCom 
materials required by this part to miners and designated 
representatives, except as provided in Sec. 47.71 through Sec. 47.77 
(provisions for trade secrets).


Sec. 47.62  Cost for copies.

    (a) The operator must provide the first copy and each revision of 
the HazCom material without cost.
    (b) Fees for a subsequent copy of the HazCom material must be non-
discriminatory and reasonable.


Sec. 47.63  Providing labels and MSDSs to customers.

    (a) For a hazardous chemical produced at the mine, the operator 
must provide customers, upon request, with the chemical's label, or a 
copy of the label information, and the chemical's MSDS.
    (b) The label or label information must include the name and 
address of a responsible party who can provide additional information 
about the hazardous chemical.

Subpart H--Trade Secret Hazardous Chemical


Sec. 47.71  Provisions for withholding trade secrets.

    (a) Operators may withhold the identity of a trade secret chemical, 
including the name and other specific identification, from the written 
list of hazardous chemicals, the label, and the MSDS, provided that the 
operator--
    (1) Can support the claim that the chemical's identity is a trade 
secret,
    (2) Identifies the chemical in a way that it can be referred to 
without disclosing the secret,
    (3) Indicates in the MSDS that the chemical's identity is withheld 
as a trade secret, and
    (4) Discloses in the MSDS information on the properties and effects 
of the hazardous chemical.
    (b) The operator must make the chemical's identity available to 
miners, designated representatives, and health professionals in 
accordance with the provisions of this subpart H.
    (c) This subpart H does not require the operator to disclose 
process or percentage of mixture information, which is a trade secret, 
under any circumstances.


Sec. 47.72  Disclosure of information to MSHA.

    (a) Even if the operator has a trade secret claim, the operator 
must disclose to MSHA, upon request, any information which this subpart 
H requires the operator to make available.
    (b) The operator must make a trade secret claim, no later than at 
the time the information is provided to MSHA, so that MSHA can 
determine the trade secret status and implement the necessary 
protection.


Sec. 47.73  Disclosure in a medical emergency.

    (a) Upon request and regardless of the existence of a written 
statement of need or a confidentiality agreement, the operator must 
immediately disclose the identity of a trade secret chemical to the 
treating health professional when that person determines that--
    (1) A medical emergency exists, and
    (2) The identity of the hazardous chemical is necessary for 
emergency or first-aid treatment.
    (b) The operator may require a written statement of need and 
confidentiality agreement in accordance with the provisions of 
Sec. 47.74 and Sec. 47.75 as soon as circumstances permit.


Sec. 47.74  Non-emergency disclosure.

    Upon request, the operator must disclose the identity of a trade 
secret chemical in a non-emergency situation

[[Page 59100]]

to an exposed miner, the miner's designated representative, or a health 
professional providing services to the miner, if the following 
conditions are met.
    (a) The request is in writing.
    (b) The request describes in reasonable detail an occupational 
health need for the information, as follows:
    (1) To assess the chemical hazards to which the miner will be 
exposed.
    (2) To conduct or assess health sampling to determine the miner's 
exposure levels.
    (3) To conduct reassignment or periodic medical surveillance of the 
exposed miner.
    (4) To provide medical treatment to the exposed miner.
    (5) To select or assess appropriate personal protective equipment 
for the exposed miner.
    (6) To design or assess engineering controls or other protective 
measures for the exposed miner.
    (7) To conduct studies to determine the health effects of exposure.
    (c) The request explains in detail why the disclosure of the 
following information would not satisfy the purpose described in 
paragraph (b) of this section:
    (1) The properties and effects of the chemical.
    (2) Measures for controlling the miner's exposure to the chemical.
    (3) Methods of monitoring and analyzing the miner's exposure to the 
chemical.
    (4) Methods of diagnosing and treating harmful exposures to the 
chemical.
    (d) The request describes the procedures to be used to maintain the 
confidentiality of the disclosed information.
    (e) The requester enters a written confidentiality agreement that 
he or she will not use the information for any purpose other than the 
health needs asserted and agrees not to release the information under 
any circumstances, except as authorized by Sec. 47.75, by the terms of 
the agreement, or by the operator.


Sec. 47.75  Confidentiality agreement and remedies.

    (a) The confidentiality agreement authorized by Sec. 47.74--
    (1) May restrict the use of the trade secret chemical identity to 
the health purposes indicated in the written statement of need;
    (2) May provide for appropriate legal remedies in the event of a 
breach of the agreement, including stipulation of a reasonable pre-
estimate of likely damages;
    (3) Must allow the exposed miner, the miner's designated 
representative, or the health professional to disclose the trade secret 
chemical identity to MSHA.
    (4) May provide that the exposed miner, the miner's designated 
representative, or the health professional inform the operator who 
provided the trade secret chemical identity prior to or at the same 
time as its disclosure to MSHA; and
    (5) May not include requirements for the posting of a penalty bond.
    (b) Nothing in this subpart precludes the parties from pursuing 
non-contractual remedies to the extent permitted by law.


Sec. 47.76  Denial of a written request for disclosure.

    To deny a written request for disclosure of the identity of a trade 
secret chemical, the operator must--
    (a) Put the denial in writing, and
    (1) Include evidence to substantiate the claim that the chemical's 
identity is a trade secret,
    (2) State the specific reasons why the request is being denied, and
    (3) Explain how alternative information will satisfy the specific 
medical or occupational health need without revealing the chemical's 
identity.
    (b) Provide the denial to the health professional, miner, or 
designated representative within 30 days of the request.


Sec. 47.77  Review of denial.

    (a) The health professional, miner, or designated representative 
may refer the written denial to MSHA for review. The request for review 
must include a copy of--
    (1) The request for disclosure of the identity of the trade secret 
chemical,
    (2) The confidentiality agreement, and
    (3) The operator's written denial,
    (b) If MSHA determines that the identity of the trade secret 
chemical should have been disclosed, the operator shall be subject to 
citation by MSHA.
    (c) If MSHA determines that the confidentiality agreement would not 
sufficiently protect against unauthorized disclosure of the trade 
secret, MSHA may impose additional conditions to ensure that the 
occupational health services are provided without an undue risk of harm 
to the operator.
    (d) If the operator contests a citation for a failure to release 
the identity of a trade secret chemical, the matter will be adjudicated 
by the Mine Safety and Health Review Commission. The Administrative Law 
Judge may review the citation and supporting documentation in camera or 
issue appropriate orders to protect the trade secret.

Subpart I--Exemptions


Sec. 47.81  Exemptions from the HazCom standard.

    A hazardous chemical is exempt from this part 47 under the 
conditions described in Table 47.81 as follows:

  Table 47.81.--Chemicals and Products Exempt From this HazCom Standard
------------------------------------------------------------------------
               Exemption                     Conditions for exemption
------------------------------------------------------------------------
Article................................  If, under normal conditions of
                                          use, it--
                                         (1) Releases no more than
                                          insignificant amounts of a
                                          hazardous chemical, and
                                         (2) Poses no physical or health
                                          risk to exposed miners.
------------------------------------------------------------------------
Biological hazards.....................  All biological hazards, such as
                                          poisonous plants, insects, and
                                          micro-organisms.
------------------------------------------------------------------------
Consumer product.......................  As defined in the Consumer
                                          Product Safety Act, if the
                                          operator can show that--
                                         (1) The miner uses it for the
                                          purpose the manufacturer
                                          intended; and
                                         (2) Such use does not expose
                                          the miner more often and for
                                          longer than ordinary consumer
                                          use.
------------------------------------------------------------------------

[[Page 59101]]

 
Cosmetics, drugs, food, food additive,   When labeled in accordance with
 color additive drinks, alcoholic         the Federal Food, Drug, and
 beverages, tobacco and tobacco           Cosmetic Act or the Virus-
 products, or medical or veterinary       Serum-Toxin Act or regulations
 device or product, including materials   issued under those Acts, if
 intended for use as ingredients in       they are packaged for retail
 such products (such as flavors and       sale and color intended for
 fragrances).                             personal consumption or use by
                                          additive, miners while on mine
                                          property.
------------------------------------------------------------------------
Hazardous substance....................  As defined in the Federal
                                          Hazardous Substances Act, if
                                          the operator can show that--
                                         (1) The miner uses it for the
                                          purpose the manufacturer
                                          intended; and
                                         (2) Such use does not expose
                                          the miner more often and for
                                          longer than ordinary consumer
                                          use.
------------------------------------------------------------------------
Radiation..............................  All ionizing or non-ionizing
                                          radiation, such as alpha or
                                          gamma, microwaves, or x-rays.
------------------------------------------------------------------------
Wood or wood products, including lumber  If they do not release or
                                          otherwise result in exposure
                                          to a hazardous chemical under
                                          normal conditions of use. For
                                          example, wood is not exempt if
                                          it is treated with a hazardous
                                          chemical or if it will be
                                          subsequently cut or sanded.
------------------------------------------------------------------------

Sec. 47.82  Exemptions from labeling.

    A hazardous chemical is exempt from subpart D of this part 47 under 
the conditions described in Table 47.82 as follows:

         Table 47.82.--Hazardous Chemicals Exempt From Labeling
------------------------------------------------------------------------
               Exemption                     Conditions for exemption
------------------------------------------------------------------------
Chemical substance or mixture regulated  When labeled in accordance with
 by EPA.                                  the Toxic Substances Control
                                          Act or regulations issued
                                          under that Act.
------------------------------------------------------------------------
Consumer product or hazardous substance  When subject to a consumer
 not exempt under Sec.  47.81.            product safety standard or a
                                          labeling requirement of the
                                          Consumer Product Safety Act
                                          and Federal Hazardous
                                          Substances Act respectively,
                                          or regulations issued under
                                          those Acts.
------------------------------------------------------------------------
Hazardous substances...................  When the subject of remedial or
                                          removal action under the
                                          Comprehensive Environmental
                                          Response, Compensation and
                                          Liability Act (CERCLA) in
                                          accordance with EPA
                                          regulations.
------------------------------------------------------------------------
Pesticide regulated by EPA or the        When labeled in accordance with
 Department of Agriculture.               the Federal Insecticide,
                                          Fungicide, and Rodenticide Act
                                          or the Federal Seed Act or
                                          regulations issued under those
                                          Acts.
------------------------------------------------------------------------
Raw material being mined or processed..  While on mine property, except
                                          when the container holds a
                                          mixture of the raw material
                                          and another hazardous chemical
                                          and the mixture is determined
                                          to be hazardous under Sec.
                                          47.11 (identifying hazardous
                                          chemicals) of this part.
------------------------------------------------------------------------
Wood or wood products, including         If it releases more than
 lumber, not exempt under Sec.  47.81.    insignificant amounts of a
                                          hazardous chemical or will be
                                          subsequently cut or sanded.
------------------------------------------------------------------------

Subpart J--Definitions


Sec. 47.91  Definitions of terms used in this part.

    The definitions in Table 47.91 apply in this part 47 as follows:

                        Table 47.91.--Definitions
------------------------------------------------------------------------
                                            Definition for purposes of
                  Term                                HazCom
------------------------------------------------------------------------
Access.................................  The right to examine and copy
                                          records.
------------------------------------------------------------------------

[[Page 59102]]

 
Article................................  A manufactured item, other than
                                          a fluid or particle, that--
                                         (1) Is formed to a specific
                                          shape or design during
                                          manufacture, and
                                         (2) Has end-use functions
                                          dependent upon its shape or
                                          design.
------------------------------------------------------------------------
Chemical...............................  Any element, chemical compound,
                                          or mixture of these.
------------------------------------------------------------------------
Chemical name..........................  (1) The scientific designation
                                          of a chemical in accordance
                                          with the nomenclature system
                                          of either the International
                                          Union of Pure and Applied
                                          Chemistry (IUPAC) or the
                                          Chemical Abstracts Service
                                          (CAS), or
                                         (2) A name that will clearly
                                          identify the chemical for the
                                          purpose of conducting a hazard
                                          evaluation.
------------------------------------------------------------------------
Common name............................  Any designation or
                                          identification (such as a code
                                          name, code number, trade name,
                                          brand name, or generic name)
                                          used to identify a chemical
                                          other than by its chemical
                                          name.
------------------------------------------------------------------------
Consumer product.......................  Any article or component that
                                          is--
                                         (1) Produced or distributed for
                                          sale to a consumer;
                                         (2) Normally used for personal,
                                          family, household, school, or
                                          recreation purposes; and
                                         (3) Labeled in accordance with
                                          the Consumer Product Safety
                                          Act or regulations issued
                                          under that Act.
------------------------------------------------------------------------
Container..............................  (1) Any bag, barrel, bottle,
                                          box, can, cylinder, drum,
                                          reaction vessel, storage tank,
                                          or the like.
                                         (2) The following are not
                                          considered to be containers
                                          for the purpose of compliance
                                          with this part:
                                         (i) Pipes or piping systems;
                                         (ii) Conveyors; and
                                         (iii) Engines, fuel tanks, or
                                          other operating systems or
                                          parts in a vehicle.
------------------------------------------------------------------------
Cosmetics and drugs....................  (1) Cosmetics are any article
                                          applied to the human body for
                                          cleansing, beautifying,
                                          promoting attractiveness or
                                          altering appearance.
                                         (2) Drugs are any article used
                                          to affect the structure or any
                                          function of the body of humans
                                          or other animals.
------------------------------------------------------------------------
Designated representative..............  (1) Any individual or
                                          organization to whom a miner
                                          gives written authorization to
                                          exercise the miner's rights
                                          under this part, or
                                         (2) A representative of miners
                                          under part 40 of this chapter.
------------------------------------------------------------------------
EPA....................................  The U.S. Environmental
                                          Protection Agency.
------------------------------------------------------------------------
Exposed................................  Subjected, or potentially
                                          subjected, to a physical or
                                          health hazard in the course of
                                          employment. ``Subjected,'' in
                                          terms of health hazards,
                                          includes any route of entry,
                                          such as through the lungs
                                          (inhalation), the stomach
                                          (ingestion), or the skin (skin
                                          absorption).
------------------------------------------------------------------------
Foreseeable emergency..................  Any potential occurrence that
                                          could result in an
                                          uncontrolled release of a
                                          hazardous chemical into the
                                          mine and for which an operator
                                          normally would plan, such as
                                          equipment failure, breaks or
                                          spills of containers, or
                                          failure of control equipment.
------------------------------------------------------------------------
Hazard warning.........................  Any words, pictures, or
                                          symbols, appearing on a label
                                          or other form of warning, that
                                          convey the specific physical
                                          and health hazards of the
                                          chemical. (See the definitions
                                          for physical hazard and health
                                          hazard for examples of the
                                          hazards that the warning must
                                          convey.)
------------------------------------------------------------------------
Hazardous chemical.....................  Any chemical that presents a
                                          physical or health hazard.
------------------------------------------------------------------------
Hazardous waste........................  Chemicals regulated by EPA
                                          under the Solid Waste Disposal
                                          Act as amended by the Resource
                                          Conservation and Recovery Act.
------------------------------------------------------------------------

[[Page 59103]]

 
Health hazard..........................  A chemical for which there is
                                          statistically significant
                                          evidence that it can cause
                                          acute or chronic health
                                          effects in exposed persons.
                                          Health hazard includes
                                          chemicals which--
                                         (1) Cause cancer;
                                         (2) Damage the reproductive
                                          system or cause birth defects;
                                         (3) Irritate or corrode
                                          tissues;
                                         (4) Cause a sensitization
                                          reaction;
                                         (5) Damage the liver;
                                         (6) Damage the kidneys;
                                         (7) Damage the nervous system,
                                          including psychological or
                                          behavioral problems;
                                         (8) Damage the blood or
                                          lymphatic systems;
                                         (9) Damage the stomach or
                                          intestines; and
                                         (10) Damage the lungs, skin,
                                          eyes, or mucous membranes.
------------------------------------------------------------------------
Health professional....................  A physician, nurse, physician's
                                          assistant, emergency medical
                                          technician, industrial
                                          hygienist, toxicologist,
                                          epidemiologist, or other
                                          person qualified to provide
                                          medical or occupational health
                                          services.
------------------------------------------------------------------------
Identity...............................  A chemical's common name or
                                          chemical name.
------------------------------------------------------------------------
Label..................................  Any written, printed, or
                                          graphic material displayed on
                                          or affixed to a container to
                                          identify its contents and
                                          convey other relevant
                                          information.
------------------------------------------------------------------------
Material safety data sheet (MSDS)......  Written or printed material
                                          concerning a hazardous
                                          chemical which--
                                         (1) An operator prepares in
                                          accordance with Table 47.42
                                          (MSDS requirements) of this
                                          part, or
                                         (2) An employer prepares in
                                          accordance with 29 CFR
                                          1910.1200, 1915.1200, 1917.28,
                                          1918.90, 1926.59, or 1928.21
                                          (OSHA Hazard Communication
                                          regulations).
------------------------------------------------------------------------
Mixture................................  Any combination of two or more
                                          chemicals which is not the
                                          result of a chemical reaction.
------------------------------------------------------------------------
Ordinary consumer use..................  A product or article packaged
                                          by the manufacturer or
                                          retailer for ordinary
                                          household, family, school,
                                          recreation, or other personal
                                          use or enjoyment, as opposed
                                          to business use, and the
                                          miner's exposure is not more
                                          than it would be for an
                                          ordinary consumer using the
                                          product as the manufacturer
                                          intended.
------------------------------------------------------------------------
OSHA...................................  The Occupational Safety and
                                          Health Administration, U.S.
                                          Department of Labor.
------------------------------------------------------------------------

[[Page 59104]]

 
Physical hazard........................  A chemical for which there is
                                          scientifically valid evidence
                                          that it is--
                                         (1) A combustible liquid, i.e.
                                         (i) A liquid having a flash
                                          point at or above 100  deg.F
                                          (37.8  deg.C) and below 200
                                          deg.F (93.3  deg.C); or
                                         (ii) A liquid mixture having
                                          components with flashpoints of
                                          200  deg.F (93.3  deg.C) or
                                          higher, the total volume of
                                          which make up 99% or more of
                                          the mixture.
                                         (2) A compressed gas, i.e.
                                         (i) A contained gas or mixture
                                          of gases with an absolute
                                          pressure exceeding:
                                         (A) 40 psi (276 kPa) at 70
                                          deg.F (21.1  deg.C); or
                                         (B) 104 psi (717 kPa) at 130
                                          deg.F (54.4  deg.C) regardless
                                          of pressure at 70  deg.F.
                                         (ii) A liquid having a vapor
                                          pressure exceeding 40 psi (276
                                          kPa) at 100  deg.F (37.8
                                          deg.C) as determined by ASTM D-
                                          323-72.
                                         (3) An explosive, i.e., a
                                          chemical that undergoes a
                                          rapid chemical change causing
                                          a sudden, almost instantaneous
                                          release of pressure, gas, and
                                          heat when subjected to sudden
                                          shock, pressure, or high
                                          temperature;
                                         (4) A flammable, i.e., a
                                          chemical that will readily
                                          ignite and, when ignited, will
                                          burn persistently at ambient
                                          temperature and pressure in
                                          the normal concentration of
                                          oxygen in the air;
                                         (5) An organic peroxide, i.e.,
                                          an explosive, shock sensitive,
                                          organic compound or an oxide
                                          that contains a high
                                          proportion of oxygen-
                                          superoxide;
                                         (6) An oxidizer, i.e., a
                                          chemical, other than an
                                          explosive, that initiates or
                                          promotes combustion in other
                                          materials, thereby causing
                                          fire either of itself or
                                          through the release of oxygen
                                          or other gases;
                                         (7) A pyrophoric, i.e., capable
                                          of igniting spontaneously in
                                          air at a temperature of 130
                                          deg.F (54.4  deg.C) or below.
                                         (8) Unstable (reactive), i.e.,
                                          a chemical which in the pure
                                          state, or as produced or
                                          transported, will vigorously
                                          polymerize, decompose,
                                          condense, or become self-
                                          reactive under conditions of
                                          shock, pressure, or
                                          temperature; or
                                         (9) Water-reactive, i.e., a
                                          chemical that reacts with
                                          water to release a gas that is
                                          either flammable or a health
                                          hazard.
------------------------------------------------------------------------
Produce................................  To manufacture, process,
                                          formulate, generate, or
                                          repackage.
------------------------------------------------------------------------
Raw material...........................  Ore, valuable minerals,
                                          worthless material or gangue,
                                          overburden, or a combination
                                          of these, that is removed from
                                          natural deposits by mining or
                                          is upgraded through milling.
------------------------------------------------------------------------
Trade secret...........................  Any confidential formula,
                                          pattern, process, device,
                                          information, or compilation of
                                          information that is used by
                                          the operator and that gives
                                          the operator an opportunity to
                                          obtain an advantage over
                                          competitors who do not know or
                                          use it.
------------------------------------------------------------------------
Use....................................  To package, handle, react, or
                                          transfer.
------------------------------------------------------------------------
Work area..............................  Any place in or about a mine
                                          where a miner works.
------------------------------------------------------------------------


[FR Doc. 00-24803 Filed 9-27-00; 8:45 am]
BILLING CODE 4510-43-P


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