59048 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

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.

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:

comments@MSHA.gov. 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.

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

• Were using inadequate or improper

personal protective equipment,

• Did not know what they had been

exposed to that caused their symptoms,

• Failed to follow instructions

because they misunderstood or were

unaware of the consequences, and

• 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 chemicallyrelated injuries and illnesses reported to

MSHA. From January 1990 through

December 1999, the mining industry

59050 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

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 chemicallyrelated 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—

• The comments received in response

to our recent Notice in the Federal

Register;

• Our experience in the mining

industry; and

• 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,

Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations 59051

1The 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).

2The Unfunded Mandates Reform Act of 1995 (2

U.S.C. 1501 et seq.); and Executive Order 13084,

Consultation and Coordination with Tribal

Governments.

3Executive Order 13045, Protection of Children

from Environmental Health Risks and Safety Risks.

4Pub. 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.’’

5The National Environmental Policy Act (NEPA)

of 1969 (42 U.S.C. 4321 et seq.).

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

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

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

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

59052 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

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 thirdparty 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:

§§ 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 §§ 56.16004, 57.16004, and

77.208. We have submitted the interim

final rule to OMB for its review and

approval under § 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

Provision Information collection burden

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 (≥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.

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

Provision Number of

respondents

Number of

responses

Responses/

respondent

Hours/

response

Total

hours

Associated

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 *

Provision Number of

respondents

Number of

responses

Responses/

respondent

Hours/

response

Total

hours

Associated

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 § 47.81 and § 47.82, Exemptions.)

We will discuss exemptions later in the

preamble, consistent with their

placement in the interim final rule.

1. § 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—

59054 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

• Know what chemicals are at your

mine;

• Determine which are hazardous and

the nature of their hazards;

• Establish a HazCom program; and

• 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. § 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 riskbased 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

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

59056 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

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 § 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—

• Those that you mine or process to

sell, such as coal or crushed stone;

• The mixtures you create, such as

flotation reagents or blasting agents;

• The by-products of mining and

milling, such as diesel exhaust,

hydrogen sulfide, or gases from

combustion or blasting; and

• 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:

• Title 30 Code of Federal

Regulations (30 CFR) chapter 1.

• American Conference of

Governmental Industrial Hygienists

(ACGIH) Threshold Limit Values

(TLV’s) and Biological Exposure Indices

(latest edition).

• National Toxicology Program (NTP)

Annual Report On Carcinogens (latest

edition).

• 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.

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

59058 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

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.

• 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.

• 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

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

• To implement the HazCom

program;

• 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

• 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.

59060 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

2. § 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—

• How you inform these other

operators about the chemical’s hazards

and any protective measures for both

normal work and foreseeable

emergencies;

• How you provide other operators

with access to your written HazCom

materials, especially MSDSs; and

• 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’’

(§ 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 (§ 47.61 through

§ 47.63).

The interim final rule does not

include proposed § 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

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

59062 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

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 LC50 test

result, ‘‘harmful if inhaled’’ is

appropriate. (An LC50, 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 (§§ 56/

57.16004; §§ 56/57.20012; § 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 wellventilated 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

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

59064 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

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. § 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 crossreferencing 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 §§ 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. § 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—

• 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;

• That unlabeled portable containers

could be potentially dangerous because

of the residues left in them;

• 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;

• That all containers of hazardous

chemicals be labeled under this law or

other applicable laws; and

• 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.

Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations 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’’ (§§ 47.61 through 47.63).

1. § 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 § 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 (§ 47.11 contains criteria

for determining a chemical’s hazards). If

the chemical presents more than one

59066 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

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 § 47.11, hazard determination, you

must comply with the provisions of

HazCom to the extent applicable.

2. § 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

(§ 47.22), a chemical’s label (§ 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

§ 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

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

• We saw this option as relating to

format, not scope.

• It is an option, not a requirement,

intended to maximize flexibility and to

acknowledge the practical limitations of

dealing with chemicals.

• 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. § 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—

• Indicates its identity or that of its

components;

• Describes its physical and health

hazards; or

• 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 § 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

§ 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,

59068 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

2. Describes its physical or health

hazards, or

3. Specifies the appropriate protective

measures.

4. § 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. § 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

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

59070 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

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. § 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 onsite 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

‘‘§ 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

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

59072 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

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. § 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 § 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. § 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. § 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.

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

• You may always protect

information about trade secret processes

and percentages of mixture.

• You may protect trade secret

chemical identities except in emergency

and specified non-emergency situations.

• 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. § 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—

• You identify the trade secret

chemical in a way that it can be

referenced without disclosing the secret;

• You disclose the properties and

effects of the chemical in the MSDS;

• You indicate in the MSDS that the

chemical’s identity is being withheld as

a trade secret; and

• 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. § 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. § 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—

• A medical emergency exists, and

• 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 § 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 § 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. § 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.

59074 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

5. § 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. § 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—

• Be in writing, which includes email and facsimile (fax) communication;

• Be given to the person requesting

the information within 30 days of the

request;

• Include evidence that the

chemical’s identity is a trade secret;

• State why the request is being

denied; and

• 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. § 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. § 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

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

§ 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

59076 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

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

(§§ 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/m3) 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/m3

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

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

• 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.

• 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.

• 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.

• 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 § 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

59078 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

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. § 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

§ 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 (§ 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.

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

59080 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

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—

• The appropriateness of exempting

certain minerals;

• The appropriate criteria for making

a determination for exemption;

• The degree to which miners are

aware of the hazards of these minerals;

• The level of silica in such minerals

necessary before the mineral would be

considered hazardous;

• How these minerals are used and

handled by downstream employers; and

• 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 ≤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 broadbased 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

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

• By clarifying the definition of

article similar to that found in the

mixture definition;

• By defining a significant health risk;

and

• 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,

59082 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

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 wellunderstood 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. § 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

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

59084 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

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

§ 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

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

59086 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

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

Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations 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°F (100 degrees Fahrenheit) which is

37.8°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°F (37.8°C)

and below 140°F (60°C).

(b) Class III A liquids—those having

flashpoints at or above 140°F (60°C) and

below 200°F (93.4°C).

(c) Class III B liquids—those having

flashpoints at or above 200°F (93.4°C).

OSHA’s HCS had defined a

combustible liquid as a liquid having a

flashpoint at or above 100°F but below

200°F, except any mixture having

components with flashpoints of 200°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°F (37.8°C) and below

200°F (93.3°C) or a liquid mixture

having components with flashpoints of

200°F (93.3°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°F (21.1°C) or 104 psi (276 kPa) at

130°F (54.4°C) regardless of pressure at

70°F. In addition, we consider a liquid

to be a compressed gas when its vapor

pressure exceeds 40 psi (276 kPa) at

100°F (37.8°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 selfVerDate 11<MAY>2000 18:27 Oct 02, 2000 Jkt 194001 PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM pfrm02 PsN: 03OCR2
59088 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

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 § 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 wellaccepted 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

Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations 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 § 101 and § 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

§ 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 § 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 § 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,’’ § 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 § 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, § 101(a)(7) requires that any

health or safety standard promulgated

under the authority of § 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

59090 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

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 § 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 § 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 performanceoriented, informational provisions of

HazCom are capable of being done and

Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations 59091

will not threaten the viability or longterm 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-ofuse 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 onsite.

Labels. The label requirements in the

interim final rule are performanceoriented, 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 § 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

59092 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

Order (E.O.) 12866, § 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

§ 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 § 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 § 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.

Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations 59093

TABLE 4.—YEARLY COSTS FOR HAZCOM INTERIM FINAL RULE BY PROVISION, COMMODITY, AND MINE SIZE *

Mine size

Provision

Total Written

program Labels MSDSs HazComtraining Access

Coal Mines and Independent Contractors

<20 ........................................................... $375,300 $15,700 $134,400 $284,300 $137,500 $947,300

≥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

≥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 onetime 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, taskspecific, 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-toknow 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

59094 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

6MSHA’s 1998 CM441 Report, cycle 1998/198. 7U.S. Department of Energy, Energy Information

Administration, Annual Energy Review 1998, July

1999, p. 203.

8U.S. Department of the Interior, U.S. Geological

Survey, January 1999, pp. 3 and 6.

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.

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.

• 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.

• 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.

• 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.

• 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 *

Small mines

(1–500)

Average cost

per mine

Total yearly

cost

(millions)

Total revenue

(millions)

Cost as % of

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

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

• 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;

• 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

• 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,

59096 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

Material safety data sheets, Mine safety

and health, Reporting and

recordkeeping requirements, Right-toknow, 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:

§ 56.16004 Containers for hazardous

materials.

Containers holding hazardous

materials must be of a type approved for

such use by recognized agencies.

§ 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:

§ 57.16004 Containers for hazardous

materials.

Containers holding hazardous

materials must be of a type approved for

such use by recognized agencies.

§ 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 § 77.208 is revised

to read as follows:

§ 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

§ 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.

§ 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

§ 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:

Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations 59097

TABLE 47.11.—IDENTIFYING HAZARDOUS CHEMICALS

Category Basis for determining if a 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

§ 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.

§ 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

§ 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.

§ 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

59098 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

list of hazardous chemicals, a

chemical’s label, and its MSDS.

§ 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.

§ 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)

§ 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.

§ 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

Category Requirements, descriptions, and exceptions

(1) Identity ................................................................................................. The identity of the chemical or, if the chemical is a mixture, the identities of all hazardous ingredients. See § 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 § 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.

Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations 59099

§ 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.

§ 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.

§ 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

§ 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.

§ 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.

§ 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

§ 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 § 47.71 through § 47.77

(provisions for trade secrets).

§ 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 nondiscriminatory and reasonable.

§ 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

§ 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.

§ 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.

§ 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 § 47.74 and § 47.75 as soon

as circumstances permit.

§ 47.74 Non-emergency disclosure.

Upon request, the operator must

disclose the identity of a trade secret

chemical in a non-emergency situation

59100 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

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 § 47.75, by the

terms of the agreement, or by the

operator.

§ 47.75 Confidentiality agreement and

remedies.

(a) The confidentiality agreement

authorized by § 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 noncontractual remedies to the extent

permitted by law.

§ 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.

§ 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

§ 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.

Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations 59101

TABLE 47.81.—CHEMICALS AND PRODUCTS EXEMPT FROM THIS HAZCOM STANDARD—Continued

Exemption Conditions for exemption

Cosmetics, drugs, food, food additive, color additive drinks, alcoholic

beverages, tobacco and tobacco products, or medical or veterinary

device or product, including materials intended for use as ingredients

in such products (such as flavors and fragrances).

When labeled in accordance with the Federal Food, Drug, and Cosmetic Act or the Virus-Serum-Toxin Act or regulations issued under

those Acts, if they are packaged for retail sale and color intended for

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.

§ 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 by EPA .................................. When labeled in accordance with the Toxic Substances Control Act or

regulations issued under that Act.

Consumer product or hazardous substance not exempt under § 47.81 .. When subject to a consumer 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 Department of Agriculture ................ When labeled in accordance with 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 § 47.11 (identifying hazardous

chemicals) of this part.

Wood or wood products, including lumber, not exempt under § 47.81 ... If it releases more than insignificant amounts of a hazardous chemical

or will be subsequently cut or sanded.

Subpart J—Definitions

§ 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

Term Definition for purposes of HazCom

Access ...................................................................................................... The right to examine and copy records.

59102 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

TABLE 47.91.—DEFINITIONS—Continued

Term Definition for purposes of HazCom

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.

Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations 59103

TABLE 47.91.—DEFINITIONS—Continued

Term Definition for purposes of HazCom

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.

59104 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

TABLE 47.91.—DEFINITIONS—Continued

Term Definition for purposes of HazCom

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 °F (37.8 °C) and

below 200 °F (93.3 °C); or

(ii) A liquid mixture having components with flashpoints of 200

°F (93.3 °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 °F (21.1 °C); or

(B) 104 psi (717 kPa) at 130 °F (54.4 °C) regardless of pressure at 70 °F.

(ii) A liquid having a vapor pressure exceeding 40 psi (276 kPa)

at 100 °F (37.8 °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 °F (54.4 °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