On February 16, 2021, the U.S. Department of Labor announced the Occupational Safety and Health Administration (OSHA) proposed numerous revisions to the Hazard Communication Standard (HCS) that will require substantial changes to labels and safety data sheets (SDSs) of cleaning products and hazardous chemical products used in workplaces across the nation. OSHA proposed the revisions to its HCS for the purpose of aligning the standard with Globally Harmonized System of Classification and Labelling of Chemicals (GHS) Revision 7 and to address issues that manufacturers and employers have encountered since OSHA originally aligned the HCS with the GHS in 2012.

While the basic framework of the HCS will remain the same, OSHA’s proposed rule will include revised criteria for classification of certain health and physical hazards, revised provisions for updating labels, new labeling provisions for small containers, proposed amendments related to the contents of SDSs and labels, and related revisions to definitions of terms used in the standards.

Background The HCS is the principal federal regulation that governs labels and SDSs for the vast majority of hazardous chemicals used in the workplace, including but not limited to chemical cleaning products. As such, the HCS requires chemical manufacturers and importers to evaluate the hazards of the chemical products they produce or import and to provide that information in the form of labels and SDSs to downstream distributors and employers that use those chemicals.

In 2012, OSHA revised the HCS to align it with the GHS Revision 3. Since that time, the GHS has been updated several times, and now OSHA seeks to update the HCS to conform to GHS Revision 7.

The following summarizes some of the more pertinent aspects of OSHA’s proposed revisions to the HCS.

Revised Criteria for Classification of Certain Health and Physical Hazards. To align the HCS with GHS Revision 7, OSHA proposes several changes to HCS Appendices A and B, which set forth criteria for classification of health and physical hazards respectively. Among these changes are:

• Revised health hazard definitions
• Extensive revisions to the sections on skin corrosion/irritation and serious eye damage/irritation in order to incorporate the modifications that were made to these hazard categories in GHS Revision 7
• Expansion of the Flammable Aerosol hazard class to also include non-flammable aerosols. (Note: currently such aerosols are typically classified as “compressed gases” and require the “gas cylinder” pictogram. As proposed, the non-flammable aerosols would NOT have to have the “gas cylinder” pictogram on their label; the signal word “danger” would change to “warning”; and a hazard statement of “contains gas under pressure; may explode if heated” would change to “pressurized container, may burst if heated”.)
• OSHA is proposing to revise the flammable liquid hazard class in Appendix B by adding a reference to the Flammable Liquids standard in paragraph B.6.3in order to provide additional guidance in determining flashpoint; and providing for an alternative method for establishing boiling point which is important for determining storage conditions.

Note OSHA has published a “redline” version of its proposed revisions to the HCS including Appendix A (Health Hazard classification) and Appendix B (Physical Hazard classification). Appendix A begins at p. 39 of the redline text; and Appendix B begins at p. 116.  We encourage you to review the redline text to better assess the changes and their impact on your operations.

Revised Provisions for Updating Labels OSHA proposes to modify the existing requirements for updating labels when chemical manufacturers, importers, distributors, or employers become newly aware of any significant information regarding the hazards of a chemical. Under the existing HCS, these individuals must revise labels within six months of becoming aware of this new information and ensure that any labels on containers of hazardous chemicals shipped after that time contain the new information.

Recognizing the long distribution cycles for some chemicals and their associated products, OSHA proposes to increase flexibility by not requiring the relabeling of immediate containers of chemicals that have been released for shipment and are awaiting future distribution. Rather, the proposed rule would allow labels to be either placed on the immediate container or transmitted with shipping papers, bills of lading, or by other technological or electronic means so that they are immediately available to workers in printed form on the receiving end of the shipment. This change is intended to reduce the potential hazards workers could face in relabeling immediate containers of hazardous chemicals that have already been packaged and prepared for shipment.

New Labeling Provision for Small Containers In response to concerns that have been raised to OSHA regarding the difficulty of including complete labeling information on small containers, and consistent with small packaging examples provided in the GHS, OSHA proposes to relax labeling requirements with respect to small containers, where it can be demonstrated that it is not feasible to use pull-out labels, fold-back labels, or tags containing the full label information required.

For those containers with less than or equal to 100 ml capacity, but greater than 3 ml, the minimum information required on the label of the container would be the product identifier, pictogram(s), signal word, chemical manufacturer’s name and phone number, and a statement that the full label information is provided on the immediate outer package.

For those containers with less than or equal to 3 ml of capacity, and where it can be demonstrated that any label would interfere with the normal use of the container, no label would be required, and instead the only information required on the container itself would be the product identifier.

The immediate outer package for these smaller containers would have to include the full label information, along with a statement that the small container(s) inside must be stored in the immediate outer package when not in use.

Contents of Labels to Include Date Product Released for Shipment OSHA is proposing to require that all labels include an additional data element, the date that the product is released for shipment. This proposed requirement ties into the six-month label update requirement, which applies when the chemical manufacturer or importer receives significant new information that must be added to the label. As discussed above, new language would provide that products that have been released for shipment and are awaiting future distribution need not be relabeled, but the manufacturer or importer would have to provide the updated label for each individual container with each shipment.

General Labeling Amendments In addition to the above referenced proposed amendments to the labeling requirements of the HCS, OSHA has also proposed numerous changes to the labeling elements of Appendix C to align the HCS with the GHS Rev. 7; address labeling requirements associated with new and revised health and physical hazard classifications; and to align the HCS with Canada’s labeling requirements. Appendix C is the mandatory appendix in the HCS that includes specific requirements, instructions, and language to be used on the labels of products subject to the HCS.

Readers are encouraged to review a redline version of the proposed changes issued by OSHA for Appendix C (Appendix C begins at p. 148), in order to assess how the proposed revisions will impact their labeling obligations.

Proposed Amendments to the Contents of SDSs. OSHA proposes a number of changes to the current SDS requirements in Appendix D. For example, where the specific concentration of a component in a mixture is a trade secret or varies batch-to-batch, the current Appendix D says that a concentration range may be used instead. The proposal would specify the allowable ranges (the ranges appear in proposed paragraph (i)(1)(iv)). 

OSHA proposes to change the current requirement that “the chemical manufacturer or importer preparing the [SDS] shall ensure that it is English,” to a requirement that “the chemical manufacturer or importer shall ensure that the SDS is in English.” This change is intended to recognize that chemical manufacturers and importers may obtain, rather than prepare, SDSs.

To account for the fact that SDSs must be specific to individual hazardous chemicals and are not permitted to be designed to cover groups of hazards, OSHA proposes that the SDS requirements specify that SDSs may be stored, rather than designed, in such a way to cover groups of hazardous chemicals in a work area.

Among other changes, section 8, exposure controls, would have to include any ranges suggested by hazard banding. Section 9 would no longer need to include “odor threshold” or ‘‘evaporation rate,” but it would have to include “particle characteristics.” Section 11, toxicological information, would have to include “interactive effects.” Where information for section 11 is not based on the hazard of the individual chemical but rather on similar chemicals (such as through structure-activity relationship analysis or read across), the SDS must state that alternative information was used and the method used to derive the information. The date of preparation or latest update to the SDS would have to appear in section 16 of the SDS. 

Revisions to HCS Definitions To account for the changes being made elsewhere in the HCS, OSHA proposes to update three existing definitions and add eight new terms and definitions to the HCS. The definitions that would be updated would be “exposure or exposed,” “hazardous chemicals,” and “physical hazard.” The new terms to be defined would be “bulk shipment,” “combustible dust,” “gas,” “liquid,” “solid,” “immediate outer package,” “Physician or other licensed health care professional (PLHCP),” and “released-for-shipment.” Of these, the most significant is that for combustible dust, which OSHA proposes to define as “finely divided solid particles of a substance or mixture that are liable to catch fire or explode on ignition when dispersed in air or other oxidizing media.” OSHA also proposed to amend the required hazard statement for combustible dust in Appendix B.

Compliance Deadlines OSHA proposes to make the final rule effective one month after publication as a final rule in the Federal Register.

However actual compliance with the changes to the hazard communication provisions for individual substances under the final rule would be mandatory one year after the effective date.

More importantly, for ISSA members that produce and distribute chemical cleaning products, compliance with the changes to the hazard communication provisions would be mandatory two years after the effective date.

OSHA Comment Period OSHA is accepting comments on the proposed rule until April 19, 2021. OSHA will also hold an informal public hearing if requested during the public comment period.

ISSA urges members to review this extensive rulemaking notice carefully and submit comments to OSHA related to this major proposed rule.

ISSA members may submit comments, identified by Docket No. OSHA-2019-0001, electronically at www.regulations.gov which is the Federal e-Rulemaking Portal. Follow the instructions online for making electronic submissions.

ISSA Requests Your Feedback In addition to submitting your comments directly to OSHA, ISSA also invites your feedback on the proposed revisions to the HCS. Submit your feedback to Bill Balek at [email protected] no later than April 1, 2021 for possible inclusion in the association’s comments it will submit on behalf of industry.