OSHA Announces Proposed Rulemaking to Modify Hazard Communication Standard – Update from Manko Gold Katcher Fox


March 5, 2021

Jill Hyman Kaplan, Esq. and Megan A. Elliott, Esq.

MGKF Special Alert

The Occupational Safety and Health Administration (OSHA) recently announced proposed rulemaking to modify the Hazard Communication Standard (HCS) to conform with the United Nations’ Globally Harmonized System of Classification and Labelling of Chemicals (GHS) Revision 7. See 86 FR 9576 (Feb. 16, 2021). The proposed modifications include:

  • revised criteria for classification of certain health and physical hazards,
  • revised provisions for updating labels,
  • new labeling provisions for small containers,
  • technical amendments related to the contents of safety data sheets (SDS), and
  • related revisions to definitions of terms used in the standard.

OSHA last updated the HCS in 2012 to conform with the third revision of the GHS, which was published in 2009. The currently proposed modification would bring the HCS in line with the seventh revision of the GHS, which was published in 2017. In addition, the proposed rule includes “select provisions from Revision 8 [of the GHS] for consideration.” Id. at 9580. The proposed rule would also codify certain elements of OSHA guidance and letters of interpretation, giving them the full force of law.

The proposed rule would affect establishments in a variety of different industries in which employees are exposed to hazardous chemicals or in which hazardous chemicals are produced. The proposed changes would also affect manufacturers of aerosols, desensitized explosives, and flammable gases due to the addition of a new hazard class. Finally, the proposed changes would affect certain manufacturers of hazardous chemicals that are packaged in small containers and manufacturers of chemicals that are not immediately distributed after being released for shipment. See id. at 2592.

The agency is specifically seeking comment on the topics below but recognizes that stakeholders may comment on all aspects of the rulemaking, therefore, the list below is not exhaustive.

  • Whether the agency should adopt a schedule for updates to the HCS standard (e.g., every four years or every two revisions of the GHS) or wait until there are significant changes to the GHS before initiating rulemaking.
  • Whether certain changes to labeling requirements would be helpful or burdensome to employers and whether those changes would increase worker protection and safety.
  • Whether OSHA should allow manufacturers, importers, and employers to withhold a chemical’s concentration range as a trade secret.
  • Whether OSHA should allow the use of prescriptive concentration ranges in lieu of the actual concentration or concentration range whenever the actual concentration or concentration range is claimed as a trade secret.
  • Whether the addition of a new hazard class (desensitized explosives) and several new hazard categories (unstable gases and pyrophoric gases in the Flammable Gases class and nonflammable aerosols in the Aerosols class) would be a good addition to the HCS.
  • Whether certain suggested changes to the SDS clarify issues that stakeholders have identified. For example, should Section 3 of the SDS be expanded to include all classified chemicals (i.e., also physical hazards and hazards not otherwise classified).

The comment period closes on April 19, 2021 for employers and manufacturers who wish to comment on the proposed rule. For questions or more information, please contact MGKF’s Jill Kaplan (484-430-2315) or Megan Elliott (484-430-2333).