OSHA Rule Expected to Publish in 2024

Breaking News: Highly anticipated regulatory changes are on the horizon! OSHA sent the final HCS rule to the Office of Management and Budget (OMB)[1] on October 12, 2023. CHEMTREC is here to provide a comprehensive insight on what this means and who may be affected!

What initiated OSHA issuing a notice of proposed rulemaking (NPRM) to amend the HCS?

The UN adoption of the Globally Harmonized System of Classification and labeling of Hazardous Chemicals (GHS) is considered a ‘living document’. When OSHA first adopted the GHS in 2012, it was noted that for future HCS updates, they would need to have revisions through the notice and comment rulemaking process.[2] 

OSHA’s full notice-and-comment rulemaking process is a long resource intensive project which takes on average of 7 years to complete[3]. So, the decision of when to initiate rulemaking to update the HCS relied on several factors:

1. The nature of the changes in the future revisions. Meaning are the changes significant enough to warrant considering rulemaking
2. OSHA’s overall regulatory agenda
3. Having the resources to commit to a multiyear rulemaking project
4. How it will align with OSHA’s sister agencies as well as the international community

In February of 2021, OSHA decided the updates to revision 7 were significant enough to warrant initiating the rulemaking process and subsequently held an informal public hearing in September 2021. On October 12^th, 2023, OSHA sent the final rule to the OMB that will take approximately 90 days to review. We can expect a final rule published in the Federal Register mid-January of 2024.

OSHA normally sets at least 60 days for the new or updated standard to go into effect and will normally provide dates for the when the regulated community must be in compliance with the new rule. In the 2012 rulemaking, OSHA allowed multiple years for compliance.

How does the process consider the voices and concerns from the general public?

When OSHA finalizes a rule, it is based on the record as a whole. This means that OSHA takes into consideration all comments and data that has been submitted to the record. Throughout the rulemaking process OSHA requests comments and supporting evidence. In the 2021 HCS proposal OSHA requested comments on the proposed rule. OSHA also posed questions and issues for the general public to consider. In particular, it requested comment on whether OSHA should adopt selected portions of Revision 8 of the GHS (e.g., including the updates to the skin corrosion and irritation hazard class, the adoption of Gasses Under Pressure and the updates to the medical precautionary statements).

Will CHEMTREC customers be affected by these changes?

OSHA ensures the health and safety of the workplace. The HCS addresses chemical safety in the workplace therefore affecting roughly 40 million workers in over 4 million firms. If your company has a workplace setting of using, manufacturing, distributing, or transporting hazardous materials, you may be affected by these changes. The major changes primarily affect the manufacturing sector. If you fall under this category, CHEMTRECs Authoring Service can help review your chemicals and update your chemical classifications, Safety Data Sheets and labels as necessary. Check out our website to get a quote today!

In addition to manufacturers, downstream users of these chemicals will need to understand that there are potential required updates to hazards relating to the hazardous chemicals they use in the workplace, and they will need to adjust their hazard communication program, update workplace labels and/or train employees if hazards are newly identified. Learn more about how CHEMTREC can help keep your downstream users updated with your latest SDS revisions!

What are the main differences between GHS Rev 3 and Rev 7[4]?

While we can’t be certain what the final rule contains until its publication in January, we can make reasoned assumption based upon the record. In OSHA’s proposal to align with revision 7, OSHA proposed significant updates in the HSC appendices. Some of these updates were clarifications and additional guidance but others introduced new hazard classes or categories.

For the health hazards (Appendix A) proposed updates include:

1. Revisions to definitions to be more general and neutral with respect to test guidelines and test guideline criteria. The updated definitions were also clearer and more concise with a better differentiation between ‘‘definitions’’ and “general considerations”.
2. Skin corrosion/irritation and serious eye damage/eye irritation chapters to reflect the final changes the subcommittee adopted to realign the classification process with a classification scheme versus a testing scheme.

For the physical hazards (Appendix B) prosed updates include:

1. Expanding the hazard categories under flammable gases to include flammable gas category 1B as well as adding pyrophoric gases and chemical unstable gases (A and B) under flammable gas category 1A.
2. Adding a nonflammable aerosol hazard category and finally the addition of a new hazard class of desensitized explosives.

For the Allocation of Label Elements (Appendix C) proposed updates include:

1. Guidance and precautionary statements as well as provide the hazard statements and precautionary statements for the new hazard classes and categories.

Finally, to better align with the GHS updates, OSHA proposed to update to the SDS section 9 (physical and chemical properties) and Section 11 (toxicological information).

To anticipate the changes- is there any harm in creating Safety Data Sheets/labels based off OSHA’s proposed updated criteria (revision 7)?

Short answer- No, as long as the Safety Data Sheet/label clearly provides equal or greater worker protection. However, anticipating the changes has some risk. While OSHA proposed to align with revision 7, OSHA also posed several questions about adopting select changes from revision 8 (e.g., non-animal test methods update of the skin corrosion/irritation hazard class and chemicals under pressure). Since these changes do not only affect the classification but also the label and SDS, if OSHA finalizes something other than what it proposed the updates to labels and SDSs would not be in compliance with the final rule. However, in preparation of the final rule, it might be advantageous to review your chemical product line and identify chemicals that are potentially affected by the final rule and ensure that you have the information necessary to reclassify as appropriate.

Please note: These are CHEMTREC opinions and should not be taken for as OSHA’s interpretation. This blog’s main purpose is to inform readers of the proposed updates to the HCS and does not reflect what the final rule will or will not contain. To keep up with OSHA’s latest updates on the final rule, follow CHEMTREC on social media.

About Our Bloggers:

• Maureen Ruskin, former OSHA head of the US Delegation for UN Sub-Committee of Experts on the GHS and UN committee chair.
• Katie Lavender, SDSRP : CHEMTRECs SDS Authoring Manager