OMB Approves OSHA HAZCOM Update Final Rule

Yesterday, the OMB’s Office of Information and Regulatory Affairs (OIRA) announced that it had approved a final rule from DOL’s Occupational Safety and Health Administration (OSHA) on “Update to the Hazard Communication Standard”. The rule was submitted to the OIRA on October 11^th, 2023.

According to the Fall 2023 Unified Agenda entry for this rulemaking:

“OSHA and other U.S. agencies have been involved in a long-term project to negotiate a globally harmonized approach to classifying chemical hazards, and providing labels and safety data sheets for hazardous chemicals. The result is the Globally Harmonized System of Classification and Labeling of Chemicals (GHS). The GHS was adopted by the United Nations, with an international goal of as many countries as possible adopting it by 2008.  OSHA incorporated the GHS into the Hazard Communication Standard (HCS) in March 2012 to specify requirements for hazard classification and to standardize label components and information on safety data sheets, which will improve employee protection and facilitate international trade.  However, the GHS is a living document and has been updated several times since OSHA’s rulemaking. While OSHA's HCS 2012 was based on the third edition of the GHS, OSHA’s current rulemaking is to harmonize the HCS to the seventh edition of the GHS, improve harmonization with international trading partners such as Canada, and to codify a number of enforcement policies that have been issued since the 2012 standard.”

We could see this final rule published in the Federal Register in the next week or two.

Commentary

Having worked on the change-over from MSDS to SDS that was a major portion of the 2012 final rule in two different relatively small chemical companies, I know how much of a pain a HAZCOM update can be. Every chemical manufacturer or importer is going to have to review/update the SDS for each chemical in its repertoire to meet the new requirements. If ever there was an area that needed a well-designed artificial intelligence, this is it.

OSHA Sends HazCom Harmonization Final Rule to OMB

Yesterday, OMB’s Office of Information and Regulatory Affairs (OIRA) announced that it had received a final rule from DOL’s Occupational Safety and Health Administration (OSHA) on “Update to the Hazard Communication Standard”. OSHA published the notice of proposed rulemaking (NPRM) for this rule on February 16^th, 2021.

According to the entry in the Spring 2023 Unified Agenda for this rulemaking:

“OSHA and other U.S. agencies have been involved in a long-term project to negotiate a globally harmonized approach to classifying chemical hazards, and providing labels and safety data sheets for hazardous chemicals. The result is the Globally Harmonized System of Classification and Labeling of Chemicals (GHS). The GHS was adopted by the United Nations, with an international goal of as many countries as possible adopting it by 2008.  OSHA incorporated the GHS into the Hazard Communication Standard (HCS) in March 2012 to specify requirements for hazard classification and to standardize label components and information on safety data sheets, which will improve employee protection and facilitate international trade.  However, the GHS is a living document and has been updated several times since OSHA’s rulemaking. While OSHA's HCS 2012 was based on the third edition of the GHS, OSHA’s current rulemaking is to harmonize the HCS to the seventh edition of the GHS, improve harmonization with international trading partners such as Canada, and to codify a number of enforcement policies that have been issued since the 2012 standard.”

HR 2886 Introduced – V2V Research

Last week Rep. Lipinski (D,IL) introduced HR 2886, the Future Transportation Research and Innovation for Prosperity (Future TRIP) Act. This is a comprehensive bill establishing research requirements for the Department of Transportation to support the development, deployment and regulation of vehicle to vehicle (V2V) communications.

The bill covers a wide variety of topics, including:

∙ Automated and connected vehicle research initiative.

∙ University transportation centers program.

∙ Office of science and technology policy working group.

∙ Research and technology development and deployment amendments.

∙ State planning and research additional purposes.

∙ Bureau of transportation statistics.

∙ National cooperative freight transportation research program.

∙ Commercial remote sensing products and spatial information technologies.

∙ Transportation research and development strategic planning.

∙ Centers for surface transportation excellence.

Readers of this blog are going to be principally interested in two areas of discussion that are found within this bill; cybersecurity and hazmat transportation.

Cybersecurity

Section 2 of the bill requires the Secretary of Transportation to establish an Automated and Connected Vehicle Research Initiative. Part of the research agenda for that initiative would be a requirement to look at potential deployment guidance for the V2V program. The section directs that cyber-physical security would be included in that guidance.

In §2(h) the Secretary is directed to “establish a competitively selected Intelligent Transportation Systems Science & Technology Center”. Part of the purpose of that Center would be to train “the next generation of the transportation workforce” {§2(h)(3)}in cross-disciplinary fields, including cybersecurity.

And finally, in §2(i) the bill requires the Secretary to report to Congress about progress made under this Act. One of the topics in that report would be guidance on “the relationship of the proposed deployment of connected and automated vehicles to the national architecture and standards and protocols” required under 23 USC 517 {§2(i)(4)}. That guidance is to be based upon:

∙ Cyber-physical security and privacy; and

∙ Examines the interaction with other cyber-physical systems

Hazmat Transportation

One of the key goals of the V2V program envisioned in this bill it an increase in efficiency in road-based freight transportation by being able to safely increase the density and flow of over-the-road transportation. To support that §8 of the bill would add a new §509 to 23 USC. It would require the Secretary to establish a national cooperative freight transportation research program. The research agenda supporting that program would include “an emphasis on the safe and efficient transportation and handling of hazardous materials by all modes of transportation” {new §509(b)(1)(A)}.

Moving Forward

Lipinski is the Ranking Member of the Research and Technology Subcommittee of the House Science, Space and Technology Committee, so he almost certainly has the pull to get the bill considered by that Subcommittee. Interestingly, he is also a member of the Highways and Transit Subcommittee in the House Transportation and Infrastructure Committee, the other Committee that has been given the bill to consider. It looks like he may be uniquely positioned to help move this bill through both committees.

This is a complex bill but one that is probably high on the agenda for many organizations in the automotive industry. This is one of those bills that, if it makes it to the floor of the House (and that is not a given at this point) it will probably have to be considered under a Rule as I would suspect that there would be a desire to amend the bill on the part of a number of Members.

Commentary

While the topic of cybersecurity is mentioned in a number of places in this bill, I’m not sure that there is really enough emphasis on the topic. For example, in the list of agencies with which the Secretary is required to consult with in establishing the Research Initiative in §2, an agency that is strangely absent is DHS which is responsible for cybersecurity. I would really like to see either US-CERT, ICS-CERT or at least the DHS Office of Cybersecurity and Communications included on that list.

Because cybersecurity should be an important component of the V2V initiative I would have liked to see a specific research initiative set up to look at the issues of communications security, device security and most importantly cybersecurity patching. It is unlikely that individual car owners would be watching government web sites for vulnerability announcements and most would be unable (and more over un-willing) to deal with firmware updates. This is a study issue that should be addressed in this bill.

In the freight transportation realm we have an interesting possibility of being able to solve one of the long standing problems for first responders coming upon a freight related accident, telling what hazardous materials may be involved in the incident. It would be a good idea to include in the freight transportation research program a requirement to look at using V2V technology to provide manifest and Safety Data Sheet data to first responders directly from the vehicle communication system.

HAZCOM and Security Response

Readers of this blog might recall that I have been working with an outfit called LEAPS.TV on a training program on CFATS for law enforcement personnel, based upon the fact that most facilities will be using local police agencies to provide tactical response to any terrorist attack on their facility. That free on-line training program has been running on their website for a while now and I expect that I’ll be writing about the response to that program in a future blog.

In developing that program I’ve had the chance to talk with some representatives from a variety of law enforcement agencies. One of the things that has come up time and again in those talks has been the surprise at some of the safety issues that I described that these agencies would need to consider in planning for any tactical operations at their local chemical facilities.

People that work at chemical facilities receive training on both generic and specific chemical hazards that they deal with on a daily basis. OSHA hazard communications (HAZCOM) regulations provide minimum standards for such training. In addition there is typically a near constant discussion about chemical safety among employees at most chemical facilities. We can discuss whether or not this training (formal and informal) is providing adequate safety levels, but it is at least taking place.

Unfortunately, there is no requirement for such training for emergency personnel that will have to respond to a safety or security event at such facilities. Most chemical facilities (certainly not all) are required to provide material safety data sheets for their hazardous chemicals to local fire fighters and emergency planning agencies, but that falls far short of providing HAZCOM training and does not address chemical safety training.

Law enforcement agencies are not included in this EPA requirement because those rules were designed for those dealing with accidental chemical releases not security related releases. Even this has proven to be inadequate in many accidents when police have been injured by chemical exposures when operating near chemical facilities during chemical release incidents.

Asking local police to respond to a terrorist attack at a chemical facility with out giving them advance training on the chemical and physical hazards associated with that facility strikes me as being criminally negligent. Not only are they being asked to put themselves at risk, but actions they take out of ignorance could place entire communities at risk.

It was nice to see that two (S 473 and HR 916) of the four current CFATS reauthorization bills do address some training requirement. Unfortunately neither of these bills directly addresses the emergency response HAZCOM training issue and both only provide for voluntary training programs. This is an issue that Congress needs to address in their consideration of any CFATS reauthorizing legislation that comes up during this session.