October 18, 1990

Richard F. Andree, CSP, PE, Ph.D.
Executive Vice President
Safety and Health
Management Consultants, Inc.
161 William Street
New York, New York 10038

Dear Dr. Andree:

This is in further response to your letter of August 13, to the Occupational Safety and Health Administration (OSHA), in which you requested a response to two questions. One of the questions concerned OSHA's new final rule concerning the amendments to Subpart S, Electrical, Sections 1910.331 and 1910.332, and the other question concerned the requirement for the employer to maintain the written hazard communication program on-site, as per 1910.1200 and 1926.59(e)(1).

Question 1:Do the new 1910 Subpart S amendments cover painting, decorating and paper hanging and electrical work related to supply (as opposed to electrical work on equipment/machines beyond the supply interface)? Response: In responding to your question, the key concept which must be considered is the distinction between maintenance and repair. These activities are often very close and may require a case-by- case determination based on actual circumstances at the worksite. In general the following observations are pertinent. If the project involves only a change of color or wallcovering, or maintenance on existing wiring or circuitry, the work would be covered under the General Industry Standards, 29 CFR Part 1910, and the new amendments would apply. On the other hand, if the project involves structural remodeling or repair, and includes painting, hanging wallpaper, or installation of new electrical supply wiring and components, the construction standards, 29 CFR Part 1926, would apply. Electrical work on equipment/machines other than supply components would be covered under the new amendments.

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Question 2: I note that OSHA has issued citations to employers for failure to produce their written Hazard Communication program at the time of the inspection. These citations have been issued in General Industry and in Construction...

....While I would agree that it is good safety practice to have such a document "present" at each work site, please inform me if employers must have their written program at the work site at all times to be in compliance with either 1910.1200 or 1926.59.

Response: This question regarding the requirement for on- site availability of the written hazard communication program ("HCP") is an issue that has arisen often in OSHA enforcement of the provisions at section (e)(1) and (e)(2) of the standard, and has caused the Agency to reconsider its compliance policy on the issue.

There is no question that the written HCP must be maintained on-site at fixed worksites or establishments. However, an exception to the requirement that the written hazard communication (HCP) be kept on-site may be allowed on multi- employer worksites and in situations where an employee(s) travels between workplaces yet who at times reports to a primary workplace facility where the written HCP is maintained. The standard sets forth, at (e)(1), a positive requirement for the written program to be maintained "at the workplace." OSHA previously interpreted this requirement to mean that the written program must be kept on-site at all times or even in the truck of employees who travel between worksites.

The Agency proposed, however, in the 1988 Notice of Proposed Rulemaking, to add a new subparagraph to the paragraph (e) requirements which allows the written program to be maintained at a "central location at the primary workplace facility" for employees who travel between workplaces during a workshift (proposed new paragraph (e)(5)). The final rule presently allows MSDSs to be maintained at the central workplace for employees who travel between workplaces during a workshift (paragraph (g)(9)). The (g)(9) provisions also require that employees have immediate access to MSDS information in the event of an emergency. Unlike MSDS information which may be necessary to assure the safety of employees in the event of an emergency, the information contained in an employer's written HCP is mainly procedural and the presence of a written document on the worksite may not have a direct or immediate relationship to employee safety or health. This is especially true in situations where employers are implementing an effective overall HCP and whose employees have already received the required hazard communication training. The need for the program to be on-site, therefore, in situations where employees travel or are dispatched from a primary workplace location (e. g. , administrative offices) where the written program is maintained to a multi-employer worksite may bear no immediate relationship to safety and health and may, in the professional judgement of the Compliance Safety and Health Officer (CSHO) and Area Director, be considered a "de minimis" violation of section (e)(1) (see OSHA's Field Operation Manual, (FOM), Chapter IV, B.6., pages IV 30-31).

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This policy also applies in situations where the employee does not return to the primary workplace during the workshift as long as the employee(s) is aware of the content of the program and the methods the program contains that affect the sharing of the hazard communication information required at (e)(2)(i-iii). Stated in another way, if hazard communication information (accessibility of MSDSs, the employer's labeling system, etc.) is not being shared with other on-site employers and the employees are unaware of the methods outlined in the program which have been developed to accomplish this intent, then the need for the program to be on-site would bear a direct relationship to safety and health and the absence of the program on-site would not be a "de minimis" violation.

This change in citation policy will be communicated to Agency Regional staff by copy of this correspondence, and incorporation into new program guidance presently under development in the form of an updated compliance directive on inspection procedures for the Hazard Communication Standard.

At fixed worksite locations, the requirement for the written hazard communication program to be maintained on-site and readily accessible to employees remains.

Sincerely,

Gerard F. Scannell
Assistant Secretary

September 3, 1990

Richard F. Andree, CSP, PE, Ph.D.
Executive Vice President
Safety and Health
Management Consultants, Inc.
161 William Street
New York, New York 10038

Dear Dr. Andree:

This is an interim response to your letter of August 13, concerning the Occupational Safety and Health Administration's (OSHA) new final rule amending Subpart S, Electrical, Section 1910.331 and .332, and OSHA's Hazard Communication Standard, 29 CFR 1910.1200.

We are currently in the process of developing a coordinated Agency response to the question you raised and will send a final reply shortly.

Thank you for your patience.

Sincerely,

Gerard F. Scannell
Assistant Secretary

August 13, 1990

Mr. Gerard Scannell
Asst. Secretary of Labor
USDOL - OSHA
200 Constitution Avenue, NW
Washington, DC 20210

Dear Administrator Scannell:

I have the following two questions. One concerns the new final rule concerning the amendments to Subpart S, Electrical, Section 1910.331 and 1910.332. The other concerns the Hazard Communication Standard, 29 CFR 1910.1200.

1. The preamble to the Subpart S Electrical amendment suggests that painters and paper hangers are covered by the new rule (see 55 FR 32012; Table 7 - Occupations Requiring Training) as well as electricians.

   Also 29 CFR 1910.332, Training, Table S-4 refers to the above occupations.

   The authority noted for Subpart S of part 1910 is Sections 4, 6, 8 of the OSH Act of 1970.

   According to the Standard Industrial Classification Manual (1972), Painting, Paper Hanging and Decorating (SIC 172) and Electrical Work (SIC 173) are classified as Special Trade Contractors.

   Under 29 CFR 1926, Subpart C - General Safety & Health Provision, (authority, Secs. 4, 6, 8 of the OSH Act of 1970) section 1926.20 notes contractor requirements and sets out the scope of coverage for "construction, alteration, and/or repair, including painting and decorating...." (Underlining added for emphasis.)

   In my experience, it has been OSHA's policy to include painting and decorating as a construction activity. In addition, when electricians in General Industry install new service, or repair existing service, OSHA has considered that activity to be construction.

   Does the new 1910 Subpart S amendments cover painting, decorating and paper hanging, and electrical work related to supply (as opposed to electrical work on equipment/machines beyond the supply interface)?

2. I note that OSHA has issued citations to employers for failure to produce their written Hazard Communication program at the time of the inspection. These citations have been issued in General Industry and in Construction.

   I note in 1910.1200 and 1926.59, paragraph (e)(4), that "the employer shall make the written hazard communication program available, upon request, to employees, their designated representatives, the Assistant Secretary and the Director, in accordance with the requirements of 29 CFR 1910.1020(e)." (Underlining added for emphasis.) 29 CFR 1910.1020(e) provides that "...the employer shall assure that access is provided in a reasonable time, place, and manner, but in no event later than fifteen (15) days after the request for access is made". (Underlining added for emphasis.) 29 CFR 1910.1200 and 1926.59, paragraph (e)(1) states that "Employees shall develop, implement, and maintain at the workplace, a written hazard communication program..." (Underlining added for emphasis.)

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   Paragraph (e)(1) would seem to conflict with 1910.1020(e)(4) in that "maintain" could mean that it must be present at all times at the work site, rather than meaning the maintenance of such a program. However, since 1910.1020(e)(4) is specific to the time frame required to produce such a document, it would seem that the specific overrules the general if "maintain" means "present".

   While I would agree that it is good safety practice to have such a document "present" at each work site, please inform me if employers must have their written program at the work site at all times to be in compliance with either 1910.1200 or 1926.59.

Very truly yours,

Richard F. Andree, CSP, PE, Ph.D.
Executive Vice President

RFA/s