Employee training
(3) Training. Employee training shall include at least: (i) Methods and observations that may be used to detect the presence or release of a hazardous chemical in the work area (such as monitoring conducted by the employer, continuous monitoring devices, visual appearance or odor of hazardous chemicals when being released, etc.); (ii) The physical, health, simple asphyxiation, combustible dust, and pyrophoric gas hazards, as well as hazards not otherwise classified, of the chemicals in the work area; (iii) The measures employees can take to protect themselves from these hazards, including specific procedures the employer has implemented to protect employees from exposure to hazardous chemicals, such as appropriate work practices, emergency procedures, and personal protective equipment to be used; and, (iv) The details of the hazard communication program developed by the employer, including an explanation of the labels received on shipped containers and the workplace labeling system used by their employer; the safety data sheet, including the order of information and how employees can obtain and use the appropriate hazard information. (i) Trade secrets. (1) The chemical manufacturer, importer, or employer may withhold the specific chemical identity, including the chemical name, other specific identification of a hazardous chemical, and/or the exact percentage (concentration) or concentration range of the substance in a mixture, from section 3 of the safety data sheet, provided that: (i) The claim that the information withheld is a trade secret can be supported; (ii) Information contained in the safety data sheet concerning the properties and effects of the hazardous chemical is disclosed; (iii) The safety data sheet indicates that the specific chemical identity and/or concentration or concentration range of composition is being withheld as a trade secret; (iv) If the concentration or concentration range is being claimed as a trade secret then the safety data sheet provides the ingredient's concentration as one of the prescribed ranges below in paragraphs (i)(1)(iv)(A) through (M) of this section. (A) from 0.1% to 1%; (B) from 0.5% to 1.5%; (C) from 1% to 5%; (D) from 3% to 7%; (E) from 5% to 10%; (F) from 7% to 13%; (G) from 10% to 30%; (H) from 15% to 40%; (I) from 30% to 60%; (J) from 45% to 70%; (K) from 60% to 80%; (L) from 65% to 85%; and (M) from 80% to 100%. (v) The prescribed concentration range used must be the narrowest range possible. If the exact concentration range falls between 0.1% and 30% and does not fit entirely into one of the prescribed concentration ranges of paragraphs (i)(1)(iv)(A) to (G) of this section, a single range created by the combination of two applicable consecutive ranges between paragraphs (i)(1)(iv)(A) and (G) of this section may be disclosed instead, provided that the combined concentration range does not include any range that falls entirely outside the exact concentration range in which the ingredient is present. (vi) Manufacturers may provide a range narrower than those prescribed in (i)(1)(v). (vii) The specific chemical identity and exact concentration or concentration range is made available to health professionals, employees, and designated representatives in accordance with the applicable provisions of this paragraph (i) of this section. (2) Where a treating PLHCP determines that a medical emergency exists and the specific chemical identity and/or specific concentration or concentration range of a hazardous chemical is necessary for emergency or first-aid treatment, the chemical manufacturer, importer, or employer shall immediately disclose the specific chemical identity or percentage composition of a trade secret chemical to that treating PLHCP, regardless of the existence of a written statement of need or a confidentiality agreement. The chemical manufacturer, importer, or employer may require a written statement of need and confidentiality agreement, in accordance with the provisions of paragraphs (i)(3) and (4) of this section, as soon as circumstances permit. (3) In non-emergency situations, a chemical manufacturer, importer, or employer shall, upon request, disclose a specific chemical identity or exact concentration or concentration range, otherwise permitted to be withheld under paragraph (i)(1) of this section, to a health professional (e.g., PLHCP, industrial hygienist, toxicologist, or epidemiologist) providing medical or other occupational health services to exposed employee(s), and to employees or designated representatives, if: (i) The request is in writing; (ii) The request describes with reasonable detail one or more of the following occupational health needs for the information: (A) To assess the hazards of the chemicals to which employees will be exposed; (B) To conduct or assess sampling of the workplace atmosphere to determine employee exposure levels; (C) To conduct pre-assignment or periodic medical surveillance of exposed employees; (D) To provide medical treatment to exposed employees; (E) To select or assess appropriate personal protective equipment for exposed employees; (F) To design or assess engineering controls or other protective measures for exposed employees; and, (G) To conduct studies to determine the health effects of exposure. (iii) The request explains in detail why the disclosure of the specific chemical identity or percentage composition is essential and that, in lieu thereof, the disclosure of the following information to the health professional, employee, or designated representative, would not satisfy the purposes described in paragraph (i)(3)(ii) of this section: (A) The properties and effects of the chemical; (B) Measures for controlling workers' exposure to the chemical; (C) Methods of monitoring and analyzing worker exposure to the chemical; and, (D) Methods of diagnosing and treating harmful exposures to the chemical; (iv) The request includes a description of the procedures to be used to maintain the confidentiality of the disclosed information; and, (v) The health professional, and the employer or contractor of the services of the health professional (i.e. downstream employer, labor organization, or individual employee), employee, or designated representative, agree in a written confidentiality agreement that the health professional, employee, or designated representative, will not use the trade secret information for any purpose other than the health need(s) asserted and agree not to release the information under any circumstances other than to OSHA, as provided in paragraph (i)(6) of this section, except as authorized by the terms of the agreement or by the chemical manufacturer, importer, or employer. (4) The confidentiality agreement authorized by paragraph (i)(3)(iv) of this section: (i) May restrict the use of the information to the health purposes indicated in the written statement of need; (ii) May provide for appropriate legal remedies in the event of a breach of the agreement, including stipulation of a reasonable pre-estimate of likely damages; and, (iii) May not include requirements for the posting of a penalty bond. (5) Nothing in this standard is meant to preclude the parties from pursuing non-contractual remedies to the extent permitted by law. (6) If the health professional, employee, or designated representative receiving the trade secret information decides that there is a need to disclose it to OSHA, the chemical manufacturer, importer, or employer who provided the information shall be informed by the health professional, employee, or designated representative prior to, or at the same time as, such disclosure. (7) If the chemical manufacturer, importer, or employer denies a written request for disclosure of a specific chemical identity or percentage composition, the denial must: (i) Be provided to the health professional, employee, or designated representative, within thirty days of the request; (ii) Be in writing; (iii) Include evidence to support the claim that the specific chemical identity or percent of composition is a trade secret; (iv) State the specific reasons why the request is being denied; and, (v) Explain in detail how alternative information may satisfy the specific medical or occupational health need without revealing the trade secret. (8) The health professional, employee, or designated representative whose request for information is denied under paragraph (i)(3) of this section may refer the request and the written denial of the request to OSHA for consideration. (9) When a health professional, employee, or designated representative refers the denial to OSHA under paragraph (i)(8) of this section, OSHA shall consider the evidence to determine if: (i) The chemical manufacturer, importer, or employer has supported the claim that the specific chemical identity or percentage composition is a trade secret; (ii) The health professional, employee, or designated representative has supported the claim that there is a medical or occupational health need for the information; and, (iii) The health professional, employee or designated representative has demonstrated adequate means to protect the confidentiality. (10) (i) If OSHA determines that the specific chemical identity or percentage composition requested under paragraph (i)(3) of this section is not a bona fide trade secret, or that it is a trade secret, but the requesting health professional, employee, or designated representative has a legitimate medical or occupational health need for the information, has executed a written confidentiality agreement, and has shown adequate means to protect the confidentiality of the information, the chemical manufacturer, importer, or employer will be subject to citation by OSHA. (ii) If a chemical manufacturer, importer, or employer demonstrates to OSHA that the execution of a confidentiality agreement would not provide sufficient protection against the potential harm from the unauthorized disclosure of a trade secret, the Assistant Secretary may issue such orders or impose such additional limitations or conditions upon the disclosure of the requested chemical information as may be appropriate to assure that the occupational health services are provided without an undue risk of harm to the chemical manufacturer, importer, or employer. (11) If a citation for a failure to release trade secret information is contested by the chemical manufacturer, importer, or employer, the matter will be adjudicated before the Occupational Safety and Health Review Commission in accordance with the Act's enforcement scheme and the applicable Commission rules of procedure. In accordance with the Commission rules, when a chemical manufacturer, importer, or employer continues to withhold the information during the contest, the Administrative Law Judge may review the citation and supporting documentation in camera or issue appropriate orders to protect the confidentiality of such matters. (12) Notwithstanding the existence of a trade secret claim, a chemical manufacturer, importer, or employer shall, upon request, disclose to the Assistant Secretary any information which this section requires the chemical manufacturer, importer, or employer to make available. Where there is a trade secret claim, such claim shall be made no later than at the time the information is provided to the Assistant Secretary so that suitable determinations of trade secret status can be made and the necessary protections can be implemented. (13) Nothing in this paragraph shall be construed as requiring the disclosure under any circumstances of process information which is a trade secret.